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Debating the Imperative Mood in Uṣūl al-Fiqh

Collective Deliberation and Legal Validity

In: Oriens
Author: Omar Farahat1
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  • 1 McGill University Faculty of Law
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Abstract

This article offers an analysis of the way a number of classical Muslim scholars treated the question of the normative impact of statements in the imperative mood. This question, which was standard in classical works of legal theory, is noteworthy for its direct implication in establishing links between linguistic forms and normative positions. It reveals to us with some clarity the logic of norm-formation in part of the tradition. It will be argued that the debates surrounding the normative impact of the imperative mood reflect a logic of collective deliberation that highlights a reliance on the authority of the community of jurists as a foundation of validity for jurisprudential principles. Establishing the validity of legal norms and processes that lead to their formulation is a common concern among legal systems. In the study of classical Islamic law, it is commonly assumed that the jurists derived substantive norms from revealed sources using the tools and methods of Islamic legal theory. This assumption locates the validity of legal norms and their formulation exclusively in divine will as expressed in revelation. This study suggests that we can view debates in legal theory as efforts in grounding legal validity in various sources of authority, including revealed language and the collective authority of the scholars. This corresponds to what has been described in analytic jurisprudence as a secondary rule of recognition.

Abstract

This article offers an analysis of the way a number of classical Muslim scholars treated the question of the normative impact of statements in the imperative mood. This question, which was standard in classical works of legal theory, is noteworthy for its direct implication in establishing links between linguistic forms and normative positions. It reveals to us with some clarity the logic of norm-formation in part of the tradition. It will be argued that the debates surrounding the normative impact of the imperative mood reflect a logic of collective deliberation that highlights a reliance on the authority of the community of jurists as a foundation of validity for jurisprudential principles. Establishing the validity of legal norms and processes that lead to their formulation is a common concern among legal systems. In the study of classical Islamic law, it is commonly assumed that the jurists derived substantive norms from revealed sources using the tools and methods of Islamic legal theory. This assumption locates the validity of legal norms and their formulation exclusively in divine will as expressed in revelation. This study suggests that we can view debates in legal theory as efforts in grounding legal validity in various sources of authority, including revealed language and the collective authority of the scholars. This corresponds to what has been described in analytic jurisprudence as a secondary rule of recognition.

This article offers an analysis of the way in which a number of classical Muslim jurists reflected on the implications of the imperative mood in their works of uṣūl al-fiqh. The question of the meaning or implications (ifāda) of statements in the imperative mood (ṣīghat al-amr) is noteworthy in its immediate involvement in establishing links between revealed language and the formulation of norms. In debates on the implications of the imperative mood, which were a standard component of uṣūl al-fiqh in its mature form,1 we can observe with particular clarity the classical jurists’ efforts to draw connections between authoritative statements (i.e. what God or the Prophet said) on the one hand, and normative positions (what the believers ought to do) on the other hand. Going from what is, with varying degrees of certainty, believed to have been said,2 to what ought to be done as reflected in those debates is illustrative of some aspects of the logic of authority-building underlying those debates. As we will see in the examples studied below, this link was established by advancing defeasible principles, or rules of thumb, directed at the jurists, which instructed them to adopt a presumed normative position in the absence of proof to the contrary.3 The position that the imperative mood indicates obligation (al-amru yufīdu l-wujūb), for instance, establishes a principle according to which a jurist ought to presume that a statement in the imperative mood, in itself, gives rise to an obligation, unless there is proof to the contrary. This principle is designed to make available a basic rule of thumb that enables jurists to make pronouncements on the normative status of actions based on the form of revealed language alone. These principles, in other words, bridged the language-norm gap.4

In this essay, we will ask: how are such principles formed, and where do they come from? We will thus make an attempt to venture into the rarely explored territory of the foundations of uṣūl al-fiqh principles. That is, we will not concern ourselves with the uṣūl positions themselves as much as the ways in which those positions were reached. To answer this question, we will focus on the reasoning employed by the jurists to formulate such principles. This is a matter of importance from the standpoint of legal theory. If those principles represent a link between authoritative revealed signs on the one hand, and normative judgments on the other hand, where do those principles obtain their own legitimacy? It will be shown that, in each of the case studies, jurists of different affiliations used a dynamic dialectical form of reasoning to construct their positions.5 This is in line with recent historical accounts that highlighted the close links between juridical disputation and Islamic legal theory.6 More importantly for our purposes, this form of argument reflects a logic of consensus-like agreement that underlies the formulation of these principles. By adhering to a collective dialectical form of reasoning in their argumentation, the jurists grounded their deliberations in an accepted source of authority, namely the collective output of the community of jurists. I say “consensus-like” because this form of reasoning cannot be equated with consensus (ijmāʾ) in the strict sense, understood as an agreement among all scholars that raises a debated point of law or legal theory to the level of certainty.7 It does, however, reflect a similar but implicit sense of moral deference to the contributions of the community of scholars.

Analyzing the ways in which principles of uṣūl al-fiqh were formulated, as we will see, allows us to observe its place in the construction of a coherent scheme of legal authority in the classical tradition. The grounding of legal authority in final, accepted principles, like the agreement of the community in our case, is a concern common in many systems of legal theory. In contemporary analytic jurisprudence, for example, this issue is often framed as a question of “legal validity.”8 The question concerns the criteria according to which we can determine that a particular proposition is valid as law and belongs to the legal system in question. If the authority to make such a determination resides, for instance, in a particular institutional process, where does this authority come from? What is the ultimate principle upon which legal authority rests? By looking at the method of argumentation in uṣūl al-fiqh as a part of a process of authority-formation, we can see that those deliberations reflected a concern that is common to systems of legal theory in general. The reliance on collective deliberation, I maintain, corresponds to what would be considered a “secondary rule of recognition” in analytic jurisprudence. This secondary principle serves to ensure the grounding of each norm-generating component of the legal system in final authoritative premises.9

Much of the recent scholarship on uṣūl al-fiqh addresses the discipline’s historical relation to the formation of the body of substantive norms of fiqh. A standard view of uṣūl al-fiqh in its relation to fiqh regards the discipline as a set of methods designed to “derive the law from its sources.”10 The law here stands for the practical norms of fiqh, whereas the sources are the texts of revelation. The language of derivation and discovery of the law from its sources, however, comes with a broad set of theological and epistemological assumptions that are in no way self-evident. It assumes that the law resides in the language of revelation, and that uṣūl al-fiqh presents itself as the set of tools necessary for this process of discovery. By contrast, historical studies that find that substantive laws were in fact not “derived” from the sources using the methods of uṣūl al-fiqh, as the standard view suggests, often reach the conclusion that uṣūl al-fiqh was irrelevant to the process of law-making, or a scheme designed to “fictionally” attribute the law to divine sources.11 The present analysis, it is hoped, will help us think in a direction that avoids this dichotomy. This article aims to suggest a way of looking at uṣūl al-fiqh as an exercise in the building of a coherent theoretical model that links divine language to the formation of norms. As is the case in any normative system, each step needs to be grounded in final accepted standards that support its authority. This standard, in the present case, is a method of collective deliberation that underlies the thinking of the jurists. In this model, collective deliberation on questions of language and jurisprudence intervenes to bridge the gap in authority between revelation as a set of signs and substantive legal norms as pronouncement of the jurists. This allows us to see that, even if the discipline was not a method for the “discovery” of the law within the text of revelation, it was not an attempt to establish a fictional account of the law either.

