Tag Archives: Islamic legal theory

Classical Islamic Legal Theory and Modern European Philosophy in Conversation: Language, Ethics, History, Politics, and Phenomenology

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Categories: Presentations

Many thanks to Serdar Kurnaz, his Working Group for Islamic Philosophy of Law, and his team from the Berlin Institute for Islamic Theology, for calling together what turned out to be a creative, imaginative, and wide-ranging conference on “Constructing Islamic Philosophy of Law: Obstacles, Challenges and Solutions.” It was held in the old Veterinary Anatomy Theater (pictured) at Humboldt University in Berlin on May 27-28, 2022. My paper was:

“Classical Islamic Legal Theory and Modern European Philosophy in Conversation: Language, Ethics, History, Politics, and Phenomenology.” Constructing Islamic Philosophy of Law: Obstacles, Challenges and Solutions, Berlin Institute for Islamic Theology, Humboldt University, Berlin, May 27, 2022.

Here is a pdf of the slides for the presentation.

The inside of the Veterinary Anatomy Theater:

Islamic Legal Theory: A Critical Introduction Based on al-Juwayni’s Waraqat fi usul al‑fiqh

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Categories: Publications, Teaching, Translations

Islamic Legal Theory: A Critical Introduction Based on al-Juwayni’s Waraqat fi usul al‑fiqh. Indianapolis: Hackett, 2022.

This book is a revised and slightly expanded version of my Critical Introduction to Islamic Legal Theory, which was published online in 2017. Many thanks to Rick Todhunter at Hackett for suggesting that it be published as an affordable paperback for classroom use. It is available on Hackett’s web site as an ebook ($15.50), a paperback ($18), and in a library-style cloth binding (not sewn, $58). Instructors may order examination copies for a nominal charge of $3.

But the book isn’t just for students. Along with a critical edition and English translation of al-Juwayni’s widely used Kitab al-Waraqat fi usul al-fiqh, it offers a novel commentary that highlights the significance of classical debates for contemporary concerns in a way that I hope will prove illuminating for specialists.

Theologies of Divine Speech and the Human Exigencies of Law

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Categories: Presentations

Many thanks to Muna Tatari and Idris Nassery for their warm hospitality and engagement during their conference on “Dynamics of Tradition: Islamic Theology and Law in Relation” at the University of Paderborn, September 17-19, 2021. I presented the following paper:

“Theologies of Divine Speech and the Human Exigencies of Law: A Conundrum for Classical and Contemporary Islamic Legal Hermeneutics.” Dynamics of Tradition: Islamic Theology and Law in Relation, Institute for Islamic Theology, University of Paderborn, Germany, September 19, 2021.

Here is a pdf of the pre-conference draft, without documentation, from which I presented excerpts at the conference.

The final paper was published in the conference volume, from Brill, in 2025.

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

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Categories: Publications

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. https://doi.org/10.1515/9783110552409-007

The volume is available from De Gruyter.

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

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Categories: Publications

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 from IIIT and on JSTOR. Paperback, hardcover, and Kindle versions may be purchased through amazon.

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.