Legal Comparability and Cultural Identity: the Case of Legal Reasoning in Jewish and Islamic Traditions
- Legal Reasoning and Judicial Error =====================================
The reception of foreign legal institutions is not a matter of nationality, but of usefulness and need. No one bothers to fetch a thing from afar when he has one as good or better at home, but only a fool would refuse quinine just because it didn’t grow in his back garden.
Rudolf Jhering [^59]
Despite Sa’adya’s opposition to legal reasoning, the similarities between the Islamic theories of legal reasoning and the Jewish theories are salient. Moreover, as shown above, even Sa’adya’s criticism is expressed within the Islamic jurisprudential discourse as a view of an insider.
Indeed, the dual-stratum structure also suggests a new perspective on the phenomenon of judicial error. Erring in reference to legal norms of the first category, principally defined as revealed norms, would simply be considered a deviation from the existing and obligatory laws. On the other hand, with regard to the second category, which encompasses all derivative propositions, it would be difficult to identify valid criteria as to what precisely is a true proposition and what is an erroneous one. If legal reasoning itself is responding to the ingrained limited knowledge of the law, how can we indubitably identify the correct proposition and distinguish it from the erroneous one?[^60]
Thus, even though it entails a realistic metaphysics as discussed above and presumes right answer to every legal problem, creating a legal norm by legal reasoning is not measured in terms of deviation from the ‘right’ answer. Likewise it ascribes a different religious evaluation to the phenomenon of judicial error. Indeed, in the Sunni legal tradition, a special religious virtue is given to the jurist’s very process of legal reasoning. Accordingly, the scholars’ijtihād is appraised independently as to the results of these endeavors.[^61] Hence,ijtihād is also measured as a religious deed by which the believer’s obedience is tested.
The religious value of a mistaken judgment is well-articulated in the famous tradition that states “He who is mistaken in his personal judgment deserves reward, while he who judges correctly deserves a double reward”. [^62] In that respect, another aspect of the reliance on legal epistemology and theology is reflected: judicial error derived by means ofijtihād is not only tolerated, but also enjoys a positive reward since the very quest for the word of God itself is a desirable norm. In fact, the dual-stratum paradigm enables the possibility of judicial error and its being a test of religious obedience. A further expression of this meaning can be seen in the words of Abu Hamd al-Ghazali (d. 1111 CE), when he explained the problem of judicial error in relation to this dualistic structure with the analogy to alms-giving:[^63]
… Everything that depends on an effort of personal interpretation is of this sort. For example, for legal almsgiving the recipient may be poor in the personal judgment of the donor, whereas secretly he is wealthy. This mistake is not sinful because it was based on conjecture. … In this way the prophet and religious leaders were forced to refer the faithful to personal interpretation, despite the risk of error. The prophet – peace be upon him – said, ‘I judge by appearances, it is God who looks after what is hidden.’ This means, ‘I judge according to general opinion taken from fallible witnesses, though they may be mistaken.’ If the prophets themselves were not immune to error in matters of personal judgment, how much more so ourselves?
Ghazali argues against viewing the instructions of the Imam as the ultimate solution to the problem of the incorporated restricted legal knowledge, and instead advocates theijtihād as the preferable method. For him,ijtihād explicitly derives from the fundamental nature of legal knowledge as partly revealed. Hence, fallibility is a substantive and essential feature of the divine law itself. In that respect, alms-giving perfectly exemplifies the shift from the result of the ruling to the preceding intention – “since he is not punished, except in accordance with what he thought.”
4.1 The Talmudic Typology of Judicial Errors, Sherira b. Hanina and Moses Maimonides
Medieval Rabbinic theory of judicial error should be understood against the background of the Talmudic reflections on this phenomenon. The Talmud suggests the distinction between two types of judicial errors: (1) a tolerable error, termed a discretional error (ta’ut beshikul hada’at ) and which should not be reversed if occurred, as opposed to (2) error regarding the explicit teaching of the sages (ta’ut bedevar mishnah ), which should be reversed and is considered a cause for compensation if it caused damage.[^64] The casuistic definitions of these categories underline the scholastic perception of the law, according to which the law is identified with the teachings of the sages. Hence, adjudication is perceived as no more than a declaration of the existing law; and accordingly, a deviation from the sages’ teachings is intolerable and thus must be reversed and is subject to compensational remedies.[^65] On the other hand, when a judge deviates from those teachings that are not explicitly fixed, but only determined by second-order principles, his error is tolerable and his decision remains.
Although the account of Sherira b. Hanina[^66] on judicial error is based on the Talmudic typology of tolerable and intolerable errors, the meaning that he ascribes to these categories reflects a remarkable departure from the Talmudic meanings and a deep absorption of the Islamic theory ofqiyas into Jewish jurisprudence. In that respect, Sherira’s embracement of Islamic jurisprudential concepts completely modifies the traditional setting of the law and the meaning of legal reasoning. Consequently, he provides innovative accounts of what the law is, what adjudication is, and what judicial error concerns. Following the conceptual vocabulary of the law, he departs from the scholastic perception of the law and instead favors the objectivist notion of law combined of roots and branches. Judicial reasoning, accordingly, is about drawing analogical linkages between roots and branches.
Moreover, Sherira not only adopts Islamic theory of legal reasoning in preference to the Talmudic one, but he also introduces a conceptual development by suggesting a typology of judicial errors:[^67]
In one of these two things judges err: either this legal case has a root, [which has] a tradition or ruling, and this judge did not know it has some resemblance [to that root], and [instead he] analogizes it to a different root – by that he errs indvar mishnah .
