Linguistic Assessment of Legal Normativity

Although al-Shirazi affirms that God’s speech is purposeful and accessible to the human intellect by knowledge of the Arabic speech conventions, he firmly holds that the intellect (^raql) is unable to establish religious account­ability. Even if on the basis of reason one can know religious matters such as the existence of God and the temporality of the world,2⁷ the legal value of acts is solely dependent on Revelation. For him, the role of the intellect is restricted to investigating the meaning of God’s speech in order to arrive at knowledge (ma^crifa) of one's religious responsibility. Being compos mentis is necessary for understanding the divine word. An act performed by a person while sleeping, drunk, forgetful or that of the insane, al-Shirazi says, does not fall within their culpability (taklif ).^[578]

Al-Shirazi's complete reliance on the divinely revealed speech to establish norms leads him to regard even the category of permissibility (Jbciha) to be only known from Revelation. In line with many Ash^taris, al-Shirazi denies that the original status of acts is their permissibility since permissible, he maintains, is what the Lawgiver permits (al-mubah ma adhana bih sahib α∕-sAαr^c).2^[579] He rejects that prior to Revelation the legal status of acts can be established as per­missible or prohibited, let alone obligatory, but rather any judgement on their legal assessment (hukm) has to be suspended.^{[580] [581] [582] He supports his stance by say­ing that this was the way of the Companions, who did not take laws established prior to the Prophet Muhammad's mission into account to determine rulings?1}

Rejecting rational assessment rises out of al-Shirazi's denial that there is continuity between this world and the realm of the divine and his commit­ment to God's omnipotence.

In line with Ashtarism, al-Shirazi also refutes the existence of any causality in God's speech beyond its apparent linguistic meaning. He objects to the view that God commands an act because it is good for people and, reversely, pro­hibits it because it is bad. Acts, he says, have no inherent ethical value. There is nothing inherently bad about ignorance or lying.^{[583] [584] [585] [586] [587] The ethical value of acts can only be known through divine decree?4 He concedes that sometimes God may prohibit something that is bad, such as fornication and theft?5 However, there is no immediate relationship between rationally assessing something to be bad and its divine prohibition. Beneficial or harmful consequences in the mundane world are not criteria by which one can determine the ethical or legal norm of acts. Rather, he argues that only through divine speech is their status knowable, as evident from the lack of prohibition of wine and pork prior to Revelation?6 Were God creating things for the benefit of humans, he argues, then wine and pork would be created for their benefit and could not be prohib­ited after Revelation.}

In short, although al-Shirazi holds that there is a purpose in God's speech that is intelligible to humans through the Arabic language, he adheres to the Ashtari position that ethical and legal norms are known only from divine Revelation and set exclusively by God - reason cannot independently assess the status of acts, neither ontologically nor by their consequences of benefit and harm. Divine speech is the sole source of normativity. In al-Shirazi's frame­work of normativity, God is not constrained in His decrees, and His omnipo­tence and transcendence remain uncompromised.

ι.ι The Legal Norms of Religious Accountability (Taklif)

Although al-Shirazi holds that God is not bound to reward and punish, he nev­ertheless defines the legal norms that circumscribe a person's religious duties in terms of divine punishment and reward. Obligatory (wajib), he says, is an act that is connected to punishment (iqab) when not performed, such as the five prayers, almsgiving, and returning deposits and usurped property; recom­mended (nadb) are acts that are connected to reward (thawab) when done but are not subject to punishment when omitted, like supererogatory prayer; permissible (mubdh) acts receive neither reward nor punishment, and encom­pass acts such as eating good food, sleeping and walking; prohibited (mahzur) are acts that are connected to punishment for committing, namely sinful acts like fornication, sodomy, usurpation and theft; and reprehensible (makruh) are those that are better not done (tarkuhu afdal minfi^clih), such as praying in the resting place of camels (^citdn al-ibil). In addition, al-Shirazi lists the status of acts as being valid (sahib) and invalid (batil) in relation to their legal effects (nufudh) and resulting in what is intended (maqsud) by them.

