Legal Comparability and Cultural Identity: the Case of Legal Reasoning in Jewish and Islamic Traditions

Notes

* PhD, Leverhulme Fellow in Jewish Studies, Faculty of Oriental Studies, Oxford University. The first version of this study was presented at the Global Fellows Forum at the New York University School of Law where I enjoyed visiting professorship as Berkowitz Fellow (2007-8). I wish to thank Professor Joseph Weiler and Professor Moshe Halbertal, the directors of the Tikvah Center for Law & Jewish Civilization, for their kind support and inspiration, and to Professor Richard Stewart , the Director of Hauser Global Law School Program, for the lovely host and learning environment in the Hauser Global research seminars. The chapter about Sa’adya’s attitudes towards legal reasoning was presented at the CNRS, Aix-en-Provence (October 2007). I am very grateful to Richard L. Claman for his wisdom and comments.

[^1] We distinguish between ‘comparability’ and ‘commensurability.’ While commensurability, as used by legal economists and choice theorists, denotes the proposition that all options or choices can be compared by reference to an external ranking scale, comparability is gained due to an isomorphous relation between the two systems with no reference to an external scale or scaling procedure. See: Jeanne L Schroeder, “Apples and Oranges: The Commensurability Debate in Legal Scholarship” in Cardozo Law School, Public Law Paper No. 48 (2002). pp. 2-[^7]:

[^2] Contrary to the popular adage, apples and oranges are in fact comparable. While apples and spaceships, for example, or apples and liberal values, are much more distinct and thus much less comparable, there is a lot of sense in comparing the two fruits in terms of their price, sweetness, color, weight, nutritional value and so on. On the necessity to presume the existence of ‘universals’ for a comparative project see: Jeppe Sinding Jensen, “Universals, General Terms and the Comparative Study of Religion,” Numen 48 (2001).

[^3] See: Edward W. Said, Orientalism (New York: Pantheon Books, 1978); Martin S. Kramer, The Jewish Discovery of Islam: Studies in Honor of Bernard Lewis (Tel Aviv: Moshe Dayan Center for Middle Eastern and African Studies, Tel Aviv University, 1999), pp. 1-[^48]:

[^4] See: Patricia Crone and M. A. Cook, Hagarism: The Making of the Islamic World (Cambridge, New York: Cambridge University Press, 1977).

[^5] See: Aaron W. Hughes, “The Golden Age of Muslim Spain: Religious Identity and the Invention of a Tradition in Modern Jewish Studies,” Historicizing ‘tradition’ in the study of religion (2005), pp. 51-74; Susannah Heschel, “How the Jews Invented Jesus and Muhammed: Christianity and Islam in the Work of Abraham Geiger,” Ethical monotheism, past and present: essays in honor of Wendell S. Dietrich, Brown Judaic studies, no. 329 (2001), pp. 49-73; Michael E. Pregill, “The Hebrew Bible and the Quran: The Problem of the Jewish ‘Influence’ on Islam,” Religion Compass 1, no. 6 (2007), pp. 1-[^17]:

[^6] See: “The Mothering Principle in the Comparison of Religions” in: Thomas A. Idinopulos, Brian C. Wilson, and James Constantine Hanges, Comparing Religions: Possibilities and Perils?, Numen Book Series. Studies in the History of Religions, (Leiden, Boston: Brill, 2006), pp. 51-[^58]:

[^7] See: S. D. Goitein, “Interplay of Jewish and Islamic Laws,” in Jewish Law in Legal History and the Modern World, ed. Bernard S Jackson (Leiden). pp. 61-77; J. L. Kraemer, “The Influence of Islamic Law on Maimonides: The Case of the Five Qualifications,” Te’udah (Heb.) 10 (1996), 225-[^244]: Libson observes opposite directions of influence in the formative period of Islam and the from the tenth century on, see: G. Libson, “Interaction between Islamic Law and Jewish Law During the Middle Ages” (paper presented at the Law in multicultural societies: proceedings of the IALL meeting, Jerusalem, July 21-26, 1985, Jerusalem, 1989).

[^8] The philological method illustrates ‘external epistemology’ according to which the validity of textual content is determined with reference to the history of the text’s transmission and the reconstruction of its originality.

