The Ethical Structure of Islamic Jurisprudence: The Cases of al-Juwayni and the Hanafis

[This is the eighth in a series of my notes on the International Institute of Islamic Thought conference on Islamic Law and Ethics held in Herndon, VA in June  2014. These notes are NOT a transcript, but a lightly edited presentation of  my perception of the discussion. The proceedings will be published by IIIT at a later time. Responsibility for any errors in the notes is mine alone. Names of participants (other than mine) in the general discussion have been omitted by request of the conference director.]

“The Ethical Structure of Imam al-Haramayn al-Juwayni’s Usul al-Fiqh”

David R. Vishanoff, University of Oklahoma

This is a heuristic exercise to tease out the significance of the little choices Juwayni makes in defining terms related to ethics. It is a very influential text that tells us how many Muslims up until today think about the sources of law. How do you solve interpretative puzzles? Juwayni is in the divine command view of ethics, not natural law. He uses the language of building, as if fiqh is an edifice built from human labor. Is he claiming that ethical norms are constructed through dialog ? Does the law grow organically out of revelation, as if the fruit is determined by the DNA in the plant? No, he says it is built. Others speak of fiqh as the understanding of revelation, but Juwayni says knowledge is just reflection on the “true object of inquiry.” When he speaks of reward, he seems to refer to reward and punishment in the afterlife. It is about consequences, but it is not “consequentialist” in the sense of consequences in this life on the self and others. This is more individualistic and yet not egoistic. Here the purpose of law is not the welfare of the community, but of success of the individual. It is deontic and deontological and agent-centered. This is ethics, but not virtue ethics. It is about what to do, not what to be. Fiqh is knowledge of which hukm (rule) is assigned to what combination of time, place, person and circumstances. Not all deontic systems are deontological. There are conditions and prohibitions put upon the agent.  There are eternal consequences. It is not a strong realist system, for although every act has a property, it is not an intrinsic property, but what has been assigned by God, a more voluntarist or command theory. It is agent-centered, not patient-centered, based on my obligation to God, not on the rights of [i.e., obligations to] others.

Legal science is a kind of knowledge, facts about reward and punishment. Juwayni divides speech into commands, prohibitions, statements, and questions. A command is the act of requesting, so imperative verbs are presumed to be commands unless there is contrary evidence. A command may be multiple commands, as the command to pray is both the command to pray and to do wudu (ritual ablustions). There is a great variety of language in the Qur’an, but this vision wants to reduce them all to statements of law. Someone has said instructions are the only kind of information the Qur’an can convey. Jasser Auda wants to fit ethics into a modified version of this paradigm. He will have to modify it quite a bit. Juwayni is a Shafi and everything particularizes everything. If you have conflicting texts, the particular trumps the general. The philosophical tradition takes the opposite approach. There, what matters is the integrity of your decision making. This has an existentialist flavor. It is not in Juwayni.

“Necessity and Ethical Hierarchy in Islamic Law”

Samy Ayoub, Ph.D., University of Arizona

How should we understand the relationship between law and ethics? What is the status of Islamic law today? I focus on Hanafi jurisprudence. Why do we need legal systems? For me, conflict resolution is the core function. Muslims have always held that the legal system is to maintain order and harmony. We need to see Muslim jurists as lawyers rather than theologians. They make a clear decision between what is established in a court of law and what is a matter of conscience. Law solely intervenes when there is social conflict.

Islamic law evokes conflicting responses in Western eyes. Modernist Muslim thinkers have attempted to completely sidestep medieval law. Thus, Westerners have welcomed Islamic banking, Islamic bioethics, etc. One field tries to deconstruct the Muslim narrative without providing an alternative; others overtly wish to impose the Western agenda.

