Informative and Performative Theories of Divine Speech in Classical Islamic Legal Theory

This paper, delivered in 2017 at the conference on “Intention and Signification: Philosophy of Language Across Islamic Disciplines, 800-1200” organized by Nadja Germann at the University of Freiburg, has been published in the conference volume:

David R. Vishanoff. “Informative and Performative Theories of Divine Speech in Classical Islamic Legal Theory.” In Philosophy and Language in the Islamic World, ed. Nadja Germann and Mostafa Najafi, 183–208. Philosophy in the Islamic World in Context, ed. Peter Adamson, et al., no. 2. Berlin: De Gruyter, 2021.

The volume is available from De Gruyter beginning November 23, 2020.

Abstract: The Qurʾān describes God’s speech as powerful and creative: “When he decrees something he merely says to it ‘Be!’ and it is.” Just as impressively, when he desires to make an action obligatory he merely says “I oblige you to do it,” or even just “do it!” This is an example of what some modern theorists of language call performative speech, which brings about a new state of affairs rather than just conveying information about what is already the case. This essay considers the emergence of the concept of performative speech in classical Islamic legal theory, presenting the debate over whether to regard God’s speech as informative or performative as part of an ongoing argument over the nature of law, the nature of God’s speech, and the relationship between them. After a brief discussion of Muḥammad ibn Idrīs al-Shāfiʿī (d. 204/820), the essay presents the views of four contrasting thinkers of the late 4th/10th and early 5th/11th centuries: the Shāfiʿī jurist and Muʿtazilī theologian ʿAbd al-Jabbār (d. 415/1025), who treated God’s speech as a purely informative description from which human beings may deduce the details of an ontologically and epistemologically prior moral order; the Ḥanbalī Abū Yaʿlā Ibn al-Farrāʾ (d. 458/1066), who took the opposite tack, treating God’s speech as a performative speech act that brings about obligations with the immediacy of a master’s face–to–face orders to a slave; the Mālikī jurist and Ashʿarī theologian Abū Bakr al-Bāqillānī (d. 403/1013), who sought to have it both ways; and the Ḥanafī Abū Zayd al-Dabūsī (d. ca. 430/1038), who appears to have introduced the term inshāʾ into Sunni legal theory. These last two thinkers sought, in very different ways, to affirm that legal obligations are brought about by God’s speech; yet they treated the language of revelation as a source of information and indicative evidence from which human interpreters could reconstruct the law through a flexible interpretive process.

The Ethical Structure of Imām al-Ḥaramayn al-Juwaynī’s Legal Theory

My contribution to the Summer Institute for Scholars on “Sharia and Ethics” hosted by the International Institute for Islamic Thought in 2014 has now been published, along with many of the other papers from that memorable symposium, in an Open Access volume on Islamic Law and Ethics.

David R. Vishanoff. “The Ethical Structure of Imām al-Ḥaramayn al-Juwaynī’s Legal Theory.” In Islamic Law and Ethics, ed. David R. Vishanoff, 1–33. London: International Institute of Islamic Thought, 2020.

The whole book is freely available in multiple formats, including PDF, at https://iiit.org/en/book/islamic-law-and-ethics/.

Abstract

Imām al-Ḥaramayn al-Juwaynī’s definition of law (fiqh) as knowledge of legal values (aḥkām), his definitions of those legal values, several of his interpretive principles, and other features of his legal theory (uṣūl al-fiqh) give Islamic law the structure of an ethical system that can be characterized in limited respects as a form of moral realism, as a divine command theory, and as deontic, deontological, agent-centered, individualistic, and particularistic. Comparing his vision of the law with other types of ethical systems suggests alternative ways in which Islamic law might be envisioned and defined, and reveals some profound implications of seemingly minor points of legal theory like the definitions of technical terms. In this paper, the ethical structure of al-Juwaynī’s widely taught legal theory is contrasted with virtue ethics, constructivism, consequentialism, utilitarianism, existentialism, natural law and social contract theories, as well as patient-centered, rights-centered, and relational ethical systems. Several alternative possibilities for structuring legal theory and defining its key terms are suggested by these comparisons. The goal is to imagine what legal theory might look like if it were structured around the cultivation of virtues, the establishment of certain kinds of interpersonal relationships, or the articulation of general moral principles, rather than around the eternal consequences of particular actions for the individuals who perform them. These possibilities would require not only different definitions of key terms, but also different approaches to the interpretation of revealed texts and the construction of ethical norms. Resources for reshaping legal theory around such alternative ethical structures are identified within the discipline of uṣūl al-fiqh itself and in other Islamic disciplines. No particular reformulation of legal theory is advocated, but it is argued that imagining alternatives helps us to understand al-Juwaynī’s own legal theory. We do not fully understand the significance of the theoretical choices made by scholars of uṣūl al-fiqh until we imagine what Islamic law would look like if they had chosen differently.

