2. Legal Reasoning: Structure and Theology
It follows that Islamic Law everywhere strives to go back to direct the pronouncements of the founder, thus veritably developing a strictly historical method, while both Talmudic and Canon Law seek to make their points by means, not of historical fact-finding, but of logical deduction (logischer Ableitung). For deduction is subconsciously determined by the goal of the deduction, that is to say the present, and therefore it gives contemporary power over the past. Investigation, on the other hand, makes the present dependent on the past. Even in this seemingly pure world of law, then, one can still recognize the difference between the commandment to love and the obedience to law.
Interestingly, Rosenzweig observes legal reasoning as a typological differentiator between the three monotheistic legal systems – Islamic, Talmudic[^18] and Canon law. He portrays two types of confronting legal theories: on the one hand, Islamic law is based onnostalgic jurisprudence , is highly committed to historical facts,[^19] and accordingly celebrates obedience to law as the supreme value. On the other hand, Talmudic and Canon law, as future-oriented systems, are based ondeductive reasoning , much less constrained by the law and hence emphasize the virtue of love as the ultimate divine commandment. Rozenzweig’s observations are, however, peculiar and incompatible with common scholarly accounts on both Jewish and Islamic legal systems. First, against the view of mainstream Rabbinic theology as legalist by nature, he describes Jewish law in Christian and antinomian terms as an expression of the ultimate commandment to love. Second, and perhaps even more irreconcilable with our usual understanding, is his presentation of Islamic law in opposition to the use of deductive reasoning. While one can deny viewing Jewish law as based on a future-oriented jurisprudence, it is much more difficult to agree with Rosenzweig’s observation that Islamic law is not deductive. In fact, his position is a total denial of the fourth root Sunni jurisprudence, which is the jurist’s independent reasoning –qiyas orijtihād . Being freed from Judeo-Christian idealism,[^20] we will focus on the significance of legal reasoning in medieval Rabbinic jurisprudence through a comparison to its role in Islamic jurisprudence.
Generally, Rabbinic jurisprudence in the Middle Ages may be examined in reference to three axes. The first one pertains to the relationship between Talmudic and post-Talmudic reflections on legal concepts. One focus of post-Talmudic efforts was to reconcile and harmonize Talmudic and post-Talmudic rulings. The second axis illustrates the complex relationships between a rationalism that celebrates human reasoning as an essential component of any legal activity, and traditionalism, which insists on taking the law as an outcome of divine revelation and therefore opposes reliance on human reasoning in legal matters. The third axis is the Rabbinate-Karaite[^21] polemic, which reached its climax in the first half of the tenth century.
There is some evidence to support the view that legal reasoning was indeed a controversial topic in the Rabbinate-Karaite polemics,[^22] though our analysis suggests a revision of this view and hence its moderation. On the other hand, legal reasoning was at the heart of the rationalist-traditionalist tension, to which Jewish legal historians have paid very little attention.[^23]
2.1 The Qiyas (Legal Analogy)
The Arabic termqiyas (قياس) in its legal sense can refer, in various contexts, to any of the three legal concepts – judicial analogy, general deduction or syllogism.[^24] Legalqiyas is at times considered the archetype of all forms of legal argumentation.[^25] In particular, it indicates the various types of argumentations that legal scholars use in their independent reasoning –ijtihād (اجتهاد),[^26] and for this reason it occupied a central place in theuṣūl al-fiqh literature.[^27] Following Shafi’ī’s[^28] discussion,qiyas revolve around the fundamental typology of (1) cause-basedqiyas and (2) resemblance-basedqiyas . Cause-basedqiyas is a means for extending an existing norm to cases which where is no explicit instruction or precedent in the known law. Accordingly, the expansion of the law is based on an existing causal component (cause, reason or meaning) shared by both the existing law and the new case.[^29] Resemblance-based qiyas, on the other hand, is based on the isomorphic resemblance of the two cases.[^30] These two types ofqiyas thus illustrate distinct associations between an existing law and a new case: while in cause-basedqiyas a shared element associates the two cases, in resemblance-basedqiyas the isomorphic likeness allows their association. That is, cause-basedqiyas connects the two cases by means of a third factor - the underlying cause, while resemblance-basedqiyas connects the two to one another intrinsically.
2.2 Epistemology and Legal Theology
There are two people in the same state and under the same king, living two lives and under two jurisdictions, clergy and laity, spiritual and carnal, sacerdotium and regnum.