Or else, [when] this case is definitely a branch that has nothing in similar with, and that judge analogizes it to a root, which is not similar and has nothing in common with – by that he errs inshikul hada’at .
This typology of judicial errors clearly ignores the Talmudic notion of error as a deviation from, or contradiction of, the teachings of the sages. For Sherira, judicial error is the failure to draw analogical links between roots and branches. The difference between tolerable and intolerable errors is therefore articulated according to the botanic metaphor and the relations of roots and branches. By viewing judicial error as a fallacy of analogical reasoning, Sherira expresses a position that seeks to impose constraints on its use and therefore to limit the range of legal solutions that may thereby be obtained. Not only does he reject the view of analogical reasoning as that of the jurist’s personal preference, but he also proposes a new approach according to which executing judicial analogy requires substantive correlations between the root and its branches. Such an attitude towards legal reasoning supports the use of judicial analogy, but also limits the range of possible outcomes. In fact, Sherira aspires to constitute conceptual criteria to distinguish between valid and erroneous analogies.[^68] Perhaps such a perception is best understood as an objectivist approach.[^69] Accordingly, the jurist who carries out judicial analogy has to be aware of the potential and existing resemblances and not contradict them. For Sherira, judicial analogy is perhaps the most important tool for the jurists. We can summarize Sherira’s position as a keen endeavor to provide relevant meaning to the Talmudic typology of judicial error in accordance with the Islamic theory ofqiyas . Such relevancy is possible with an objectivist attitude that allows the peculiar juxtaposition of ‘erroneous analogy.’
The great medieval thinker and jurist Moses Maimonides (1135-1204 CE) was also aware of the tension between the notion of error and analogy, though he took a different position on this problem. As a typical rationalist, in theology and in law, Maimonides supported the use ofqiyas . When dealing with the Talmudic typology of judicial errors, he displays much sensitivity with regard to the wide range of possibilities that can be achieved by embracing legal reasoning. His approach to this issue expresses a sophisticated combination of fundamentalism[^70] on the one hand, and reductionism on the other. Let us then see his interpretation to the Talmudic categories of judicial error:[^71]
First, I will explain that judicial error may occur in one of two things, either with reference to [authoritative] transmitted text, as he forgot the language or he didn’t learn it, and this is called an error indvar mishnah . And the second, when he errs in a thing depended on analogy; as if the thing is possible as he stated, nevertheless the [common] practice contradicts it, and this is called an error inshikul hadaat .
Like Sherira, Maimonides too adopts the dual-stratum paradigm by identifying the Talmudic categories with the distinction betweennass [^72] andqiyas . Unlike Sherira, at leastprima facie , he is still loyal to the essence of the Talmudic typology; he preserves the notion of judicial error as a departure from an authorized norm. However, his definitions of the different circumstances are not in precise reference to the scholastic perception of the law. Yet he maintains the distinction between deviation from a fixed authorized norm and deviation from a norm that is fixed on the base of secondary principles. In that respect, Maimonides fairly appears as a fundamentalist, consistent with the Talmudic approach. Against this impression, however, his reductionism is revealed when he immediately proceeds to insert ‘legal reasoning’ into the category ofta’ut beshikul hada’at , and further when he historicizes the Talmudic typology:
[And] this was [relevant] before the editing of the Talmud, but in our times the possibility of this occurring has diminished, for if one issues a ruling, and we find the opposing view in the Talmud, then he errs indvar mishnah ; and if we do not find the opposing view, and his inferences seems probable according to the inferences of the divine law, although there are reasons against his ruling it is impossible to determine his [= the judge’s] error, for his analogy is possible.
Firstly, Maimonides reduces the distinction between the two errors to modal terms – propositions from the transmitted text are necessary truths, their epistemological status is certain and absolute, and thus rendering any deviation is impermissible and intolerable; whereas propositions based on legal reasoning are only possibly true, their epistemological status is probable, and therefore error regarding such statements is not to be reversed. Secondly, by contextualizing the Talmudic typology in a limited historical framework, Maimonides eliminates the possibility of discretional error (ta’ut beshikul hada’at ), and in fact abolishes the relevancy of the typology of judicial errors to post-Talmudic legal rulings.[^73]
Compared to Sherira’s absorption of theqiyas theory, legal reasoning for Maimonides widens the range of possible discretion. To that extent, Maimonides understands analogical reasoning as rhetorical means rather than logical tool. The canonization of the Talmud is for him a watershed moment in Jewish legal history,[^74] a crucial event to the legitimacy of legal reasoning. Accordingly, rulings of post-Talmudic laws by analogical reasoning are not likely to be erroneous because “it is impossible to determine his [=the judge’s] error, for his analogy is possible”. That, of course, reduces the Talmudic typology as only one type of error is possible – deciding against an explicit ruling in the Talmud. This illustrates the Maimonidean fundamentalist-reductionist nexus: limiting the possibility of judicial errors to the Talmudic material in fact elevates the Talmud to the level of revealed law (nass ) while at the same time also annulling the possibility of judicial errors regarding post-Talmudic cases. This being the case, whereas Sherira stresses restrictions in order to limit the range of possible analogies and rules out laws based upon erroneous analogies, Maimonides denies the very possibility of post-Talmudic judicial errors by viewing the sealing of the Talmud as an opening moment for nearly unrestricted judicial reasoning.[^75]