[^9] See: Aaron W. Hughes, Situating Islam: The Past and Future of an Academic Discipline, Religion in Culture (London, Oakville, CT: Equinox Pub, 2007); Mark R. Cohen, Under Crescent and Cross: The Jews in the Middle Ages (Princeton: Princeton University Press, 2008).

[^10] Steven M. Wasserstrom, Between Muslim and Jew: The Problem of Symbiosis under Early Islam (Princeton: Princeton University Press, 1995), contrasts the notion of ‘cultural borrowing’ with that of ‘creative symbiosis’ and advocates the latter. Hava Lazarus-Yafeh, Intertwined Worlds: Medieval Islam and Bible Criticism (Princeton: Princeton University Press, 1992), takes on a similar comparative project though rejects the aversion of the language of borrowing. Other attractive and meaningful metaphors are of ‘confluence of rivers’ – Jaroslav Stetkevych, “The Confluence of Arabic and Hebrew Literature,” Journal of Near Eastern Studies 32, no. 1/2 (1973), ‘crosspollination’ – Lenn Evan Goodman, Jewish and Islamic Philosophy: Crosspollinations in the Classic Age (Edinburgh: Edinburgh University Press, 1999). or ‘whirlpool effect’ – Sarah Stroumsa, Maimonides in His World: Portrait of a Mediterranean Thinker (Princeton, N.J.: Princeton University Press, 2009), xiv.

[^11] See: Marsha A. Hewitt, “How New Is The “New Comparativism”? Difference, Dialectics, and World-Making,” Method & Theory in the Study of Religion 8 (1996), Luther H. Martin, “The New Comparativism in the Study of Religion: A Symposium,” Method & Theory in the Study of Religion 8 (1996), William E. Paden, “Elements of a New Comparativism1,” Method & Theory in the Study of Religion 8 (1996), E. Thomas Lawson, “Theory and the New Comparativism, Old and New,” Method & Theory in the Study of Religion 8 (1996). Also see Robert A. Segal, “Classification and Comparison in the Study of Religion: The Work of Jonathan Z. Smith,” J Am Acad Relig 73, no. 4 (2005), who ascribes such approach to Jonathan Z. Smith.

[^12] This approach is manifested in Ewald’s ‘comparative law as comparative jurisprudence’ thesis. Accordingly, a comparative study of legal systems should not focus merely on contextual data, nor on textual similarities and dissimilarities, but rather on the conceptual self-understanding of the participants in legal theory and praxis. This thesis suggests viewing jurisprudence as the pivotal mean by which an accurate understanding of foreign legal system is to be achieved. The object of legal comparative studies therefore is neither the ‘law in books’ nor the ‘law in action’, but rather the ‘law in the minds’ – the consciousness of the jurists’ in particular legal reality. See: William Ewald, “Comparative Jurisprudence (I): What Was It Like to Try a Rat?,” University of Pennsylvania Law Review 143, no. 6 (1995), idem, “Comparative Jurisprudence (II): The Logic of Legal Transplants,” The American Journal of Comparative Law 43, no. 4 (1995).

[^13] For a legal system to be comparable it must fulfill a dialectic relation – it must be simultaneously unified and plural. Catherine Valcke, “Comparative Law as Comparative Jurisprudence: The Comparability of Legal Systems,” The American Journal of Comparative Law 52, no. 3 (2004), p. [^721]:

[^14] A description of Jewish attendances in Muslim intellectual assemblies – majlis – is reported by one of the visitors: “ At the first meeting there were present not only people of various [Islamic] sects, but also unbelievers, Magians, materialists, atheists, Jews and Christians, in short, unbelievers of all kinds. Each group had its own leader, whose task it was to defend its views, and every time one of the leaders entered the room, his followers rose to their feet and remained standing until he took his seat. In the meanwhile, the hall had become overcrowded with people. One of the unbelievers rose and said to the assembly: we are meeting here for a discussion. Its conditions are known to all. You, Muslims, are not allowed to argue from your books and prophetic traditions since we deny both. Everybody, therefore, has to limit himself to rational arguments. The whole assembly applauded these words. So you can imagine . that after these words I decided to withdraw. They proposed to me that I should attend another meeting in a different hall, but I found the same calamity there .” (First quoted by R. Dozy, JA 2 (1853), p. [^93]: The translation is from A. Altmann’s introduction to Sa’adya Gaon, The Book of Doctrines and Beliefs (Oxford: East and West Library, 1946) , p. 13.