A distinction is made between teleological and deontological theories. The ethical value of telling a lie is determined either by its consequences or regardless of its consequences. Ethical realism ties ethics to the property of the act itself. Or, an act is good or bad strictly because God has declared it so. Necessity in Islamic law reflects a hierarchy with human life at the top. Legal choices of Hanafi jurists assert that one may violate a ruling in order to avoid a greater evil. Thus, there is a mandate to eat swine to avoid death by starvation. I argue that an understanding of rights is necessary to understand the juristic choices of Hanafi jurists. A key concern of fiqh is establishment of norms of human conduct Hanafi jurists dedicate a section to the “the excused one” for example whose medical condition prevents him from maintaining wudu. Although the term darûrah (necessity) does not appear in the Qur’an, the term coercion does appear and provides the framework for the theory of darûra. Ijâra, sharika, muzâri`a and other sale contracts were justified on this basis. “Hardship necessitates ease.” Ibn Abidin argues that the feces and urine of mice are impure, yet people were not required to drain the wells. Similarly, no one was bothered by pigeon droppings at the ka`ba [until recently].  Yet, there is a hierarchy: Eat pork before eating carrion. Drink impure water or urine before drinking wine, which is both ritually impure and causes intoxication. Ibn Abidin gives collective rights precedent over individual rights (a private structure cannot block the road). The theory does not mitigate criminal charges. One cannot kill another Muslim to avoid a lesser sin. The challenge to the theory lies in cases where the conflicting interests are close in value. It reflects a consequentialist approach.

Respondents.

Hamid Mavani, McGill University. If you take the theory of Juwayni, which is the dominant Ashari paradigm, it is difficult to accommodate the discourse of human rights, gender equality, etc. The Shia have more scope to deal with these issues within the fiqh. You are not reasoning what is good or bad, but to discover what is in the divine scripture. This makes it difficult to engage the modern dialog. Juwayni does not accommodate Samy’s discussion of collective vs. individual rights. Some have argued that property may be stolen from non-Muslims in a kufr society because all belongs to Allah—provided you do not get caught, because if you get caught you would tarnish the name of Islam. This use of darûrah is neither systematic, nor is it maslaha. It is subjective and will give different answers depending on who is posing the question. I disagree with Juwayni, but his theory is methodical and self-consistent.

Usaama al-Azami, Princeton University. Normative theories are divided in Western thought into teleological, deontological, or virtue ethics. I maintain all three exist in the Islamic tradition and we are struggling to force Islamic theory into one of these categories when it doesn’t work that way. More people are more influenced by Sufi virtue ethics than by Hanafi methodology. Al-Ghazali is a systematic Sufi. How does Ibn Abidin’s style differ from that of contemporaries? I think he is at the use of modernity in a different context than Abu Hanifa. If we think about Juwayni’s broader work (Ghazali was his student), he addresses the question of what we do when a crisis obliterates all knowledge.

General Discussion.

Name Omitted. Why are there such contrasts, and are we confusing the issue by bringing in Western categories? Juwayni was not just an usûli, and he wrote other works on fiqh and political thought.

Name Omitted. I think this is how law works everywhere. Ibn Abidin is working clearly within a tradition of thought and clearly justifies his departures. Things are not so clear with Jasser. Hallaq has an article about Ibn Abidin in which he says Ibn Abidin departed from the madhhab because he was on the cusp of modernity, but I see that he was able to respond only from within the madhhab; what makes him modern is his use of the tools of ijtihad.

Imad-ad-Dean Ahmad. The process of discovery applies equally well in the divine command model as the natural law model. However, this presentation has made clear one difference. The argument that “the exception proves the rule” is perplexing to the natural scientist, but self-evident to the lawyer.

Name Omitted. There is always someone who decides when there will be an exception: When someone will be put in a concentration camp.

Name Omitted. Can we say that al-Juwayni’s work is legal theory rather than legal practice? He is looking for yaqîn (certainty), which will make things more categorical.

Name Omitted. I want to introduce an idea for discussion: the believer’s general attitude towards the law. Jesus said he came not to abolish the law but to fulfill it. Paul then says the law is a taskmaster and we must be saved from not only sin, but from the law. In Islam, the law is a divine gift and the prophet comes with a shariah, even when it is not extant. For me it is difficult to find the connection of the law to the people. The law is necessary, but limited. Ibn Arabi came to Sufism after Sharia. In that regard Juwayni’s defense of the law becomes important.

Name Omitted. Even in his time Juwayni made comments about maslaha. He said he spent a long time asking why drinking a small quantity of wine would be forbidden, except that the drinking of  a little wine awakens the desire to drink more.

Name Omitted. Juwayni and the Hanafis seem to be the extremes of a spectrum, as if they have nothing in common. What does Juwayni say about eating pork to avoid starvation?

Name Omitted. That the distinctions on the difference on the relations of particulars with general reflects the distinction of legal verses natural may be more relevant than the distinction of Western vs. Islamic. Time could be a factor. Juwayni had a broader thinking than his legal theory. Do we need a synthesis? Carl Ernst is satisfied to have a diversity of approaches. Tilma Nagel has written a book on all of Juwayni’s thought which suggests that salvation for Juwayni is to love every detail of the law, not because he would earn salvation, but because he demonstrates to himself that he was destined for salvation.

