5. Concluding Reflections: Comparability and Identity

… more importantly, to the historian of religion, chasing origins is of doubtful value because locating a “source” tells us next to nothing about why Muslims bothered with it. Rather than asking: Where did it come from? It is more fruitful to ask: What is it about this question that fascinated Muslim controversialists? And one might also ask: What aspects of Islam itself made this an interesting question?

Kevin Reinhart[^76]

The above accounts make the case for comparing legal reasoning in Jewish and Islamic laws, and for asserting that the prevailing role of legal reasoning in medieval Rabbinic legal thought should be understood accordingly. In that regard, our analysis supports the ‘comparative jurisprudence’ thesis according to which a jurisprudential analysis utilizes better understanding of distinct legal praxes. Indeed, by referring to the jurists’ constitutive imagination we comprehend the inherency of the dualistic conceptualization to religious legalism, and the variety of Rabbinic attitudes towards the legitimization ofqiyas and its limits. While Sherira adopts the semantic inventory of theqiyas in preference to the Talmudic typology of judicial errors, Maimonides aims to harmonize the Islamic theory of theqiyas with the Talmudic categories, and consequently reduces the Talmudic distinction (devar mishnah /shiqul ha-da’at ) to the Islamic one (nass /qiyas ). By focusing on legal theory we remapped the Rabbinical stances on the use ofqiyas . Against a well-recognized stream of Rabbinical jurists who celebrated the use ofqiyas as a significant component of any judgment and lawmaking, Sa’adya limits its relevancy only to rational laws. Also, in jurisprudential terms, we observed the consistency of a rationalistic worldview and the objection to theqiyas (Sa’adya) and conversely the traditionalist commitment and the embracement of legal reasoning (Sherira).[^77]

All this indicates that the above-examined jurists not only were well-acquainted with Islamic jurisprudence, but also represent a comparative consciousness, i.e. awareness of the comparability of both legal systems. Accordingly, the comparison of Jewish and Islamic legal theories from an etic perspective is justified by the comparative consciousness at the emic level.[^78] Additionally, our analysis teaches that the modes which a jurist uses to view a legal system as comparable and comparison as a cognitive procedure are crucial to understand his perspective. To comprehend better the nature of the comparative consciousness we suggest the distinction between two comparative attitudes –substantiating comparison andincorporating comparison . The first views comparison as a means to confirm the uniqueness of the compared object by underlining the differences between the objects. Thus, the aim of comparison is to reveal the peculiar aspects of the compared objects. Conversely, incorporating comparison is taken as a tool to establish or to expose cross-references between the compared objects.

These distinctive attitudes can be demonstrated through two different accounts on the hybrid background of the Judeo-Arabic literature. Those accounts are provided by two inspiring Jewish thinkers who lived in two distinct historical and cultural contexts – the medieval Spanish writer Moses Ibn Ezra (1055-1140 CE) and the modern Zionist poet Hayim Nachman Bialik (1873-1934 CE).

H. N. Bialik, committed to a strong nationalist view, pugnaciously condemns all literary expressions of Jewish thoughts in languages other than Hebrew. In fact, presenting Jewish ideas in languages other than Hebrew is, for him, not only alien to the Jewishvolksgiest , but rather a betrayal – an act of apostasy that threatens the nation’s very existence. Accordingly, Bialik refers to historical evidence that refutes such linguistic loyalty as rare exceptions. The three counterexamples are: (1) the Alexandrian Jewry, represented by Philo (20 BCE – 50 CE), which integrated Second Temple Jewish traditions with Hellenic cultural and intellectual values; (2) the medieval Judeo-Arabic literature; and (3) the modern Jewish Enlightenment, represented by the German Jewish philosopher Moses Mendelssohn (1729-1786 CE), who saw in the political emancipation an invitation for a genuine integration into the European culture. While denouncing the intentional ideal of cultural integration advocated by the Jewish Enlightenment (theHaskalah ), the cultural hybridity of ancient Jewish Hellenism and medieval Jewish Arabism is described as exceptional and marginal; historical mistakes or mere responses to communicational needs of the masses.[^79] Obviously Bialik explicitly embraces the nationalist worldview according to which language and law are not only outcomes of national history but also derivations of its very nature. In that respect, Bialik reflects a Zionist conviction that the two national enterprises – the revival of the Hebrew language and the parallel attempts to revitalize the Halakhic heritage to become a modern state law – manifest the essential nature of the nation. Consequently, Jewish jurisprudence was taken as self-defining project, in which the comparative perspective helped to particularize Jewish law as rooted in the nation’s soul. With such a monothetic approach the compared objects are viewed as elements of a wider holistic framework that stands as the collective identity. Therefore, comparative law is a process of reconfirming national separatist identity and mainly about stressing differences vis-à-vis other national legal systems.