[^15] Obviously, it is associated with common identification of the Law with the ‘Word of God’, the image of God as an omnipotent sovereign and legislator and the metaphor of the law as the ‘right path.’ Indeed, the Hebrew term Halakhah ((הלכה derives from the root of motion (ha.la.kh, lit. went) and the Arabic terms Sira and Shari’a mean ‘path’ or ‘way’ to go within. However, for various trends in the Jewish Law tradition Halakah is not necessarily associated with social order, but rather with morality or spiritual achievements. See: Menachem Lorberbaum, Politics and the Limits of Law: Secularizing the Political in Medieval Jewish Thought (Stanford (Calif.): Stanford university press, 2001). In fact, treating Halakhah and Shari’a as legal systems is already a reductionist projection of alien notions. See: G. C. Kozlowsky, “When the ‘Way’ Becomes the ‘Law’: Modern States and the Transformation of Halakhah and Shari’a,” Studies in Islamic and Judaic traditions II: papers presented at the Institute for Islamic-Jewish Studies, Center for Judaic Studies, University of Denver (1989), pp. 97-[^112]:

[^16] Although Islamic scholasticism used to distinguish between the two reflective disciplines – usul al-dín (= theoretical theology, lit. the roots of the faith/religion) and uṣūl al-fiqh (= legal theory, lit. the roots of the law) – theological presumptions are indispensably considered within the jurisprudential discussions. On its parallels in the western legal traditions, see: Gill R. Evans, Law and Theology in the Middle Ages (New York: Routledge, 2002), pp. 1-5, 27-[^46]:

[^17] Franz Rosenzweig, The Star of Redemption (Notre Dame, IN.: Notre Dame Press, 1985), pp. 216-[^217]:

[^18] Talmudic literature consist collections of laws, traditions and scholastic discussions presented as commentaries on the Mishnah (early third century), the Palestinian Talmud (early forth century) and the Babylonian Talmud (mid fifth century).

[^19] See: William A. Graham, “Traditionalism in Islam: An Essay in Interpretation,” Journal of Interdisciplinary History 23, no. 3 (1993). “ … the soil of Islam nourished the first real historical interest since antiquity, a really and truly scientific interest in the modern sense, without any ulterior  ‘philosophy of history’. ” ;  Rosenzweig, The Star of Redemption, p. [^225]:

[^20] For the reconstruction of Judeo-Christian theology Rosenzweig (The Star of Redemption, p. 166) dismantles the Quranic ethos about the heavenly book (Umm al- Kitāb) – a prototype of the Quran – of which Jews and Christians are considered its early possessors. This ethos underlines the theological commonality of the three Abrahamic religions as repositories of the holy scriptures, and consequently endows Jews and Christians with a special status as the “people of the book.” See: George Vajda, “Ahl al- Kitāb,” Encyclopedia of Islam, (Second Edition).

[^21] Rabbinic Judaism is a predominant stream within the post temple Judaism viewing the Oral Law as eminent part of the divine law, the sole authorized interpretation of the scripture and this equivalent to scriptural revelation. Karaite Judaism is characterized by its recognition of the Biblical scriptures as the sole authoritative source and consequently the rejection of Rabbinic Judaism and the authority of the Oral Law. Its intellectual flourishing was mainly between the ninth and eleventh centuries CE. See: Fred Astren, Karaite Judaism and Historical Understanding (Columbia, S.C.: University of South Carolina Press, 2004).

[^22] See: Aviram Ravitsky, “Talmudic Methodology and Aristotelian Logic: David Ibn Bilia’s Commentary on the Thirteen Hermeneutic Principles,” Jewish Quarterly Review 99, no. 2 (2009), p. [^186]:

[^23] The debate about the authority of human reasoning divided the Islamic world into two camps – traditionalists (ahl al-hadith) and rationalists (ahl al-ra’y). Islamic legal historiographies often describe this tension as the background for the growth of jurisprudence as an autonomous discipline and its literary form of the uṣūl al-fiqh. Notwithstanding, such a debate did not divide the Jewish intellectual world in the period, although the conceptual apparatus that was shaped by Islamic jurists did underlie the Rabbinic attitudes to the question of legal reasoning.