This analysis of a number of uṣūl arguments, however, cannot and does not aim to address its relation to substantive laws, but only to show that it should be taken seriously as a theory of legal validity. A theory of law, generally speaking, attempts to construct a conceptually coherent image of the law, while maintaining an inevitably complex relation with practice. We will not ask what the discipline’s relation was to substantive law, but how its arguments were internally formed and what does that tell us about its place in the larger scheme of legal authority. These two different questions that we can ask of the discipline, and their corresponding methodological approaches, are complementary, not mutually exclusive. Looking at the discipline as an abstract exercise, as we will do in this essay, has been less extensively explored than the historical inquiry into its practical role, and, as we will see, can help bring the discipline into conversations that are common across legal systems. Another caveat before we delve into our analysis: this article does not survey all the forms of argumentation found in debates on the imperative mood, much less all arguments of uṣūl al-fiqh. It only analyzes the arguments advanced by four different classical jurists on a single question, and attempts to draw conclusions from this analysis on the logic of construction of authority underlying those arguments. Furthermore, it is entirely focused on attempts to formulate norms based on revealed language, and does not deal with “naturalistic” attempts to find value and norm outside of the language of revelation.12

This argument will be developed in three parts. First, the analysis of the four cases will be offered in the first section, starting with the argument for the suspension of judgment, then the argument for the presumption of obligation. Second, this analysis will be brought into conversation with some recent works on authority in uṣūl al-fiqh. Finally, we will examine the argument in light of debates on legal validity in analytic jurisprudence.

1 Debating the Normative Impact of the Imperative Mood: Two Positions

In this section, we will analyze several arguments that focus on the juristic treatment of revealed statements in the imperative mood. We will see that these arguments exhibit some noteworthy features. First, the arguments leading to the jurisprudential positions on the imperative mood assume that the totality of opinions produced by scholars constitutes the boundaries of possible truths with regards to the jurisprudential issue being discussed. Second, for a scholarly argument to be valid, it only needs to be superior in a logical or moral sense (or both) to all other available arguments. No independent theory, including the jurist’s own theological assumptions, was sufficient to settle any matter of jurisprudential nature. These assumptions help us understand how collective deliberation represented an attempt to generate legal authority by building consensus. Principles of that sort helped ground the structural coherence of the legal system in accepted sources of authority, such as collective agreement, rather than merely help “derive the law from the sources.” In these deliberations, we see that some form of consensus-building was operative at the level of the formation of uṣūl principles, not only at the level of justification of substantive norms.

The “meaning” or “outcome” (ifāda) of the imperative mood (ṣīghat al-amr) is a question that was given considerable attention by uṣūl scholars. What is particularly noteworthy about this argument is the fact that it involves most directly the normative implications of revealed language, and language in general.13 The specific question that scholars of uṣūl addressed in that context was the following: what normative outcome should the jurists presume when they encounter a revealed statement in the imperative form? Should the predicated action be presumed obligatory, recommended, or something else? And if it is presumed obligatory, should it be taken to indicate immediate, delayed, or repetitive performance? These are questions that aim to immediately link linguistic form and rules of action. As we will see, scholars of uṣūl al-fiqh tended not to look for the single correct answer based on some independent standards of truth, but to the best answer among those available. What we see is not only a semantic analysis of the imperative form, but also an exercise in the building of juristic authority.

1.1 The Suspension of Judgment

Let us begin with the argument for suspension of judgment (waqf or tawqīf) in relation to the imperative mood. Scholars of uṣūl al-fiqh presented their arguments for the suspension of judgment as a plea for the jurists to search for additional evidence. They justified this normative claim by the fact that no superior case had been presented by the proponents of other positions. For example, Bāqillānī introduced his position in support of the suspension of judgment by outlining the possible options concerning which further investigation is needed: “it is inevitable that command should be divided in two matters: the obligatory and the recommended. It is imperative that we suspend judgment whenever it [i.e. the imperative form] comes devoid of proof of obligation or recommendation.”14 As we can see in this statement, suspension of judgment (waqf) is an acknowledgement of the jurist’s indecision between alternative normative outcomes, and the realization that additional evidence is required. This indecision that resulted in Bāqillānī’s position is not defined in terms of independent demonstrative standards, but primarily by the fact that the community had failed to show, in a morally compelling manner, that one option should be taken as preferable to the other:

We mean by waqf that command can be obligatory or recommended, and the people of language (ahl al-lugha) did not conclusively show that it is exclusively associated with one or the other (lam yūqifūna ʿala annahu mawḍūʿun li-aḥadihimā). We should not follow them in anything upon which they did not agree (lā yajibu an yunqal ʿanhum mā lam yaḍiʿūhu bi-ttifāq).15

The logic of collective legitimation of jurisprudential principles is quite evident in this argument. None of those two incompatible claims could be adopted as a sole valid presumption. The reason for this is that both arguments, according to the available wisdom offered by the community of linguists, can be made without one defeating the other and without there being any reason for preferring one to the other. Deliberation constituted a search for the most plausible position among all available views produced by the scholars, and not a process of analysis of independently coherent concepts. It follows that it would have been sufficient to show the relative preponderance of one position over the others to defeat the argument for the suspension of judgment.

To be sure, Bāqillānī took this possibility quite seriously in his emphasis upon the perfect equivalence (takāfuʾ) of the two normative alternatives at hand. This equivalence is manifested in the fact that,

no one can say that [command] must be taken to indicate obligation when devoid of proof of recommendation without someone else being able to say that it should be taken to indicate recommendation when devoid of a proof of obligation. This entails its being [both] recommendation and obligation when devoid of a particular proof (qarīna).16

Of course, the simultaneous validity of two incompatible judgments is an impossibility, hence the need to search for more evidence. Significantly, Bāqillānī’s argument was not based on the invalidity of all the alternative claims, but on the equal validity of all of them. Since there is no free-standing threshold of truth outside of the arguments made by the scholars, jurists did not need to maintain that all that was incompatible with their own claims failed. In that case, it was sufficient to observe that all opposing arguments were equally plausible to show the moral worth of the suspension of judgment.

The community of scholars’ disagreement concerning the signification of the imperative mood was also at the core of ʿAbd al-Jabbār’s argument in support of the suspension of judgment. ʿAbd al-Jabbār begins his argument by providing an outline of the state of knowledge produced by the scholars on this question:

the people of language have clarified the form of command (qad bayyana ahlu l-lughati ṣīghat al-amr), and there is no doubt that saying ‘do!’ to an inferior constitutes a command (lā shubhata fī anna qawla l-qāʾili li man dūnihi ifʿal yakūnu amran). However, they disagreed on what makes it a command (mā yakūnu bihi amran), and what it signifies and indicates (mā yufīduhu wa yadullu ʿalayh).17

What we know for certain, according to ʿAbd al-Jabbār, is that uttering a statement in the form “do x!” to a subordinate constitutes a command. That, however, does not tell us much about the kind of norm that follows from this characterization. It is precisely on this community-based indecision that the argument for the suspension of judgment rested. For ʿAbd al-Jabbār, indecision about the exact signification of the imperative mood warranted further investigation into the concept of command itself. It follows from this argument, a contrario, that moral or logical superiority of one of the alternatives, or the consensus of the community, would have settled the matter.

