INTRODUCTION: CONCEPTUAL UNITY AND LEGAL NORMATIVITY

The understanding of the nature of normativity of a given legal system invariably depends upon the concept of law that one adopts. For example, in modern legal systems, the view that beyond the law's internal normativity consisting of its claims to create obligations and impose sanctions there is no external reason, moral or otherwise, to obey the law, is believed to follow best from a positivistic conception of law.Footnote ¹ In fact, this view has been advanced by some of the most prominent proponents of legal positivism today, including Joseph Raz.Footnote ² It would seem that viewing the law as a social fact, which is a central tenet of legal positivism, allows one to maintain that the law is self-sufficient with regards to the production of normative propositions. By contrast, a naturalistic conception of law as a purposeful enterprise may result in a view of law's normativity that rests on the human need to organize communal life, or, more generally, on some view of the desirability of having a functioning legal system.Footnote ³ Generally, it has been argued that, in all cases, giving reasons for action can only occur in one of two ways: either by indicating an already existing reason or by creating a reason based on preexisting circumstances.Footnote ⁴ Suppose, for example, that a supervisor instructs an employee to perform a given task. In that instance, the supervisor would be creating a reason for action for the employee, assuming a normal hierarchical work relationship and the relevance of the task to the employee's job description. By contrast, if a third person informs the employee that the supervisor ordered the performance of a given task, she would be merely making the presence of a reason for action known, not creating one. This second type of reason giving is epistemic in the sense that the third person's role is restricted to knowing about the existence of a reason for action and making this fact known to others.

In all cases, it is argued that modern legal systems inevitably aim to create reasons for action, regardless of whether or not we believe that there is a separate moral obligation to obey the law.Footnote ⁵ When imposing taxes, creating conditions for legal transactions, or establishing sanctions for certain types of behavior, the law does not merely point to the preexisting reasons to act in one way or another; rather it purports to create a new and independent reason that may or may not coincide with those preexisting reasons. In fact, it appears that the idea that modern law always claims to generate reasons for action is hardly controversial. The real question is whether there are moral obligations to obey the law regardless of those claimed reasons that receive the most intense scholarly scrutiny. How could there be such agreement in spite of the multitude of concepts of law that have been and continue to be advanced in modern jurisprudence?Footnote ⁶ As suggested above, the fact that a broad range of theories was offered by way of explaining the concept of law is hardly doubtful. While some influential theories contend that the sources of law can be found in social factsFootnote ⁷ and that law primarily consists of a system of normsFootnote ⁸ that ultimately rests on a customary rule of recognitionFootnote ⁹ or the commands of a sovereign,Footnote ¹⁰ other theories claim to find the source of legal norms in notions of innate human needs for flourishing and well-being at either the individual or social levelFootnote ¹¹ and view law as a purposeful social enterprise.Footnote ¹²

This diversity notwithstanding, we can observe one somewhat basic commonality between all those theories. Whether it rests on notions of morality, social fact, or behavior of legal officials, modern jurisprudence invariably claims to elucidate, or adopt, some concept of law. Generally speaking, to maintain that a given term is associated with a particular concept is to suggest that it refers to a given set of coherently related ideas.Footnote ¹³ Thus, unless one maintains that law is conceptually identical to morality or some other reason-giving system—a position that, to my knowledge, no one presently defendsFootnote ¹⁴—it appears that the view that the term “law” is, or at least should be, intelligible, is a fairly uncontroversial assumption in modern jurisprudence. Importantly, however, attempts to elaborate a concept of law are not limited to explaining what is or should be understood from the intelligible term “law”; they aim to describe, explain, or interpret a particular observable phenomenon. The function of the formulation of the concept of law in modern jurisprudence, thus, is not the mere elucidation of an intelligible and coherent set of ideas but also the explanation of an existing reality with which those ideas are associated. The concept of law, therefore, in all the variety of ways in which it is presented in modern jurisprudence, always has an ontological and internally structured subject matter.Footnote ¹⁵

The claim that the concept of law as formulated in modern jurisprudence necessarily refers to a coherent ontological matter warrants two further remarks by way of clarification. First, it must be noted that saying that jurisprudents assume the presence of a definable phenomenon that we refer to as “law” does not mean that their theories are necessarily descriptive. A normative position can be adequately advanced on the basis of an ontological conception of law.Footnote ¹⁶ It has in fact been argued that to advocate a notion of normative jurisprudence we would necessarily have to rely on some factual view of the concept of law.Footnote ¹⁷ In other words, in order for a legal theorist to advance a claim concerning how the law should be viewed, or, quite simply, how the law should be, she must depart from a certain assumption about what the law actually is. Perhaps more importantly, however, we must note that saying that we conceive of the law today as a phenomenon that exists in the social realm is not to say that legal norms are necessarily determinate. Even if we accept the position that there is a multitude of possible outcomes to any given legal case, this indeterminacy would still constitute part of the social phenomenon that we refer to as “law” and to which various theories attempt to provide coherent conceptual parameters. The ontological conception of law, therefore, is not the exclusive purview of legal positivism. Another possible objection to this idea of an ontological conception of the law can be made from the naturalist or Dworkinian standpoint. It could be argued that there are purely moral reasons to obey the law, and therefore its own conceptual consistency is not a precondition to its normativity. While solid arguments for external moral reasons to obey the law have been made, it remains the case that those theories conceive of the law as a conceptually independent entity that ought to follow their extra-legal ideals but does not do so by definition.Footnote ¹⁸ The conception of the law as a distinct social phenomenon, therefore, persists throughout, and in fact implicitly binds together the various inquiries into the concept of law in modern jurisprudence, as varied as they may be.

This supposed conceptual coherence of “law” as an ontological entity and the view that, at least internally, it always claims to produce reasons for action, are two necessarily linked propositions. It is fairly clear that, in order to claim to generate reasons for action, one must provide a coherent and comprehensible foundation for those reasons.Footnote ¹⁹ More to the point, it seems to be consistently the case that in order to advance a reason that can potentially dictate the course of action of an agent or group of agents, one must be able to make a claim about how the suggested course of action would fit into the schemes of this, the next, or any other possible world. To put it briefly, a lucid and effective reason for action must be supported by some view of reality. In order to constitute a reason, therefore, a certain directive, legal or otherwise, must be justified, and a directive cannot be sufficiently justified if its ontological foundations are obscure or inconsistent. As a result, unless law is seen as conceptually indistinct of morality, a position that even the most stringent of naturalists today does not hold, for legal directives to claim some kind of authority they must be backed by some coherent ontological concept of law.

The fact that in modern societies we invariably have some ontological concept of law is therefore understandable in light of the fact that legal systems need to have some claim to normativity. Even with the most robust naturalistic conceptions of law, the ontological distinctness of law persists for a simple reason: the normativity of the law must assert itself categorically in the most effective manner, and the adherence of individual subjects to the moral ideal of fidelity to law is not a uniform enough phenomenon to constitute a foundation for law's normativity as a social institution. For law to operate as a system of social regulation, therefore, it must enjoy a certain degree of conceptual unity, and this is accomplished in modern systems by conceiving of law as a distinct system that consistently generates reasons for action. Those internal, consistent reasons, may or may not coincide with external, moral ones, but they are conceptually separable nonetheless.Footnote ²⁰