[^24] It probably originated in ancient Hebrew, but its assimilation within the Arabic language began at an early period and its general meaning preceded the legal one. Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950), pp. 99-100, identifies the origins of the Islamic qiyas in the Hebrew term hekesh (היקש), based on the Aramaic root n.k.sh which means to ‘hit together’. Further parallels between the Islamic doctrine and the Greco-Roman legal-logical terminology have also been drawn (M. G. Carter, “Analogical and Syllogistic Reasoning in Grammar and Law,” in Islam: Essays on Scripture, Thought, and Society: A Festschrift in Honour of Anthony H. Johns, Islamic Philosophy, Theology, and Science, V. 28, ed. Peter G. Riddell, Tony Street, and Anthony H. Johns (Leiden, New York: Brill, 1997).). For a refutation of the Hebrew and Greek influence on the qiyas see A. Hasan, “The Definition of Qiyas in Islamic Jurisprudence,” Islamic Studies 19, no. 1 (1980), pp. 1-[^28]:

[^25] Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunnī Uṣūl Al-Fiqh (Cambridge, New York: Cambridge University Press, 1997), p. [^83]:

[^26] The conceptual connection between qiyas and ijtihad is evident in the uṣūl al-fiqh writings that blur the difference between the two terms. See: Joseph E. Lowry, Early Islamic Legal Theory: The Risala of Muhammad Ibn Idris Al-Shafi`I (Leiden, Boston: Brill, 2007), pp. 142-163; Morris Zucker, “Fragments from Kitāb Tahsil Ashar’i’ Asama’iyah to Sa’adya Gaon,” Tarbitz 41 (1972), p. 380, n. [^27]: On Ghazali’s discussion on this topic in: Hasan, “The Definition of Qiyas in Islamic Jurisprudence.”, p. 5.

[^27] In earlier contexts the qiyas signified legal analogy alone, though later it also served as a synonym for philosophical syllogism in general. One should not confuse between the two terms; Legal qiyas is a technique for expanding the revealed law—a finite body of knowledge—to respond to new circumstances, whereas the syllogistic qiyas validates the logic of this technique without deriving any new conclusion. The two types of qiyas therefore exclude one another; Syllogistic qiyas does not create new propositions, whereas legal qiyas, on the contrary, does not prove its own logic. Legal qiyas is operative and as such produces legal norms, while syllogistic qiyas is methodological, justifying arguments that have been placed forward.

[^28] Imam Muhammad ibn Idrīs al-Shafi’i (767-820 CE) was a highly profound jurist whose writings and teachings eventually created the Shafi’i school, one of the four canonical schools in the Sunni legal tradition. Traditionally considered the founder of Islamic jurisprudence, his pioneering Risala is still acknowledged as one of the earliest accounts of legal reasoning, which influenced later discussions on these matters.

[^29] To Shafi’ī, the cause-based qiyas is defined as follows: “ …when God or His Messenger forbids a thing by means of an explicit text [manṣūṣan, منصوصا], or makes it licit, for a particular policy reason [ma’nā, معنى]. If we find something which is covered by that reason in a matter for which neither a passage from the Book nor a Sunna has provided an explicit rule for precisely that thing, then we could make it licit or forbid it, because it is covered by the reason for making [the earlier thing] licit or forbidden .” (Risala, ¶ 124). See Lowry’s discussions on these paragraphs p. 149-[^155]: According to the Hanafi School, only this type of qiyas is justified. See: Aron Zysow, “The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory” (Ph.D., Harvard University, 1984), p. 329).

[^30] According to Shafi’ī, this type of qiyas is when “ … we find something to resemble one thing [that has been forbidden or made licit] or another thing, and we can find nothing that resembles it more than one of those two things. Then, we would bring it into a certain relation with one of the [two] things that best resemble it. ” (Risala, ¶ 124).

[^31] Herbert Kalb, Studien Zur Summa Stephans Von Tournai (Innsbruck: Universitätsverlag Wagner, 1983).

[^32] Note [^23]:

[^33] Following the Jewish custom of facing the site of the temple in Jerusalem during worship, Muhammad instructed his followers to turn their faces at prayer-time towards Mecca. The Quranic verse pertaining to this obligation refers primarily to those outside of the city and who find themselves in remote places – “And wherever you may go out, you shall turn your face towards the holy mosque, and wherever you may be, turn your faces towards it” (Quran 2: 150). Risala, ¶ 1377-[^1391]:

[^34] According to Jewish law, in similar circumstances the believer is not obliged to face the temple but to direct his heart towards God. See: Tosefta, Berachot, 3: [^14]:

[^35] Moreover, just as the heavenly signs – given by God – are the means for the worshipper to orient himself, so too does the jurist rely on God-given proofs – His signs and hints – to determine the correct answer: “ And [Allah] marks and sign-posts; and by the stars (men) guide themselves” (Quran 16: 16).

