Law and Politics under the Abbasids

LAW AND POLITICS UNDER THE ABBASIDS – Book Sample

Contents – LAW AND POLITICS UNDER THE ABBASIDS

• Introduction 1
• A Brief Glimpse into Nishapur 5
• Al-Juwaynī: Between Certainty and Continuity 9
• Al-Juwaynī and Themes in Islamic Studies 11
• Beyond Themes 24
• The Scope of the Book 26
• part i historical background 33
• Politics, Patronage, and Scholarship in Nishapur 35
• Al-Juwaynī’s Time and His Scholarship 36
• Nishapur: A City Divided 39
• The Fitna in Nishapur: Who Was to Blame? 48
• Conclusion 51
• Al-Juwaynī: Life of a Scholar 53
• Al-Juwaynī: Early Life and Education 53
• Leaving Nishapur and Life in the Hejaz 57
• Al-Juwaynī’s Return to Nishapur 60
• Teaching at the Nizāmiyya 65
• Death _ 75
• Conclusion 76
• viii Contents                                                                                            
• part ii epistemology                                                                              77
• 3 Intellectual Fissures: The Ashʿarīs and the                              
• Muʿtazila                                                                                                   79
• The Muʿtazilī School in Nishapur                                                     80
• Muʿtazilī Epistemology and Its Legal Consequences                84
• Ashʿarī Epistemology and Its Legal Consequences                    96
• Conclusion                                                                                                107
• 4 The Epistemology of al-Juwaynī                                                   109
  • Al-Juwaynī’s Epistemology in the Irshād and the
• Shāmil  
• Al-Juwaynī’s Epistemology in the Burhān                                    118
• Implications of al-Juwaynī’s Epistemology for Law                   128
• Epistemology beyond the Self                                                           130
• Conclusion                                                                                                131
• part iii legal theory                                                                                133
• 5 Certainty in Legal Sources: Ḥadīth                                               135
• Legal Thought at the Time of al-Juwaynī                                      137
• Al-Juwaynī and Reports (Akhbār)                                                    145
• Responding to His Predecessors and Establishing                   
• His Own Criteria                                                                                     147
• The Reception of al-Juwaynī’s Arguments on Reports             156
• Al-Juwaynī on Unitary Reports (Akhbār Āhād)                          159
• Conclusion _                                                                                            162
• 6 Certainty in Legal Sources: Ijmāʿ                                                  163
• The Roots of Ijmāʿ                                                                                  164
• Early Defenses of Ijmāʿ                                                                         166
• A Note on Custom                                                                                  170
• Al-Juwaynī on Ijmāʿ                                                                              171
• The Reception of al-Juwaynī’s Notion of Ijmāʿ                            179
• Two Cases of Custom: Mutawātir Hạdīth and Ijmāʿ                 181
• Conclusion                                                                                                183
• 7 The Rise of Legal Uncertainty: Qiyās al-Maʿnā                        185
• Qiyās and the ʿIlla: Preliminary Investigations                          186
• Qiyās: Definition and Defense                                                          188
• Types of Qiyās and Extracting the ʿIlla and Maʿnā                    195
• Conclusion                                                                                                207
•  Coping with Legal Uncertainty: Qiyās al-Shabah 209
• Qiyās al-Shabah: A Debated Source 209
• Qiyās al-Shabah According to al-Juwaynī 213
• Maslaha in Qiyās 216
• The_ H_ierarchy within Qiyās                                              223
• Regulating Variance: The Role of the Mujtahid 227
• Conclusion 231
• part iv political thought 233
• The Search for Continuity: Al-Juwaynī’s Political
• Thought 235
• Islamic Political Thought: An Overview 236
• The Necessity of the Imamate: Its Justification and
• Purpose 243
• The Selection of the Imam 244
• The Qualifications of the Imam 247
• The Purpose of the Imamate 250
• Envisioning the Absence of the Imam 252
• Conclusion 254
• Continuity, Custom, and Applied Epistemology
• in al-Juwaynī’s Political Thought 256
• Living without Rulers: The Rise of the ʿUlamāʾ 257
• The Loss of All ʿUlamāʾ 262
• The Continuity of Legal Guidance 264
• The Loss of the Sharīʿa 270
• The Sharīʿa and Custom as Governance 273
• Conclusion 282
• Conclusion 284
• Expanding Methodological Approaches within the Academic Study of Islam 286
• Concluding Remarks 288
• Bibliography 291

Introduction

Imagine, if you will, the two Persian luminaries, Abū Ishāq al-Shīrāzī (d. 476/1083) and Abū Maʿālī al-Juwaynī (d. 478/1085)_, sitting with knees crossed and brows tightened as they fervently debate whether it is the consideration of time or direction that is more integral to the performance of obligatory prayers, after which they turn their attention to the proper scope of marital agency on the part of the adult virgin. Beyond sharing an affinity for the law, al-Shīrāzī1 and al-Juwaynī were at the helm of the newly established Nizāmiyya madrassas in Baghdad and Nishapur, respectively.

