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Arabic English Commentary

4 — Subdivisions of the Discipline of legal theory

The roots of legal science are the paths to it, considered generally, and the manner of using them in evidentiary inquiry, as well as what follows from that. By ‘the manner of using them in evidentiary inquiry’ we mean the prioritizing of some pieces of evidence before others. By ‘what follows from that’ we mean the status of those who engage in diligent inquiry. وأصول الفقه طرقه على سبيل الإجمال وكيفيّة الاستدلال بها وما يتبع ذلك، ومعنى قولنا كيفيّة الاستدلال بها ترتيب الأدلّة في التقديم والتأخير، وما يتبع ذلك من أحكام المجتهدين.1
The roots of legal science fall under the following headings: وأبواب2 أصول الفقه:
5 — Types of speech 5 – أقسام الكلام
6 — Commands and prohibitions 6 – والأمر والنهي
7 — General and particular expressions 7 – والعامّ والخاصّ
8 — Summarized, clarified, apparent, and reinterpreted speech 8 – والمجمَل والمبيَّن والظاهر والمؤوَّل3
9 — Actions 9 – والأفعال
10 — Abrogating and abrogated speech 10 – والناسخ والمنسوخ
12 — Consensus 412 – والإجماع
13 — Reports 13 – والأخبار
14 — Analogy 14 – والقياس
15 — Forbiddance and permission 15 – والحظر والإباحة
16 — The prioritizing of evidence 16 – وترتيب الأدلّة
17 — The characteristics of the issuer of legal opinions and the seeker of legal opinions 17 – وصفة المفتي والمستفتي
18 — The status of those who engage in diligent inquiry 18 – وأحكام المجتهدين.5

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All these preliminaries have served to define uṣūl and fiqh separately. They tell us a lot about what al-Juwaynī thinks law is, and how it relates to its sources. But he has not yet defined the compound expression uṣūl al-fiqh. He now defines the scope of the discipline, and then gives a table of contents outlining the topics of legal theory that he will cover in the rest of the book.

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Al-Juwaynī’s two–part list of sources

He defines the discipline of uṣūl al-fiqh as the study of the “paths” to legal science. In Chapter 1 he defined legal science as “awareness of those revealed legal values that are arrived at by (literally ‘whose path is’) diligent inquiry.” The paths to legal science, then, are what constitute diligent inquiry (ijtihād). The discipline of legal theory is thus the “general” study of diligent inquiry: it is a theory of legal interpretation, not a study of specific interpretations. That means he will not be discussing specific verses, ḥadīth, or laws, but rather the general characteristics of verses and ḥadīth that must be taken into account in interpreting any revealed text, and the general patterns of reasoning by which jurists arrive at any law. Al-Juwaynī’s Table of Contents then divides this abstract study of the kinds of evidence and reasoning used in ijtihād into two main parts: a description of revelation, and the process of its interpretation.

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The first six topics (Chapters 5–10, since the first four were preliminaries) are an analysis of the raw material of revelation: the language of the Qurʾān and ḥadīth, as well as the Prophet’s non–verbal actions which also constitute revealed evidence of the law.

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Al-Juwaynī moves from describing revelation to describing the interpretive process in Chapter 11, which is a “Section on Contradictions.” It is not listed here in his Table of Contents, but is part of what he calls “the manner of using [revealed evidence] in evidentiary inquiry,” i.e., “the prioritizing of some pieces of evidence before others,” which is also part of his definition of the discipline of legal theory. Indeed, as we will see as we study each chapter, the main point of describing the various features of revealed evidence (the types of speech, their generality and particularity, their degrees of clarity, and the relationships of abrogation that exist between them) is to enable the interpreter to resolve apparent contradictions between pieces of evidence so as to arrive at a coherent formulation of the law.

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Chapters 12–15 continue to lay out the interpretive process by offering several kinds of non–revealed evidence that can be used in interpreting and applying revelation: consensus, the evaluation of ḥadīth evidence, reasoning by analogy, and the presumption that actions remain permissible (or forbidden) in the absence of revelation. Al-Juwaynī concludes his discussion of the interpretive process with a section on how to prioritize some pieces of evidence over others (Chapter 16).

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The last two chapters (17–18) are not part of the “paths to legal science,” but address instead the last element in al-Juwaynī’s definition of the discipline: “what follows from that,” i.e. “the status of those who engage in diligent inquiry.” Here he steps back from the raw material and methods of interpretation to discuss the qualifications of interpreters and the epistemological status of their interpretations.

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Longer lists of sources

Al-Juwaynī’s Table of Contents discusses only the most basic and widely recognized kinds of revealed evidence and legal reasoning. These are traditionally listed as four, without any distinction between revealed and non–revealed sources:

  • the Qurʾān
  • the Prophet’s Sunna
  • the consensus of scholars (ijmāʿ)
  • reasoning by analogy (qiyās)

The Qurʾān is not listed separately by al-Juwaynī, but is the implied subject (along with the Sunna) of the whole discussion of the language of revelation in Chapters 5–11.

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To these four main sources are sometimes added one or more of the following disputed sources:

  • the presumption of continuity (istiṣḥāb): actions are assumed to retain their default legal value (usually permissibility) until some evidence shows otherwise
  • the laws of previous prophets such as Moses—but only if they are also contained in the Qurʾān or Sunna, a condition that strips this source of any practical significance
  • custom (ʿurf)
  • the legal opinions of the Prophet’s Companions (those who met him and believed in him)
  • juristic preference (istiḥsān): preferring the less obvious of two rulings or analogies as more just or appropriate
  • considerations of public welfare (maṣlaḥa) on matters not regulated by revelation
  • blocking the means (sadd al‑dharāʾiʿ): forbidding actions that would otherwise be lawful but are likely to result in evil
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Only the first of these is discussed by al-Juwaynī, in Chapter 15, and there he avoids taking sides on what the default legal value of human actions is. This is in keeping with the purpose of his treatise, which is not to take sides in theoretical disputes but simply to set forth the basics of what all legal theorists need to know. It is also in keeping with the general outlook of the Shāfiʿī school of law, which was less enthusiastic than other schools about extending the list of sources. Scholars of the Ḥanafī and Mālikī schools of law typically affirmed more of the disputed sources, thus allowing more ways for human beings to contribute substantively to the law. Some modern thinkers are especially enthusiastic about sources like juristic preference (istiḥsān) and public welfare (maṣlaḥa), which they see as the keys to reforming law in line with modern needs and values. Al-Juwaynī is more skeptical about the disputed sources, and consequently passes over them in silence, but teachers using al-Juwaynī’s text could always expand upon it in keeping with their own views. One scholar, in fact, added several of these disputed sources to al-Juwaynī’s text by composing an addendum, in rhyming verse, adding sources such as custom and public welfare.6

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A focus on language

It is striking that the first half of al-Juwaynī’s table of contents deals mainly with questions of language. Divisions of speech, command and prohibition, the general and the particular, and the summarized and the definite and the apparent, are all about the language of revealed texts: revealed language can be literal or figurative, imperative or indicative, broad or narrow in scope, and clear or unclear in meaning. The next topic, acts, deals briefly with a relatively small part of revelation that is not verbal or textual: the Prophet’s nonverbal actions. Reports about the Prophet’s actions are certainly verbal, but the language of those reports does not itself constitute revelation; the authority of revelation resides in the Prophet’s actions themselves, not in the ḥadīth that recount them. Hence the Prophet’s nonverbal action (and even his inaction) is a revealed source of law, and needs to be translated into statements of the legal values of acts, just as his words and the words of the Qurʾān need to be translated into such statements. Finally, the section on abrogation describes a feature of both the words and deeds of revelation: they are not always permanent; sometimes a revelation is replaced or overridden by another that occurs later in the Prophet’s life.

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The linguistic topics of legal theory are often overlooked in modern scholarship on Islamic legal theory, but they are vital to al-Juwaynī’s project, and to the discipline of legal theory as a whole. The mysteries of language are not to be taken lightly. We are not often conscious of the many interpretive choices that have to be made to understand a sentence. When my mother said “pick up your toys,” I soon learned not to sit and ponder whether she meant me or all humanity, or whether she meant all the toys on the floor or only those that technically belonged to me, or whether the imperative mood indicated a mere suggestion or an obligation that would be enforced with punishment. I quickly learned to jump to the right conclusions. But I was jumping to conclusions nevertheless, at least according to al-Juwaynī’s view of communication. Those Ḥanbalī theorists (mentioned in my commentary on Chapter 2) who said speech is understood immediately and intuitively would have said that the meaning of my mother’s speech was immediately clear to me without any need for reflection, but those legal theorists who said the meaning of revelation had to be inferred through a process of rational inquiry would have said my understanding depended on a lot of subconscious reflection. Actually, they might have said this only about God’s speech; some thought that seeing my mother face to face made it possible to grasp her meaning immediately, but that because one cannot see God face to face, the meaning of his speech must be arrived at through rational inquiry. But what matters to us is that al-Juwaynī was part of that theologically minded crowd who thought that a lot of reasoning went into simply figuring out the basic meaning of a sentence.

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A lot of interpretive choices, then, are packed into our seemingly intuitive grasp of language, and the goal of al-Juwaynī’s detailed analysis of language is to make those choices explicit, and thus to remind interpreters that there are many ways to understand even the simplest sentence. By formally stating how ambiguous revealed speech is, al-Juwaynī justifies interpreting it rather freely. A sophisticated analysis of language—and especially of its ambiguities—gives interpreters considerable control over the meaning of revelation. That, I think, is why al-Juwaynī and other medieval legal theorists spent so much time describing the linguistic features of revelation.

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The second part of the treatise deals with how to make use of revelation in interpretive reasoning. A consensus, if it exists, appears to provide a simple way to choose among several interpretive possibilities. The chapter on reports shows how to choose among conflicting pieces of ḥadīth evidence. Analogy is a carefully defined way of drawing conclusions from what revelation says about one thing to what the law should be about something else. The discussion of forbiddance and permission gives an alternative method for evaluating acts that revelation does not mention. And the brief chapter on the prioritizing of evidences indicates how to resolve (or make constructive use of) conflicts between pieces of evidence that seem to contradict one another.

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These post-linguistic forms of reasoning, however, are secondary. Most medieval manuals of legal theory resemble al-Juwaynī’s in that they start out, following preliminary definitions, with a lengthy analysis of the language of revelation. Like al-Juwaynī’s preliminary definitions, these discussions are not to be passed over lightly. Few modern scholars, Muslim or otherwise, devoted much attention to them until recently, apparently because they took the miracle of verbal communication for granted. They chose to concentrate instead on the process of human reasoning that they assumed could only begin once the language of revelation had been understood. But as we will see in the next several chapters, a great deal of legal reasoning actually takes place not after the meaning of revelation has been established, but before.

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Further reading

For an overview of the many disputed sources of law, see Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (rev. ed., Cambridge: Islamic Texts Society, 1991). Kamali points out the potential he sees in each one for the future development of Islamic law.

On the importance of linguistic topics for legal theory, see:

  • Mohamed Mohamed Yunis Ali, Medieval Islamic Pragmatics: Sunni Legal Theorists’ Models of Textual Communication (Richmond, Surrey: Curzon Press, 2000.
  • Šukrija Husejn Ramić, Language and the Interpretation of Islamic Law (Cambridge: Islamic Texts Society, 2003).
  • David R. Vishanoff, The Formation of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a Revealed Law (New Haven, Connecticut: American Oriental Society, 2011).
  1. Following Spr. 601. Ibn al‑Firkāḥ explicitly quotes only the first part, وأصول الفقه طرقه على سبيل الإجمال , but the commentary that follows makes the most sense as a paraphrase of the rest of the sentence, whose language it echoes closely, and which Ibn al‑Firkāḥ must have had in the matn before him.
  2. In Spr. 601 a marginal note marked خ indicates that the later scribe who checked the text found ومن أبواب in another copy.
  3. In Spr. 601 a marginal note marked ح indicates that the later scribe who checked the text found والمطلق والمقيد added at this point in another copy. Al‑Juwaynī does not devote a separate section to these terms, but covers them in his discussion of al‑ʿāmm wa‑l‑khāṣṣ. The Maḥallī tradition omits والمؤول , probably because al‑Juwaynī never mentions it in section [8], but al‑Maḥallī comments that some copies include والمؤول .
  4. Al‑Juwaynī does not list chapter 11, which he considers a mere parenthetical section.
  5. This is the list of topics as given in Spr. 601 and in one of SH’s mss, Riyadh 5878. Other mss of Ibn al‑Firkāḥ, however, show that he did not quote the whole list, saying only وأبواب أصول الفقه أقسام الكلام إلى قوله وأحكام المجتهدين .
  6. See the Tatimmat Naẓm al-Waraqāt of ʿAbd Allāh al-Baytī, an addendum to al-ʿAmrīṭī’s Tashīl al-ṭuruqāt fī naẓm al-Waraqāt, printed at the end of ʿUmar ʿAbd Allāh Kāmil’s commentary on that work (Beirut: Bīsān, 2004).
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Source: https://waraqat.vishanoff.com/v/v4/?replytopara=5