[^36] The terms ‘metaphysical realism’ and ‘strong objectivism’ are taken from the description of legal epistemology by Coleman and Leiter, see: Jules L. Coleman and Brian Leiter, “Determinancy, Objectivity, and Authority,” in Law and Interpretation: Essays in Legal Philosophy, ed. Andrei Marmor (Oxford, New York: Clarendon Press, Oxford University Press, 1995), p. [^248]:

[^37] “ There is, for everything which befalls a Muslim, a binding rule, or, by means of pursuing the correct answer in regard thereto, some extant indication. He [= the Muslim] must, if there is a rule concerning that specific thing, follow it. If there is no such rule, then one seeks the indication, by pursuing the correct answer in regard thereto by means of ijtihād. ijtihād is, in turn, qiyas.” (Risala, ¶ 1326); Lowry, Early Islamic Legal Theory: The Risala of Muhammad Ibn Idris Al-Shafi`i, p. [^145]:

[^38] [For Shafi’i] “ all events have the resolution in God’s law; all knowledge is therefore knowledge of God’s law .” Norman Calder, “Ikhtilâf and Ijmâ’ in Shâfi’î’s Risâla,” Studia Islamica, no. 58 (1983), p. [^70]:

[^39] We use the term “Gnostic” here in its literal sense derived from the Greek word γνώσις, which means “knowledge”. This usage is of course distinct from the historical meaning of Gnosis denoting the first century’s religious movements, which held dualistic worldviews.

[^40] Shafi’i (Risala, ¶ 69) highlights this principle basing it on a verse from the Quran – “ Does man think that he will be left uncontrolled, [without purpose]?” (Quran 75:36).

[^41] Shafi’i’ explains that God’s guidance comes about through two distinct channels, paralleling the revealed/derivative distinction – “[God] guided them [= the believers] to the truth by means of plain texts and by means of inferential indications .” Risala, ¶ 1445; Lowry, Early Islamic Legal Theory: The Risala of Muhammad Ibn Idris Al- Shafi`i , p. [^245]: Elsewhere he states that God’s guidance pertains to every possible state-of-affairs. Risala, ¶ 20. Also see: Calder, “Ikhtilâf and Ijmâ’ in Shâfi’î’s Risâla.”, p. 55; George Makdisi, “The Juridical Theology of Shâfi’î: Origins and Significance of Uṣūl Al-Fiqh ,” Studia Islamica, no. 59 (1984) , p. 41.

[^42] Diana Lobel, Between Mysticism and Philosophy: Sufi Language of Religious Experience in Judah Ha-Levi’s Kuzari, Suny Series in Jewish Philosophy (Albany, N.Y.: State University of New York Press, 2000), pp. 59-[^65]:

[^43] On the view of tradition as a valid and reliable source of knowledge see: Shlomo Pines, “A Study of the Impact of Indian, Mainly Buddhist, Thought on Some Aspects of Kalam Doctrines,” Jerusalem studies in Arabic and Islam 17 (1994), pp. 182-[^203]:

[^44] Celebrating the qiyas, to Sa’adya, enable the Karaites to elude the binding nature of the tradition – “therefore they [= the Karaites] adopted the belief in qiyas , because of [their] desire to save [themselves] trouble and acknowledging the validity of the tradition, and [therefore] they said: the qiyas suffice us, and [truly] there is no transmitted tradition from the prophet” (quoted in: Abu Ya’qub Al Qirqisani, Kitāb al-Anwār wal-Marāqib: Code of Karaite Law, ed. Leon Nemoy (N Y: The Alexander Kohut Memorial Foundation, 1939), II, 9:1). Accordingly, both Sa’adya and the Karaites, perceive the equilibrium of qiyas and tradition.