Looking at al-Shirazi’s typology of legal norms, we notice that he is care­ful not to imply a causal relationship between acts and their consequences of reward or punishment, wording it in a manner that they are only ‘con­nected’ (√ ^c-l~q). Noteworthy is that, in contrast to ^tAbd al-Jabbar and al-Basri who relied on blame to determine the category of obligatory, al-Shirazi draws on punishment (^rLqab) as the main defining criterion. He does not mention reward in this regard, though says that reward is added as a consequence (^rala wajh al-tab^e) to the performance of an obligation. When elaborating on the difference between obligatory and recommended, he argues that these are two separate norms because obligatory is an act that incurs punishment when omitted,3^[589] whereas a recommended act deserves reward for its voluntary per­formance. Al-Shirazfs reasoning resembles that of tAbd al-Jabbar’s category of nadb, namely an act that is laudable all in itself. Though not expressed in this way by al-Shirazi, one may say that because the believer acts in order to please God, it is laudable.^[590] As we also saw in the previous chapters, the category of reprehensible (makruh) is an oddity. Like our other jurisprudents, he defines it as acts one should avoid. However, receiving neither punishment nor reward, it is unclear what exactly differentiates it from permissible actions, apart from some form of (societal?) disapproval or impropriety.

The way to determine the legal status of acts is by scrutinizing the language of the revealed Law. Al-Shirazi frequently compares the speech relationship between God and humans with that of master (sayyid) to slave (^cabd). He states that an act that is associated with praise (madh.) confirms its permissibility (ibdha) and association with blame (dhamm) confirms prohibition (tahrlm).^{[591] [592] [593] [594] [595] [596] [597]} While this formulation suggests a wide variety of linguistic situations denot­ing praise and blame to determine legal norms, al-Shirazi’s discussion focuses primarily on command (amr) and prohibition (nahy).⁴'² Downplaying the importance of context (qarιna) to understand meaning, he carves out a niche separate from many Ash^taris. Obligation, al-Shirazi says, is known from divine command (amr), namely a verbal request by a superior to an inferior^³ Divine command (amr), he says, indicates that the commanded is good (Jutsan) and beneficial (salah).44 It is not good and beneficial because of the act itself, but, and here al-Shirazi argues similarly to al-Dabbusi, because God in His wisdom does not command something bad. Dismissing the Ash^tari position that obligation is only indicated based on the context (qarιna) of the command*⁵ al-Shirazi restricts command to the mood (slgha) of the imperative (if^cal), which, bar­ring countervailing evidence, indicates obligation. Other grammatical forms, he maintains, do not constitute command.4? Moreover, although command entails obligation, it leads to obligation only when uttered by someone holding a higher rank than the person commanded. 4⁷ Hence, when a person implores God by use of the imperative mood, it does not constitute an obligation but is deemed linguistically a question (su^,dl, mas^,ala) or wish (raghba).^4s For al-Shirazi, only the imperative directed toward someone inferior constitutes command. It is a request that leads to the obligation to make the commanded action exist (ljad al-fiT).⁴'^:> Since performing commanded and, thus, obligatory acts is part of a believer’s religious accountability (takllf), omission constitutes disobedience (ma^csiya) and is punishable - a punishment that, al-Shirazi says, is good (hasan).^{[598] [599] [600] In contrast to tAbd al-Jabbar, who holds that God’s justice and His generosity towards His creation is what creates a right in His favor and makes His punishment upon failing to comply with an obligation good, in al-Shirazi’s conception it is God as the Master (malik) that makes punishing an act of disobedience committed by the owned (mamluk) a right upon Him and, thus, good.[601] [602] [603] [604] One may say that God, as Creator, has a primordial right to be obeyed, irrespective of whether His actions are good and a benefit upon His creation or not.}