ʿAbd al-Jabbār did not stop at explaining that incompatible and equally plausible arguments have been made concerning this question. He proceeded to explain that a preponderant argument was made concerning a slightly different, but logically prior question: “we do not maintain that the imperative mood indicates recommendation [or obligation] by virtue of linguistic convention. We say that it only indicates the desire for the subject-matter to take place (yufīdu irādat al-maʾmūr bihi faqaṭ).”18 Here, ʿAbd al-Jabbār offers a descriptive analysis of command. Because command, in the Muʿtazilī view, is a reflection of a desire to see an action occur, and the imperative mood is the form of command, it follows that the imperative mood is, by definition, an indication of the commander’s desire to see the action happen. Because of God’s inevitable goodness, a divine command necessarily proves that the commanded action is good. But how do we know if the commanded action is obligatory? This kind of analysis can help us to understand what constitutes a statement and how it comes into being. It does not, however, tell us how we can go from an observation about language to a presumption about jurisprudence, or the making of norms.

Advancing a normative claim with regards to the imperative mood could not have proceeded analytically from the concept of command itself. A single Muslim jurist, like ʿAbd al-Jabbār in this case, could not claim to proceed from their own analytical reasoning to produce broadly applicable rules of jurisprudence. A collective form of deliberation was necessary. This illustrates quite clearly the point being made in this article: Islamic jurisprudence did not merely involve the study of methods of understanding revealed language, but was also centrally concerned with building legitimacy for the principles governing the formulation of norms. In the above example, ʿAbd al-Jabbār’s concept of suspension of judgment rested on the same premise advanced by Bāqillānī, namely the exact equivalence between the possibility that a statement in the imperative mood could indicate obligation or recommendation. For ʿAbd al-Jabbār, this equivalence is a result of both the goodness of divinely commanded actions, and the fact that no linguistic or jurisprudential argument has been advanced that would prove that one outcome was morally preponderant over the other.19 The fact that the predicated action in a revealed statement in the imperative form is necessarily good means that, by pure analysis, we can know that it is either obligatory or recommended. To choose one or the other, we would have to fall back on the consensus of the community as reflected in the dialectical form of argument highlighted above.

Despite differences at the theological level, Bāqillānī and ʿAbd al-Jabbār presented their views on the imperative mood in the same way: as the most plausible outcome among the available ones. In this example, the available options are, based on views produced by the community, equally valid, and therefore the most plausible outcome is the search for further proof. They further insisted on framing their position as presumptions that could be defeated by evidence found by the community of scholars.20 As ʿAbd al-Jabbār explained: “If it was established that the Prophet, peace be upon him, or the consensus of the scholars, maintained that divine commands are all obligatory, it would be incumbent upon us to decide as such, otherwise our argument would stand.”21 We can clearly see in this statement the logic of a search for legitimate authority that underlies uṣūl reasoning. To have a normative impact, a jurisprudential position must be unequivocally advanced by revelation (which is a rare occurrence), or be approved by the community. In that sense, dialectical deliberation emerges as a modified form of consensus-building. This dialectical conception of the production of knowledge allowed legal theorists to assess and revise their premises at each step of construction of argument in a way that ensured the coherence of the sources of authority at each step. Being conscious of the place of their arguments in the overall scheme of authority-construction also meant that those claims had to remain open for revision by incompatible claims made within the community.

This concept of equivalence or equal validity (takāfūʾ), and the related concept of preponderance (tarjīḥ), are central to those dynamics of collective production of norms.22 The centrality of those two concepts demonstrates that deliberation consisted of an exercise in weighing incompatible claims, rather than free-standing analysis. As a result, none of the jurisprudents we study here attempted to present their claims as valid based on an independent standard of truth.23 None of them found it necessary to present positions incompatible with theirs as false on their own terms or based on some abstract standard of validity. Instead, Muslim jurisprudents advanced their views as the most desirable among many options. Pronouncing something preponderant (tarjīḥ), the concept that was most closely associated with a jurist’s preference of a given position, is both an epistemic and normative act. By announcing his tarjīḥ of a given outcome, the jurist both pronounced this position as the outcome of his process of reasoning, and effectively made this position preponderant by lending his support to it. As the etymology of the word shows, tarjīḥ is in fact a positive intervention by the jurist, and not an intrinsic or independent attribute of the position in question.24

1.2 The Presumption of Obligation

Suspending judgment on statements in the imperative mood is a case in which jurists refrained from making a presumption where no position could be inferred from the deliberations of the community. It is a form of juristic self-control in the face of social indecision. We will now examine the arguments of jurists who argued that the imperative mood alone should give rise to a presumption of obligation. In this context, we will see that jurists still did not attempt to portray their position as the one demonstrable truth, but only explained its superiority either based on linguistic practice or its envisioned legal effects. The notion that a jurist’s preferred argument is the most plausible among the alternatives made available by the community of scholars can be seen with equal clarity in the way in which arguments for the presumption of obligation were constructed. A consequence of the collective view of legal deliberation is that the various arguments presented by the community of scholars on any given issue were taken to represent the limits of all possible knowledge. Jurists were very careful to present those alternatives in order to show the validity of each claim they are advancing, since “validity” precisely meant preponderance over other claims. All conflicting claims, taken together, represented the yardstick of possible truth.

The different positions advanced on the presumed meaning of the absolute form of the imperative mood25 were reported by Jaṣṣāṣ, who summarizes them as follows: (1) the imperative mood should be taken to indicate (yuḥmal ʿalā) the goodness of the object of command, which is equivalent to saying that it is a desired matter (kawnuhu marghūbun fīhi). (2) The imperative mood should be taken to indicate permissibility, unless a sign shows that it is required or recommended. (3) Jurists should suspend judgment (ʿalā l-waqf) until a proof is found that indicates compulsoriness, recommendation or permissibility. (4) It should be presumed to indicate obligation (ʿalā l-ījāb) unless shown otherwise.26 This enumeration of the available views on the imperative mood was not a mere descriptive review of the arguments produced by Jaṣṣāṣ’s contemporaries. It was rather a normative claim concerning the limits of knowledge that can validly be advanced on this particular question.27 Jaṣṣāṣ explicitly maintained that the imperative mood cannot literally mean anything (lā yakhlū) outside of those four options.28 The argument that a given linguistic form cannot literally mean anything other than a particular set of meanings is an attempt to establish all the alternative opinions that jurists put forward in this particular scholarly discourse as the self-imposed limit of truth on that matter. We can see that this argument was not premised on the observation of an independently verifiable natural or linguistic fact, but on the limits of knowledge produced by the community. The fact that, among those conceivable meanings, at least one must be the literal meaning, is a semantic principle derived from the collective output of the scholars. Once all the potential literal meanings of the imperative mood were presented, Jaṣṣāṣ proceeded to argue that it follows from all of the alternatives that imposition of obligation is the default meaning of command. It follows that a jurist ought to take command to signify the imposition of obligation unless clear proof to the contrary is found.29 In his attempt to explain the relationship between the imperative mood and its normative outcome, Jaṣṣāṣ stated that the linguistic form ought to be “assigned to” (yuṣraf, or yuḥmal) obligation. Both yuṣraf and yuḥmal are verbs that roughly mean “to be taken to indicate,” and thus both refer to the thought process that a jurist ought to undertake with regards to the linguistic construction in question.30 Thus, like tarjīḥ, the ṣarf and ḥaml of a word was a positive effort by the jurist that dialectically created a moral presumption, and not an analytical conclusion derived from an abstract principle.

