1 Leave a comment on block 1 0
Arabic English Commentary

11 — Section on Contradictions

If two utterances contradict one another, then they must be either both general, or both particular, or one general and the other particular, or each general in one respect and particular in another respect. إذا تعارض نطقان1 فلا يخلو إمّا2 أن يكونا عامّين أو خاصّين أو أحدهما عامّاً والآخر خاصّاً أو كلّ واحد منهما عامّاً من وجه وخاصّاً من وجه.3
If they are both general, then if they can be reconciled one reconciles them, but if they cannot be reconciled one suspends judgment concerning them if their dates are unknown, but if their dates are known the earlier is abrogated by the later. فإن كانا عامّين، فإن أمكن الجمع بينهما يُجمَع بينهما،4 وإن لم يمكن الجمع بينهما يُتوقَّف فيهما إن لم5 يُعلَم التاريخ، فإن عُلِمَ التاريخ فيُنسَخ المتقدّم بالمتأخّر.
Likewise if they are both particular. وكذلك إذا6 كانا خاصّين.
If one is general and the other particular, the general is particularized by the particular. وإن كان أحدهما عامّا والآخر خاصّا7 فيُخَصّ العامّ بالخاصّ.
If each is general in one respect and particular in another respect, then the generality of each is particularized by the particularity of the other. وإن كان8 كلّ واحد منهما عامّاً من وجه وخاصّاً من وجه9 فيُخَصّ عموم كلّ واحد منهما بخصوص الآخر.10

2 Leave a comment on block 2 0

From revelation to interpretation

So far al‑Juwaynī has defined law and legal theory, and described the two revealed sources (Qurʾān and Sunna) from which law stems. He has described the kinds of language they contain (command and statement, normative and transgressive, etc.), listed default and alternative meanings for imperatives, explained the different possible relationships between general and particular expressions, distinguished several levels of clarity and ambiguity, defined the legal implications of various types of nonverbal Prophetic action, and shown how some parts of revelation can supersede others. All of this has accomplished three things: it has defined terms used in describing revelation (especially the language of revelation); it has described the kinds of meaning revealed speech and action can have (and which they have by default); and above all it has described several types of relationship that can exist between texts, whereby the legal meaning of one is modified by the other (most notably particularization, clarification, and abrogation).

3 Leave a comment on block 3 0

In discussing this descriptive material, I have emphasized how each definition and concept can be used in the interpretive process, but al‑Juwaynī has scarcely talked about the process of interpretation except to say occasionally that a certain expression is to be interpreted a certain way by default. Beginning in Chapter 11, al‑Juwaynī adopts the perspective of an interpreter, who, knowing all these things about revelation in general, is faced with the task of translating particular revealed texts into statements about the legal values of particular acts. Using the features of revelation just described, he now begins to lay out interpretive methods for showing how particular texts can be used to support particular laws, despite the fact that revelation does not appear to completely or consistently support those laws. Since al‑Juwaynī’s view of legal science assumes that there is exactly one true assessment for every act, contradictions between texts must be resolved, and gaps in revelation must be filled in, so that revelation supports a single complete legal system. The methods for resolving contradictions and filling gaps that al-Juwaynī will offer in Chapters 11–16 are legitimated by the analysis of revelation that he has given so far.

4 Leave a comment on block 4 0

In terms of our mathematical analogy about the legal value function, we may say that revealed texts are like a system of equations that must be solved to determine the legal value of each particular act. Some actions are assigned a single legal value by all the relevant texts: f(a1)=v1. Other actions, however, appear to be assigned different legal values by different texts: f(a2)=v2 and f(a2)=v3. Such contradictions must be resolved. Other actions do not appear to be assigned any legal value at all: f(a3)=? Such gaps in the law must be filled in by extrapolation from known legal values: if f(a4)=v4 and f(a5)=v5, and a3 is more similar to a4 than to a5, then f(a3)=v4. Chapters 11–13 and 16 provide means of resolving contradictions, while Chapters 14–15 provide means of filling in gaps in the law. After he has described the interpretive methods by which these systems of equations can be solved, al‑Juwaynī will go on to describe the interpreter, his qualifications, and the certainty or otherwise of his conclusions, in Chapters 17–18.

