17 — Characteristics of the Issuer of Legal Opinion and the Seeker of Legal Opinion
|The issuer of legal opinions must be knowledgeable of the roots and branches of legal science, including the opinions of his own school of law and the disagreements of other schools. He must be fully competent in diligent inquiry. He must know all that he needs to know for determining legal values, in several fields: grammar, language, the science of the men who related traditions, the explanation of verses concerning legal values, and reports concerning legal values.||ومن شرط المفتي أن يكون عالماً بالفقه أصلاً وفرعاً، خلافاً ومذهباً، وأن يكون كامل الآلة1 في الاجتهاد، عارفاً بجميع2 ما يحتاج إليه في3 الأحكام من النحو واللغة ومعرفة الرجال4 وتفسير الآيات الواردة في الأحكام والأخبار الواردة فيها.|
|The seeker of legal opinion must be one who follows existing opinions, and he must follow the opinion of the issuer.||ومن شرط المستفتي أن يكون من أهل التقليد فيقلّد المفتي في الفتوى.|
|A scholar may not follow existing opinion, though some say that he may.||وليس للعالم أن يقلّد، وقيل يقلّد.5|
|To follow existing opinion is to accept without proof what someone has said. According to this definition, to accept what the Prophet (God’s blessing and peace be upon him) said is called following existing opinion.6 Some say that to follow existing opinion is to accept what someone has said without knowing where he got it. On this definition, if we hold that the Prophet (God’s blessing and peace be upon him) used to speak on the basis of analogy,7 then accepting what he said can be called following existing opinion.||والتقليد قبول قول القائل بلا حجّة، فعلى هذا قبول قول النبيّ صلّى الله عليه وسلّم يسمّى تقليداً، ومنهم من قال التقليد قبول قول القائل وأنت لا تدري من أين قاله، فإن قلنا النبيّ صلّى الله عليه وسلّم كان يقول بالقياس فيجوز أن يسمّى قبول قوله تقليداً.|
The role of the interpreter
In this section al‑Juwaynī finally comes to speak directly about the interpreter himself. (Yes, he means himself, not herself, as we will see.) By this point, however, it is clear to me that he has actually been talking about the interpreter all along. In describing the language and substance of revelation, he was actually delineating interpretive claims that interpreters can make to reach their interpretive goals. Likewise his discussions of consensus, analogy, and the presumption of continuity were not descriptions of sources of law, but of claims and arguments that interpreters can make. All along this book has been about the reader of revealed texts, not about their author (who has scarcely been mentioned), nor even about the texts themselves.
The person we have been calling the reader, or the interpreter, is here called the “issuer of legal opinions” (muftī, one who issues a fatwā). A word should be said here about the social role of a muftī. Al‑Juwaynī presents him as a trained specialist who constructs legal science (deduces legal values) through diligent inquiry. Such a scholar does not necessarily have any role in implementing or enforcing the law; that role was reserved in al‑Juwaynī’s time for the judge (qāḍī) appointed by the political ruler. The qāḍī would normally be a qualified muftī, but he would not have to live up to al‑Juwaynī’s high standards: he would not necessarily need to do his own diligent inquiry every time a particular case was brought before him; he could simply refer to a legal rule formulated by a muftī. Indeed, if there was any doubt about what rule to apply in a given case, he or one of the parties to the case might solicit a formal opinion (fatwā) from a muftī by sending him a statement of the facts of the case and describing all the pertinent circumstances but without naming the specific parties. The fatwā received in reply would be a generic ruling applicable to all similar cases; the qāḍī’s role would be to apply that ruling by rendering an enforceable judgment in the particular case before him. Thus the qāḍī need not be capable of performing his own diligent inquiry based on the sources of law.
A muftī might also be consulted directly by an ordinary Muslim, for answers to questions about personal behavior. For instance, guidance about family life or ritual and food laws are seldom dealt with in court; they are relatively private matters on which pious Muslims seek scholarly guidance simply for the sake of doing their personal duty toward God, seeking his face and his good pleasure, earning his future reward, and avoiding punishment in the afterlife.
Interpreters and followers
In both cases the muftī’s role is that of an interpreter who constructs general legal rules, which it is then incumbent upon the seekers of legal opinion to follow in their own particular situations, whether they be judges or lay Muslims. Following (taqlīd, which I have translated as “following existing opinion”) means obeying, or at least acknowledging the authority of the muftī’s fatwā, without doing one’s own analysis of the evidence, and without even seeking to understand or evaluate the muftī’s interpretation of the evidence.