Unlike the majority of his Ashʿarī predecessors, but in line with the view of the majority of uṣūl scholars, the prominent twelfth-century scholar Fakhr al-Dīn al-Rāzī advanced an argument for the presumption of obligation in his al-Maḥṣūl fī ʿilm al-uṣūl. Rāzī, like Jaṣṣāṣ, deferred to the authority of the community of scholars in establishing a list of possible meanings that follow from the use of the imperative mood. He observed that “scholars of jurisprudence (al-uṣūliyyūn) maintain that the imperative mood can be used in fifteen different ways.”31 Those meanings produced by the community of jurists include the usual uṣūl conclusions that are commonly attached to the imperative mood: obligation (ījāb), recommendation (nadb) and permissibility (ibāḥa). Others include a number of uses common in everyday speech, such as expressions of advice, threat, challenge, warning, condescension, hope, among others.32 Once these various meanings are established, they set the limits of what Rāzī can endorse and evaluate to formulate his position on the normative effects of the imperative mood. The first step in this process of evaluation consists in dividing this set of opinions into those that suggest a literal relationship between the form and its meaning, and those that suggest a figurative one. By framing his inquiry in this manner, Rāzī focuses his questioning on the issue of which meaning is indicated by the grammatical form alone without any need for further proof. The meanings of no particular interest from an uṣūl perspective, such as supplication and hope, for example, could be easily dismissed on the basis that we always need contextual indicants in order to conclude that they follow from an imperative form. For example, the imperative form would indicate supplication if it comes from a person in a clear position of weakness or inferiority, such as in the case of prayer to God.

Once those opinions of no jurisprudential import are eliminated, Rāzī is left with limited possibilities. The imperative mood could be a literal (i.e. sufficient) indication of obligation, recommendation, permissibility, or some combination of those three. The view that the imperative mood directly indicates permissibility is quickly eliminated by Rāzī by recourse to common speech: we easily discern the difference between saying “do x” and saying “do x if you wish.” Permission cannot be the direct meaning of a plain command in the imperative mood, otherwise that other construction would not have been meaningful. We can also understand the difference in literal signification between “do” and “do if you wish” by reference to other constructions, such as “do” and “do not” (lā tafʿal). Altering the pure imperative mood with other constructions is clearly needed to indicate something other than some form of request or solicitation of action. Aside from showing the inadequacy of some of those positions, Rāzī also entertained certain possible objections to his argument, a kind of persistent questioning that is consistent with juridical dialectic. The main objection consists of the possibility that those common uses Rāzī related are matters of transient use (al-ʿurf al-ṭāriʾ) as opposed to well-established linguistic principles. It would follow, therefore, that, should the habits of linguistic usage change, the imperative mood could indicate threat or supplication literally. In response, he invokes another constructionist principle: we should abide by what is common in language. Since it is obvious that the form “do” alone would evoke a request for action more obviously than, say, challenge or supplication, this should be taken to be the literal sense.

The dismissal of permissibility removes at the same time the possibility that the imperative mood indicates all three meanings in a literal manner, or that it is “shared” (mushtarak) by all three normative degrees simultaneously.33 Rāzī is, therefore, left with the two main jurisprudential outcomes: obligation and recommendation (which includes the possibility that the imperative mood indicates both at the same time). The fourth possibility, which was, as we saw above, the one adopted by several prominent Ashʿarīs, was the suspension of judgment (waqf), which meant that the imperative mood in itself did not conclusively indicate any of those possibilities.

Rāzī’s dismissal of his own school’s dominant opinion is a particularly instructive example of dialectical thinking. One of the possible ways to understand the refusal to adopt obligation or recommendation alone as the primary meaning of the imperative mood rests on a view that it signifies the general need to perform an action without indicating whether or not it was a firm obligation (i.e tarjīḥ). Rāzī further proceeded to break down those two positions into their components. Obligation, according to Rāzī, is the outcome of requesting action while simultaneously prohibiting the omission of that action.34 Recommendation, by contrast, is a request for action while allowing omission. Since the permissibility of omission is accepted as a general principle in the absence of any legal injunction, it would follow that the second outcome should have taken precedence over the first. But it has already been shown that this conflicts with the understanding of the imperative mood in common parlance, which shows the implausibility of the argument for suspension of judgment.35 What remains to be done at this point is to show the inadequacy of the presumption of recommendation, which Rāzī does by reference to various instances in the Quran in which the recipient of a divine command is admonished for failure to comply, which means that the action was not merely recommended.36

2 Questioning the “Discovery Model”

The view that uṣūl al-fiqh was an exercise that was fundamentally concerned with the coherence of the law is not uncommon in recent scholarship. Robert Gleave explained that “[c]oherence of the law was expressed in the formulation of [uṣūl al-fiqh] principles … Consistency was not proposed merely for intellectual satisfaction. It was crucial for the law’s continued authority that contradictions between rules were kept to a minimum.”37 We can infer form this statement that Gleave uses coherence in a different sense from the one we have so far employed, namely the uniformity and minimization of differences in law-making. Gleave observed, however, more in line with our analysis, that this drive to uphold the consistency of the legal system was

important for another reason as well: the body of rules that come together to form the law was increasingly seen as divine in origin […] consistency, at least at some minimal level, needed to be demonstrated—internal consistency was evidence of a single divine guide who was the author of the law and who had laid down rules for its derivation and implementation.38

That principles of uṣūl al-fiqh expressed a drive to construct a coherent structure of authority is clear in the above analysis. As we saw, jurists attempted to formulate authoritative presumptions that would justify the formulation of norms based on authoritative texts.39

The emphasis on placing authority in divine “authorship,” however, does not account for the fact that a form of consensus-building was at play in this scheme of construction of authority, as we have seen so far. Gleave’s view of the uniformity of the source of authority (i.e. God) throughout the process of law-making corresponds to a model in which norms exist in the “sources,” and are “derived” from them by the jurists. Each part of the process of legislation, revelation, interpretation, and implementation is “an expression of God’s will for humankind” and derives its authority directly from such will. A question that this conception raises, which is beyond the scope of this study, is what is divine will and what is its role in law-making. It will suffice here to note that different theological schools viewed God’s will differently, and so it is likely that jurists held different views on how the law is a manifestation of God’s will. Of course, one could argue that everything is an expression of divine will, including juristic consensus or quasi-consensus, but that would not help understand what particular sources of authority were at play in that given system, since in that conception even secular laws would be expressions of divine will.40 In our examples, we saw that jurists relied on a range of sources of authority to formulate their principles, including, primarily, revealed language, but also linguistic conventions, and practical considerations. Those considerations where weaved together into a process of dialectical deliberation and used to construct juristic presumptions by relying on the authority of the community of scholars.

