Chapter Seven: Against Consensus
Chapter Eight: Against Speculation
Chapter Ten: Against Preference
Chapter Eleven: Against Inference
Chapter Twelve: Against Legal Interpretation and Personal Judgment
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The Library of Arabic Literature
FOREWORD
JOHN COUGHLIN AND JOHN SEXTON
An eminent jurist, al-Qādī al-Nuʿmān (c. 872-962) counts as a major figure in the development of the Islamic legal tradition, and his work concerning the legal schools’ conflicting principles of interpretation opens a window onto a sophisticated and erudite methodology for the interpretation and application of legal texts. Devin J. Stewart has translated one of the most significant texts of the Islamic legal tradition. Together with al-Shāfiʿī’s The Epistle on Legal Theory, translated in this same series by Joseph Lowry, this work acts as a conversation partner in the perennial dialogue about the question “What is law?” At a time when Islamic law is often disparaged in the popular media as gruesome and inhumane, editions and translations of these classical religious texts testify to the contribution of Muslim jurist to this fundamental question in legal theory and praxis.
The publication of Disagreements of the Jurists serves to remind us that law and religion have much in common as historical institutions and contemporary social phenomena. As with the other great religious traditions of the world, Islam has generated a vast legal literature of which al-Qādī al-Nuʿmān’s work is exemplary. He devoted his life to exploring issues such as the relation between revelation and reason, the development of law and the resolution of individual cases on the basis of that relation, the role of religious authority in the interpretation of law, the significance of prayer in understanding legal texts and affording just solutions to cases, the interpretation of legal texts through correct hermeneutics, the function of courts in resolving disputes and appeals from the decisions of such courts, the usefulness of legal education, and setting the optimal legal conditions in which the individual might prosper as a member of the community. Al-Qādī al-Nuʿmān’s efforts in the tenth-century Islamic world preceded the work of the medieval canonists of the Christian world starting in the twelfth century with the publication of Gratian’s Decretum. Harold Berman has posited that works of the medieval canonists denoted a “revolution” in law that laid the bedrock of the modern Western legal tradition. By making the text of Disagreements of the Jurists available to contemporary legal scholars, Stewart bolsters the case for the religious origins of modern legal institutions and structures. Along with Lowry’s rendition of al-Shāfiʿī’s The Epistle on Legal Theory, Stewart’s presentation of Disagreements of the Jurists retrieves an understanding according to which the power of law to bind derives not merely from positive law enacted by secular governments but also from the very nature of the human person as a social being.
Islamic legal theory shares with Judaism and Christianity certain theological characteristics which promise to enrich the contemporary discussion about law, the rule of law, and legal systems. Consider the relation between law and theology in terms of theological anthropology, the valuation of the historical, and the role of judgment. First, the shared theological anthropology portrays the creation of the human person as endowed with an inviolable dignity. The shared theology constitutes a transcendent predicate for the recognition of universal human rights. By affirming the goodness of material creation, the theology also elicits respect for the environment. The theology invites humanity to act, not as exploiters, but as wise stewards of the natural world. Second, in adopting an understanding of history as salvation history, the shared theology elucidates the relationship between law and history. God’s activity in history signifies that historical circumstances have meaning for law; in other words, law ought not to be reduced to a static set of rigid rules but must be interpreted in light of changing historical circumstances. Moreover, the theological valuation of history means that law’s function in shaping social, political and economic contexts remains dynamic and subject to critique. Third, the shared theology espouses an approach to judgment based on the integration of justice and mercy. It calls for law not focused solely on punitive retribution but on the possibility of reconciliation through conversion and compassion. The publication of the classical Islamic legal texts thus operates as a corrective to the dislocation of contemporary secular legal theory from its theological fonts which are gushing with creative and generative principles for a renewed understanding of law in an increasingly positivistic legal culture.
Classical Islamic texts such as the Disagreements of the Jurists exemplify the kinds of sacred literature that the late renowned comparative scholar Huston Smith described as constituting the “world’s wisdom.” The translation of this wisdom into the vernacular entails an exacting science and creative art that transcends mere equivalency in the challenge of communicating a dynamic meaning. Recent translations of the Sanskrit Upanishads into English by Patrick Olivelle, Vernon Katz, and Thomas Engles convey how the Hindu dharmas facilitate the sublimation of an individual’s private subjective desire to true human flourishing. Likewise, Edward Conze’s rendering of texts from Buddhism’s Pāli Canon has proved to be an invaluable resource for those who are interested crossing the river from the pain of dukkha into the compassion of nirvāna. In moving from Hebrew into English, the epic labors of scholars such as Jacob Shachter, Harry Freedman, Isidore Epstein, and Michael Rodkinson, to mention but a few, have endowed humanity with sources of rabbinic sagacity, prudence, good judgment, and pragmatism which is the Babylonian Talmud. The universal appeal of the Taoist doctrine about a return to naturalness and the complementarity of yin and yang have been made accessible to English readers by Stephen Mitchell’s translation of Lao-tzu’s Tao Te Ching. Arthur Walley performed a similar service in regard to The Analects of Confucius and the Chinese sage’s call for each individual to become a cultivated human being. Nor should one overlook the seminal work of Mircea Eliade in rendering into English the sacred texts of early peoples and his analysis of sacred time and sacred place as characteristic of human consciousness ab