But is a concept of law as a structural, distinct, self-sufficient entity a necessity for the existence of any system of social regulation? And if such a system existed that did not rely on a conception of itself as a coherent ontological entity, how did it operate? Or, at least, how did it claim to have guiding potential? A central thesis of this essay is that early Muslim jurisprudents managed to develop a conception of normative lawmaking that was, on the one hand, entirely epistemological in nature and, on the other hand, devoid of any coherent ontological conception of law as a social entity. The type of normative authority that emerged from that system, therefore, was necessarily constructed and justified in manners radically removed from the forms of authoritative reason giving that are common in modern legal systems. Given their purely epistemological nature, the reasons for action that this system created transgressed the above-mentioned dichotomy between epistemic and generative reason giving. Legal pronouncements made by jurists were fully epistemic and yet claimed to constitute reasons for action. This particular understanding of the epistemological nature and normative potential of the lawFootnote ²¹ could only have been possible as a result of the establishment of the law's devotional purposes, understood as the constant struggle to remain faithful to a divine and transcendent moral ideal, as structurally indispensable for the normative validity of the epistemological legal rulings. This central purpose that guided the process of both legal reasoning and compliance was presumed by this theory to be a moral drive shared by both jurists and laypersons to devote one's thoughts and actions to the attainment of knowledge of and acting in accordance with divine revelation. The devotional drive to comply with the moral model of revelation, I maintain, constituted both a source of self-motivation that justified the very enterprise of legal reasoning and an element of structural centrality that provided this epistemic edifice with its coherence. Significantly, this also meant that the expansion of the scope of legal knowledge through the various reasoning techniques advanced in those works of jurisprudence occurred in parallel with a tendency to accept the view, famously articulated by al-Shāfiʿī, that every aspect of human life can potentially be made to comply with the moral ideals of divine revelation. Importantly, also, those theories assumed that devotion to God and fulfillment of the purposes of divine revelation are the primary, if not only, ways in which a moral life can be achieved. In other words, both the legal aspects of this system, such as the collective regulation of social interaction, and its moral dimensions, such as the individual motivation to perform good actions, were fully subsumed under and identified with the overarching concern of faithfulness to the divine normative order.

While ontological coherence was reserved for the divine realm, the fact that juristic pronouncements represented humans' best chance at remaining devoted to divine morality constituted a sufficient justification for their normativity. To put it briefly, devotion to the divine moral order provided the otherwise ad hoc and contingent juristic lawmaking with an ontological backbone, thus rendering it a system of normative authority. For legal pronouncements, understood entirely as the products of epistemological states of specific jurists, to be able to advance a moral claim in themselves, a conception of the jurist as driven by the same devotional purpose as the legal subject was necessary for this form of legal theory to succeed.

More specifically, I argue, conceiving of legal pronouncements as case-by-case opinions of particular jurists on matters of compliance with revelation reflects three important matters about the process of formulation of legal rulings. First, the legal rulings (a ḥkām) or pronouncements (aqwāl) that represented the end product of this process were purely epistemological entities. Second, achieving, or at least attempting to achieve, the moral purpose of divine revelation was a necessary condition of the coherence of legal reasoning and judgment and, in fact, was conceptually inseparable from the notion of legal ruling. Third, except for serving the moral needs of the community, no logical connection can be assumed between different instances of legal judgment; hence the lack of a unified conception of law in the social sense.Footnote ²² This can be clearly contrasted with the picture drawn in the above paragraphs of the modern conception of law. In the early Muslim theory of law, legal judgments were entirely subordinate to the common drive to remain devoted to the purposes of divine revelation, which was shared by the jurists and legal subjects, and, in fact, could not have been justified without this devotional aim. Furthermore, the primacy and preponderance of moral and devotional considerations led to the utter inseparability of internal and external reasons in the legal judgments. In fact, the “external” devotional reasons were the only raison d’être of those pronouncements, and the only reason they were socially relevant. To put it briefly, the moral unity of the law's devotional purposes in Islamic jurisprudence played the normative role occupied by the law's ontological unity in today's jurisprudence. In those devotional theories of law, legal norms were nothing but attempts at reaching a central and shared moral purpose, and they were not seen to enjoy any presence independently of this purpose. Of course, this is not to say that Islamic legal theories were entirely devoid of ontological concepts. It is quite evident that Muslim jurisprudents of all ages viewed God and his words as existents in the profoundest sense of the term.Footnote ²³ The human enterprise of formulation of legal rulings on the basis of God's moral system, however, was viewed as entirely constituted of epistemological elements.

This epistemological conception of the moral-legal enterprise and the absence of distinction between external and internal reasons led to a number of unique characteristics in those early theories. On the one hand, jurists were seen as occupying the same status as laypersons from a moral standpoint. Although jurists took up the role of making pronouncements on the moral-legal status of actions in relation to God's revelation, they did not necessarily do so as representatives of any distinct social entity, but primarily as human believers who happened to rise to the inevitable moral task of attempting to reach knowledge of the divine moral order, as necessarily fallible as this knowledge may be. On the other hand, this theory was quite indifferent to the distinction between legal and nonlegal matters. Any situation in which believers found themselves was potentially the object of moral reasoning and judgment.

A particular group of works represents some of the earliest extant theories in which efforts were made to elaborate systems of legal reasoning in Islam. These are al-Risāla (The Epistle) of Muḥammad b. Idrīs al-ShāfiʿīFootnote ²⁴ (d. 820 CE), al-Fusūl fī l-uṣūl (Chapters on the Foundations [of Legal Knowledge]) of Abū Bakr al-JaṣṣāṣFootnote ²⁵ (d. 981 CE), and the chapter on juristic reasoning in al-Qāḍī ʿAbd al-Jabbār's (d. 1024 CE) al-Mughnī fī abwāb al-tawḥīd wal-ʿadl (The Exhaustive [Treatise] on Matters of Oneness and Justice).Footnote ²⁶ One of the advantages of taking some of the earliest available works of legal theory as case studies is the explicitly self-reflective nature of their arguments. The need to elaborate on the jurisprudents' most profound epistemological assumptions appears to have become gradually less pressing in later more systematic works in which it can be observed that many of those foundational debates were largely taken for granted.Footnote ²⁷

An important qualification is in order. All those works, by their very nature, advanced theories that pertained to a particular form of legal reasoning, namely ijtihād in its absolute form. This form of reasoning was reserved for a type of jurist who, when faced with a legal question by a believer, proceeded to find answers by direct recourse to indicants revealed by God. This “absolute” jurist, therefore, is theoretically unbound by prior authority or loyalty to self-organized groups of jurists when proceeding to solve cases in this particular manner. It has been amply argued that this was not the only, or even the predominant, way in which legal opinions were reached in Islamic premodernity. Nevertheless, this type of absolute reasoning retained the distinction, at least in theory, that authority-dependent legal opinions continued to claim to ultimately rest on some process of absolute ijtihād that took place at some point in time.Footnote ²⁸ Be that as it may, the epistemological foundations of legal pronouncements in authority-dependent types of reasoning in all their variety are beyond the scope of the present article.

SHĀFIʿĪ'S RISĀLA

In his much-studied al-Risāla fī u ṣūl al-fiqh (Epistle in Jurisprudence), Shāfiʿī elucidated the foundational concepts of his legal theory in explicitly epistemological terms. This epistemological conception of legal pronouncement was coupled, as I explain below, with two main assumptions. First, Shafiʿī viewed the process of reasoning that leads to knowledge of judgments as directly and explicitly motivated by a devotional moral purpose. This was true categorically with regards to all forms of reasoning, whether they led to certain or tentative forms of knowledge. Second, it followed that this moral purpose was shared by the jurists and nonjurists, which meant that no fundamental distinction was made between acts of lawmaking and acts of legal compliance: ijtihād, in the end, was an act of compliance to revelation's devotional ends.