The discovery model entails a view of uṣūl al-fiqh as “interpretive” or “hermeneutical,” as opposed to constitutive and foundational of the system of authoritative norm-generation. It is interpretive because the norms are presumed to be carried by the sources and unearthed by the discipline’s tools and methods. Thus, for Aron Zysow, scholars of the discipline “were interested in putting forth a system of interpretation acceptable to a rational man, one consonant with the workings of language as known from common experience.”41 Those principles “emerge from the natural, automatic understanding of language that we all have […] The logic of the circumstances is such that a point must be reached at which some norms of the legal system are faced with nothing more than ordinary linguistic competence.”42 Our cases studies have, I hope, offered an alternative account of how some principles of uṣūl al-fiqh were formed. In our examples, jurists did not simply rely on the authority of ordinary language for its own sake, but only invoked it to the extent that it reflected the power inherent in social agreement. A linguistic principle would be taken as superior to other alternatives if it is the jurist’s view that no one would disagree that it constitutes the default position, or if taking it as a default position has practical or ethical advantages over the available alternatives.

A noteworthy attempt to question this discovery model came in Sherman Jackson’s article titled “Fiction and Formalism: Toward a Functional Analysis of Usul al-Fiqh.” Jackson includes a broad range of opinions in what he considered to be a “standard depiction” of the discipline as “the exclusive determinant” of the content of Islamic law.43 Those opinions, which Jackson joins together and dismisses, include Wael Hallaq’s description of the discipline as the “theoretical and philosophical foundation of Islamic law,”44 Bernard Weiss’s view that it is the methodology of deriving the law from the texts of revelation,45 and, from the tradition itself, that uṣūl al-fiqh is “that upon which the fiqh is based and on which it relies.”46 By dismissing those views, the only conclusion remaining is that uṣūl al-fiqh served to create a fiction of consistency within the legal system. While Jackson’s call for the study of uṣūl al-fiqh as legal theory is in line with our analysis here, it is my view that this dismissal of the “standard depiction” of the discipline goes too far. First, the opinions attributed to Hallaq, Weiss, and al-Taftazānī as a representative of the tradition, are far from similar. Weiss’s claim that it is a method through which jurists derived the law from the sources is the only view consistent with the discovery model we have described here. Hallaq’s view of the discipline as the “theoretical foundation” of the law, and al-Taftazānī’s fairly standard account of uṣūl as “that upon which the law is based,” are much broader that Weiss’s description, and do not in any way commit to a view of the discipline as “the exclusive determinant” of the law’s content, as Jackson put it. Our analysis above suggests, in line with Jackson’s argument, that the discipline was indeed central to the formation of a coherent structure of authority underlying the legal system, but, contrary to Jackson, this is not an attempt to create the fiction of consistency with divine intent. Rather, it was an effort to ground rules of jurisprudence in a final principle of legal validity, or rule of recognition.

We must note that our purpose here is not to claim that no classical jurist held anything similar to the “discovery model” described in this section (a claim that such a limited exercise cannot advance at any rate), but only to suggest that the picture was more diverse that the uniformly voluntarist understanding of authority that this model implies. My contention is that an inquiry into the rational foundations and processes of justification of these principles allows us to begin to see a picture in which the discovery model is not unquestionable. The issue with this model is not that it is false. It is that the model is largely assumed. A step towards the analysis of the logical forms and origins uṣūl principles has been made in the study of the historical evolution of Islamic dialectical disputation theories (jadal) in conjunction with uṣūl al-fiqh in Walter Young’s The Dialectical Forge. Young makes the assertion that “[s]uch works as are related to, or subsumed by, the larger genre of uṣūl al-fiqh, are particularly marked by the argument epistemes of juridical dialectical disputation.”47 The intimate relation between the evolution of uṣūl and dialectic in Islamic religious sciences is further explained as follows “Jadal, in fact, is both the birthplace and raison d’ être of [some] early Ḥanafī uṣūl.”48 Ultimately, through an analysis of a wide range of dialectical sequences pertaining to questions of substantive law,49 Young shows how the evolution of dialectic was organic to the tradition and intimately tied to the development of uṣūl al-fiqh. While our analysis clearly substantiates Young’s account, our purpose here is both slightly different and inevitably more limited. We asked: in its mature form, what types of argument and final premises where used to advance some of the principles of uṣūl in themselves, regardless of any historical and discursive connection to disputations on specific questions of substantive law.50 This is a question in the abstract formation of a model of legal theory. The jurisprudential dimension of this inquiry will be addressed in the following section.

3 Collective Deliberation and Legal Validity

We have seen that the attempts by Muslim jurists to elucidate the implications of revealed statements in the imperative mood reflected an implicit reliance on collective deliberation for the authentication of their positions. My suggestion is that this is not a mere semantic exercise in exploring the meaning of a linguistic form, but a juristic exercise in constructing a coherent image of the law’s structure of authority. In these examples, the implied collective authority of the community of jurists was central to validate the move from linguistic signs to normative judgments. The question of legal validity concerns the most fundamental principles according to which norms become accepted as properly belonging to a legal system.

In his influential work on legal philosophy, Andrei Marmor expressed the view that the need to ground the validity of legal norms is especially pressing in modern laws because they are “acts of the will,” generated by the operation of legislatures and other state bodies.51 Marmor’s view would implicitly exclude systems of law grounded in divine revelation as cases in which verifying the validity of legal norms is not a central concern, presumably because the authority of a divine legislator would be taken to be self-evident within that system. My contention is that a close study of the form of certain arguments of uṣūl al-fiqh reveals the presence of this concern at the level of uṣūl principles.52 The building of normativity as evidenced in the above arguments is much more than a process of discovery of divine will. The attribution of revelation to a divine source would have been sufficient to settle the question of authority if the jurist’s task was merely to “discover” or “derive” norms from the language of revelation. In that view of law-making, we would assume a certain continuity between the revealed norm and the one “derived” by the jurist, in which case divine authority would explain the validity of norms at each step of the process. As we saw in the above examples, however, the formulation of uṣūl principles was not a simple matter of semantic investigation, but involved the creation of presumptions that aimed to bridge the linguistic-normative gap.

The construction of juristic presumptions grounded in collective deliberation that we have studied above corresponds to what has been referred to in analytic jurisprudence, at least since H.L.A. Hart, as a secondary rule of recognition. A once influential positivist theory of legal validity relied on a view of law as an act of political sovereignty,53 a theory famously attacked by H.L.A. Hart in The Concept of Law. To be able to understand the generation of “primary” rules that are designed to impose obligations or guide behavior (which, in the Islamic tradition, would correspond to the rules of fiqh), Hart introduced the much-debated concept of the “secondary rule of recognition,” according to which the operation of the legal system displays at certain moments the general recognition of a given process or practice as truly norm-generating.54 The rules of recognition are “rules that constitute what counts as sources of legally valid norms in a given community.”55 They are “secondary” because they do not immediately guide action to the desired conduct, but only guide the process of generation of such norms of conduct, which are the “primary” norms. As Hart explains, the rule of recognition provides “authoritative criteria for identifying primary rules of obligation.”56 The rule of recognition gained central importance in modern legal theory as a principle aimed to the validation of legal rules and the grounding of legal authority.