This means that Muslim society, as imagined by al-Juwaynī, is divided into two classes, interpreters and followers, which relate to the law and to revelation itself in very different ways. For interpreters, revelation is an object of study, which must be continually endowed with meaning so that it retains its status as the foundation of law, and so that the law retains its status as a revealed law. For followers, revelation is primarily a devotional and ritual object: it may be memorized for recitation in prayer and other forms of devotions, and it may sometimes be studied for personal inspiration and enlightenment, but it is not a text one is required, expected, or even allowed to analyze and interpret for oneself, at least not as a source of law or ethics.
The boundary between these social classes, however, is not rigid. The only criterion for membership in the scholarly class is education. Education was certainly easier to obtain for those born into educated or wealthy families, but the history of Islamic law is full of individuals who rose from very humble roots to scholarly prominence.
The qualifications for interpretation
The educational bar is set quite high by al‑Juwaynī. Many legal theorists allow a scholar to issue opinions simply on the basis of his knowledge of what other scholars have said, which is a kind of taqlīd. Al-Juwaynī acknowledges this view, but affirms the contrary, and demands that issuers of legal opinions be learned enough to interpret for themselves. A qualified muftī must know not only the branches of law as they are established and disputed within his own school, and the alternative views of other schools, but also legal theory, and all the ancillary disciplines he needs to be able to interpret revelation for himself. Principal among these is the knowledge of revelation itself: legally relevant verses and reports. Just as importantly, he must know how these verses have been interpreted by others, and how to evaluate the authenticity of reports for himself. He must also know both Arabic grammar and semantics (the meanings of Arabic words, which is what al‑Juwaynī means by “language”). This last criterion does not limit interpretation to Arabs, but it does mean that non-Arabs must learn Arabic well enough to convince Arabs that their interpretations carry weight. This was not much of an obstacle in al‑Juwaynī’s time, when religious education was carried out largely or entirely in Arabic even in non-Arab lands. As Islam became a truly global religion, however, and Arabic became more and more a minority language even among religious scholars, this criterion has lent a special prestige to scholars from Arab countries. Today the ad hominem argument “but you aren’t a native speaker of Arabic” is frequently used to discredit the interpretations of opponents.
The democratization of interpretation
The advent of modernity, initially through the impact of colonialism and now through the phenomenon of globalization, has made the kind of education al‑Juwaynī envisioned much less common than it was in his day. Today the educational systems of most Muslim countries are modeled on Western education, and focused on modern sciences and even Western legal thought. With this development came the birth of a new intellectual class, educated along Western lines, that challenged the exclusive interpretive and legal authority of classically trained jurists. Early in the twentieth century Muslim “modernists” were already claiming the right to reinterpret the Qurʾān and ḥadīth for themselves, without the qualifications and the interpretive precedents established by the classical schools of law. Even those we call “islamists,” who are sometimes mistakenly regarded as conservative defenders of classical Islamic law, often have a modern rather than a classical education, and do not regard themselves as bound to the legal doctrines of the established schools. This shift bears some similarity to the Protestant Reformation, in which the interpretive monopoly claimed by the Roman Catholic Church was challenged by calls for laypeople to study and interpret scriptures for themselves, in their own vernacular languages. Traditionally trained scholars still have considerable prestige and persuasive authority among many Muslims, but they no longer monopolize legal interpretation, and one often hears Muslims express an increasing sense of personal responsibility to understand and apply God’s revelations for themselves.
One important facet of this democratization of interpretation is the growing call, in many corners of the Muslim world, for more women to be included in the communal task of interpretation. On its surface this is nothing new: al‑Juwaynī said nothing against women becoming jurists, and women have pursued scholarly careers throughout Islamic history. But historically they have always been the exception that proves the existence of an unspoken rule: Islamic law is a male discourse. This tacit assumption is built into the very masculine language of the jurists, who invariably use masculine pronouns and male characters when giving examples of legal problems, unless by its nature the problem specifically involves women. This gender bias is even present in the language of the Qurʾān, which almost always addresses men, and approaches legal problems from the perspective of a man, even when speaking about women or marriage. This does not mean that the Qurʾān was intended only for men, or was meant to apply only to men; legal theorists debated whether revealed verbs and nouns having masculine forms should be assumed to apply to all humanity or men only, and we saw in Chapter 6 that al-Juwaynī tacitly sided with the common view that by default masculine imperatives should be taken to apply equally to men and women. But this did not prevent jurists from thinking and speaking as though there were no women in the room—as was indeed usually the case. Occasionally this unconscious presupposition surfaced with remarkable transparency. Abū al‑Ḥusayn al‑Baṣrī (d. 1044) epitomized his colleagues’ attitudes when he argued that God must make his speech about menstruation clear to scholars because they are charged with understanding it, though not with obeying it; but he need not make it clear to women, because they are charged only with obeying the rules derived from it by the scholars.8 It never occurred to him that the two groups might overlap.
More and more scholars, however, are arguing today that the male perspective of classical interpretation is not neutral or accidental, but has influenced the law in regrettable ways. It has remained somewhat difficult for women to gain a hearing for their interpretations, however, precisely because the educational qualifications demanded by al‑Juwaynī have been and remain difficult for women to obtain. Only the growing social acceptance of interpretation by laypeople has opened the door for the particular perspectives and interpretive frameworks of Muslim women to begin to shape the construction of legal science.
Criticisms of taqlīd
Along with the modern expansion of the right to interpret has come a growing sense of the responsibility to interpret for oneself. Some classical scholars argued that the practice of diligent inquiry (ijtihād) had died out with the passing of the great scholars around whose opinions the major schools of law were formed. It came to be said that “the gate of ijtihād had been closed,” and that henceforth all that scholars were competent to do was to follow (taqlīd) the opinions of the early masters. In practice this was, of course, impossible: for the law to remain relevant, it had to be extended to address new situations, and had to be adapted and even changed to fit new circumstances and social expectations. Classical jurists did not often claim to be performing fresh diligent inquiry directly from the revealed sources, but they had plenty of tools at their disposal to adapt the legal traditions in which they were steeped to their own values and circumstances. On many questions there existed a range of opinions within each school of law, from which a scholar might choose the one he found most fitting. There was also room for flexibility in applying inherited rules to particular cases, and scholars sometimes introduced new opinions by claiming that they were implied by the interpretive reasoning of the early jurists, even if those jurists had never actually articulated those opinions. The law remained flexible, and continued to evolve, and could always be justified by new interpretive arguments as needed, even if jurists were reluctant to dignify their interpretations with the title of ijtihād.
Al‑Juwaynī, however, had no such reluctance, and flatly prohibited jurists from issuing opinions on any basis other than their own ijtihād. He even seems uncomfortable with the idea that jurists might “follow” the legal opinions of the Prophet himself, without knowing the evidentiary basis on which he had reached them. He does not explain how to avoid saying that one “follows” the Prophet; he certainly does not want to prohibit obeying the Prophet’s Sunna, but he explores two definitions of “following,” and seems to imply that the second is preferable. Though he does not say this, the only way to avoid saying that one “follows” the opinions of the Prophet is to define taqlīd as “accepting what someone has said without knowing where he got it,” and then to deny that the Prophet ever commanded or prohibited anything on the basis of his own analogical reasoning. Whether the Prophet himself ever engaged in such interpretive reasoning, or simply expressed what God revealed to him directly, was a debated question. Al‑Juwaynī points out that if the Prophet only ever expressed God’s direct revelation, then we always know exactly “where he got it,” and we never have to say we are merely “following” the Prophet’s personal opinions.
Al‑Juwaynī’s strong preference for personal interpretive reasoning over taqlīd was typical of many early jurists including al‑Shāfiʿī himself, and it has been revived periodically by reformers like the great but controversial Ḥanbalī Ibn Taymiyya (d. 1328), and by the modernists and islamists he inspired. The relative decline of Islamic civilization, military might, and economic strength, vis à vis the modernizing West, has been blamed time and time again (by Muslims and non-Muslims alike) on the “closing of the gate of ijtihād” and the dead weight of tradition followed uncritically by both jurists and laypeople. The term ijtihād, therefore, has been on everyone’s lips for nearly a century. Fresh interpretation of the revealed sources, in response to the new challenges of modernity, is espoused by nearly everyone, from the most liberal reformers to the most reactionary islamists, and even by many classically trained jurists. Everyone has his or her favorite interpretive device, in which he or she sees the key to making Islamic law relevant to modern life. Some call for increased use of analogy, others for increased consideration of maṣlaḥa (public welfare), others for new forms of consensus, and still others for a fresh critique of ḥadīth or a new appreciation and exploitation of the ambiguities of revealed language. Most of these approaches are to be found right here in al‑Juwaynī’s “Leaflet on the Sources of Law,” or in similar books by theorists of other schools. The differences between these proposals lie not so much in their methods, which are largely a continuation of the powerful and flexible interpretive methods advocated by al‑Juwaynī, as in the conflicting moral presuppositions and social visions that reformers wish to achieve through their fresh ijtihād.
A fixed horizon of interpretation
This should come as no surprise. Al‑Juwaynī’s legal theory permits and indeed encourages such a cacophony of interpretations. After all, to qualify as an interpreter, al‑Juwaynī did not say that one had to accept or abide by the interpretations of prior generations of jurists. He only said that one had to be aware of them, and that one had to be trained in the same interpretive method as those prior generations. He could have defined the results of interpretation; instead he defined only the intellectual framework within which interpretation must take place. He could have made the content of one’s legal opinions the criterion for qualification as a jurist; instead he required only a certain method, and training in a certain interpretive tradition.
To understand how the qualifications of a muftī do and do not control the shape of the law, it will be helpful to introduce the notion of a “horizon of understanding:” the set of expectations, assumptions, mental categories, life practices, and knowledge of previous interpretations that an interpreter brings with her to the task of interpreting a text. Anthony Thistleton defines the interpreter’s horizon as “a network of revisable expectations and assumptions which a reader brings to the text, together with the shared patterns of behavior and belief with reference to which processes of interpretation and understanding become operative.”9 It is this horizon of understanding that is fixed and defined by the qualifications al‑Juwaynī requires of jurists. He does not define what conclusions they must reach; instead he insists that they have knowledge of a certain set of texts, a certain interpretive tradition, and a certain way of understanding language, so that their interpretation of revelation has to take place against the background of a certain set of prior assumptions about which texts are relevant and what they must mean.
This is what keeps Islamic law relatively stable over time: it is not the revealed texts themselves, or the rules for interpreting them, that limit the range of possible interpretations. We have seen time and again how many different interpretations of any given text can be supported using al‑Juwaynī’s interpretive rules. What keeps the law stable, and makes it resistant to change, is above all the idea that interpretation is only valid if it takes place from within the worldview and legal presuppositions handed down by prior generations of interpreters.
The horizon of understanding defined by al‑Juwaynī has several components.
First, it establishes a certain institutional environment within which interpretation must take place. No formal organizational membership or political appointment is required for interpretation, but one must be part of the jurists’ educational system, which transmits not only information but also a whole ethos of personal piety and a certain vision of the good society.
Second, it establishes the set of texts that must be taken into account in answering any given legal question. One must know which Qurʾānic verses and which ḥadīth have been deemed legally relevant by previous scholars. Since the meaning of any text is affected by the matrix of other texts in relationship to which it is read, defining which texts are relevant to which legal questions has a fundamental impact on the meaning of each of those texts, and consequently on the law that is derived from them. As we have seen repeatedly, the best way to modify or get around the meaning of one text is to find another text or piece of evidence that conflicts with it, and declare that it clarifies, particularizes, abrogates, or otherwise overrides the text whose plain meaning one wishes to avoid. What interpretive moves one can make is determined by what set of “relevant” texts one is working with. Modern reformers are constantly bringing up new texts they say are relevant to old questions, but which classical jurists never considered relevant. Changing the intertextual domain within which a text is read can change its meaning dramatically, but al‑Juwaynī seeks to avoid such radical reinterpretations by insisting that one allow the prior tradition to define that intertextual domain.
Third, al‑Juwaynī also makes the interpretations of prior generations part of the intertextual domain of interpretation. The opinions of prior jurists, both within and beyond one’s own school of law, must be known and taken into account. The doctrine of consensus even gives some prior interpretations a status not unlike that of scripture itself. As we have seen, consensus is never more than a claim, so it is always possible to justify revisiting even widely accepted rules; but al‑Juwaynī’s requirement that one be trained to regard some rules as undisputed instills in interpreters a predisposition to regard those questions as off limits. Even the disagreements of prior scholars can function as a kind of text, since some theorists say that they set the boundaries beyond which new interpretations may not go. Even if one does not accept that restriction, it is undeniable that having studied a certain range of prior opinions predisposes one to view those opinions as the available options, and makes it hard to imagine new alternatives. Even if one wishes to introduce a new interpretation, the range of interpretations and proofs against which one must argue is already defined in advance by one’s training.
Fourth, even the linguistic system within which the words of revelation must be interpreted is defined by the training al‑Juwaynī requires. Revelation must be interpreted in terms of the lexicon established by classical scholars. As we have seen, this lexicon includes not just meanings that were already current at the time of the Prophet, but also new meanings that jurists claimed were given to words by revelation itself—for example, the new meaning of “prayer” imposed by the Prophet’s example. This lexicon, of course, reflects what classical jurists and Qurʾānic exegetes had come to believe the words of revelation meant. Those meanings were subject to centuries of dispute, and the answers scholars eventually came up with do not necessarily reflect what Arabs in the Prophet’s time would have understood by his words.
Thus the fixed horizon of understanding established by al‑Juwaynī’s qualifications for jurists does not necessarily reflect the horizon of understanding of the Prophet’s original audience. Indeed it cannot reflect that original horizon of understanding, even if classical scholars were correct in discerning the original meaning of each word in revelation. Al‑Juwaynī says that an interpreter’s horizon of understanding must include the cumulative product of the entire legal enterprise up until his own day, and that tradition by definition includes numerous opinions, arguments, interpretations, agreements, disagreements, and theoretical principles that were not yet in existence at the time of the Prophet. The horizon of understanding that al‑Juwaynī seeks to fix in the mind of the interpreter is not that of the Prophet’s companions, it is that of the classical jurists. If transplanting a text from one interpretive framework to another can change the text’s meaning, then transplanting revelation from the horizon of the Prophet’s Companions to that of the classical jurists has presumably had a profound impact on its legal meaning. And because he says laypeople must not interpret from the perspective of their own horizons, but must follow the interpretations of the jurists, al-Juwaynī makes the horizon of classical Middle Eastern jurists control the meaning of revelation for all Muslims of all times and places.
Does this horizon freeze interpretation?
Defining a horizon of interpretation has the distinct virtue that it helps to restrain the self-serving interpretive maneuvers to which human beings are constantly tempted. By defining a public criterion of meaning, and by calling for its transmission from generation to generation of interpreters, al‑Juwaynī is making it harder for individual jurists to pursue their own whims and adapt the law to their personal inclinations. Al‑Juwaynī does not believe the postmodern claim that texts are free-floating signs, which can be assigned new meanings by each individual based on his or her own interpretive horizon. He believes that God’s law was revealed within a particular interpretive framework, and that the community of jurists has accurately preserved that framework, and that recovering God’s intended meaning requires remaining within that inherited framework. We may question whether his legal theory and his school of law really preserve the Prophet’s own set of linguistic, moral, and interpretive presuppositions, but we must acknowledge that al‑Juwaynī himself believed that it did. The hermeneutical devices his theory provided may have offered great flexibility to change and adapt the law, but he did not see it that way; he understood himself to be enshrining the Prophet’s own worldview and horizon of understanding in the mind of every qualified interpreter.
It is all the more remarkable, therefore, that al‑Juwaynī never tried to dictate what specific conclusions interpreters should reach. He attempted to fix their horizon of interpretation, but he gave them very flexible devices for operating within that horizon, and he insisted that they keep on repeating the work of interpretation for themselves—indeed he forbade them to let prior generations dictate their conclusions for them (except to the extent that a conclusion had been universally agreed upon, but even that idea of consensus was really just a tool for new interpretive arguments, as we have seen).
What is more, al‑Juwaynī did not seek to freeze every aspect of an interpreter’s horizon of understanding. His requirements include secular subjects like grammar and language (semantics), but they do not include other subjects such as science and mathematics. Many modern reformers have called for expertise in sciences such as economics and medicine to play a role in modern ijtihād. Al‑Juwaynī does not accord such knowledge any special role, but neither does he prevent interpreters from having their interpretive horizons expanded or altered by such secular studies.
It therefore appears that al‑Juwaynī never assumed that the law should be forever fixed and static. He did not want to open it up to just any whim or fancy, and especially not to the public opinion of the uneducated masses. That is why he limited interpretation to those who had imbibed the interpretive horizon of the legal tradition. But he recognized that legal science is a human construct, and that the very work of construction continually adds to the interpretive framework within which future interpretation will take place. He seems to have envisioned a slowly evolving body of law, restrained from flitting to and fro with every passing shift in the broader culture, yet open to a gradual process of adaptation to social changes yet unforeseen. The law was still evolving in his own time, and his legal theory was not designed to stop that change, but to ensure it would continue under the firm control of the class to which he belonged.
Shifting horizons will control the law’s future
Today, of course, the linguistic, cultural, and educational horizons of most Muslims are so dramatically different from al‑Juwaynī’s that any interpreter who operated strictly within the classical interpretive framework would soon be out of touch with a large portion of the Muslim world, and would soon lose his persuasive authority—which is about the only kind of authority Muslim jurists have today, except in those few political settings where their rulings are given the force of law. Although the idea of following the interpretations of scholars still has wide sway among modern Muslims, there is no mechanism that binds Sunnī Muslims to any particular scholar or school of law; in fact, jurists themselves typically affirm the individual layperson’s right and duty to seek out the opinions of the most qualified interpreters, rather than adhering blindly to whatever opinion they encounter first. What this means is that over time, fatwās that fit the horizons of contemporary Muslims will gain wider acceptance, and those that do not will be forgotten. Even if Muslims continue to defer to scholarly authority, as al‑Juwaynī would have them do, that scholarly authority is itself ultimately subject to the evaluation of lay Muslims who, collectively and over time, determine which interpretations are authoritative and which are not.
It is the shifting horizons of lay Muslims, therefore, that will ultimately control the direction of change in Islamic law. Al‑Juwaynī’s conservative call for the preservation of the classical horizon of interpretation sought to slow the pace of change, but those horizons have always been evolving, even among the small class of jurists. Even al‑Juwaynī would agree that the law will change with the evolution of Islamic societies and cultures. The only question is how fast it will change. My prediction is that it will change at precisely the same overall rate as the worldview and popular opinion of the international Muslim community, but with a time lag of several generations—because the interpretive devices by which popular opinion will come to be legitimated by new interpretations of revelation will always seem unpersuasive until the critical mass of popular opinion has already shifted enough that previous interpretations, which used to seem self-evident, no longer seem reasonable.
On the role of issuers of legal opinions, see Muhammad Khalid Masud, Brinkley Messick, and David S. Powers, eds., Islamic Legal Interpretation: Muftis and Their Fatwas (Cambridge: Harvard University Press, 1996).
- Lbg. 256 and SH both have instead الأدلة , but when Ibn al‑Firkāḥ goes on to repeat this phrase four times, Lbg. always has الآلة (once with a large gap where a د may have been erased). This reading, which is also supported by BM 3093 and the Maḥallī tradition, makes much better sense, and conforms better to Ibn al‑Firkāḥ’s explanations of the phrase. SH has الأدلة throughout both matn and commentary.
- SH has instead لجميع . The Maḥallī tradition omits جميع .
- The Maḥallī tradition adds استنباط .
- The Maḥallī tradition adds الراوين , but Ibn al‑Firkāḥ’s comments show that this was not in his matn.
- The Maḥallī tradition omits وقيل يقلد .
- Some copies correct this to “is not called following existing opinion,” presumably to avoid the consequence that a scholar may not accept what the Prophet said without proof. This correction is not necessary; it may be that al-Juwaynī mentions this consequence of the first definition to show that the second definition is preferable.
- The question of whether the prophet sometimes relied on analogy or engaged in diligent inquiry, as opposed to speaking solely on the basis of revelation, is debated.
- Abū al-Ḥusayn al-Baṣrī, al-Muʿtamad fī uṣūl al-fiqh, ed. Khalīl al-Mays (Beirut: Dār al-Kutub al-ʿIlmiyya, ), 1:330-331.
- Anthony C. Thiselton, New Horizons in Hermeneutics: The Theory and Practice of Transforming Biblical Reading (Grand Rapids: Zondervan, 1992), 46.