The epistemology of Shafiʿī's theory was made clear in his differentiation between apparent (ẓāhir) and actual (bāṭin, literally, hidden) knowledge of proper moral outcomes.Footnote ²⁹ For Shāfiʿī, all instances of judgment-inducing knowledge fall on a scale defined by, on one extreme, knowledge solely based on matters apparent to the human mind, and, on the other extreme, absolute knowledge of the reality of things (bāṭin).Footnote ³⁰ The significance of bāṭin knowledge, therefore, does not lie in its obscurity, but in the fact that it constitutes actual knowledge, or, in its absolute form, knowledge from God's perspective (ʿilm al-ghayb).Footnote ³¹ It is therefore assumed that knowledge of the truth of things is considered a priori hidden or unavailable to human minds, which can in principle attain knowledge only based on what they observe, which is, by definition, contingent. Although humans judge all matters, including legal-moral questions, based on what is apparent to them, Shāfiʿī argues, the only chance humans have at claiming to have attained bāṭin or actual knowledge of proper moral outcomes is through a revealed and unequivocal statement (naṣṣ) of indubitable authenticity. As has become commonplace in Muslim epistemology, for Shafiʿī, indubitable authenticity is established when knowledge of a given matter is transmitted by the masses to the masses (that is, mutawātir).Footnote ³² In those limited cases in which “no one can be doubtful or mistaken,”Footnote ³³ humans are allowed to postulate (qawl) that they have attained an actual legal-moral judgment. Apart from this category of certain knowledge, all kinds of judgment-inducing knowledge are only based on contingent appearances.Footnote ³⁴

This categorization shows that Shafiʿī viewed juristic positions on matters of compliance to God's revelation as purely epistemological matters.Footnote ³⁵ Those two epistemological categories subsume the entirety of the possibilities of legal reasoning and pronouncement. Even with regards to legal outcomes based on knowledge obtained through a revealed text of indubitable authenticity and clarity (naṣṣ), Shāfiʿī conceived of certain knowledge as the best possible epistemic state that human minds can attain, rather than absolute God-like knowledge of the truth of matters. This can be seen in Shāfiʿī's explanation of this type of knowledge as an instance of mental “surrounding” of the prospective legal pronouncement by the lawyer's mind, both in its apparent and actual forms (iḥāṭa fīl-ẓāhir wal-bāṭin). The concept of iḥāṭa (literally, mentally surrounding the matter in question from all possible sides),Footnote ³⁶ indicates the inconceivability of understanding this matter in any other way, given the revelation of definitive signs by God. Even in its most pronounced form, therefore, certainty about legal outcomes does not imply that the jurist is producing the law in any ontological sense, but only the quasi-impossibility of error within the parameters of human intellectual abilities.Footnote ³⁷ This distinction between claims of certainty and claims of objectivity is central to understanding this epistemological system of law-making.

The other type of judgment-inducing knowledge, by contrast, does not constitute i ḥāṭa at all, but only the appearance of validity (ḥaqqun fil-ẓāhir).Footnote ³⁸ Those cases in which a judgment “appears to be accurate” are of two types: (1) knowledge acquired by only a few (ʿilm al-khāṣṣa) that Shāfiʿī identifies as the legal scholars, which can be obtained by prophetic traditions of less than indubitable authenticity; and (2) knowledge sought after by approximation of novel situations to established ones (that is, qiyās). Thus, when doubt about a certain matter is not inconceivable, which is true in the overwhelming majority of cases, legal pronouncement is made on the basis of what appears to be accurate to a few scholars in the first case, or to the scholar performing inferential reasoning in the second case. In all cases, no one can claim to be pronouncing the legal outcome other than God.Footnote ³⁹

There is an important distinction to be made here between, on the one hand, the nature of the legal rulings as pronounced by jurists and presented to the community of believers, and, on the other hand, the existence of moral facts in their objective form. As previously indicated, there is absolutely no doubt that Muslim jurists ascribed the status of objective truth to God, his word, and the moral system that faithfulness to God entails. That, however, does not mean that the production of legal rulings by jurists, even in cases of utmost certainty, is equivalent to the divine law in its perfectly true form being present as a social truth.Footnote ⁴⁰ The conflation of those two propositions may lead us to consider that the assumption that there exist objective legal-moral truths justifies the conclusion that “the objects of legal discourse are ‘not simply the extension of human mind.’”Footnote ⁴¹ In order to make this move, one must first establish that divine legal-moral truths and “the objects of legal discourse” are, or at least can be, identical. My point is precisely that the early Muslim jurists under study made no claim of that sort. Rather, Shāfiʿī conceived of the exercise of legal reasoning and pronouncement of judgments as a process of production of knowledge. The end result of the process, namely the legal judgment, represents the state of knowledge of a jurist or community of jurists, not the law in an ontological sense.Footnote ⁴²

A significant implication of the lack of an ontological concept of law is the lack of distinction between legal and nonlegal matters. This conflation of legal pronouncement and legal compliance can be explained by the fact that all of those actions are tied together by a common moral purpose. In that sense, the jurists, in their attempt to find answers to questions raised within the community of the believers pertaining to the shared will to remain devoted in every aspect of their lives to the moral model of divine revelation, are working towards achieving the same moral goal. It follows from that view that any question that pertains in any way to compliance with the moral model of revelation is potentially the object of a juristic exercise of epistemic exertion of effort (ijtihād) and, ultimately, a legal ruling. Accordingly, the boundaries between the legal and the factual, the expert and the commoner, the sacred and the profane, become blurred and give way to the idea of a collective drive to remain faithful to the way of life sanctioned by the Creator. Matters that may be viewed as purely factual in nature, such as the establishment of a witness's trustworthiness or finding the most likely direction of the qibla (that is, the direction of the Ka ʿba) for the sake of performing prayers are also questions of juristic relevance that are judged according to what is most apparent to the mind.Footnote ⁴³ The conception of legal reasoning as an epistemological effort that potentially applies to any occurrence that may befall the legal subject is most obvious in Shāfiʿī's reliance on the search for the direction of the Kaʿba as the chief example of inferential reasoning in his Risāla.Footnote ⁴⁴

Identifying the direction one ought to face during prayer is clearly not a matter that concerns the knowledge of a rule that pertains to prayer. The rule is clear: Muslims ought to face the direction of the Ka ʿba during prayer. This factual-normative divide, however, is a matter of no consequence to Shāfiʿī's conception of ijtihād. Conducting legal reasoning on the basis of revealed indicants is one among many ways in which believers should exert their utmost effort to act morally. Reasoning aimed at determining the proper action in a given situation is an effort that takes into consideration all available indicants, whether of a factual or normative nature, in order to reach what appears to be the most suitable outcome in a given situation.Footnote ⁴⁵ This constant struggle in search for the path of the law is, like all other acts of obedience, viewed as a test: “God has tested [the Muslims'] obedience in performing ijtihād like he tested their obedience in other obligatory matters.”Footnote ⁴⁶

Such matters that relate to the specifics of compliance are also dealt with according to the same epistemological concepts elucidated above. There are things that we can indubitably know (that is, with i ḥāṭa), such as the direction of the Kaʿba when we can see it, and our own trustworthiness with regards to matters of faith, and there are matters that we can only know with reference to apparent signs, such as the direction of the Kaʿba when we cannot see it, or the faith of another person. This distinction is expressed by Shāfiʿī as follows: “[W]hat we have been obliged to do with regards to the unseen object is unlike what we have been required to do with regards to the seen object … Likewise, we have been required to accept the trustworthiness of someone on the basis of what is apparent of it.”Footnote ⁴⁷ In this theory, revealed utterances, physical objects, and any other observable signs are invariably seen as potential guiding elements towards reaching the most likely ethical conduct. In all cases, “each person performs what he or she is required to the extent of his or her knowledge” (ʿalā qadri ʿimihi).Footnote ⁴⁸

The notion that different obligations befall the believers according to the applicable category of knowledge is of paramount importance to understanding Shāfiʿī's concept of legal reasoning. On the one hand, this is further evidence of the purely epistemological nature of legal positions. On the other hand, this shows that, from a moral standpoint, the act of legal reasoning is of exactly the same order as any human action. In other words, the exertion of intellectual effort to reach moral judgments is seen as an act of attempted compliance to revelation, just like any other action that a believer would take in accordance with such moral judgments. This further shows that the devotional purpose operated as the only structural link between instances of legal reasoning and legal compliance.

