Jadal and Qiyas in the Fifth/Eleventh Century: Two Debates between al-Juwayni and al-Shirazi.

• Author: Slddiqui, Sohaira

INTRODUCTION

In addition to biographical sketches of seminal figures within the Shafi'i school, Taj al-Din al-Subki's (d. 771/1370) Tabaqat al-shafi'iyya preserves important correspondences and exchanges that occurred between them. In the entry on Abu Ma (c)ali al-Juwayni (d. 478/1085), two debates between him and Abu Ishaq al-Shirazi (d. 476/1083) during the latter's visit to Nishapur are found. (1) In the fifth/eleventh century, al-Juwayni and al-Shirazi were considered to be the foremost Shafi'i jurists and dialecticians of the time and were acknowledged as such by their appointments as heads of the Nizamiyya madrasa in Nishapur and Baghdad respectively. (2) The debates, albeit not exhaustive in length, exemplify certain mechanisms of dialectic disputation (jadal) in action and reveal their distinct scholarly approaches to the doctrine of analogical reasoning (qiyas) despite their shared intellectual heritage and commitments. This article will assess the importance of these debates in the development of jadal as a genre of legal writing. After the first section, which addresses the genre, the second and third look at al-Shirazi's and al-Juwayni's theories of qiyas and jadal, the fourth provides a translation of the debates, and the fifth analyzes the debates in light of the preceding sections.

1. JADAL AS A GENRE OF LEGAL WRITING

   Jadal texts have long been recognized as constituting a unique genre within Islamic law, but it is only recently that more comprehensive analyses of these writings have been undertaken. One of the first modern-day scholars to recognize their importance was Wael Hallaq, who argues that Abu Husayn al-Basri's (d. 436/1044) Kitab al-Qiyas al-shar'i was one of the earliest comprehensive texts within this genre and aptly uncovers the legal and theological issues at stake in these treatises. (3) Hallaq traces the development of works in juristic dialectical disputation back to the translation into Arabic of Greek texts in the first half of the third/mid-ninth century. (4) According to him, the methodology and form of Greek dialectical treatises were incorporated into Islamic works, eventually constituting distinctly Islamic juridical treatises on dialectic that shed their Greek overtones. (5) The function of these dialectical treatises was to provide jurists with mechanisms to critique probable (zanni) legal rulings, refine them, and ultimately provide justification for selected opinions. (6) While the general function of jadal is not a matter of dispute in secondary scholarship, disagreement over its origins exist. Larry Miller argues that the first dialectical treatises to emerge in the fourth/tenth century were theological. (7) Though Miller acknowledges the role of Greek dialectical disputation treatises in the realm of theology, he ultimately sees the rise of juridical jadal treatises as an appropriation from Islamic speculative theology (kalam), not directly from Greek philosophy. Despite their differences, both Miller and Hallaq agree on the adoption of a foreign source for the burgeoning of juridical disputation treatises. This narrative has recently been challenged by Walter Young, who argues that juristic jadal treatises were not foreign appropriations but developed from prior juridical dialectical teachings and practices.

   Young argues that "a tradition--or traditions--of dialectical disputation preceded this infusion of Aristotelian dialectical method resulting from the Translation Movement." (8) Young calls these traditions of dialectical disputation "proto-system jadal" averring that, as opposed to being articulated in systematic treatises of dialectical theory, they constituted the actual practice and teaching of jadal in a more inchoate form. He traces these protosystems to works of juristic disagreement from the latter half of the second/eighth century, particularly al-Shan'I's (d. 204/820) Ikhtildf al-'irdqiyyayn. (9) Notwithstanding the differing narratives proposed by Hallaq, Miller, and Young regarding the rise of jadal as a distinct genre, they concur that the entire enterprise can be denoted as one of "truth-seeking" (10)--while dialecticians sought to have their opinion prevail over that of their opponents, they were also willing to concede to a superior argument. This openness to concession is what ultimately differentiated proper disputation from improper disputation, i.e., mere legal sophistry. In addition to their agreement as to jadal's nature, all three hold that the fifth/eleventh century and the treatises of al-Juwayni and al-Shirazi mark a pivotal moment in jadal's development into its fully systematized form. (11)

   Although there are other dialectical moves outside of analogy-oriented arguments that are frequently employed by jurists in jadal, (12) and Hallaq notes their centrality, (13) in the following debates between al-Juwayni and al-Shirazi analogy-oriented arguments dominate. For a better understanding, I will first discuss al-Shlrazi's recourse to qiyas in jadal and then that of al-Juwayni.

