Legal Comparability and Cultural Identity: the Case of Legal Reasoning in Jewish and Islamic Traditions
- Rabbinic Attitudes towards Legal Reasoning =============================================
Generally, Jewish medieval jurists did embrace legal reasoning as a legitimate means in applying religious legal norms. In what follows we will first describe rabbinic criticism of legal reasoning and then the rabbinic embracement of legal reasoning. Among Jewish medieval thinkers, only two are known to us as opponents of the use of legal reasoning – the head of the Suraian academy in the first half of the ninth century, Sa’adya b. Yosef Gaon (882-942 CE) and the Spanish physician, poet and philosopher Yehudah Halevi (1075-1141 CE). We will portray Sa’adya’s arguments against the use of theqiyas .[^42] Traditionally, scholars who have dealt with his objection to theqiyas have tended to view his stance as deriving from the heated debates he had with the Karaite and from his endeavors to defend traditionalism.[^43] Sa’adya condemns the Karaite enthusiasm with theqiyas as resulting from secondary rather than from substantive considerations*.* [^44] Accordingly, he suggests that the Karaite’s stance is caused by their mistaken response to the incompleteness of the revealed law and consequently the bound legal knowledge – “The reason that stimulated the opponents [=Karaites] to believe in intellectual capacity (al-ra’y) and analogy (qiyas), is that they found things which required knowledge whether permitted or forbidden, and which are not written in the Torah, and likewise [matters which their] quantities and qualities are inexplicit.”[^45] Subsequently Sa’adya also notes the gnostic assumption: “Nevertheless, they know that it is impossible to say of the Creator, may He be exalted and praised, that he left the people perplexed. On the contrary, there is no doubt that He placed before them that which could lead them to their quest.”[^46] Yet it is still doubtful whether these quotations reflect Sa’adya’s principled objection toqiyas . Unlike the above polemic context, in a treatise dedicated to jurisprudential analysis Sa’adya expands the discussion of theqiyas , from which discussion emerges a deeper and richer picture of his objections. According to our proposed reading, his objection to application of judicial analogy derives from his rationalistic theology, and not from the debate with the Karaites.
As a rationalist, Sa’adya is also concerned with the limitations of rational methods in order to fully respect the independency of reasoning. Paradoxically then his objection to theqiyas is the result of his rationalistic insistence. The gist of this paradox is the acknowledgment of reason as a valid source of religious knowledge on the one hand, while acknowledging the fundamental identification of the law with the revealed Word of God on the other. This dialectic invites the heuristic distinction between legal norms which are acquired by reason – rational laws (Ar. ‘aqliyyāt , Heb.sikhliyot ) – and those given through revelation – revelational laws (Ar.sam’iyyāt , Heb.shimi’yot ).[^47] Sa’adya limitsqiyas only to rational laws and denies its relevance for revelational laws. Hence paradoxically his keen insistence on the validity of human reasoning as source of religious knowledge ultimately reduces the applicability of rational faculties in the framework of religious law. This being so, Sa’adya’s legal theory presents a new perspective on the conceptual meaning of judicial analogy.
3.1 Holistic Jurisprudence and the Intelligibility of the Divine Law
Sa’adya’s legal theory is primarily an organic one. In this world view, in which “no things have existence except by way of combination,” the internal relations among the components of the divine law are not contingent, and in practice they determine the possible manipulations within the law. The legal theory that Sa’adya presents in the beginning of Kitāb Tahsil Ashar’i’ Asama’iyah[^48] (henceforth: Kitab Tahsil ) Sa’adya describes the internal relations within the law by ontological categories - substance and accident - by which he characterizes the relationship between the general rules and particular cases.[^49]
From viewing the relationship between the whole and its particulars as essential, Sa’adya derives the principle of ‘unity of knowledge’ or, in his words, “the source of wisdom is one”[^50] or “the root of knowledge is one”.[^51] The significance of this principle may be seen on two levels. First, knowing the substance as a whole entails knowledge of the substance’s appearances or accidents. Second, the same essential relations between the whole and its particulars also exist between the subject of knowledge and the modes of its cognition: “And that which we said regarding substance and accident also applies to the things that are apprehended by the senses. Each one of them is apprehended by the same sense by which its totality is apprehended. There is no sound which is not apprehended by the sense of hearing, nor any color that is not apprehended through the sense of sight.”[^52] This being so, the relation between substance and accidents is the relation between the whole and its parts, and therefore poses a three-fold correlation between thesubjects of knowledge, thestatus of knowledge and themodes of cognition.[^53] This correlation between the metaphysical core of the law and its epistemological modes leads Sa’adya to examine the justification for judicial analogy against the background of the distinction between the rational and the revelational laws.