Islamic Law and Ethics

This volume assembles many of the papers delivered at the 2014 Summer Institute for Scholars on “Sharia and Ethics” hosted by the International Institute for Islamic Thought in Herndon, Virginia. Many thanks to Ermin Sinanović for organizing the institute and initiating the volume, to Abdulaziz Sachedina for guiding the selection of papers, and to Shiraz Khan for seeing it through to publication.

David R. Vishanoff, ed. Islamic Law and Ethics. London: International Institute of Islamic Thought, 2020.

The book is Open Access and available in multiple formats including a free PDF at https://iiit.org/en/book/islamic-law-and-ethics/. A paperback version will be available soon.

Abstract

Does Islamic law define Islamic ethics? Or is the law a branch of a broader ethical system? Or is it but one of several independent moral discourses, Islamic and otherwise, competing for Muslims’ allegiance? The essays in this book present a range of answers: some take fiqh as the defining framework for ethics, others insert the law into a broader ethical system, and others present it as just one among several parallel Islamic ethical discourses, or show how Islamic ethics might coexist with non-Muslim normative systems. Their answers have far-reaching implications for epistemology, for the authority of jurists and lay Muslims, for the practical moral challenges of daily life, and for relationships with non-Muslims. The book presents Muslim ethicists with a strategic contemporary choice: should they pursue a single overarching methodology for judging all ethical questions, or should they relish the rhetorical and political competition of alternative but not necessarily incompatible moral discourses?

Contents
  1. The Ethical Structure of Imam al-Haramayn al-Juwayni’s Legal Theory, by David R. Vishanoff
  2. “Neither Desiring It, nor Transgressing Its Limits:” Ethical Hierarchy in Islamic Law, by Samy Ayoub
  3. Structural Ijtihad: A Radical Paradigm Shift in Twelver Shi`i Legal Theory, by Hamid Mavani
  4. The Application of Maqasid al-Shari`ah in Islamic Chaplaincy, by Kamal Abu-Shamsieh
  5. The Developmentalist Ethic in Islamic Charity: Fiqh al-Zakah and the Applied Ethics of Muslim Charity Organizations in India, by Christopher B. Taylor
  6. The Concept of Rida in the Qur’an: Popular Misunderstanding and the Westernization of Jews and Christians, by Asaad Alsaleh
  7. Social Justice and Islamic Legal/Ethical Order: The Madinah Constitution as a Case Study from the Prophetic Period, by Katrin Jomaa

Guest posts on Harvard’s Islamic Law Blog

The Islamic Law Blog of the Program in Islamic Law at Harvard Law School invited me to serve as their guest editor during November 2019. I contributed posts on teaching, research hacks, a recent conference, and uṣūl al-fiqh:

The blog is relatively new, and already has a long list of great contributors. You might want to subscribe!

Uṣūl al-Fiqh versus Hermeneutics

Detail of wall in the ornate meeting room

Many thanks to Rob Gleave and Murteza Bedir for organizing another great conference on Islamic legal theory in Istanbul, and to all the participants for rich conversations and for helpful feedback on my paper, which was:

“Uṣūl al-Fiqh versus Hermeneutics: History, Linguistics, Ideology, Phenomenology, and Postmodernism between Europe and Indonesia.” Conference on “Islamic Legal Theory: Intellectual History and Uṣūl al-Fiqh,” Istanbul University, October 15, 2019.

Here is a pdf of the pre-conference draft of the paper that was shared with participants. It is complete but lacks documentation and will require a great deal of revision before publication in the projected conference volume, so please do not cite it formally yet.

Conference participants
The conference participants
Detail of wall in the ornate meeting room
Detail of wall in the ornate meeting room
View of the Süleymaniye mosque from the meeting room
View of the Süleymaniye mosque from the meeting room