Matthew Kramer describes the rule of recognition as a “set of definitive standards by reference to which the officials in the system ascertain the norms which they are empowered and obligated to uphold as laws.”57 The most significant objections to Hart’s theory of secondary rules of recognition come from jurisprudents who viewed some idea of value as inseparable from the generation and identification of legal norms.58 In those debates on the validation of legal norms, it becomes clear that the issue of justification of norms is also a major underlying concern. The question is not merely how to properly describe the manner in which law generates norms, but also to explain why it is rational and desirable for the law to operate in this particular manner.59 As presumptions designed to ensure the coherence of the formation of norms on the basis of revealed language, the arguments studied in this article are best understood as secondary principles in the sense advanced by Hart.

The standard view that I have labelled the “discovery model” identifies the secondary rule of recognition with divine will in a uniform fashion. My contention here is that this modified dialectical form of deliberation was a determinant of legal validity. The above analysis shows that, much like in modern debates on legal validity, we can study Islamic legal theory for answers to the questions how and why norms become accepted as part of a legal system. In the above examples, the how question is answered by the formulation of defeasible juristic presumptions that link language and norm. The why question is answered by the reliance on a final accepted principle: the agreement of the community.60 We can see that, unlike what some modern philosophers would suggest, the fact that Islamic law is not entirely a “product of human creation,”61 at least not at the theoretical level, does not make the question of validity any simpler. Contrary to the view that the law “resides” in the divine realm and is merely discovered or interpreted by the community of scholars, the jurists were involved in the grounding of norm-construction in collective agreement.

4 Conclusion

This article explored the arguments used by a number of classical Muslim jurists to support their uṣūl al-fiqh positions on the question of the normative implications of the imperative mood. I argued that those arguments reflected an underlying reliance on social agreement through collective deliberation in the production of juridical positions. I suggested that this kind of analysis offers a way to view the discipline as part of a larger effort to construct a coherent theoretical framework of legal authority. In this framework, divine authority, in the form of revelation, is juxtaposed with the agreement of the community of scholars as a standard of legal validity.

This way of approaching the discipline, I contend, helps transcend the dichotomy resulting from the debate on whether or not it constituted a method for the discovery of divine intent, or irrelevant to norm-formation. It contradicts the common view of the formation of norms in Islamic law as uniformly a matter of discovering divine injunctions. The picture we see here reflects a dynamic legal system in which diverse sources of legal validity, including the reliance on the authority of social agreement and the authentic statements of revelation, are juxtaposed. We have however only examined a limited number of cases and we cannot take these conclusions to be applicable across uṣūl questions, traditions, and time periods. Nonetheless, it is hoped that more will be done to view the discipline as a theory of law in its own right that was concerned with grounding legal validity in a coherent way, and which, inevitably, had a multifaceted relation to legal practice.

1

Here I refer to the specific form of scholarly writing that crystallized in a well-defined genre as exemplified by the Fuṣūl of al-Jaṣṣāṣ and later treatises of uṣūl al-fiqh. Wael Hallaq dates the emergence of this mature form of the genre in the tenth century C.E. Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunnī Uṣūl Al-Fiqh (Cambridge; New York: Cambridge University Press, 1997), 30–35.

2

The authority of particular statements and their attribution to divine origins is a logically prior question that this article presupposes but does not address. For more on this question, see Robert Gleave, “Deriving Rules of Law,” in Rudolph Peters and P.J. Bearman, The Ashgate Research Companion to Islamic Law (London; New York: Routledge, 2016), 60–61. See, also, in the same volume, Herbert Berg, “The Divine Sources,” 31–33.

3

I use “rule of thumb” here in the technical sense used in analytic jurisprudence, namely as a principle that explicitly allows for the possibility of being overridden if certain conditions arise. On the “rule of thumb” as a defeasible principle, see Frederick F. Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Clarendon Press, 1991), 4–5.

4

The idea of a “gap” in understanding created by writing was most notably developed by Paul Ricœur, who argued that writing, by its very nature creates a “space between the reader and the writer.” The matter is further complicated in our present context given the divine origin of revelation and the various way in which divine speech, revelation, and scripture can be conceived. On Ricœur’s idea of shattering of the discursive continuity through the act of writing, see Paul Ricœur, Interpretation Theory: Discourse and the Surplus of Meaning (TCU Press, 1976), 35. For one philosophical account of the concepts of divine speech, revelation, and the complex issues they generate, see Nicholas Wolterstorff, Divine Discourse: Philosophical Reflections on the Claim That God Speaks (Cambridge [u.a.]: Cambridge Univ. Press, 2000), 19–36. In legal interpretation, the relation between legislative language and legal norm is commonly seen to follow from either literal (or “pragmatic”) or contextual interpretation. For an argument against pragmatism in legal interpretation see Ross Charnock, “Lexical Indeterminacy: Contextualism and Rule-Following in Common Law Adjudication,” in Anne Wagner et al., Interpretation, Law, and the Construction of Meaning: Collected Papers on Legal Interpretation in Theory, Adjudication and Political Practice (Dordrecht, the Netherlands: Springer, 2007), 21–23.

5

I use “dialectical” here in the sense used to denote Islamic disputation theories (jadal) and expounded in recent studies on the subject: i.e. a principled exchange between two scholars in question-and-answer format in which each aims to undermine the opponent’s argument in a common spirit of cooperation and in search for the truth. For this notion of dialectic see Walter Edward Young, The Dialectical Forge: Juridical Disputation and the Evolution of Islamic Law (Cham: Springer International Publishing, 2016), 1–2. Young’s recent book is the most comprehensive account of Islamic disputation theory, in addition to its noteworthy unpublished predecessor in Larry B. Miller’s dissertation: “Islamic Disputation Theory: A Study of the Development of Dialectic in Islam from the Tenth Through Fourteenth Centuries” (Princeton University, 1984).

6

Most notably, Young, The Dialectical Forge. More on this account will follow in section 2 below.

7

I will also not go as far as identify this with any variation of consensus in the technical sense, including compound consensus (ijmā’ murakkab), since the adoption of a position outside of social agreement was not outwardly prohibited by the jurists, but only done as a matter self-discipline in regulation of each jurist’s individual reasoning. For more on the concept of consensus, see Hallaq, A History of Islamic Legal Theories, 75–81. An example of ijmāʾ murakkab was offered by Robert Gleave in his study of the legal theory of Bihbahānī. In Gleave’s reading, this “constructed” consensus entails a survey of prior opinions, following which the emergence of a popular opinion would be a probable indicator of consensus. There is no evidence that the scholars studied here explicitly viewed past opinions as indicative of probable consensus in that sense, but their logic certainly reflects a similar deferral to the epistemic authority of the community of scholars. Robert Gleave, Inevitable Doubt: Two Theories of Shīʿī Jurisprudence (Leiden: Brill, 2000), 82.