5 Leave a comment on block 5 0

Contradictions acknowledged and resolved

It is striking that al‑Juwaynī begins his discussion of interpretation by talking about contradictions in revelation. One would not expect a Muslim believer to say that divine revelation contradicts itself, but al‑Juwaynī has no qualms in using that term. If he had lived at a time and place when non-Muslims were making frequent polemical attacks against Islam and the Qurʾān, he would have been more careful to speak of “apparent conflicts resulting from human misunderstanding;” but he was living in a largely Muslim society, and writing for an audience of legal theorists who all understood that of course God would never really contradict himself, so he felt quite at liberty to discuss openly the obvious fact that the revealed canon of Qurʾān and ḥadīth was full of texts that conflicted with each other and with the laws that Muslims were following. The business of legal theory was not to avoid this problem, but to confront it head on.

6 Leave a comment on block 6 0

The problem of conflicting revealed evidence might never have arisen if Muslims had not decided to follow al‑Shāfiʿī’s lead in insisting that a comprehensive Islamic legal system must be based entirely on the Qurʾān and Prophetic ḥadīth. Some early Muslim thinkers such as al‑Naẓẓām (d. 836) looked at all the conflicting reports about the Prophet and his Companions and concluded that a coherent law could never be constructed on such a basis, so they simply did not accept al‑Shāfiʿī’s concept of revealed law. But for those who did accept it, al‑Shāfiʿī’s conception of law made the problem of contradictions quite acute. It instantly gave the status of revelation to a vast though still vaguely delimited body of Prophetic ḥadīth that were in circulation during the 9th century, despite the acknowledged fact that many of these ḥadīth were probably inauthentic, and some contradictory ḥadīth had even been fabricated by opposing jurists to bolster opposite views on debated points of law. At the same time, the choice to treat this new and still fluid textual canon as evidence of a detailed but coherent system of legal values meant that the texts of revelation must be found to contain a single coherent meaning, and must state that meaning with enough precision and detail to guide every human action. This meant that texts would have to be interpreted very precisely, and that no contradiction between them could be tolerated or glossed over.

7 Leave a comment on block 7 0

Consequently, the very idea of a revealed law, as articulated by al‑Shāfiʿī and developed by almost all Sunnī legal theorists including al‑Juwaynī, called for dealing with the many contradictions that existed within the corpus of revelation. Al‑Juwaynī now reveals that his main purpose in discussing various features of revealed language, and various types of intertextual relationships, was not so much to dictate how each kind of speech should be interpreted, but rather to supply the concepts and vocabulary that would enable and justify the interpretive moves necessary to resolve contradictions, by showing that texts clarified or modified each other in various ways, rather than actually contradicting each other. Concepts like particularization, clarification, and abrogation, which were previously discussed theoretically as features of revelation, are now deployed as interpretive devices for resolving contradictions.

8 Leave a comment on block 8 0

A hierarchy of methods for resolving contradictions

Al-Juwaynī begins by giving an exhaustive breakdown of all possible contradictions. Of all the possible ways in which he could have classified contradictions, he chooses to divide them up based on whether the texts involved are general, particular, or some combination of the two. This is because, of the three methods for resolving contradictions that he is about to list (particularization, reconciliation, and abrogation), he wants us to try particularization first. If particularization is possible, we will not need to resort to other methods.

9 Leave a comment on block 9 0

Particularization, you remember, is an intertextual relationship that can occur when one text assigns a legal value to a certain set of actions, and another text assigns a different legal value to some subset of those actions: eating carrion is prohibited, but eating fish (which is technically carrion) is permitted. Particularization, therefore, is specifically designed for resolving contradictions; it cannot even occur where there is no contradiction. (The device of “qualification by an attribute” that al‑Juwaynī also described alongside particularization was quite different in that respect: its purpose was to narrow the scope of one text to match the scope of another text that assigned the same legal value, as when the text saying to free a slave is interpreted to match another text that says to free a believing slave; there is no contradiction between those texts.)

10 Leave a comment on block 10 0

Al‑Juwaynī makes particularization the device of choice for resolving contradictions. As long as you have a contradiction and one text is more particular than the other, you particularize. He imposes no limitations: it matters not which text came first, nor what kind of text each is, nor how much epistemological certainty it gives. Recall that the Muʿtazila insisted particularization could only occur between texts revealed at the same time, and that al‑Juwaynī allowed abrogation only when the abrogating text gave at least as much epistemological certainty as the abrogated one. Al‑Juwaynī puts no such limits on particularization.

11 Leave a comment on block 11 0

If, however, both texts are equally general, or both are equally particular, then by definition neither can particularize the other. Only then does al‑Juwaynī resort to his second choice, which he calls reconciliation. He has not given any technical definition of this term, but the Arabic word jamʿ (to join or combine) implies that he means holding the two texts together in some way that they can both be followed at once—they both can be understood as compatible with the same set of legal rules.

12 Leave a comment on block 12 0

Al‑Juwaynī’s analysis of language has already given one way of doing this: one text might be taken as clarifying another, as when the report that ʿUthmān did not bathe before Friday prayer is taken as indicating that “obligatory” meant only “optionally obligatory.” That relationship of clarification reconciles the texts and makes them compatible.

13 Leave a comment on block 13 0

Other ways of making texts compatible might also be imagined, however. For example, Q 4:3 is usually understood to limit to four the number of marriages a man may be in simultaneously, but the Prophet was married to far more (about nine) at once. Al‑Juwaynī’s chapter on actions, however, authorizes us to interpret the Qurʾānic verse as evidence that the Prophet’s action must not have been intended as a normative Sunna, but must have been “peculiar to him.” This resolves the contradiction by making the Prophet’s action compatible with the Qurʾānic evidence, because it shows that these two apparently contradictory pieces of evidence are actually about the actions of different classes of people. The very existence of a contradiction proves that one piece of evidence must be interpreted in a way that resolves the contradiction. Any interpretation that resolves the contradiction will do, though al‑Juwaynī prefers interpretations that employ particularization.

14 Leave a comment on block 14 0

Only if one cannot think of any reinterpretation of either text that would make them compatible, does one resort to abrogation. This shows that al‑Juwaynī would always prefer to keep both texts in force, and to find them both compatible with the same set of legal rules if at all possible. Abrogation resolves the contradiction, because it shows that the two texts are talking about different periods of time, so that the different legal values they assign are actually assigned to different act-person-time-circumstance combinations. But while the abrogated text remains a true statement about the time period for which it was in force, it is rendered irrelevant for contemporary law, which al‑Juwaynī would prefer to avoid. Early Muslim interpreters had used abrogation to resolve all kinds of contradictions; by abrogation they simply meant that one text trumped another in some way. But by al‑Juwaynī’s time there were enough sophisticated and flexible interpretive devices available to interpreters that he felt dismissing a text as no longer relevant should be a last resort.

15 Leave a comment on block 15 0

Suspension of judgment

Even abrogation, however, cannot resolve all contradictions, because claiming abrogation means claiming to know which text was revealed first, and evidence of that is not always easy to find. For such cases—when two texts could not be reconciled and there was no evidence of which was revealed first—some legal theorists had their own rules for choosing one text over the other. Some of the Ẓāhiriyya argued that whichever text indicated a prohibition should be followed, since it indubitably abrogated the initial state of permissibility that is assumed in the absence of revelation; others argued the opposite, since the initial permissibility was known with certainty but the chronological sequence of texts was not. Others would simply choose the text that accorded best with popular practice, arguing that this practice probably stemmed from earlier Muslims who knew which text was supposed to remain binding. This interpretive move was especially well designed to preserve the status quo, by reconciling revealed evidence with what Muslims already thought the law should be.

16 Leave a comment on block 16 0

Al‑Juwaynī, however, choose a more flexible route: if we cannot resolve a contradiction by particularization, reconciliation, or abrogation, then we suspend judgment: we declare that we do not know which text to follow, and that we will therefore have to let our legal opinion depend on some other evidence. This may sound like an impasse, but we can be sure that al‑Juwaynī did not intend it as such. The law is comprehensive, and revelation is sufficient to answer every legal question, no matter how speculative our interpretation of it may be. If our two texts do not answer our question, we can appeal to other texts, no matter how vaguely they may address our question, or we can use means such as analogy, which is specifically designed to address questions about which revelation is silent. There is never insufficient evidence to answer a question. The great problem of legal theory is not insufficient evidence, but too much conflicting evidence. In this case, where the conflicting evidence cannot be reconciled, al‑Juwaynī simply leaves the door wide open for the interpreter to use whatever other evidence he wants to arrive at an answer.

17 Leave a comment on block 17 0

Resolving contradictions permits flexibility—in theory

Al‑Juwaynī’s approach to resolving contradictions, then, is highly flexible: we have an array of devices available to us, and if none of those prove satisfactory, we can simply disregard our conflicting evidence and move on to other evidence. Conflicts in revelation, then, are not really a problem for the interpreter. They must be resolved because the idea of revealed law demands that they be resolved, but the process of resolving them is really an opportunity for the interpreter to make his mark upon the law. As we have seen repeatedly, al‑Juwaynī gives him the freedom to establish just about whatever intertextual relationships he wants between texts, and thus to modify the meaning of just about any text he does not want to follow. The only limit is his ingenuity in finding evidence. But remember that the interpreter’s problem is never a lack of evidence, it is the superabundance of conflicting evidence. And conflict is the opportunity for modifying the meanings of texts, or even for dismissing those texts outright. As long as the interpreter can find some shred of evidence pointing in the direction he wants to go—and we will see that he can always create such evidence through analogy if he cannot find it even vaguely in some text—then he can use that piece of evidence to modify or trump whatever evidence points in opposite directions.