Another important consequence of the lack of a uniform conception of law is the adherence to a fully dynamic, case-by-case conception of legal judgment.Footnote ⁴⁹ In those early theories, it was assumed that each factual situation warrants a new exercise in ijtihād. In each such situation, the human mind takes all relevant indicants into consideration in order to find a convincing outcome. Shāfiʿī, applying this to the example of finding the qibla, argues that, in each individual attempt to face the Kaʿba, the believers in question, finding themselves physically removed from it, are required to seek guidance “using the minds that God installed in them (rakkaba fīhim) which are capable of distinguishing things from their opposites, and the signs He has clarified for them, other than the Kaʿba itself.”Footnote ⁵⁰ Thus, in each situation, the direction of the Kaʿba, the indicants in question, as well as the direction in which prayers will be performed is unique to this group of prayers and this particular location. By extension, in each case in which the proper outcome is unclear from the revealed indicants, the most favorable outcome that results from ijtihād could be entirely novel and unique. What matters, according to Shāfiʿī, is that “[the believers] persist in their efforts (mujtahidīn) without deserting God's commands.”Footnote ⁵¹ The ad hoc nature of ijtihād, therefore, is justified and made possible by reference to the coherence and centrality of the common moral purpose, namely the persistence in constantly seeking knowledge of the course of action that would constitute obedience to God.

The theory that jurists (1) make no ontological claim about the law, (2) should always be striving towards the revelation's moral ideal, and (3) exercise a new instance of ijtihād with regards to each new occurrence,Footnote ⁵² largely informs the notion and operation of the process of inferential reasoning (qiyās). Shāfiʿi explains that qiyās-based knowledge falls short of the level of certainty enjoyed by knowledge induced by indubitable revealed indicants, and yet is more trustworthy than mere speculation.Footnote ⁵³ Thus, the ethics of legal reasoning necessitate that qiyās functions within two extremes: the self-evident category of explicit divine or prophetic statement (na ṣṣu khabar), and the unethical category of reasoning that is not grounded in khabar at all, which Shāfiʿī refers to as istiḥsān.Footnote ⁵⁴ In line with the above analysis, qiyās must always strive towards yet never overlap with khabar-obtained knowledge. This is evident in Shāfiʿī's assertion that qiyās is a process through which the jurist attempts to “face” the ethical ideal of the Quran and the Sunna, which are viewed as “a goal sought-after by the scholar in order to face it, just like a person away from the kaʿba faces it [during prayer].”Footnote ⁵⁵ The only ethically prudent manner to find a resolution for a novel case without “losing sight” of the ultimate goal would be to approximate it to a similar case that has already been resolved by khabar. A central condition for the validity of this process, according to Shāfiʿī, is for the new case “to raise the possibility of similarity in [at least] two different ways, thus making it necessary to associate it with one case rather than another.”Footnote ⁵⁶ This is an important condition because, if a novel case can be associated with an established one in only one conceivable way, this would constitute a case directly resolved by the word of God and the Prophet, and thus would entirely collapse in the category of khabar-based knowledge.Footnote ⁵⁷ What is most important to note is the fact that, whether the jurist resorts to khabar or qiyās, in both cases reasoning would primarily rely on solutions epistemically assigned to specific situations, and not on the systematic application of ontologically definable universal rules. In each unique situation of legal reasoning, the jurist, much like the legal subject, is motivated by the devotional purpose of the whole enterprise of legal reasoning, which is the only constant and coherent element that justifies and binds together instances of reflection and compliance in Shāfiʿī's theory.

JAṢṢĀṢ'S AL-FŪṢŪL FĪ L-UṢŪL

As I have offered above, Shāfiʿī's theory of legal reasoning exhibited the following three characteristics: (1) legal rulings were seen as entirely epistemological matters; (2) legal rulings were not seen as logically linked together or collectively forming coherent conceptual entities; and (3) the activity of juristic formulation of legal positions was seen as profoundly devotional and fundamentally moral in nature, which constituted the only coherent element binding together epistemological instances of legal pronouncement. In this section, through an analysis of al-Fū ṣūl fī al-uṣūl of Abū Bakr al-Jaṣṣāṣ, I argue that, in spite of the emergence of more complex logical and epistemological categories that became characteristic of Islamic jurisprudence in its developed form, the basic moral-epistemological framework that we find in Shāfiʿī's Risāla continued to inform Jaṣṣāṣ's legal theory.Footnote ⁵⁸

While Jaṣṣāṣ's concern remained with the regulation of juristic reasoning that leads to the formulation of epistemic legal rulings, his categories focused closely on the methods of acquisition of knowledge and not only the types of knowledge that are generally available to the human mind. This is not surprising given that, by the time of Jaṣṣās, Islamic jurisprudence had evolved into a full-fledged science of legal methodology.Footnote ⁵⁹ The classification of the tools of juristic acquisition of knowledge was introduced by Jaṣṣāṣ in his explanation of the two intertwined and epistemologically foundational concepts of sign (dalīl) and cause (ʿilla). For Jaṣṣās, a sign is an element that, when contemplated, can help achieve knowledge of the sought-after subject.Footnote ⁶⁰ Thus, a sign in Jaṣṣāṣ's sense is an epistemic element whose entire function consists of guiding human minds towards knowledge.Footnote ⁶¹ For a sign to properly perform this function it has to be generated outside of the mind of the knowing agent, and be communicable to other knowing agents in a manner that raises the potential of leading to the same type of knowledge in their minds. In other words, signs in this sense are epistemic elements that have the potential of being communicated as convincing arguments.Footnote ⁶² Being communicable, it must be noted, does not entail its independence from the state of knowledge of the scholars involved, but only the reliance on accepted linguistic conventions and logical methods. This conception of sign shows us the continuation of the notion that the process of juristic pronouncement on legal matters operated primarily within the scholars' minds. Presenting legal positions as arguments reflected the understanding that those positions were seen as specific to particular jurists or groups of jurists, and their normative possibility was contingent upon their potential for communication.Footnote ⁶³

In addition, Jaṣṣāṣ was indifferent to the idea of an ontological structural coherence of those signs and, consequently, of the legal pronouncements that they induced. Instead, Jaṣṣāṣ established the search for knowledge of God and of action that reflects obedience to God as the central structural backbone of this epistemological system.Footnote ⁶⁴ The absence of an ontologically coherent notion of signs is evident in his assertion that a sign can be “anything in the heavens or earth [that] indicates [the presence of] God.”Footnote ⁶⁵ Jaṣṣāṣ's reliance upon an extremely expansive and nonstructuralist notion of sign as a basis for legal knowledge is quite telling. First, we can see that knowledge of God's presence and knowledge of moral action (that is, legal knowledge) in its absolute form are of the same epistemic order. Those are not purely this-worldly matters that are available for absolute control and mastery by human minds, but matters of transcendent moral truth that, at best, can be the object of a deliberate exercise of intellectual exertion that ultimately centers on moral and devotional purposes. Second, this nonstructuralism denies any conception of a sovereign self-justifying law that independently generates reasons for action. The revealed utterances are each treated as individual indicants whose sole legal function is to move human minds to a state of knowledge of proper thought and action in particular circumstances.