8

For more on final principles and their place in establishing legal validity, see Matthew Kramer, “Of Final Things: Morality as One of the Ultimate Determinants of Legal Validity,” Law and Philosophy: An International Journal for Jurisprudence and Legal Philosophy 24, no. 1 (2005): 47–97.

9

An idea that was famously introduced in H.L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 100–105. More on this concept will follow in section 3.

10

A discussion of the “discovery model” will be provided in the second section. The idea of derivation can be found, among other places, in Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Atlanta, Georgia: Lockwood Press, 2013), 2.

11

Sherman Jackson argued that “the commonly accepted dictum that Islamic legal theory (uṣūl al-fiqh) is the exclusive determinant of the content of Islamic law constitutes the “fiction” that I hope to highlight in this paper. What I will propose in its stead is the view that, as far as the content of legal interpretations is concerned, usul al-fiqh amounts to little more than a sophisticated exercise in ‘theory talk,’ or what one legal scholar referred to as ‘rhetorical etiquette’.” Jackson’s argument has a number of components. First, he denies that uṣūl al-fiqh is “the exclusive determinant of the content of Islamic law.” This claim is beyond the scope of our study. Second, he holds that uṣūl al-fiqh served to maintain that the consistency of the legal system and the authority of its pronouncements, which is exactly in line with our argument here. Third, he identifies this source of authority with “scriptural intent,” which contradicts our findings here. It is this assumed duality between scriptural intent and pragmatic considerations that, for Jackson, really determine the content of the law, that lead to the dismissal of the discipline as “theory talk.” What I suggest here is that a deeper analysis of the manner of generation of principles within the discipline reveals it as a conscious attempt to ground the construction of norms based on revealed language in collectively sanctioned presumptions. See Sherman A. Jackson, “Fiction and Formalism: Toward a Functional Analysis of Usul Al-Fiqh,” in Studies in Islamic Legal Theory. Bernard G. Weiss ed., (Leiden: Brill, 2002), 177–201.

12

For a study entirely dedicated to that question, see Anver M. Emon, Islamic Natural Law Theories (Oxford; New York: Oxford University Press, 2010).

13

Along those lines, Ahmad Atif Ahmad argued that “Muslim legal theorists look at commands and prohibitions in Qurʾānic and Sunna texts as the linguistic formulas most relevant to the law.” Ahmad Atif Ahmad, Structural Interrelations of Theory and Practice in Islamic Law: A Study of Six Works of Medieval Islamic Jurisprudence (Leiden; Boston: Brill, 2006), 108.

14

Wajaba inqisām il-amri qismayn: wājib wa nafl. Wa wajaba l-waqf fīhi matā warada ʿāriyan min dalīl al-ijāb wa dalīl al-nadb” Bāqillānī, Taqrīb 2:33.

15

Ibid., 2:36.

16

Ibid., 2:33–34.

17

ʿAbd al-Jabbār, Mughnī 17:107.

18

Ibid. 17:115.

19

Ibid. 17:115.

20

This intrinsic defeasibility of moral arguments led to an interesting debate in Ḥanafī-Maturīdī Transoxanian circles. Whereas the Iraqi Ḥanafīs, as we will see below with Jaṣṣāṣ, plainly maintained that the imperative mood results in a presumption of obligation, Transoxanian scholars debated the question of whether this was an obligation to act or an obligation to believe of the compulsoriness of the action. Since there is an inherent ambiguity in the presumption of obligation, scholars of Samarqand argued, it should only lead to an obligation to act, but one is permitted to doubt the moral status of the action, even if the presumption of obligation was the more prudent outcome. See for example Maḥmūd b. Zayd al-Lāmishī, Kitāb fī uṣūl al-fiqh, ed. Abdulhamid Turki (Beirut: Dār al-Gharb al-Islāmī, 1995), 91. This can be seen as an offshoot of the Ḥanafī distinction between what is farḍ, meaning that with regards to which there is absolutely no doubt, and what is wājib, which includes required matters regarding which there is some uncertainty. This distinction was fully rejected by the Shāfiʿīs. For more on this debate, see Kevin Reinhart “ ‘Like the Difference Between Heaven and Earth:’ Ḥanafī and Shāfiʿī Distinction of Farḍ and Wājib in Theology and Uṣūl.” In Bernard G. Weiss ed., Studies in Islamic Legal Theory (Leiden: Brill, 2002), 205–234.

21

ʿAbd al-Jabbār, Mughnī, 17:115.

22

Takāfuʾ is derived from the root (k-f-ʾ), which, in its simplest forms (kufʾ, kafiʾ), is precisely a reference to sameness, or equality in extent or value. The noun form kafāʾa means equivalence, but can also be used as a reference to something that is equal to another. The verb form takāfāʾa, from which the state of affairs takāfuʾ is directly derived, means “for two things to be similar” (tamāthalā). Takāfuʾ means being of equal value (al-istiwā), as in the Prophet’s ḥadīth: “the blood of Muslims is of equal value (al-muslimūn tatakāfaʾ dimāʾuhum).” From this same set of terms is derived the concept of suitability (kafāʿa) in marriage, and the idea of fair compensation for work (mukāfaʾa). Ibn-Manẓūr, Lisān al-ʿArab, 3892. Equivalence in the context of uṣūl al-fiqh is both epistemological and moral. The claim that two arguments are equivalent means that they enjoy the same plausibility, and, therefore, it would not be desirable to claim that one has priority over the other. On the form “kifāʾ” see Ayyūb b. Musā al-Ḥusaynī al-Kaffawī Abū al-Baqāʾ, al-Kulliyyāt: muʿjam fil-muṣṭalaḥạ̄t wa-l-furūq al-lughawīyya, ed. Adnan Darwish and Muhammad Al-Masri (Beirut: Muʾassasat al-Risāla, 1992), 773.

23

For a similar observation on the nature of Islamic juristic writing, see the concept of “open texts” in Brinkely Messick, The Calligraphic State: Textual Domination and History in a Muslim Society. (Berkeley: University of California, 1993), 31–37.

24

It is noteworthy that the root of the word tarjīḥ, which is ubiquitous in jurisprudential deliberations, denotes precisely the act of weighting. The verb rajaḥa, from the root (r-j-ḥ), means to weight, and arjaḥa means to make something heavier so that its side of the balance would drop. Tarjīḥ also means to evaluate. Ibn Manẓūr, Lisan al-ʿArab, 1586.

25

“Absolute” here refers to the form as when it is provided “ʿala l-iṭlāq,” i.e. when it is devoid of a qarīna to the contrary.

26

Aḥmad b. ʿAlī al-Jaṣṣāṣ, Uṣūl al-fiqh al-musammā bil-fuṣūl fī l-uṣūl, ʿUjayl Jāsim Nashamī, ed. 2nd ed., vol. 2 (Kuwait: Wizārat al-Awqāf wal-Shuʾūn al-Islāmiyya, 1994), 83.