2. AL-SHIRAZI: QIYAS AND JADAL

   Eric Chaumont divides al-Shlrazi's intellectual production into two periods: a "youthful" period focused on juristic disputation and disagreement (ikhtilaf) and a "mature" period focused on legal theory (usiil al-fiqh) and legal interpretations (fiqh). The "brilliant conversationalist" evolves into a "genuine mujtahid" who is concerned with law beyond the form and substance it takes in the realm of juristic disagreement. (14) I will rely here on one of al-Shlrazi's early works, Kitab al-Ma'una fi l-jadal, which is seen as a summary of the earlier ones and was composed closer to the end of the youthful period in 450/1058. (15) The text I used to understand his doctrine of qiyas is al-Luma' fi usiil al-fiqh, which was penned, according to Chaumont, in al-Shirazi's mature period. (16)

   In al-Luma' al-Shirazi defines qiyas as "the correlating of a branch case (far') to a source case, in some of its legal consequences (ahkam), with a reason (ma'na) that joins the two of them." (17) He notes that there are three types: qiyas al-'illa, qiyas al-dalala, and qiyas alshabah. Al-Shirazi defines the first, and strongest, type as "the returning of a branch case to a source case by virtue of a point (nukta) (18) by which the ruling is attached to in the divine law (shar')." (19) It is then further subdivided into evident (jali) and latent (khafi). (20) These two forms of qiyas al-'illa are differentiated on the basis of the degree to which interpretation is deemed permitted. Al-Shirazi divides the first category of "evident" into four types. The first is evident due to an explicit linguistic indicant pointing to the rationale in the ruling itself. The scriptural text conveying the ruling is unambiguous (nass) and thus the linguistic clarity of the ruling precludes more than one interpretation. As an example he cites Q 59:7: "Whatever gains God has turned over to His Messenger from the inhabitants of the villages belong to God, the Messenger, kinsfolk, orphans, the needy, the traveler in need--this so that (kay) they do not just circulate among those of you who are rich." (21) After explaining the distribution of wealth in the first part of the verse, the second part starts with the subjunctive particle kay, linguistically indicating that the reasoning for the distribution will be given. According to al-ShlrazI, these obvious linguistic indicators are a decisive proof (dalil qat'i) that what follows them is in fact the reasoning of the ruling; additional interpretations are therefore unacceptable. (22) The second type of "evident" is due to a fortiori signification, exemplified by Q 17:23: "Say no word that shows impatience with them [i.e., parents], and do not be harsh with them, but speak to them respectfully." According to al-Shirazi, the quranic injunction to not show "impatience" to one's parents (lit. to not say "Uff" to them) signifies that anything worse than that is similarly prohibited. (23) The third type is by way of another type of linguistic indicant that does not fall into the aforementioned two categories, (24) and the fourth type is by consensus (ijma'). Despite not providing any examples of this, he concludes his discussion on qiyas al-'illa jali by noting that the identified rationale cannot conflict with consensus or any unambiguous text. (25)

   Al-Shirazi divides latent cases of qiyas al-'illa into two categories. In the first, the rationale of the ruling is apparent (zahir), but it is not established decisively so as to exclude multiple interpretations. Given that the rationale is apparent but not definitive, al-Shirazi only cites cases in which there are two possible rationales and the jurist must let one prevail over the other. The second form of qiyas al-'illa khafi is by way of rational inference (istinbat). (26)

   Turning to qiyas al-dalala, al-Shirazi defines it as "returning the branch case to the source case by virtue of a reason (ma'na) other than the reason on which the ruling depends in the divine law, except that it indicates the presence of the rationale ('illa) of the divine law." (27) He then notes that this type of qiyas overlaps somewhat with qiyas al-'illa khafi in the sense that both allow for interpretation, but qiyas al-dalala accommodates more. His discussion of qiyas al-dalala in al-Luma' is rather truncated, and a fuller account can be found in al-Mulakhkhas. Following Young's interpretation, qiyas al-dalala is divided into two main types. In the first the jurist cannot ascertain the rationale so examines other rulings associated with the branch case until a relevant ruling is found. This relevant ruling, with a rationale the jurist can ascertain, is then connected with a source case. There are thus two rulings from the same branch case in this form of qiyas al-dalala--one whose rationale is known and another whose rationale is not--and both are connected to a single source case. In the second...