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.

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