Stephen of Tournai [^31]
The identification of the law with the ‘Word of God’ is indeed a central principle for both Judaism and Islam. Consequently, a great degree of correlation between legal propositions and theological principles is anticipated. From the very outset, Medieval Jewish and Islamic laws emphasized the transparent relationship between the positive contents of the law and the perception of God as the ultimate legislator. Thus, in many respects, knowing the law and applying it correctly are equivalent to the reception of divine revelation. As such, legal epistemology is reliant upon its theological assumptions, so that the epistemological prepositions are mixed together with the theological claims about the nature of God and His relation to the believers. This aspect singles out the uniqueness of these legal systems in that the source of legitimacy in Jewish and Islamic laws is epistemological rather than institutional. Due to the association of legal theology and epistemology, many of the debates about legal reasoning are associated with theological discussions about the nature of human reasoning from a theological point of view: is legal reasoning essentially no more than an interpreting faculty, or is it, alternatively, an autonomous source of knowledge?[^32] To illustrate the dependency of epistemology on theology and its implications on the theoretical structure of the law, we shall refer to a metaphor that is commonly mentioned in Islamic jurisprudential discussion to support legal reasoning.
2.3 Orientating the Sacred Place
The example commonly brought to justify legal reasoning and the multiplicity of opinions among jurists is the dilemma of finding the direction of prayer – theqiblah – for believers who cannot visually locate Mecca.[^33] While the obligation of facing Mecca applies to every Muslim believer with no temporal or spatial limitations, performing this duty might involve certain practical difficulties when Mecca is beyond the believer’s sight. In that case, the worshipper must make a special effort and use his own judgmental faculties in order to determine the correct direction.[^34] The traveler who seeks the direction of Mecca needs available signs by which he can find the proper direction.[^35] In that respect, these circumstances exemplify both the epistemological problem and its solution. Determining the correct direction illustrates the ascertainment of the right answer, and the traveler’s predicament is analogous to the confusions that may beset the jurist who seeks the right answer for the case that confronts her. This metaphor concretizes the idea that, since the objective law is not always known to the believers, the place at which certainty ends is the point of departure for the jurist’s independent reasoning. Legal reasoning in this sense is not the jurist’s privilege, but rather a mandatory religious duty under conditions of insufficient knowledge. From this metaphor we can derive the following presumptive approaches, which are not entirely epistemological principles or theological postulations; they present a combined matrix in which the epistemological dimension is an inherent component of legal theology.
1. Metaphysical realism: The first approach relates to the metaphysical dimension of legal norms. It assumes that legal answers are characterized by ‘strong objectivity.’[^36] In other words, it asserts that the metaphysical existence of a legal norm is independent of human ability to conceive it. According to this principle, every legal question has a definite answer; there is a relevant answer for every possible normative state of affairs. A specific case for which there is seemingly no existing law is nothing but a cognitive blindness and not a limitation of the law itself.[^37] The incorporation of realist metaphysics within the context of revealed law implies that the divine law reflects God’s concern with every possible set of earthly circumstances. For that reason, the religious value of the law is not exhausted by the subordination to the word of God, but primarily in the fact that through the law God reveals his concrete intentions about the world. As such, legal knowledge that uncovers God’s will is of no lesser value than theological knowledge that reveals God’s nature and his guiding principles.[^38]
2. Incomplete revelation and limited legal knowledge: Despite the above, the law known through revelation does not include the rulings for all possible circumstances. Hence, this entails the distinction between the law known by revelation, i.e. the law inscribed in theQur’ān or revealed in theSunna (henceforth: therevealed law ), and the law derived from it (henceforth: thederivative law ). This distinction acknowledges the structured limitation of legal knowledge. Therefore, the part of the law that is not known by revelation is concealed and hidden from human eyes, just as the holy mosque and the city of Mecca are indiscernible to the remote traveler. Legal knowledge therefore is first obtained through revelation and thence derived by legal reasoning (ijtihād ), interpretation (tawil ), and analogy (qiyas ). Similarly, this premise makes it clear that legal reasoning expresses the religious virtue of human efforts in discovering the implicit word of God.
3. Gnostic gist: [^39] The third approach is related to the previous two. It asserts that notwithstanding the incompleteness of revelation and the restrictions of legal knowledge, God in His goodness would not leave his believers in doubt and confusion. To this end, He conceals within the revealed law hints and traces without which the believers cannot discover the correct legal answers. This theological stance reemphasizes the juxtaposition of epistemology and theology.[^40] It concretizes the idea that God’s grace is translated to epistemological and methodological aid.[^41] Thus, the theoretical justification of legal reasoning is in fact a combination of skeptical epistemology and gnostic theology. Legal reasoning is therefore no more than a structured component of the Divine law that is designed to include human reasoning as an interpretative tool.
These three approaches illustrate that religious legalism is inherently linked to a dual-stratum structure or the division of the entire body of law into two categories: (1) the law known through explicit revelation; and (2) the implicit, derivative law known through the jurists’ intellectual efforts that captures the dialectic notion of divine law in human hands. Legal norms of the first category are transparent and knowable to the entire community of believers, certain, and therefore indisputable. Conversely, propositions of the second category are subject to a wide range of interpretations. Therefore they are not only disputable but epistemologically at best only plausible. The dual-stratum structure also projects far-reaching sociological implications. It decisively supports the privileged status of the legal experts. In terms of sociological theory, such a structure provides the preconditions for the necessity of clerical expertise. Put differently, this structure represents the endeavor to reserve legal exegesis for an exclusive group of experts.