[^45] Ibid., II, 9:[^1]:

[^46] Ibid. The controversy between Sa’adya and the Karaites is thus presented in terms of their different responses to the gnostic circumstances; while Sa’adya sees the Mishnah and the Talmud as the guiding hints that God implanted within reality to instruct His believers, the Karaites hold fast to analogy as “ the guide that God established to guide his servants in which is not [explicit] in the Book .” Ibid.

[^47] In fact, the tradition of rationalizing the Divine laws starts in the Second Temple Hellenistic literature, such as the Letter of Aristeas, IV Maccabees, and the Philonic thought. In that respect, Sa’adya’s distinction, inspired by the Mu’tazilite typology of the laws, is not only reviving a rationalist theology, but also is an innovative endeavor to establish a legal theory based on this distinction.

[^48] Note [^26]:

[^49] Sa’adya’s reference to Aristotelian categories follows Al-Farabi’s (870-950 CE) holistic metaphysics. It stresses the correlation between the attributes of the laws and their intelligibility. Ontologically, it pertains to the transition, to use Sa’adya’s language, from the ‘natural-state-of-affairs’ (halo al-asia al-tibya) to the “legal-state-of-affairs” (hal al-amor al-sharriya). Therefore, knowledge of the particulars is achieved through the comprehension of their totality, since the totality itself is defined by the particulars that comprise it. Therefore, the holistic metaphysics of the law derive directly from Sa’adya’s understanding the substance as a totality, and it is that which dictates the possibility of apprehension of accidents or particulars.

[^50] Kitab Tahsil, p. 387, r. [^9]:

[^51] Kitab Tahsil, p. 388, r. [^17]:

[^52] Kitab Tahsil, p. 388, r. [^14]:

[^53] While Sa’adya does not elaborate on this in Kitab Tahsil, he articulates the underlying theological background of this holistic perception in his introduction to Commentary on the Torah. Holism is expressed by the principle that “no things have existence except by way of combination” (כלהא לא תת’בת אלא בתאליף). He also deals there with the relationship between primary-sensory knowledge and secondary-rational knowledge. Accordingly, sensorial perceptions are analyzed by the intellect as parts of a combined object, and as such the analysis promises the comprehension of the essence. See: “Introduction to the Commentary on the Torah,” Gaôn Sa’adya, Sa’adya Gaon Commentary to Genesis (Perûshê Rav Sa’adya Gaôn Leberêsît) (Heb.), ed. Morris Zucker (New York: The Jewish Theological Seminary of America, 1984), pp. 167-[^169]:

[^54] This distinction as initially considered a Sa’adian novelty by which he bridged two religious doctrines – rationalism (Mu’tazilah) and authoritarianism (Ashari’a). See: A. Altman, “The Division of the Commandments for Sa’adya Gaon,” in The Book of Rav Sa’adya Gaon (Heb.) (Jerusalem: Harav Kok Institute, 1943), pp 658-[^673]: Others took it as a synthetic reading of the Aristotelian concept of ‘belief’ with the Stoic concept of ‘consent.’ See: Harry Austryn Wolfson, “The Double Faith Theory in Clement, Saadia, Averroes and St. Thomas, and Its Origin in Aristotle and the Stoics,” The Jewish Quarterly Review 33, no. 2 (1942), pp. 213-264. With the discovery of Mu’tazilites’ writings over the course of the years it became evident that this distinction preceded Sa’adya. A similar conclusion reached by H. Ben-Shammai, “The Division of the Commandments and the Concept of Wisdom in R. Sa’adya Gaon’s Thought,” Tarbitz (Heb.) 41 (1972), pp. 170-182.

[^55] Kitab Tahsil, p. 394, n. [^101]:

[^56] The seventh (r. 71- 75), the eighth (r. 75-84) and the tenth (r. 92-100) arguments.

[^57] The justification of controversies was a crucial topic among medieval Jewish jurists. Controversies allegedly indicate the incoherency of Rabbinic tradition and as such were subject criticism and apologetics. See: M. Halbertal, “Sefer Ha-Mitzvot of Maimonides – His Architecture of Halakhah and Theory of Interpretation,” Tarbitz (Heb.) 59 (1992), pp. 457-[^480]:

[^58] Indeed, Maimonides, who embraced the qiyas and saw it as the main mode for the development of the entire body of the Jewish Law, points to the connection between legal reasoning and the elimination of master-disciple hierarchies – “ And you should know that prophecy is not effective in investigating and commenting on the Torah and in deriving branches [= new norms] by the thirteen principles [of inference], but whatever Joshua and Pinchas [= the disciples of Moses] can infer in matters of investigation and analogy, Rav Ashi and Ravinah [= the sealer of the Babylonian Talmud, i.e. 5th CE] can do so .” Moses Maimonides, F. Roser (Trans.) Maimonides’ Introduction to His Commentary on the Mishnah, (Northvale, N.J.: Jason Aronson, 1995).