The second concept of epistemological importance that Jaṣṣāṣ introduces is cause (ʿilla).Footnote ⁶⁶ The introduction of a notion of causality that, as I discuss below, is entwined with yet separate from the concept of epistemic sign, highlights the significant innovation that Jaṣṣāṣ's theory represents in comparison to Shāfiʿī's. Epistemic cause, Jaṣṣās explains, is “a notion upon whose existence judgment arises.”Footnote ⁶⁷ In other words, it is a necessary condition to the rise of a given intellectual position, without which this position would not be justified. An informative analogy that Jaṣṣāṣ provides is illness (literally, ʿilla), which is a necessary condition for the appearance of the symptoms associated with it. Similarly, speculative judgments and descriptions arise by virtue of causes without which they would be impossible. Thus, Jaṣṣās establishes that epistemic signs and causes are conceptually distinct. A sign is an indicant that can lead to knowledge through contemplation, which means that sign-based reasoning (istidlāl) is nothing but the attempt to reach knowledge through the search for signs. Making a judgment based on cause, on the other hand, amounts to finding the cause that, not only guides human minds to a certain type of knowledge, but effectively gives rise to the phenomenon in question. In that sense, cause would be a particular kind of sign that not only justifies claims to knowledge but has an actual causal connection with the judgment in place.Footnote ⁶⁸

The introduction of a concept of epistemological cause according to which knowledge is inevitably and consistently obtained in particular situations is a clear departure from Shāfiʿī's theory. However, the development of a general theory for the methods of acquisition of knowledge did not affect Jaṣṣāṣ's assumptions with regards to the devotional nature and purpose of the process of formulation of legal rulings. The overlap between the two concepts becomes clear once Jaṣṣās anchors this methodological classification into an epistemological scale distinguishing certain from dubitable knowledge in a way reminiscent of, but not identical to, Shāfiʿī.Footnote ⁶⁹ Jaṣṣāṣ argues that any kind of reasoning is made either on the basis of causal and noncausal indicators (istidlāl) or on the basis of causal indicators alone, which he refers to as qiyās in the general, nonlegal sense.Footnote ⁷⁰ Jaṣṣāṣ explains that each of those two methods of reasoning can either be definitive or probabilistic. Thus, the distinction based on the degree of certainty cuts across the categories of methods of acquisition of knowledge. Irrefutable arguments are the ones constructed on the basis of signs and causes that cannot be denied.Footnote ⁷¹ This category of knowledge reflects a degree of trust in human reason's ability to observe and understand the causal occurrences that surround it without any further aid.

Jaṣṣāṣ's application of this scheme to the legal sciences, however, reflects a significant similarity with Shāfiʿī's epistemology in matters that pertain to the elaboration of rulings. As we have seen, ʿilla in its primary sense is a condition that gives rise to a ruling without interference from a human mind. However, Jaṣṣāṣ maintains that with regards to legal matters, epistemic causes do not immediately and unquestionably give rise to legal knowledge, but do so only by approximation to already known cases. Unlike the general form of qiyās, therefore, Jaṣṣāṣ is clear that, in juridical qiyās, the epistemic cause functions exactly in the same way as a sign, and not as a necessary logical cause. The ultimate conclusion is that, even though human reason is capable of grasping causal links and constructing definitive arguments on their basis, knowledge of moral action that is designed to conform to revelation is not based on natural, conclusive causes, and thus remains probabilistic. The relevant passage from Jaṣṣās's Fūsūl is as follows:

That the ultimate goal of legal reasoning is reaching a particular epistemic state with regards to the case at hand should be evident. The fact, therefore, that Jaṣṣāṣ saw observations about what is good and evil as a “sign” does not necessarily lead to the conclusion that he saw the resulting knowledge as “objective,” in the sense that the jurist's pronouncement is the truth that exists independently of anyone's knowledge.Footnote ⁷³ Rather, Jaṣṣāṣ sees the process of reasoning leading to legal judgment as the constant search for indicators, some of which are non-revelatory, that ultimately lead to contingent knowledge.Footnote ⁷⁴ Jaṣṣās holds that any type of legal pronouncement arrived at by legal reasoning is the result of istidlāl that has to be of one of two kinds.Footnote ⁷⁵ If this reasoning is based on “a sign established by God,” it is a plain and direct form of istidlāl,Footnote ⁷⁶ whereas if this is based on a search for signs elsewhere, it is ijtihād. This exertion of mental effort can be made by searching for “causes” (ʿillal) in established legal matters, and joining novel ones to them, or through a more general search of indicants that appear to point towards the proper outcome. In both of those situations, the ultimate aim of this process of ijtihād by istidlāl, whether or not through the recourse to ʿillal, is “to establish sufficient conviction [in the truthfulness of this judgment], rather than actually finding a [single] correct conclusion.”Footnote ⁷⁷

There is another important implication of this conception of legal causes. According to this view of lawmaking, the causes of legal rulings do not have any structural consistency, and therefore do not result in persistent rules in the ontological sense. In other words, the fact that a given cause gave rise to a particular legal ruling does not mean that a general rule under which new cases can be subsumed simply exists. Similarly to Shāfiʿī, the ad hoc nature of legal rulings is linked to their potential application to all categories of occurrences. As was the case with Shāfiʿī, for Jaṣṣāṣ there is also no question of, and no interest in, making apodictic statements about the law as a set of determined abstract rules. It should come as no surprise, therefore, that the assumption of a central, persistent, moral purpose consisting of adherence and devotion to God's revelation operated as the ultimate structural link that justified all instances of reasoning and pronouncement. What legal reasoning consists of, for Jaṣṣāṣ, is a search for clues in order to attain guidance on a case-by-case basis, which can potentially occur with regards to any situation with no distinction between legal and nonlegal matters. This is clear from the examples mentioned by Jaṣṣāṣ. These included such matters as the Quranic injunction to pay child support, which should be “amicably determined” (Quran 2:233), and the amount of settlement for divorce which ought to be done in a “satisfactory” manner. In both of those cases, it is left to the human intellect to exert its utmost efforts to determine what would satisfy the standards of “amicability” and “satisfactoriness.”Footnote ⁷⁸ Significantly, Jaṣṣās also uses the obligation to face the Kaʿba during prayers as an example of ijtihād.Footnote ⁷⁹ Any situation in which a devotional concern may be in question is deserving of juristic reasoning and pronouncement, since it is this devotional concern that gives the exercise of legal reasoning its purpose and structural coherence in the first place.Footnote ⁸⁰

Thus far I have attempted to show that Jaṣṣāṣ's elaborate methodological schemes did not affect his adherence to the conception of juristic legal pronouncement as an epistemological exercise with a devotional end. This profound similarity with Shāfiʿī can be observed in spite of their apparent disagreement with regards to the specific elements that can be incorporated in a valid process of legal reasoning. Jaṣṣās appears to adopt an expansive view of what speculative reasoning is capable of accomplishing by way of finding the correct moral path. This is obvious in his unequivocal assertion that reasoning on matters not settled by divine revelation, although guided by it, takes place independently from it, and according to the methods specific to human speculation.Footnote ⁸¹ In other words, it is clear that Jaṣṣāṣ, while he shares the view that conclusive knowledge of the law is in the very limited purview of unambiguous revealed verses, does not share Shāfiʿī's insistence that legal reasoning should be narrowly guided by the immediate meaning of revealed utterances. For Jaṣṣāṣ, speculation beyond the decisive language of revelation can incorporate elements of common sense or reasonableness. To illustrate this argument, Jaṣṣās interprets Quran 4:59 “if you dispute a matter return it to God and the prophet” to be a reference to matters for which no definite statement (naṣṣ) has been given in the Quran or the Sunna.Footnote ⁸² The apparent meaning (ẓāhir) of the verse is that the believers only disagree on matters not settled by the Quran or the Sunna. The justification of the claim that this is the ẓāhir meaning, however, is made in a way that clearly departs from Shāfiʿī. Jaṣṣāṣ argues that this is so because, as a matter of observation, it is habitual that disagreements only occur among Muslims on matters regarding which no clear judgment is made by the Quran or the Sunna.Footnote ⁸³ This is a significant illustration of an instance in which Jaṣṣās resorts to what is socially common, usual, and obvious in order to interpret what a central revealed sign means. The ultimate conclusion, however, remains similar to Shāfiʿī's: disagreement cannot arise in matters made clear by the Quran and the Sunna, and if it did, it would only signify ignorance.Footnote ⁸⁴ Therefore, both jurists clearly differed as to what would constitute a clear pronouncement, and the manner in which speculative reasoning can morally operate. Nevertheless, their analyses reflect no disagreement on the assumption that juristic reasoning must be geared towards a moral end.