27

The presentation of the opinions of opponents sometimes amounted to expositions of significant clarity and faithfulness to the opponents’ views. For example, Abūl Muẓaffar al-Samʿānī, a steadfast opponent of theological methods and advocate of the presumption of obligation, while he noted that the suspension of judgment is an opinion that “is unprecedented among the scholars” and unlikely to have been held by the prominent Shāfiʿī b. Surayj, proceeds to explain the arguments made by the “wāqifiyya” in a detailed manner. Abūl-Muẓaffar Samʿānī, Qawātīʿ al-adilla, 49–50.

28

Fa inna qawlahu ‘ifʿal’ lā yakhlū min an yakūna lil ījāb aw al-nadb aw al-ibāḥa.” Jaṣṣāṣ, Fuṣūl, 2:91.

29

Ibid.

30

Yuṣraf stems from the root (ṣ-r-f), from which derive a number of interconnected concepts. The basic noun form ṣarf means to change the direction of something. Inṣarafa means to leave a place or quit an activity, and can be used to mean that something lost his or her way. A derived meaning consists of a reference to constant change of direction (taṣārīf), such as the vagaries of times, or the change in wind direction. To “direct” a word in the indication of a certain meaning, therefore, reveals the assumption that this word is not associated with this meaning a priori, but rather by virtue of a tentative act of the jurist. Ibn-Manẓūr, Lisān al-ʿArab, 2434–2436. Ḥamala, by contrast, does not indicate the same set of technical meanings. Derived from the root (ḥ-m-l), it means to bear or carry. Iḥtamala can mean to tolerate, or to carry or wear a heavy object. Taḥāmala means to place an excessive burden. A meaning of ḥamala that is derived from the idea of placing a weight is to transfer or move in a new direction. This is quite similar ṣarf, and is likely the meaning intended by jurisprudents whereby a given linguistic form would be assigned to indicate a particular meaning. Ibn-Manẓūr, Lisān al-ʿArab, 1001–1005.

31

Fakhr al-Dīn Muḥammad b. ʿUmar al-Rāzī, al-Maḥṣūl fī ʿilm al-uṣūl, Muḥammad ʿAbd al-Qādir ʿAṭā, ed. 1st ed., vol. 1 (Beirut: Dār al-Kutub al-ʿIlmiyya, 1999), 176.

32

Ibid, 1:177.

33

Ibid.

34

Ibid, 1:179.

35

Ibid.

36

Ibid. It is worth noting that this particular argument could have been countered by observing that Rāzī appears to conflate the concept of divine command with the linguistic form of the imperative mood. It is possible that commands require obedience, but that does not necessarily mean that all statements in the imperative mood should be construed as commands in the absence of evidence to the contrary.

37

Robert Gleave, “Deriving Rules of Law,” in Rudolph Peters and P.J. Bearman, eds. The Ashgate Research Companion to Islamic Law (London; New York: Routledge, 2016), 57. The conception of uṣūl al-fiqh as “a handbook for the jurisprudent in his derivation of legal rules from the sources of law” is reproduced in page 60 and throughout the chapter.

38

Ibid.

39

The centrality of the discipline to the question of authority was also highlighted by Aaron Zysow throughout The Economy of Certainty, including in the very first sentences: “At the heart of Islamic law, as of all legal orders, there lies the question of legitimacy. From where do the rules that purport to bind Muslims come? What is the source of their validity? Who is entitled to make authoritative pronouncements as to the content of the law.” Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Atlanta, Georgia: Lockwood Press, 2013), 1.

40

To mention only two of the theological complications that the idea of legal rules as manifestations of divine will entails, we should note that classical Muslim theologians vigorously disagreed on whether divine will is part of the divine essence, and whether the physical language of revelation is identical to divine speech itself. For a discussion of the first question, see Zain Ali, “Concepts of God in Islam,” Philosophy Compass 11, no. 12 (2016): 892–904. For a discussion of the second question, see Omar Farahat, “Commands as Divine Attributes: Islamic Jurisprudence and the Euthyphro Question,” Journal of Religious Ethics 44, no. 4 (2016): 581–605.

41

Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory, 2013, 49.

42

Zysow, 50.

43

Sherman A. Jackson, “Fiction and Formalism: Toward a Functional Analysis of Usul Al-Fiqh,” in Studies in Islamic Legal Theory. Bernard G. Weiss ed., (Leiden: Brill, 2002), 178.

44

Hallaq, A History of Islamic Legal Theories, vii.

45

Bernard G. Weiss, Search for God’s Law Islamic Jurisprudence in the Writings of Sayf Al-Din Al-Amidi. (Salt Lake City: University of Utah Press, 2010), 24.

46

Saʿd al-Dīn al-Taftazānī, Sharḥ al-talwīḥ ʿala al-tawdīḥ, 2 vols. (Beirut: Dar al-Kutub al-ʿllmiyah, n.d.), 1:9.

47

Young, The Dialectical Forge, 66.

48

Young, 78.

49

Particularly in chapters 5 and 6. Young, 217–434.

50

That is to say, while our observation of the dialectical nature of the justification of intermediary principles of legal theory confirms, in some manner, Young’s conclusions, the historical connection between jadal and uṣūl al-fiqh, while important, does not commit to a particular view of how uṣūl principles in their mature form were viewed through the lens of legal authority. For example, Young, in some instances, appears to continue to assume that these principles were methods for the discovery of rulings (e.g. page 116 on sujūd al-tilāwa and elsewhere).

51

Andrei Marmor, Philosophy of Law (Princeton, N.J.: Princeton University Press, 2011), 2–5.

52

For the view that the question of validity concerns primarily legal “systems,” see Grant Lamond, “Legal Systems and the Rule of Recognition: Discussion of Marmor’s Philosophy of Law Book Symposium on Andrei Marmor’s Philosophy of Law,” Jerusalem Review of Legal Studies 10 (2014): 68–80.

53

See, most significantly, John Austin, The Province of Jurisprudence Determined: And the Uses of the Study of Jurisprudence (London: Weidenfeld and Nicolson, 1968). For some contemporary attempts to defend Austin’s theory of law as command, see Frederick F. Schauer, The Force of Law (Cambridge, Massachusetts: Harvard University Press, 2015), and “Was Austin Right After All? On the Role of Sanctions in a Theory of Law,” Ratio Juris 23, no. 1 (2010): 1–21.

54

Hart, The Concept of Law, 97–98.

55

Marmor, Philosophy of Law, 49.

56

Hart, The Concept of Law, 100.

57

Matthew Kramer, “Of Final Things: Morality as One of the Ultimate Determinants of Legal Validity,” Law and Philosophy: An International Journal for Jurisprudence and Legal Philosophy 24, no. 1 (2005): 47.

58

These include Dworkin’s conception of law as a process of collective interpretation, and the more clearly naturalistic view that legal norms can be identified directly in relation to moral values. See Ronald Dworkin, Law’s Empire (Cambridge, Mass.: Belknap Press, 1986), 52.

59

For the view that Hart’s theory of law as a social fact was ultimately motivated by moral considerations, contrary to Hart’s own claims, see Liam Murphy, “Better to See Law This Way,” New York University Law Review, 83, no. 4 (2008): 1088–1108.

60

On the difference between final and derivative standards that determine legal validity, see Kramer, “Of Final Things,” 57–62.

61

Andrei Marmor, Philosophy of Law (Princeton, N.J.: Princeton University Press, 2011), 2.

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