In contrast, the medieval courtier Moses ibn Ezra provides a different account of himself and his entourage as conscious assimilators into the Arabic culture. In his view his Jewish identity is absolutely consistent with the hybrid consciousness of Judo-Arabic writers:

… since our monarchy was revoked and our people spread [all over] and the nations inherited us and the sects enslaved us, we followed their patterns, lived their lives, pursued their virtues, spoke their language and tracked them and all their ways. As written:But they mingled with the nations and learned their practices .[^80] And later on said:so that the holy race has intermingled with the peoples of the lands ,[^81] apart from matters of law and religion. And because of the exile and the changes of natural climates, the master of necessity has brought us to be like them.

In an elegant style, Ibn Ezra neutralizes criticism of the Israelites’ assimilation among the Canaanites and the intermingling of the exiled Jews with indigenous peoples. Instead he proposes viewing their acculturations as natural and necessary processes. Therefore we have here two contradicting views as to the medieval jurists’ state-of-mind: The modern separatist disapproval of writing in thelingua franca and imitating foreign patterns, and the medieval acknowledgment that deep integration into the vernaculars is unavoidable and hence not viewed negatively. Obviously, as a matter of method, we believe that when trying to comprehend the relation of Halakhah to a foreign legal system through its jurisprudence, self-accounts and their state-of-mind should be preferred to later and external interpretations.[^82]

For Sa’adya, whether to approve theqiyas or not is an epistemological question that is dependent on the metaphysics of the divine law. The Sa’adyian phenomenology of the divine law is indeed an original jurisprudence. In that sense, one may perhaps speak of two basic models - vertical versus horizontal - on whose basis the different legal theories are formulated. According to the horizontal model, and consistent with the synthetic approach to the sources of religious knowledge, the basic division of religious law is into rational norms and revealed norms. This approach assigns reasoning and intellectual activity an equal status to that of revelation. The vertical model, however, is the dual-layered paradigm in which legal reasoning occupies a secondary placevis-à-vis the knowledge known through revelation.[^83]

In the light of the above analysis, we can refer back to the theoretical justification of Jewish and Islamic legal systems. It appears that the comparability of Jewish and Islamic laws stands apart from the rationale of comparative law or comparative jurisprudence in general. Comparison as an activity in legal studies proceeds from generalizations and not the other way around. It requires a certain amount of “idealism,” as there is human intentionality built into the law as social-cultural phenomena. Legal concepts are thus recognizable by humans and as such expressed by language. A sharable legal language presupposes a more or less shared view of the implementation of the law, and entails communicability because of the generality of the concepts. In that respect, Jewish and Islamic legal traditions are not only comparable from an etic perspective, but also from an emic perspective. Their comparability is justified and even to be expected, because the actors in these systems, during the Middle Ages, saw these systems as comparable, and shaped their legal thought out of this observation. Regarding Jewish and Islamic jurisprudence, the internal point of view, is not only a methodological tool that enables the comparison of these systems, but rather a comparative perspective in its own right. Comparison of Jewish and Islamic laws is therefore not only plausible, but in fact a necessary starting point for a proper understanding of their development in the Middle Ages.

Cite as: Joseph E. David,Legal Comparability and Cultural Identity: The Case of Legal Reasoning in Jewish and Islamic Traditions , vol. 14.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (May 2010), <http://www.ejcl.org/141/art141-2.pdf\>.