Abstract
This chapter examines the role of judicial analogy (qiyas; (قياس in particular, and legal reasoning in general, within rabbinical jurisprudential thought, in comparison to their prominent role in Islamic jurisprudence. More precisely, we tackle the claim that legal reasoning was a controversial topic between the Karaites and the Rabbinates, as the latter denied its legitimacy. Following structural analysis of the advocacy of qiyas we construe Sa’adyah’s treatise, Kitab Tahsil Ashar’i’ Asama’iyah, and the typology of qiyas therein.
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.
Franz Rosenzweig (1985, pp. 216–217)
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Notes
- 1.
‘… 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”.’ (Graham 1993). See also Rosenzweig (1985, p. 225).
- 2.
For the reconstruction of Judeo-Christian theology Rosenzweig (1985, p. 66) dismantles the Quranic ethos about the heavenly book (Umm al-Kitab)—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 Vajda, ‘Ahl al- Kitab’ Encyclopedia of Islam, (Second Edition).
- 3.
Astren 2004.
- 4.
Ravitsky (2009, p. 186).
- 5.
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 usul 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.
- 6.
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. Schacht (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 (Carter 1997). For a refutation of the Hebrew and Greek influence on the qiyas see Hasan 1980.
- 7.
Hallaq (1997, p. 83).
- 8.
The conceptual connection between qiyas and ijtihad is evident in the usul al-fiqh writings that blur the difference between the two terms, see (Lowry 2007, pp. 142–163; Zucker 1972, p. 380, n. 27). On Ghazali’s discussion on this topic see Hasan (1980, p. 5).
- 9.
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 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 put forward.
- 10.
Imam Muhammad ibn Idris al-Shafi’i (767–820) 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.
- 11.
To Shafi’i, the cause-based qiyas is defined as follows: ‘…when God or His Messenger forbids a thing by means of an explicit text, manṣūṣan صا) (منصو 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). Lowry discusses these paragraphs in 2007, 149–155. According to the Hanafi School, only this type of qiyas is justified, see (Zysow 1984, p. 329).
- 12.
According to Shafi’i, 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).
- 13.
Kalb 1983, 114.
- 14.
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, p. 150). Risala, § 1377–1391.
- 15.
According to Jewish law, in similar circumstances the believer is not obliged to face the temple but to direct his heart towards God. See t Ber. 3: 14.
- 16.
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, p. 16).
- 17.
The terms ‘metaphysical realism’ and ‘strong objectivism’ are taken from the description of legal epistemology by Coleman and Leiter 1995, 248.
- 18.
‘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 (i.e. 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 ijtihad. ijtihad is, in turn, qiyas’ ( Risala, §1326); (Lowry 2007, p. 145).
- 19.
Calder 1983, 70: ‘(For Shafi’i) all events have the resolution in God’s law; all knowledge is therefore knowledge of God’s law’.
- 20.
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.
- 21.
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).
- 22.
Shafi’i’ explains that God’s guidance comes about through two distinct channels, paralleling the revealed/derivative distinction—‘(God) guided them (i.e. the believers) to the truth by means of plain texts and by means of inferential indications.’ Risala, §1445; Lowry 2007, 245. Elsewhere he states that God’s guidance pertains to every possible state-of-affairs. Risala, §20. See also Calder 1983, 55 and Makdisi 1984, 41.
- 23.
Lobel (2000, pp. 59–65).
- 24.
Pines 1994 on the view of tradition as a valid and reliable source of knowledge.
- 25.
Celebrating the qiyas, to Sa’adyah, enable the Karaites to elude the binding nature of the tradition—‘therefore they (i.e. 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: Al-Qirqisani, Code of Karaite Law, II, 9:1). Accordingly, both Sa’adyah and the Karaites perceive the equilibrium of qiyas and tradition.
- 26.
Ibid. II, 9:1.
- 27.
Ibid. The controversy between Sa’adyah and the Karaites is thus presented in terms of their different responses to the gnostic circumstances; while Sa’adyah 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.
- 28.
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’adyah’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.
- 29.
See note 10 above
- 30.
Sa’adyah’s reference to Aristotelian categories follows Al-Farabi’s (870–950) holistic metaphysics. It stresses the correlation between the attributes of the laws and their intelligibility. Ontologically, it pertains to the transition, to use Sa’adyah’s language, from the ‘natural-state-of-affairs’ ( halo al-asia al-tibya) rto 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’adyah’s understanding the substance as a totality, and it is that which dictates the possibility of apprehension of accidents or particulars.
- 31.
Kitab Tahsil, 387, r. 9.
- 32.
Kitab Tahsil, 388, r. 17.
- 33.
Kitab Tahsil, 388, r. 14.
- 34.
While Sa’adyah does not elaborate on this in Kitab Tahsil , rhe 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’ בתאליף) אלא תת’בת לא .(כלהא 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 Sa’adyah, Commentary to Genesis, Introduction to the Commentary on the Torah, 167–169.
- 35.
This distinction as initially considered a Sa’adyan novelty by which he bridged two religious doctrines—rationalism ( Mu’tazilah) and authoritarianism ( Ashari’a). See Altman 1943. Others took it as a synthetic reading of the Aristotelian concept of ‘belief’ with the Stoic concept of ‘consent.’ See Wolfson 1942. With the discovery of Mu’tazilites’ writings over the course of the years it became evident that this distinction preceded Sa’adyah. A similar conclusion reached by Ben-Shammai 1972.
- 36.
Kitab Tahsil, 394, n. 101.
- 37.
The seventh (r. 71–75), the eighth (r. 75–84) and the tenth (r. 92–100) arguments.
- 38.
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 Halbertal 1992.
- 39.
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 (i.e. new norms) by the thirteen principles (of inference), but whatever Joshua and Pinchas (i.e. the disciples of Moses) can infer in matters of investigation and analogy, Rav Ashi and Ravinah (i.e. the sealers of the Babylonian Talmud) can do too.’ Maimonides, Commentary on the Mishnah, introduction, p. 29.
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David, J. (2014). Legal Reasoning: Structure and Theology. In: Jurisprudence and Theology. Studies in the History of Law and Justice, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-06584-7_6
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