The conception of juristic legal pronouncement as a nonstructural epistemic exertion geared towards a devotional end informs Jaṣṣāṣ's theory of qiyās in a way similar to Shafiʿī's treatment of the same concept. He appears to be aware of the tendency to resist the notion of inferential reasoning as a process of continuous intellectual effort rather than a formalistic application of logical steps.Footnote ⁸⁵ This inclination to fixate legal reasoning in structural premises and conclusions is exemplified in Dawūd al-Ẓāhiri's quest, related by Jaṣṣās,Footnote ⁸⁶ for clear points of logical origin or premises (aṣl, plural uṣūl) and conclusions (farʿ, plural furūʿ), something that Ẓāhiri believes qiyās cannot provide: “tell me about qiyās. Is it a premise or a conclusion? If it is a premise, there should be no disagreement in its regard, and if it is a conclusion, then what is its premise?” Jaṣṣās remarks that the question “indicates [al-Ẓāhirī's] ignorance of the meaning of qiyās.”Footnote ⁸⁷ Jaṣṣās at this point makes explicit the claim that inferential reasoning on legal matters is defined in terms of juristic action, not in terms of a formal structure of reasoning: “qiyās is nothing but the action of those involved in reasoning, whose action cannot be called a premise or a conclusion.”Footnote ⁸⁸ Ẓāhirī's alleged ignorance notwithstanding, Jāṣṣās is willing to answer a slightly improved question: “if he had said ‘tell me about the obligation to approve the exercise of qiyās or the permissibility of qiyās,’ the response would be: ‘[it stems from the fact that it] has as a justification the Quran, the Sunna and the consensus of the community, as previously shown, and its conclusions are all the cases in which judgment is made by qiyās.’”Footnote ⁸⁹ Jaṣṣās then concludes: “we would then ask him ‘tell us: why do you assume that a matter can only be either a premise or a conclusion?’”Footnote ⁹⁰ Jaṣṣās thus reinforces the idea that legal reasoning was not conceived of as a mere formalistic derivation of conclusions from their premises, but a constant intellectual effort in which logical values and structures are subordinate to the devotional ideal of remaining faithful to the Quran and the Sunna of the Prophet.

As we saw, Shāfiʿī's argument stops at the point of holding that inferential reasoning needs to rely on divinely revealed indicants, and must use the most obvious signs to the scholar's best abilities. Jaṣṣāṣ, on the other hand, extends the valid premises of legal argument to the apparent causes of already established rulings, which can be used to resolve new cases. This expansion must be understood in conjunction with Jaṣṣāṣ's distinction between cause and sign in order for us to see that, in spite of this difference, Jaṣṣāṣ and Shāfiʿī shared the same model of legal reasoning that was ultimately centered on devotional compliance as the only coherent structural element. We have previously seen that, for Jaṣṣāṣ, what appears in revelation as an element causing a given judgment does not act as an effective cause in the process of legal reasoning, but as an indicant like any other. Therefore, it would be a mistake to assume that Jaṣṣāṣ's recourse to a notion of causality in legal reasoning is a reflection of some sort of naturalist position by virtue of which rulings mechanically follow from empirical observations. Rather, Jaṣṣāṣ holds that what appears as a cause in revelation can be used by the jurist as a sign to guide him in his quest towards the moral ideal of the law, without its being a decisive justification of a pure ontological nature.

To sum up, in spite of significant differences with regards to the methods of reasoning, Jaṣṣāṣ and Shāfiʿī relied on the same conception of lawmaking that views juristic reasoning as an ad hoc exercise with a moral aim, and viewed this moral aim as the primary reason for which those instances of reasoning and the theories and methodologies surrounding them existed. In the end, the assumption that revelation-independent reasoning can discern the causes of revealed judgments did not lead Jaṣṣāṣ to a notion of qiyās in which rulings are derived from universal rules that govern all instances of juristic reasoning. The revealed cause remains a dynamic guide that potentially provides indication to the active scholar with regards to the proper established case to which the new case should be joined.

AL-QĀḌĪ ʿABD AL-JABBĀR'S AL-MUGHNĪ FĪ ABWĀB AL-TAWḤĪD WAL-ʿADL

While al-Qāḍī ʿAbd al-Jabbār took the reliance upon revelation-independent reasoning to new extremes, he still did not conceive of the law as produced by a dynamic juristic reasoning on the basis of revealed indicants as an ontological concept of structural unity. Significantly, in spite of this heightened sense of confidence in revelation-independent reasoning, ʿAbd al-Jabbār defended the ad hoc nature of legal pronouncements on the basis of a clear conception of devotional moral purpose as a central unifying factor in a manner that is more elaborate and explicit than both Shāfiʿī and Jaṣṣāṣ. Overall, ʿAbd al-Jabbār's chapter on legal methodologies titled “al-Sharʿiyyāt” (literally, legal matters, or matters of practical conduct) in his encyclopedic al-Mughnī fī abwāb al-tawḥīd wal-ʿadl appears designed to address two main concerns. First, he attempted to establish a classification of legal signs on the basis of their epistemic potential. Second, he sought to formulate a general framework for the methods in which legal knowledge can be acquired based on those signs. The supreme premises and starting points of this scheme consist of cosmological-theological postulates as well as rational imperatives that are immediately obvious to the human mind. Thus, the first step in this system is acknowledging God's oneness and justice:

It is clear that for ʿAbd al-Jabbār the organization of epistemological elements in a manner that is both logically valid and consistent with law's moral-cosmological premises was a primary concern.Footnote ⁹² However, logical and epistemological validity does not entail ontological uniformity. In fact, in ʿAbd al-Jabbār's theory, similarly to the two previously studied jurists, the value of revealed indicants was strictly limited to their status as potential guides to legal knowledge. Revealed signs were neither sources that create the law, nor sovereign texts that contain the law, but simply indicants that guide human minds to moral knowledge: “It does not matter, therefore, whether the signification [of those indicants] is a judgment, a qualification of its apparent meaning, a specification or a clarification of an ambiguous statement.”Footnote ⁹³ The exact role of an indicant in the process of production of legal knowledge does not matter, as long as it fulfills its function as indicant. Similarly, it does not matter whether an indicant is valid a priori by virtue of its unique cosmological status (for example, the Quran), or established on the basis of other signs (for example, qiyās): “There is no difference between the signs' signification in themselves or by virtue of other signs … whereby each sign would need another sign to indicate the necessity to act on its basis.”Footnote ⁹⁴ What matters is the indicant's ability to move the jurist's mind closer to attaining knowledge that would likely lead to moral action. The ultimate goal of devotion to divine revelation, therefore, persists even in ʿAbd al-Jabbār's highly systematic jurisprudence as the only notable element of coherent structural unity and as a solid justification for the jurisprudential enterprise altogether.

After having explained the role of utterances obtained through God's speech as indicants that lead to the knowledge of proper action, ʿAbd al-Jabbār moves to the following step, namely the determination of the methods through which meaning can be obtained based on those signs. Even though ʿAbd al-Jabbār, unlike Shāfiʿī and Jaṣṣāṣ, adopts a notion of meaning that stems from the intention of the speaker, in the sense that what revealed signs indicate corresponds to what was intended by God, his epistemological position with regards to the juristic comprehension of those signs is also anchored in the notion of apparent meaning:

The reliance on what is apparent to the mind from a linguistic utterance is, for ʿAbd al-Jabbār, a matter that corresponds to the logical order of revelation and comprehension. Since God is perfectly just, it is not possible that he could intentionally disclose matters that would be understood by human minds in one way while intending another.Footnote ⁹⁶ Similarly to Jaṣṣāṣ, but unlike Shāfiʿī, apparent meaning for ʿAbd al-Jabbār encompasses matters that are made reasonable by social context or linguistic usage: “While speech indicates what is apparent from it, it might either indicate what is strictly within its purview, but may also exceed it by virtue of language or custom. Thus there is no difference between the literal meaning (ṣarīḥ) and the contextually understood meaning (faḥwā) of a statement.”Footnote ⁹⁷ Like the previously studied jurisprudents, ʿAbd al-Jabbār adheres to an epistemic conception of the human relationship to legal injunctions, while incorporating a wide range of techniques within the spectrum of methods available to the mind in attempting to reach acceptable legal outcomes. For legal outcomes to be “acceptable,” as we have repeatedly seen, they need to stem from an intent to comply with the law's overall devotional purpose.

Thus far, ʿAbd al-Jabbār's classification of juristic indicants and methods reveals a conception of legal reasoning as entirely epistemic and nonstructural.Footnote ⁹⁸ Just like the other jurisprudents we studied, ʿAbd al-Jabbār views ijtihād primarily as a devotional act with a moral purpose, and not as a mere mechanical process of deduction. The assumption that some legal knowledge is by its very nature reserved for those who, on behalf of the community of believers, seek to actualize the law's potential through reasoning is described by ʿAbd al-Jabbār as a consequence of the fact that legal reasoning is itself a moral obligation: “[legal reasoning] is a task only imposed upon scholars, for it is one of their obligations. Plenty of the branches of legal ruling (a ḥkām) pertain to the scholars alone … since, while some of the legal rulings are necessary and acquired, others depend upon probability.”Footnote ⁹⁹ This effort to obtain knowledge of legal judgments not readily available is, as this statement clearly indicates, itself an act of compliance with the law's ultimate moral purpose. The kind of legal knowledge known by everyone regardless of their involvement in intellectual effort to reach it, on the other hand, is assumed to be knowledge that no one can reasonably ignore: “The necessary among [those judgments] are imposed upon everyone since this is inevitably known from the Prophet's message.”Footnote ¹⁰⁰ Of course, we should bear in mind that “reasonable knowledge” is a concept that Shāfiʿī and ʿAbd al-Jabbār define in very different terms. Still, like Shāfiʿī, ʿAbd al-Jabbār saw this as a minute part of the entire potential of legal knowledge: “most of it consists of knowledge exclusive to the scholars rather than the common man, who is only a follower in that regard.”Footnote ¹⁰¹ While the non-jurist is a follower due to the epistemological unavailability of some aspects of moral knowledge, both jurists and non-jurists occupy the same order with regards to the need for compliance. Jurists are not producers or discoverers of values and norms, but only legal subjects who have access to a broader realm of knowledge by virtue of their vocation.

Thus, this distinction between scholar and layperson is predicated upon a purely epistemic difference, not a difference in moral status. In fact, ʿAbd al-Jabbār expounds the idea that juristic reasoning is itself an act of obedience more extensively and explicitly than either Shāfiʿī or Jaṣṣāṣ. In his polemics against a hypothetical denier of qiyās, ʿAbd al-Jabbār finds it necessary to take to the extreme the idea that legal reasoning is an act of compliance by arguing that “being on the right path” is a concept that can only attach to actions of the believers, whether physical or intellectual, and not to abstract concepts:

ʿAbd al-Jabbār is very clear about the notion that making legal-moral pronouncements on the basis of legal reasoning is, in itself, an act of legal compliance to revelation's devotional purpose. However, being an act of devoutness does not theoretically preclude the possibility that it could act as a mediator between two separate and definable realms of norm and fact. ʿAbd al-Jabbār is quick to reject this possibility. For ʿAbd al-Jabbār, human reasoning is not only the point of departure in the logical scheme of legal indicants, as described above, but also the only way through which the law becomes actualized and followed. In brief, there is no such concept as law in a pure and abstract form: “[This hypothetical dissenter] also thought that the jurist's action cannot give rise to knowledge of legal judgments. That is great ignorance. A scholar knows the judgments in both legal methods (uṣūl) and in substantive law (furūʾ) using his thought and speculation.”Footnote ¹⁰³ Employing the methods of uṣūl al-fiqh is not a neutral act of discovery or extraction of rules, but a moral action in its own right that brings about legal rulings.

Reasoning is the only way of turning the potential of divine law into a human actuality that is comprehended and followed. However, as confident in the potential of revelation-independent human reason as ʿAbd al-Jabbār may have been, he emphasized the centrality of the ethical requirement of ensuring that legal reasoning remains focused on legal indicants revealed by God: “An object of speculation is required. If [our opponent] thinks that we allow qiyās on the basis of desire and whim alone, he is an ignorant. We only allow qiyās based on sign (dalīl) and indication (amārah).” As committed as he was to the employment of refined logical models of reasoning, ʿAbd al-Jabbār maintained that, ultimately, performing proper legal reasoning is a matter of morality. Legal reasoning, being as we saw the realm within which the law becomes actual, is inevitable even in situations in which the jurists claim that there is only a single possible meaning to the sign in question. Therefore, since “the law” in itself has no means of ensuring its own interpretative dynamics, the commitment of jurists to the moral ideals that govern legal reasoning is the only way to ensure the validity of this process:

ʿAbd al-Jabbār's attribution of a wider scope of possibility to revelation-independent reason is reflected, among other things, in his minimization of the scope of probabilistic knowledge, including that which is obtained by qiyās. For ʿAbd al-Jabbār, there is a wide variety of cases and methods in which revealed signs immediately indicate the proper legal judgment. These should not be confused with the knowledge that is necessarily acquired by all believers. Knowledge obtained by revealed indicators belongs to the category of knowledge reserved for those who engage in reasoning on the basis of those indicators: “methods of acquisition [of legal knowledge] are diverse. Some are signified by the Quran, some signified by the Sunna, some are inferred from those two, since the ways in which they signify legal judgments are diverse.”Footnote ¹⁰⁵ Beyond this category, ʿAbd al-Jabbār adopts the view elucidated above in relation to Shāfiʿī and Jaṣṣāṣ that exertion of intellectual effort in search for signs can lead to probabilistic legal knowledge: “some [knowledge] is obtained by mere probability, which is ijtihād, in which case we can only say that all struggle to obtain knowledge is valid as long as it is done in the proper methods of ijtihād and fulfills its conditions.”Footnote ¹⁰⁶

The specific method of performance of ijtihād is qiyās, which ʿAbd al-Jabbār takes to higher levels of systematization compared to Jaṣṣāṣ, and, a fortiori, to Shāfiʿī. Nevertheless, ʿAbd al-Jabbār remains faithful to the view that qiyās, as logically systematic as it may be, is ultimately an epistemic process aimed at approximating the outcome of a novel case to an established one as much as possible. ʿAbd al-Jabbār pushes Jaṣṣāṣ's argument on causation a step further by assuming an exact identity between legal reasoning employing techniques of qiyās with logical reasoning in matters of natural sciences: “the methods of legal qiyās do not differ in their form from the methods of speculative qiyās.”Footnote ¹⁰⁷ It is of utmost importance, however, that while ʿAbd al-Jabbār insists on the employment of the logical methods of the natural sciences in legal reasoning, he is also clear about the fact that the validity of those methods in legal matters does not stem from their correct form alone, but from the attempt to approach the judgments that are clearly provided by revelation. Thus, he illustrates legal qiyās with the following example: “we know that it is prohibited to have sexual relations after divorce. If we reflected upon [other situations] we would find that they resemble divorce, and would therefore make the same pronouncement in their regard, if we can find a sign for this.”Footnote ¹⁰⁸

It is clear that ʿAbd al-Jabbār, unlike Jaṣṣāṣ, treats the ʿilla of a given ruling as a proper cause. Just as one provides for his children with a specific amount based on his general observation of prices and needs experienced in his own life,Footnote ¹⁰⁹ one takes grape wine to be prohibited on the basis of its intoxicating effects given that the same effect led to the prohibition of date wine.Footnote ¹¹⁰ This, however, does not mean that, for ʿAbd al-Jabbār, intoxication effectively renders grape wine prohibited with no intervention from the jurist. The pronounced reliance on the notion of causality here only reflects a methodological aspect of human reasoning, rather than an ontological claim about the law. While ʿAbd al-Jabbār does in fact place great emphasis on the employment of proper thinking methods that are rationally acceptable and organized, he also maintains that the ultimate test for the propriety of legal reasoning is not its formal features alone, but its compliance to the ethical standards of the law. While some cases of obvious similarity may warrant great confidence in the process of qiyās (the intoxication of different types of wine is a case in point), qiyās remains a method of ijtihād, which, by its very definition, is an effort aimed towards the acquisition of probabilistic knowledge. As explicitly stated by ʿAbd al-Jabbār, all instances of ijtihād are nothing other than acts of compliance with the devotional imperative of revelation.

CONCLUSION: DEVOTIONAL PIETY AND REASONS FOR ACTION

By analyzing three of the earliest extant Muslim attempts to theorize the exercise of juristic pronouncement of legal rulings, I have attempted to demonstrate that, in spite of significant developments in logical and theological complexity, as well as divergent views with regards to what qualifies as a valid argument, there were profound common assumptions that remained present in the work of those jurists. Those intertwined common features of early Islamic jurisprudence can be summarized as follows: (1) juristic rulings on matters of compliance with God's revealed law, and the processes leading to them, were conceived of in purely epistemological terms; (2) the scholarly enterprise of formulation of legal rulings based on revealed indicants was free of any unified conception of law as a this-worldly ontological matter; and (3) this effort was driven by the presumed desire to be as faithful as humanly possible to the divine moral order, and this common devotional purpose constituted the only coherent element that tied together various instances of legal reasoning and pronouncement.Footnote ¹¹¹ It must be reiterated that those conclusions are based on an analysis of theories pertaining to a specific type of legal reasoning, namely absolute ijtihād. The manner in which this conception of juristic reasoning changed in conjunction with the evolution of the schools of law as self-organized communities of jurists is beyond our scope. Be that as it may, I hope that this analysis has made it sufficiently clear that it was conceptually possible to elaborate a system of social regulation that does not conceive of itself as a distinct and unified social entity, but as a collective effort to follow as faithfully as possible a transcendent ideal.Footnote ¹¹²

The depth and consistency of this moral-epistemological conception of legal pronouncement in those early theories demonstrate that it played a crucial role in defining the way in which jurists understood the exercise of legal reasoning in relation to the quest for compliance with divine revelation. The utter lack of a coherent conception of law as a distinct ontological phenomenon suggests that social regulation was understood by those jurisprudents in a manner radically removed from the dominant models in contemporary jurisprudence. In modern law, I argue, some coherent ontological concept of law is necessary to claim the possibility of generation of reasons for action and the potential for social regulation. By contrast, if the positions that early Muslim jurists took with regards to questions of law were seen as nothing but fallible ad hoc opinions on individual cases, the establishment of a functional system that guided human behavior must have followed very different conceptual designs. The answer, I believe, lies in the structural centrality of the devotional purpose to this otherwise nonstructural juristic activity. As we have seen, faithfulness to the divine moral order was arguably the only element that linked together the otherwise ad hoc pronouncements of jurists. A transcendent moral purpose, understood not as a fixed code of conduct, but as the existential necessity of compliance with the moral designs of the universe as intended by its Creator (that is, as worship), constituted the prime matter of ontological coherence in that system. This moral order, however, is not knowable by human minds in an absolute manner. The best that humans can aim for is to exert their best intellectual efforts to reach knowledge of the proper ways to remain faithful to such order.Footnote ¹¹³

As I have shown through this analysis, making the claim that a ruling represented the utmost possible degree of certainty that human minds ideally put together can attain is not equivalent to saying that a ruling is objective, in the sense that it exists in that particular form regardless of the state of juristic knowledge. Rather, those rulings represented the jurists' epistemological contribution to a collective effort to constantly approach, but never attain, the perfection of divine morality. In this system, it was the ascription of coherent ontological status to a transcendent moral order that granted the status of reason for action to the purely epistemological enterprise of legal reasoning.Footnote ¹¹⁴ Juristic legal pronouncements created reasons for action by virtue of their being the best humans can do to meet the pressing imperative of remaining faithful to the morality that was considered to be at the heart of all existence.Footnote ¹¹⁵ Since this collective intellectual striving offered believers the best chance they had at attaining righteousness, it only stood to reason that the outcome of this process was regarded as generative of normative propositions. As a matter of practical rationality, legal rulings did not derive their normative potential from their being presented to the legal subjects as propositions that happen to represent the law, but as the learned opinion of certain jurists who, like the legal subjects, happen to share the same aim of dedication to a certain moral-cosmological worldview. Unlike modern legal systems in which a multilayered system of principles is believed to self-sufficiently generate normative propositions understood as the law, the early Muslim conception of juristic lawmaking claimed no internal self-sufficiency with regards to the production of normative claims. The validity of ijtihād as a system of production of norms in which a group of scholars undertook an epistemological task on behalf of their communities depended upon no less than the collective acceptance of a particular cosmological view of the source of all existents, a view that, by its very nature, warranted a corresponding moral stance with regards to how to conduct one's life in accordance with this cosmology. Thus, not only was the exercise of legal reasoning driven by moral considerations, the whole juristic quest for legal knowledge would have been utterly meaningless without this particular moral cosmology.

While the argument that Islamic legal theories can be viewed as theories of ethics has been systematically advanced in the past,Footnote ¹¹⁶ it is fairly recently that the normative role of the moral purpose of Islamic legal thought has been highlighted.Footnote ¹¹⁷ Those recent theses emphasized the role that moral-devotional motivations played in the functioning of sharīʿa as a social system from a historical and anthropological standpoints. Although it is beyond this article's purpose to attempt to establish any kind of causality between those historical accounts and the present conceptual claim, the similarity is unmistakable. Those studies, which focused on the practical dimensions of legal dealings, such as those reflected in court records, attempted to challenge the view that the lack of distinction between legal and moral matters in Islamic law was a sign of immaturity by positing that it is precisely the moral dimension of the system that gave it its normative power. This essay claims, by contrast, that several of the early theorists of Islamic law effectively succeeded in formulating theories of and law-making in which devotional purposes were conceptually indispensable for those theories' ability to claim any sort of normative potential. While it is quite certain that those premodern jurisprudents were not involved in any form of descriptive sociological analysis in the manner common in modern jurisprudence, it is also the case that they conceived of the nature of juristic reasoning that leads to the pronouncement of legal rulings in a manner that coincides with the picture of legal compliance in premodern Muslim societies as presented by recent anthropological and historical research. The exact connection between those two accounts, however, is a matter that would require another study. In any event, we would be gravely mistaken to dismiss considerations of piety as irrelevant to the juristic methods and concepts of early Islamic thought. As we have seen, faithfulness to a particular moral cosmology was not a contingent matter, but, at least as far as those early theories of absolute ijtihād were concerned, was structurally indispensable for the operation of the law as an effective system of regulation.