[^59] Rudolf von Jhering, Geist Des Römischen Rechts Auf Den Verschiedenen Stufen Seiner Entwicklung (Basel: B. Schwabe, 1953) , p 8-[^9]:

[^60] Indeed, against the Shī’i insistence that the imam’s ijtihād is free from error and hence could carry certain knowledge, Sunni legal theory acknowledge the fallibility of the jurist.

[^61] “[It is] that in respect of which God has imposed on His creation the obligation to perform ijtihād in order to seek it out. He tests their obedience in regard to ijtihād just as He tests their obedience in regard to the other things He has imposed on them .” (Risala, ¶ 59).

[^62] Risala, ¶ [^1409]:

[^63] Ghazzali, Deliverance from Error and Mystical Union with the Almighty (Al-Munqidh Min Al-Dalal) ed. George F. McLean and Rif`at. Nurshif Abd al-Rahim (trans.), Cultural Heritage and Contemporary Change, V. 2 (Washington, D.C.: Council for Research in Values and Philosophy, 2001) , pp. 85-[^86]:

[^64] “ R. Shesheth said in R. Assi’s name: If he erred in dvar mishnah , the decision is reversed; if he erred in shikul hada’at , the decision may not be reversed .” (Babylonian Talmud, Sanhedrin, 33a).

[^65] “ Ravina asked R Ashi: Is this also the case if he erred regarding a teaching of R. Hiyya or R. Oshaia? Yes, said he. And even in a dictum of Rab and Samuel? Yes, he answered. Even in a law stated by you and me? He retorted, Are we then reed cutters in the bog? How are we to understand the term: shikul hada’at ? — R. Papa answered: If, for example, two Tannaim [= sages of the Mishnah] or Amoraim [= sages of the Talmud ] are in opposition, and it has not been explicitly settled with whom the law rests, but he [the judge] happened to rule according to the opinion of one of them, whilst the general practice; follows the other, — this is a case of [an error] in shikul hada’at.” (idem).

[^66] Born around 900 CE and died around 1000 CE. He served as the head of the Babylonian yeshiva at Pumbedita, which was relocated to Baghdad towards the end of the ninth century.

[^67] Sherira Gaon, Otsar Ha-Geonim Le-Masekhet Sanhedrin (Heb.) , ed. Zwi Taubes (Jerusalem: H. Vagshal, 1980), pp. 25-[^26]:

[^68] Sherira’s insights can be compared to those of Sayf al-din al-Amidi (d. 1233 CE). For Amidi, the resemblance between two analogized cases is anticipated due to its preexistence and not the aftermath the jurist’s deliberation. By that, he situates the qiyas outside of the sphere of intellectual activity of the jurists. See: Bernard G. Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Dīn al-Āmidī (Salt Lake City: University of Utah Press, 1992), pp. 552-[^553]:

[^69] It seems that ‘roots’ and ‘branches’ in Sherira’s vocabulary carry slightly different denotations from their usual meanings in the uṣūl al-fiqh literature. They do not refer to the principles and their particular derivations, but rather stand for two types of resemblances. A ‘root’ is a legal norm where the potential similarities, subject to further analogies, are fixed in advance. Therefore, failure to construe the ab initio similarities is an intolerable judicial error. A ‘branch’ is a legal norm where the potential resemblances are not prefixed. Analogy drawn from this norm is not undermining preexisting resemblances and thus tolerable.

