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Commentary on al-Juwayni's Kitab al-Waraqat fi usul al-fiqh.

(A brief commentary by David Vishanoff to orient unitiated readers to the issues addressed in this text.)


The Nature of the Roots of Legal Science

Here al-Juwayni sets up the relationship between law and its "sources" or "roots."  The goal of studying the roots/sources of law is to arrive at knowledge of the legal values of human actions.  This knowledge of legal values does not arise "immediately," but is the result of inquiry based on evidence.  al-Juwayni also raises the possibility of uncertainty in law by introducing "belief."  If one cannot determine a legal value with certainty, perhaps one might still arrive at a "best estimate."

al-Juwayni then lists the topics that he will cover in the Kitab al-waraqat.

The Stuff of Revelation

This section discusses the language of revelation, and introduces several concepts that may help to resolve legal problems.

Applying the language of revelation to real life means knowing what things in the world are meant when a word is used in revelation.  al-Juwayni explains that words can refer to objects in the real world either directly or indirectly - literally or figuratively.

Law consists in statements such as "the act of this person's eating this food at this time under these circumstances is:  disapproved."  But revelation does not consist entirely of such statements; often it has the form of commands.  How does one translate a command into a statement of this form?  al-Juwayni gives some rules for that.

Some words in revelation refer to particular things in the real world, and other words refer "generally" to whole groups of things.  What if one Qur'anic verse assigns the legal value "permitted" to a whole class of things "generally," but another verse assigns the legal value "proscribed" to a subset of that class of things?  This is called "particularization" - the legal value assigned to the narrower subset trumps the legal value assigned to the larger class mentioned in the more general verse.

al-Juwayni's definitions of summarized and elaborated speech, and definite and apparent meaning, are just ways of saying that some speech is clearer than some other speech.  Later he will say that clear speech trumps unclear speech.

al-Juwayni then says that the Prophet's actions, and his tacit approval of the actions of others, usually indicate that those actions are obligatory, or at least permissible.

Abrogation provides another way of reconciling apparent contradictions:  if two Qur'anic verses appear to assign different legal values to the same act, then the one that was revealed last trumps the earlier one.

Methods of Interpretation

In the section on "the stuff of revelation," al-Juwayni has just described some properties of the language of revelation that a jurist can take advantage of in trying to interpret the sources and resolve contradictions between them.  Now he describes the reasoning process that the jurist should follow in interpretation.

First, one must follow a certain order in applying the principles of particularization and abrogation (which were described above).

Second, if at any time the Muslim scholarly community has come to a consensus on any point of law, one must abide by that consensus; one cannot reinterpret the sources for oneself.

Third, when using a hadith, one must take into account the degree of certainty with which it has been transmitted.  Even an uncertain hadith is a basis for law [at least in the absence of stronger evidence].

Fourth, if one cannot find any evidence in the sources for the legal value of an act, one looks for evidence of the legal value of a relevantly similar act, and one concludes by analogy that the act in question must have the same legal value.

Fifth, if the sources of law say nothing about an act, is it considered by default to be permitted or proscribed?  al-Juwayni doesn't take sides on this.

Sixth, al-Juwayni describes which kinds of evidence and reasoning take precedence over others.

Finally, al-Juwayni says that one who is properly qualified must seek answers for himself by diligent inquiry, and that he will be rewarded even if he makes a mistake.  But those who are not qualified must follow the ruling of someone who is qualified.


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