Readers who s_tumble on these debates in al-Subkī’s Ṭabaqāt al-Shāfiʿ iyya can almost visualize the two scholars perched in a mini-ature.2 In the background would appear the towering madrassa of Nisha-pur and a vibrant market; in the foreground would be an eclectic audience of devoted students and passers-by, with books delicately balanced atop one another in the corner.

In the first debate, al-Juwaynī asserts that facing the correct direction is more important to fulfilling one’s duty of prayer, while al-Shīrāzī argues instead that it is praying at the proper time. To support his claim, the latter invokes the permission granted for one to pray while mounted on an animal, which ignores the direction of the qibla, as does the prayer of fear (khawf) in wartime. In both scenarios, the direction of the qibla may be disregarded, but the designated prayer time may not. Al-Juwaynī rebuts these examples with his own, pointing to the permission to join prayers while traveling, ignoring the prescribed prayer times but not the direction. Both scholars accept that in certain circumstances obligations with respect to prayer direction or time can be abandoned without invali-dating the prayer.3 The debate is thus not about validity, but rather about which element is intrinsically more important to prayer in the mind of the Lawgiver.

In spite of the ardor of the discussion, the absence of legal consequence for either position may lead the reader to conclude that the issue is inconsequential. What is the point of two great scholars debating which element of prayer is more important when both elements can be forfeited?

Is this just another example of the pedantic nature of legal sparring, or does it reveal something deeper about how Islamic law was conceptual-ized by two of the greatest legal minds of the fifth/eleventh century?

Indeed, far from a mere exercise, the exchange between al-Juwaynī and al-Shīrāzī encapsulates the core guiding principle of the juristic vocation in Islam – that God’s law is enclosed within the mind of the Lawgiver and that jurists, while seeking to capture it, must accept the fallibility of their own opinion and, as a corollary, the possibility of the veracity of their opponent’s.

The debate between the two scholars ends on this note, with each defending his position while conceding the potential correctness of the other’s view. Scholars of Islamic law have referred to this guiding legal principle in a variety of ways – such as “the valorization of uncertainty,” “legal indeterminacy,” and “self-conscious epistemology”–all of which emphasize the acceptance on the part of jurists of the gulf that exists between the law as reasoned and the law as dictated by God.

Yet while the domain of Islamic law accepts legal uncertainty in many circumstances, this principle is not extended to the realm of theology (kalām). Theologians – the mutakallimūn – have, in fact, been adamant that the soundness of one’s belief in God is contingent on the certainty of rational proofs,4 which lead one to accept the truth of the Prophetic message and all that it entails.

This axiom has motivated theologians to expend great effort in providing logically sound proofs for belief so as to assuage the doubts of laypersons and withstand the critiques of skeptics of belief. Once the veracity of the Prophetic message has been established, reason no longer functions as an independent tool of inquiry for the acquisition of knowledge, but now takes its place alongside revelation. This is not to say that revelation trumps reason, a topic of great debate;5 rather, revelation comes both to guide and to assist the human intellect.

On a theoretical level, the differentiation between the acceptance of legal uncertainty and the drive for theological certainty is reflected in theological and legal works. On a more practical level, however, scholars have more often than not been both jurists and theologians, constantly straddling the competing epistemological paradigms of these two disciplines. As a scholar, al-Juwaynī was lauded both as an Ashʿarī theologian and as a renowned Shāfiʿī jurist. Although he recognized, as had others before him, the distinct epistemological paradigms in theo-logical versus legal discourse, al-Juwaynī came to emphasize the theme of certainty – and this preoccupation can be identified not just in his theo-logical works but also across his entire oeuvre.

The aim of this book is to present the shared intellectual threads that connect al-Juwaynī’s theological, legal, and political writings. Rather than evaluate his major texts as discrete units, I start with the assertion that al-Juwaynī was a syncretic thinker with a specific intellectual project that can be identified regardless of which texts of his are analyzed.

This intellectual project, which both informed and molded al-Juwaynī’s intel-lectual concerns, was not formulated in a vacuum but rather emerged within a sociopolitical environment that left an indelible mark on him.

On the intellectual scene, al-Juwaynī observed his Ashʿarī comrades embroiled in debates with their rivals, the Muʿtazila, who confidently asserted that one could arrive at certainty in both legal and theological matters. On a very basic level, the tension produced within al-Juwaynī by the conflicting epistemologies of these two schools gave rise to his pro-found concern with certainty.

However, it was not his intellectual environment alone that had such a profound and permanent effect on al-Juwaynī. He lived in a politically tumultuous period, in which the rise of powerful dynastic families forced

5 For additional analysis, see A. J. Arberry, Revelation and Reason in Islam (New York: