A Critical Introduction to Islamic Legal Theory

I suggest “innovative” instead of the colloquial “newfangled.” While “newfangled” is cute and folksy, it is jarring and unsuitable for such a text.

I agree 200%. In addition, the overall approach you have used, consisting of the Arabic text, English translation, and commentary should be a model for all such work. Moreover, the web formatting that you employ should be a template that everyone should follow. I applaud you for this groundbreaking work.

Many thanks. Here is a mini-review that I posted on my facebook page: Any students or professors of Arabic, Persian, or Ottoman should model online work on texts after David Vishanoff’s “A Critical Introduction to Islamic Legal Theory.” https://waraqat.vishanoff.com/v/v1/ . Users should pay particular attention to the three tabs “Arabic, English, and Commentary.” The present link will bring up the “Commentary” tab, which contains not just commentary in the footnotes but the Arabic text of the work plus its English translation in two facing columns. The English tab is particularly useful for students because of its “key terms” feature. Lest readers get the impression that such an approach should be followed only for translation of legal texts, I should emphasize that this approach should be followed in all translations from all genres of Islamic texts, from Sufi texts to law to philosophy, whether in poetry or prose. My only suggestion is that Professor Vishanoff (in contrast to any skilled magician!) should show us the magic behind his handiwork, including precise instructions for developing and formatting of such webpages so that others may follow in his footsteps. In this work, Professor Vishanoff has established a professional standard by which the presentation of all online scholarly translations in Islamic Studies should be judged.

Instead of “leaflet,” I suggest “folios,” which seems to me to be more precise. While I appreciate your effort to retain the literal etymology  of “leaf,”  the gulf between the common understanding of “leaflet” in English and a book on usul al-fiqh is vast.

But why is it grammatically incorrect? It would seem to me that it is the جواب الشرط so لم يُخَصَّ به is acceptable.

Hi David, and thank you for your work.

The culture of memorization is still very much alive in quite a few places in the Islamic world, and Waraqat–or one of its versified versions–is still among the first texts memorized in usul al-fiqh.

Perhaps you meant 6:151-2 here rather than 6:153?

[القروع]

Typo here!

Hi Dr. Vishanoff.  First, I appreciate your work and am enjoying this read.  I hope you’ll entertain a question.  When you say: “Early in Islamic history it was not at all obvious whether law should be distinctly Islamic at all, or whether it should be just a continuation of preislamic laws…”, Can you point me to an example or illustrate how this was the case?  Did early Muslims distinguish between the laws of society and the do’s and don’ts of their new religion?  In other words, are there instances in early Islamic history of Muslims not attaching an Islamic identity to the laws of their society.

This is a very condescending section. France – a Western country, no? – espouses religious freedom, yet many religious acts are nevertheless criminalized because they are considered primarily political. Similarly, public apostasy is prohibited in Islamic law.

The problem with this example is that whilst al-Juwayni here discusses the Prophet’s *actions* the question of the legal status of the beard belongs to the realm of his *commandments* (a hadith tells us that the beard should be grown) and hence was discussed by al-Juwayni in an earlier chapter.

No, al-Juwayni speaks here of “actions”. Not doing something is, first of all, not an action in this context but rather its opposite. Nevertheless, even if we were to refer to it as an action, jurists *not* doing something does not give it the legal status of forbidden. It could be makruh (disliked), but even that would be a stretch. In fact, the default would be to consider it mubah, i.e. that the shari’a is neutral toward it, because the general principle is that everything is allowed unless explicitly prohibited and someone neglecting to taste something does certainly not amount to an explicit prohibition. However, if certain jurista had explicitly prohibited it, and the rest of the scholars remained silent on this issue, then you could invoke al-Juwayni’s point here.

Your conclusion doesn’t seem to fit with what those historians are arguing (particularly Dickinson). You seem to be saying that narrators were accepted as trustworthy if they agreed with the zeitgeist whereas what is being said here is that narrators were deemed reliable if their reports were corroborated, i.e. it wasn’t just a matter of trusting a narrators memory but you had to compare what he was saying with what others were saying about the same thing. So if I say that my teacher was wearing a fedora whereas the rest of the students in the class say that he was hatless – that is when I am deemed unreliable. There were objective criteria, as opposed to a general understanding that I have a weak memory.

Again, you are not being faithful to what al-Juwayni actually wrote. He does *not* claim that nearly all reports have to be obeyed. He is making a distinction between mutawatir and ahad reports, that is the only point he is making, whereas you are reading things into that statement. He is certainly *not* saying that all or nearly all ahad reports are the same. You have ahad reports that are mawdu’ (fabricated), for example. No one would argue that these have to be obeyed. The reason why he doesn’t spell this out here is because he is making an entirely different point. Simply go back to the chapters about abrogration and concensus, and you’ll see that he has already explained that reports that are abrogated or those that are not to be followed by consensus are not to be obeyed.

Exactly, al-Juwayni does *not* say that all reports are to be obeyed. Do you not see the contradiction to what you wrote in the previous block?

You seem to be confused about what was understood to be the “Sunnah”. This is discussed in Wael Hallaq’s work on the sharia. The reason why these scholars (as opposed to the ahl al-hadith scholars) aren’t fixated on specific hadiths is because they understood the Sunnah to have been transmitted, yes, through texts but also through practice, specifically of those who lived with the Prophet himself. This is why, in particular, the Maliki and Hanafi schools tend to prioritize the actions of the sahaba over specific reports. They believe that if a sahabi, for example, prayed in a certain way, that has the same or even higher epistemological value than a report that gives a description of the way he prayed. This is why they tend to interpret and weigh up the texts of the hadith in the light of the actions of the sahaba.

Again, you are contradicting yourself in the same paragraph. How can you obey an inauthentic (ahad) hadith even though you will discard it in favour of a mutawatir hadith? Or if you have one ahad hadith overrule another? What does it mean to “obey” it if it is overruled?

Should be “memorized”

Yes, I must say you are right. Noted for version 2.0

Thank you very much, Alan, for your comments on waraqat.vishanoff.com, and for recommending the site on Facebook. Coming from you, who have done so much to bring the field of Islamic studies into the digital age, this recommendation constitutes high praise indeed.

I have noted your comments at several points on the site, and have added notes to my offline draft to follow your suggestions in version 2.0. I especially like your idea of adding an explanation of the web design, with links to samples of the html and css used to create the Arabic/English/Commentary tabs and the facing Arabic and English. The credit for those goes to my wife Beth. I’m glad you find them so reader-friendly.

Good question! An example I am most familiar with is the theologian al-Naẓẓām (d. ca. 221/836), who limited revealed law to the explicit dictates of the Qur’an and therefore left most areas of law and ethics to human discretion (see Vishanoff, The Formation of Islamic Hermeneutics, 71-73). But from what I have read about the still earlier history of Islamic law (I am no expert on that history) it sounds like there were lots of people in government who thought of most areas of law (taxation, etc.) as a pragmatic tool of the state, largely inherited from prior governments, rather than as a matter of Islamic piety. The notion that all of law, and not just ritual, should be distinctly religious and Islamic, seems to have taken some centuries to take hold.

Thanks for your question! I’d be glad to hear your thoughts on the matter.

[Virtues receive much attention in other Islamic literature, such as books on akhlāq (manners or morals), but not in law.]

Sophia Vasalou (Moral Agents and Their Deserts, Princeton, 2008, p. 133–144) notes that the Baṣra Muʿtazila likewise defined good and evil as judgments made about actions, rather than about the moral character of persons, which received greater attention from Muslims more attuned the Aristotelian tradition.

Yes, I did, Anwar. Thank you for catching this mistake–very timely, as I was about to send this off to the printer for a paperback edition.

Am I right in thinking that al‑Juwaynī regards all ijtihād as fallible? If a ḥukm were based on unquestionable interpretation of unquestionable evidence, would he still consider it the result of ijtihād, so that it still qualifies as fiqh? Or would it be part of that generally knowable category of aḥkām that do not constitute fiqh because they are not arrived at by ijtihād?

[consensus is not a purely conservative device. It has been, in fact, a justification for change as well as for the status quo.]

As Ignaz Goldziher pointed out over a century ago, consensus in fact gives Islam its “potential for freedom of movement and a capacity for evolution” (Introduction to Islamic Theology and Law, trans. Andras and Ruth Hamori, [Princeton, 1981], 52).

Think of the effect that the medium of publication has on our perception of a communication: whether it is published in an academic book, on the front page or in the opinion section of a newspaper, in a TV commercial, etc.

Thank you, Anwar. Corrected! Once again you have saved me from a mistake just before I send this to the printer.

Thank you, Alan. I will ponder this for version 2.0.

In his Burhān al-Juwaynī quotes this definition from al-Bāqillānī and criticizes it, but refuses to give his own definition of knowledge.

I like “uncertainty”! It could be taken in the sense of zanni, however. I will have to play around with the possibilities, because your point about doubt is well taken. We’re not talking about a reluctance to believe here, as when doubt is used to mean the opposite of faith.

Joseph Lowry translates ʿāmm as “unrestricted,” khāṣṣ as “restricted,” and takhṣīṣ as “restriction.” Is that a better translation than “general, particular, and particularization?” Why or why not?

[summarized: mujmal] If I translate ʿāmm as “unrestricted,” as Lowry suggests, then I could translate mujmal as “general” rather than summarized. What would you think?

[from the domain of the problematic into the domain of the evident] I am unhappy with this translation of من حَيِّز الإشكال إلى حيز التجلّي . Any suggestions?

[is not peculiar to him] The text that I chose, لم يُخَصّ به , is grammatically incorrect but arguably original. I take it to be passive of the first form, meaning “he (the Prophet) is not singled out / exclusively endowed with it (the act) (by jurists).”

Thank you, Anssi. In the note on the Arabic page I proposed that “the jussive that should follow lam should have a different consonantal form, لم يُخْصَصْ به“, but as I spend more time reading manuscripts I am finding that fakk al-idgham is often considered optional. I was being too uptight.

Good point, Chris. I meant the present tense, but I wonder how often it is actually memorized these days. The Kitāb al-Waraqāt is still used for teaching–that is clear from the number of textbooks being published on it–but what about memorization? Is that a thing of the past? Does anyone have any anecdotal evidence of memorization?

I want to thank Kevin Reinhart for pointing out to me privately that paragraphs 3 and 4 reinforce a common but egregious misrepresentation: they make it sound like 11th-century Shāfiʿī legal theory of the kind articulated by al-Juwaynī was the final summation of all Sunnī legal theory. But it wasn’t. The structure and terminology of legal theory continued to change, and Ḥanafīs especially (not to mention Shīʿīs) developed alternative systems.

That’s very true, and it matters, both for historical accuracy and for philosophical reflection. My blind spot reflects the limitations of my own reading, which has focused on the period leading up to al-Juwaynī to the neglect of subsequent thinkers. It is true that by al-Juwaynī’s time all the schools of legal theory shared a great deal of common thought and vocabulary, and that they still do, so that studying this little book is good background for studying just about any subsequent form of legal theory. And in the commentary I do point out some of the major differences in the systems of other schools. But what I have not done is to tease out all the potential consequences that those differences—even the most subtle differences in framing and phrasing—can have for one’s understanding of law, ethics, revelation, knowledge, authority, etc. This means that my critical comments on al-Juwaynī’s Waraqāt do not necessarily apply to systems of uṣūl al-fiqh that define or frame their terms in even subtly different ways.

So I want to take Kevin Reinhart’s objection as a challenge to make this commentary a more thorough exploration of how al-Juwaynī’s questions could be asked or answered differently, and what that might mean for ethics and epistemology. I invite you, the reader, to point out specific alternative views that I have overlooked, as well as their potential implications, throughout this web site!

Thank you, Kevin, for fleshing out what I’m missing here. It is a limitation of the project that I will need to acknowledge in the next revision. I don’t know, though, that al-Juwayni isn’t still a pretty good starting point for getting to know the whole usul tradition. I found the eleventh-century Hanafi usul works I studied to be very much akin to the works from other schools–more so than I had expected. The modern works I have read also diverge little, it seems to me, from the overall approach taken in al-Juwayni’s discourse, even when discussing Hanafi views. The same can be said of the limited Shiite works I have read, despite some glaring disagreements on specific points. But I have not read postclassical Hanafi works, so I will need to dig into some of them before the next revision, so that I can acknowledge your point with more precision and conviction.

Thank you, Anssi, for this confirmation of ongoing memorization of the Waraqat. I’m glad to know it.

Thank you, Salman, for this confirmation and illustration of the practice.

Thank you, Salman, for this correction. I have noted it for the next revision.

Thank you, Salman!

I was not aware of this dispute, so I’m very thankful you brought it to my attention, Salman. I have made a note to look into this for the next revision. Thanks for the reference.

Dear Professor, thank you very much for all your huge effort to Waraqāt. I have written a little paper about the attribution of the Waraqāt and I would like to hear your point about it ! Best wishes

“Doubt” misleads because in its modern (as opposed to medieval usage—”dubito”) it means something like “suspicion.” I would translate “shakk” as “uncertainty.”

I feel I have to bang this gong a lot, but it is important to note that while there is a general congruence between the Ḥanbalī and Shāfiʿī theory of Islamic law, and to a slightly lesser extent between the Mālikī and Shāfiʿī-Ḥanbalī schools, the Ḥanafī school is QUITE different from the other three Sunnī schools. It is that difference (as well as other factors connected to the sociology of knowledge (Ḥanafī countries have been estranged from much of the enterprise of Islamic scholarship in the 20th century, e.g.,  in Turkey, the ‘Stans, and India) that makes the Western academy reluctant to engage with Ḥanafī thought. Once you learn from say, al-Ghazali or al-Juwayni, Ḥanafī thought seems disordered, prolix, and “what is this about?”

It is instead subtle, rich, and unlike the tradition from al-Juwayni, it continued to be influenced by the highest order intellectual endeavor of Muslims well into the 19th century, since falsafah and sophisticated and novel tendencies in hermeneutics continued to evolve in the Persianate domains of Islam while it, to be frank, was rather stultified in the Arabic realms—again, for reasons having to do with the sociology of knowledge.

All of this is to say that the Waraqāt does not guide one into “Islamic Law,” it guides one into a portion, a school, a take on Islamic law. Al-Juwayni was not utterly divorced from his Ḥanafī colleagues, but he wrote harsh polemics against them and seems to have despised them. He at least saw considerable differences between what they did and what he did.

None of this is to disparage a pretty wonderful resources (how I wish I’d had it when I was starting out!), and remarkable work of scholarship and erudition. But the limits of a study of uṣūl al-fiqh grounded solely in the 3rd-6th century, and solely in the (mostly) Shāfiʿī tradition, has to be acknowledged, in part to set the desiderata for the next phase in the Western academic discovery of this marvelous and enriching science. Flame now set to “off.”

Isn’t this the difference between Hanafi legal theory (طريقة الفقهاء i.e. the method of the jurists) and Maliki/Hanbali/Shafi legal theory (طريقة المتكلمين i.e. the method of the speculative theologians)? I learned that the method of the jurists was to use legal theory to justify their inherited corpus of law.

I agree with the condescending language, but it helps to create debate.

Firstly, thank you for putting this up for public reading and comment. In principle, I think this is an example we should all follow. I am in two minds as to whether to do the same for my forthcoming book on Mālikism, so I would be very interested to hear how the experiment goes for you. A minor quibble which I wouldn’t think to raise if it didn’t have to do with the way you translate the title: “Leaflet” captures well the Arabic sense of “waraqāt” as “leaves of [material on which one writes]”, but I wonder whether it connotes a cheapness or populism that is a little out-of-step with the work in question. I suppose the relevant question to ask is what its intended readership was. You say that it was “intended for students in the Shāfiʿī school of law”, so I take it that it was a school-text, intended for circulation not among the masses but within an educated elite, albeit one of whom knowledge of the finer points of legal theory was not assumed. Have you considered “pamphlet”? “Scholarly pamphlet” is quite common whereas “scholarly leaflet” is not.

I can testify that the practice of memorising the text is not uncommon even today. Alternatively, some students will opt for memorising the nazm version of al-Amriti. Here in Saudi Arabia, there is even a program overseen by one of the Imams of al-Masjid al-Nabawi for the memorisation of a collection of introductory manuals that he has published expressly for the purpose of memorisation, collected in small pocket-size booklets. One of the texts in the first booklet is al-Waraqat.

See here:
https://a-alqasim.com/books-cats/mutoon/

Personally, I’m not a fan of memorising texts as I don’t believe it’s the most effective learning strategy, but it is still a common practice throughout the Muslim world. In particular,

al-Waraqat remains one of the most famous introductory texts for Usul al-Fiqh (particularly for non-Hanafi students).

Only saw Anssi’s comment after typing my own.

The attribution of this commentary to Ibn al-Salah has been disputed. It seems this is the same work as the commentary attributed to Ibn al-Firkah. It seems the confusion over its authorship is old as there are a number of manuscripts that identify this work as Ibn al-Salah’s while others identify it as the work of Ibn al-Firkah.

One brief discussion of this issue is found in the introduction to Nabhan’s critical edition of al-Waraqat.

`Uthaymin*

Al-‘Abbadi*

.

Tareeq Al Fuqaha isnt limited to hanafis, and tareeq al mutakalmieen isnt limited to shafis/hanbalis/malikis