Name Omitted. At the end of his life Juwayni went back to the “unquestioning faith of the old woman,” concluding that all of his study was a waste of time.

Name Omitted. We are dealing with different sources. I am dealing with books of fiqh, so it is a different discourse. We have a section on darûrah in Hanafi legal theories, so I don’t see this as a rupture from pre-modern discourse. Some people have claimed the civil code of Egypt created a different kind of human being, and I find that hard to swallow. Similarly, some Islamists think that imposing Islamic law will change people.

Name Omitted. I would like to caution us against forming conclusions based on bits and pieces of information. I fear Mavani’s comments come out as essentialist in an untended way to others without his breadth and depth of knowledge. I want to caution against dichotomous thinking.

Name Omitted. I hope we are contextualizing and not essentializing.

Name Omitted. Yes. If this were to be put on the web as an educational tool there would be a problem. But we are all scholars in this room and this tells us where we need to go back and study in depth.

Name Omitted. There is no component of tusawwuf. Why didn’t the Sufis and fuquha collaborate to create a legal system informed by ethics? I don’t see it in Shafi literature. I don’t see that even in the modern books by Shafi or Hanafi scholars, who simply produce the same knowledge and say if you want ethics go somewhere else.  We know some fuquha were Sufis, but why didn’t they collaborate in a systematic way?

Name Omitted. Historically, the Sufis created those scholars known for their theopathic utterances, which created a tension; but the Sufis saw this and there was a period of rehabilitation of Sufism leading to ideas like those of S.H. Nasr. I don’t think you go to fiqh for virtue ethics.

Name Omitted. It might be useful to consider works like the Reliance of the Traveler.

Name Omitted. People don’t complain when a philosophy professor doesn’t write about psychology in the same text.

Name Omitted. I think there is no such thing as an airtight theory. It is a question of understanding the limitations of theories, even ethical theories and not using them as a norm. The Hanafi approach seemed to me case-based rather than arbitrary. They were aware that they were human beings using human thought in their process of discovery. What was the method for determining the hierarchy.

Name Omitted. I think asking to combine law with tasawwuf is a modern question.

Name Omitted. Perhaps the faqih should be informed of tusawwuf, but to tell him that you must incorporate tasawwuf in our work is a disservice to both fields.

Name Omitted. I think compartmentalization is a modern phenomenon and we are now moving back to interdisciplinary modes. In the earlier times of Islam there was this was the norm.

Name Omitted. I apologize if I come across as too harsh to our legacy, but I think it is remarkable, almost miraculous. I don’t want to essentialize a rich tradition. I see two different paradigms.

Name Omitted. When I say law is different from ethics I am not saying law is unethical. As long as we think law will solve our moral failures, it will not work.

Name Omitted. After the tenth century all madhahab were using the same methodology. The Hanafi said Muslims are better than non-Muslims in religious conception but in violations of the law they will be punished equally.

Imad-ad-Dean Ahmad. There was a great deal of nuance in the presentations and their juxtaposition. Juwayni would agree that one may eat pork when faced with starvation, but he would do so only because it is explicitly permitted in the Qur’an (16:115). Islamic law leaves many farâghât void areas which positive law seeks to occupy. Unless the legislator can prove that legislation in these areas serves the maqasid, such voids should be presumed to be mubâh (optional) and the intrusion of positive law is an act of usurpation.

Name Omitted. If I understand the legal tradition, Shabani and Abu Yusuf, we need to distinguish between siyâsa (politics) and Shariah. I don’t think it is necessary to be embedded in any culture. I am concerned about the epistemology of discomfort and hypothetical ideas about what could have happened. Where does the Ottoman decriminalization of homosexuality fit into this discourse?

Name Omitted. We deliberately introduced this English term “ethics” because the categories have not lined up neatly forcing upon us the question is there anything in Islamic discourse that would allow us to integrate this discourse. We may have to shift back and forth between different discourses. There is great appreciation for Al-Ghazali who does try to bring fiqh and spirituality together. Perhaps in the future integration will be an individual project as we all live in a plurality of normative discourses. How did al-Juwayni do it? Nagel says he started out striving with all his intellect to understand and to prove what he understood, and at the end concluded the religion of the old woman to just believe what you heard is the right approach.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute
www.minaret.org

Leave a Reply