[^70] The fundamentalist character of Maimonides was recently emphasized by Stroumsa, Maimonides in His World: Portrait of a Mediterranean Thinker, pp. 53-[^85]:

[^71] Maimonides, Commentary on the Mishnah, Bekhorot, 4, [^4]:

[^72] The word nass or nusūs generally means fundamental text or script. In Islamic legal theory it refers to the revelational law that includes the Quran and the Hadīth As a result they both classified as nass. See: Hallaq, A History of Islamic Legal Theories: An Introduction to Sunnī Uṣūl al-Fiqh , p. [^7]:

[^73] Maimonides’ approach can be compared the dogmatic-reductionism taken by his contemporary Issac b. Abba Mari (1122-1193) who also eliminates the possibility of discretional error, though without preserving the Talmudic definitions: “ How are [the circumstances of] shikul hada’at like? As if two Amoraim are mutually opposing, and sugia deshma’ta [= a tradition on that matter] , corresponds to the [other] one; it is not [considered] an error for whoever follows the practice of one can do so, and whoever follows the practice of the other can do so .” Isaac b. Abba Mari, `Itur Sofrim: (Sefer Ha-`Itur) 3vols. (New York: 1956), pp. 157-158).

[^74] The jurisprudential significance of historical events is also illustrated by a parallel conception in the Sunni legal theory, according to which the “gates of ijtihād” were “closed” in the 10th century. On the meaning of this phrase see: Wael B. Hallaq, “Was the Gate of Ijtihad Closed?,” International Journal of Middle East Studies 16, no. 1 (1984), 3-[^41]:

[^75] Maimonides’ fundamentalist-reductionist approach is also apparent in his attitude towards the problem of transmission. On that topic he claims that Rabbinic law indeed relies on a continuous transmission traced back to Moses at Sinai, however the continuous chain of transmission (isnad) had vanished when the Talmud has sealed and therefore post-Talmudic law is not based on a transmission any longer. See: Joseph E. David, “Critical Transmission in Early Medieval Rabbinic Thought (Heb.),” in New Studies in the Philosophy of the Halakhah, Jerusalem Studies in Jewish Thought, eds. A. Ravitzky and A. Roznak (Jerusalem: Magnes Press, 2008), pp. 345-[^385]:

[^76] A. Kevin Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought, Suny Series in Middle Eastern Studies (Albany: State University of New York Press, 1995) , p. [^10]:

[^77] This point has been emphasized by scholars who linked Shafi’i’s traditionalism and legal theory. See: Calder, “Ikhtilâf and Ijmâ’ in Shâfi’î’s Risâla.”, p. 72; George Makdisi, “The Significance of the Sunni Schools of Law in Islamic Religious History,” International Journal of Middle East Studies 10, no. 1 (1979), p. [^12]:

[^78] The etic/emic distinction suggests two perspectives in the study of a society’s cultural systems, parallel to the two perspectives used in linguistics studies. Accordingly, the emic perspective focuses on the intrinsic cultural distinctions that are meaningful to the members of a given society. Thus, the native members of a culture are the sole judges of the validity of an emic description, just as the native speakers of a language are the sole judges of the accuracy of a phonemic identification. The etic perspective relies upon the extrinsic concepts and categories that have meaning for scientific observers.

[^79] “ The national betrayal launched not with the weakening of religion and the decline of faith, but rather with the neglect of language: and the [sages] of Alexandria, which left no remnant in the nation, will prove. Thousands of Jews, which apostatized during the middle-ages, they were all, firstly neglectors of the language, and by that they become nationally annihilated … The endeavors of medieval authors to write in vernaculars should not be counted. These were only practical attempts by which the sages only meant to elucidate the people their opinions in a spoken language. Their main teachings were written in Hebrew, and [indeed] Arabic as literary expression was an exception. From the time of Ben Menachem [= Moses Mendelssohn] and onwards, the adaptation has been formed as a method, because of the immense thirst for emancipation. The writers wanted to show the world their (human) worth – and so the vast danger had begun” (H. N. Bialik, “On Nation and Language” (Moscow, 1917)).

[^80] Psalms , 106: [^35]:

[^81] Ezra , 9: [^2]:

[^82] On the scholarly biases of Jewish historians towards assimilation and essentialism, see: Funkenstein Amos, “The Dialectics of Assimilation,” Jewish Social Studies, 1/2 (1995), pp. 1-[^14]:

[^83] Calder, “Ikhtilâf and Ijmâ’ in Shâfi’î’s Risâla.”, p. 70, mention that Shafi’i ignores this distinction as part of his critical approach towards the Mutazali theology. See: John E. Wansbrough, The Sectarian Milieu: Content and Composition of Islamic Salvation History, London Oriental Series (Oxford, New York: Oxford University Press, 1978), pp. 110-113).