18 Leave a comment on block 18 0

Al‑Juwaynī does seek to impose some order on this flexible process of reinterpreting texts by exploiting contradictions. For instance, he prescribes that if the evidence allows particularization, one should use particularization rather than some other device. This means that an interpreter who ignores potential particularizing evidence and jumps too quickly to a claim of abrogation can be called into question by another interpreter. But there will still be a debate about what the relevant evidence is, and which is particular and which is general. There is no set definition of what evidence is relevant to a particular topic. There may be longstanding traditions of considering certain texts in relation to certain problems, but texts can always be dismissed or gotten around by modifying them with other texts, and other texts not previously considered relevant can always be brought in. The genius of this legal theory is that it allows the vast corpus of revealed evidence to be broken up into discrete units, and any piece of evidence from any part of revelation to be brought into an intertextual relationship with any other text, at the interpreter’s discretion. And no piece of evidence constitutes a fixed or immovable point of departure, or sets a boundary the interpreter cannot cross, because no piece of evidence is meaningful in and of itself—unless it is considered “definite,” but that too is a choice made by the interpreter on the basis of whether he thinks it needs to be reinterpreted using other evidence. Every text, therefore, depends for its meaning on its relationships to other texts, and those relationships are precisely what al‑Juwaynī gives interpreters great leeway to define.

19 Leave a comment on block 19 0

All this makes al‑Juwaynī’s hermeneutic sound like it gives the interpreter carte blanche to make the law whatever he wants. Obviously, this is not what Muslim jurists do. As al‑Juwaynī will say in Chapter 17, qualified practitioners of diligent inquiry always operate within a long tradition of interpretation, which places tremendous constraints on what evidence they should consider relevant, what texts should be considered clear and which ambiguous, and what intertextual relationships are deemed to exist between which texts. If an interpreter departs from these expectations, he undermines his credibility with other jurists, and risks losing his reputation as a qualified practitioner of diligent inquiry. All of these interpretive traditions make it difficult to pursue new interpretive paths, because new interpretive paths always have to be justified with new claims of intertextual relationships, whereas the traditional interpretive paths are already justified with intertextual relationships that have come to be taken for granted, and are now considered obvious and unquestionable by the tradition. And, of course, all of these traditional interpretive paths support the legal status quo. That, indeed, was the original purpose of all these interpretive devices: to bring the vast and conflicting body of revealed texts into line with each other and with what Muslims thought the law should be. To use those same interpretive devices to take the law in new directions goes against the weight of the whole tradition.

20 Leave a comment on block 20 0

Notice, however, that none of these constraints on interpretation stems from anything that al‑Juwaynī has said so far. He has said nothing about letting one’s teachers define the relevant evidence, or letting one’s school of law dictate one’s choice of intertextual relationships. In and of itself, his hermeneutic is extremely flexible, and gives the reader great control over the meaning of revelation. The institutional constraints that tie the interpreter’s hands have not yet appeared, but they will—in the next chapter.

21 Leave a comment on block 21 0

Further reading

On the idea that al-Shāfiʿī designed legal hermeneutics for the purpose of resolving contradictions, and thus for showing that revelation supports his vision of the law, see chapter 2 of David R. Vishanoff, The Formation of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a Revealed Law (New Haven, Connecticut: American Oriental Society, 2011).

  1. In Spr. 601 the word نطقان has been partly erased, and rewritten in the darker ink of the marginal corrections, to read لفظان .
  2. Two of SH’s mss, Riyadh 5878 and Kuwait 231, omit إما .
  3. One of SH’s mss, Riyadh 5878, adds آخر .
  4. Spr. has جمع in stead of يجمع بينهما . One of SH’s mss, Riyadh 5878, omits بينهما .
  5. One of SH’s mss, Riyadh 5878, has instead إلى أن .
  6. Spr. 601 has instead إن .
  7. Spr. 601 has instead أحدهما خاصا والآخر عاما .
  8. In BM 3093 كان is a marginal addition.
  9. One of SH’s mss, Riyadh 5878, adds آخر .
  10. The preceding text, since the end of the definition of abrogation, is based primarily on BM 3093, since it is missing from Lbg. 256. From this point I return to following Lbg. 256.
Page 17

Source: https://waraqat.vishanoff.com/v/v11/