As mentioned above, Sa’adya establishes his legal theory on the distinction between rational and revelational laws.[^54] The basis of this distinction lies in the idea that the intelligibility of the rational laws is absolutely independent, whereas knowledge of the revelational laws depends on revelation. This distinction apparently touches the very heart of the Sa’adianic attitude towards legal reasoning. Thus, the negation of theqiyas is an outcome of exhausting the epistemological implications of the distinction between rational and revealed laws. In that respect, Sa’adya’s objection to the use ofqiyas with regard to revelational laws strengthens the metaphysical weight of the rational/revelational distinction. Sa’adya’s reflections upon the rational/revelational distinction suggest that its source lies in the fact that different kinds of legal knowledge apply to different kinds of laws. That is to say, the distinction is not the result of the limitations of human ability to comprehend the laws, but rather of a substantive distinctiveness of the rational laws from those that are revealed. Thus when defining the jurists’ rational activities, such as exegesis (tawil ), analogy (qiyas ), and personal preferences (istihsan ), attention should be paid to the metaphysical set-up of rational and revelational laws and its application should therefore be limited to the rational laws. Sa’adya disapprovingly portrays the application of revelational laws to new cases byijtihād orqiyas as separating the particulars from their holistic structure. Applying exegesis to the revelational laws is represented as an arbitrary method that substitutes the original study. For this reason, the multiplicity of opinions and schools do not enjoy the same legitimacy that is granted them in the dual-stratum model.
3.2 Against the Dual-Stratum Paradigm
From Sa’adya’s statements inKitab Tahsil, we know that this treatise originally contained ten arguments against the use ofqiyas .[^55] Unfortunately, the extant manuscript contains only three of those ten arguments,[^56] and they reflect the rhetorical transition from negatingqiyas on theoretical grounds to indicating the weaknesses of the theories that justify it. In fact, Sa’adya’s objection to legal reasoning can be understood as a criticism of the distinction between revealed and derivative laws (the dual-stratum paradigm), which should be substituted by a generic, bipolar distinction between rational and revelational laws. Below, we shall briefly summarize Sa’sdya’s arguments against the dual-stratum paradigm.
Normative Differentiation: Sa’adya argues that from the revealed/derivative distinction one needs to derive implications regarding the decisiveness of the different laws. Accordingly, the revealed/derivative distinction should entail different levels of severity vis-à-vis cases of violating the laws. That is, since derivative laws attained by analogies are no more than human attempts to discover the correct answer, it would be inappropriate to treat the violations of laws equivalently. It makes no sense to punish a person who violates a derivative-law prohibition as harshly as a person who violates a revealed-law prohibition. In particular, Sa’adya claims that, in order to be consistent with the dual-stratum paradigm, it is not justified to impose severe penalties, such as capital punishment, on violations of derivative laws, the validity of which are only probable.
Justification of Controversy: A further weakness of the dual-stratum paradigm is what might be referred to as ‘the ease of justification of controversy.’ Returning to the metaphor of seeking the right direction of prayer, multiplicity of opinions is expected and hence justified.[^57] However, according to Sa’adya, ana priori justification of controversies with regard to derivative law confuses between anante factum justification and apost factum acceptance of the multiplicity of opinions. Since the derivative law is neither more nor lessthan an attempt to find the right answer, one must tolerate the differences of opinion as a necessary evil, but not as something justifiedab initio.
Master–Disciple Relations: Another argument against the dual-stratum paradigm pertains to the social structure, which is liable to be upset in its wake. Justifying judicial analogy in practice implies acceptance of the personal legal reasoning of each legal scholar in its own right.[^58] Consequently, the hierarchical status of the master in relation to the disciple is likely to be upset. Sa’adya refers in that respect to the botanical metaphor of roots and branches in order to reflect the didactic relationship between mentor and student, thereby pointing out that a legal theory that justifies legal reasoning unravels the established relationships between mentor and disciple.
The analysis of Sa’adya is a response to the classical Sunni theory of legal reasoning and demonstrates the extent to which medieval Jewish jurisprudential thought naturally took part in the legal discourse of that time. His criticism of the dual-stratum paradigm is not based on Biblical verses or principles peculiar to Jewish thought, but rather on general philosophical arguments that could equally be made by an Islamic jurist. Indeed, jurisprudence for Sa’adya is a formal discipline that transcends the particular content of each religion, and therefore allows a shared terminology and conceptual vocabulary. In the discussion below, we will focus on modes of borrowing by which Jewish jurists favored Islamic jurisprudential concepts above traditional categories of Jewish law.