Conceiving the legal status of acts exclusively in light of divine speech, al-Shirazi understands command and prohibition (nahy) as binaries. Different from al-Dabbusi, he constructs prohibition (nahy) in direct opposition to com­mand, saying that it is a request (istid^caj or command (amr) from a superior to an inferior to omit (tark) an act. Its grammatical form is the negative impera­tive (la tafal); it entails upon the addressee the obligation to not do the prohib­ited. An act that is prohibited is legally invalid (fdsid, bdtil), even if performed^² Al-Shirazi associates with prohibition the ethical norm of bad (qablh), though not ontologically, saying that “prohibition entails a meaning that indicates [that the act] is bad."5³ The binary nature of command and prohibition is also apparent in that al-Shirazi says that command requires and encom­passes that its opposite (didd) is prohibited and “negates the command to do its opposite.”54 Hence, he endorses the use of counter-implication (majhum al-mukhalafa or dalil al-khitdb).^[605] This binary relation between command and prohibition, al-Shirazi explains, is not based on the utterance or term (lafz) of the command but on its meaning (ma^rna). As an example, as Shirazi refers to the command to pray, which encompasses, he says, the command to all what is connected to the meaning of prayer, such as ritual purity (tahara) and fac­ing Mecca. Although the term salat is not the opposite of ritual impurity, the meaning of prayer stands in opposition to the meaning of absence of purity (tahara) and correct prayer direction, and, hence, it is prohibited (and invalid) to perform the prayer without ritual purity or knowingly not facing Mecca.^{[606] [607] [608] [609] [610] [611] [612]}

Al-Shirazi also discusses the other legal values within the context of com­mand and prohibition, though in much less detail. Reprehensibility (karaha), al-Shirazi explains, means that it is more appropriate (awla) to omit the act than perform it. Such acts are outside the realm of prohibition (nahy, tahrlm) and are not bad, but it is better to not engage in them.5⁷ God, he says, may find something reprehensible but that does not necessarily result in Him prohibit­ing the act.58 In a parallel fashion, al-Shirazi puts recommended (mandub) acts outside the realm of command, saying that in contrast to commanded (ma³mur bih), recommended acts do not impose obligation but can be omitted without constituting disobedience and incurring punishment^⁹ Recommended acts differ from obligation, as stated above, by deserving reward for their voluntary performance. Although al-Shirazi does not explicitly say so, recommended acts fall into the category of good on account of deserving reward. They are distin­guished from permissible acts in that the latter fall outside of divine reward or punishment. While al-Shirazi considers that permissible is what God permits and what is confirmed by divine praise/⁰ he also says that permissible acts are, from the perspective of the believer, done without the intention to please God.61 The category of permissibility is also discernable from the Prophet's actions. Acts that the Prophet performed but that were not intended to draw near to God, such as eating, standing, sitting, and the like, indicate that they are permissible.6² It seems that the main criteria for permissible acts are that, on the one hand, they are excluded from what is obligatory and prohibited and not associated with reward and punishment and, on the other hand, they are not done for religious purposes but aim at mundane objectives.^{[613] [614] [615] Al-Shirazi’s insistence on the category of permissible being only set by the Law, irrespec­tive of whether they pertain to acts of religious significance or mundane mat­ters, ensures that the intellect is not involved in establishing norms, even in as basic an act as eating. Prior to Revelation, no assessment is possible.}

As the above shows, al-Shirazi’s theory of legal norms is based on his theory of language. Revelation informs people what the Creator wants them to do. Investigating the meaning of the divine speech (not just its utterances) leads to knowledge of one’s legal accountability. Approaching Law not from theology but from language, al-Shirazi denies any ratiocination and meta-purpose (i.e., maslaha) beyond what the apparent language shows, though his arguments presuppose divine wisdom and purpose.6⁴ God’s inscrutability leads him to focus on the meaning of the divine word as understood by the language con­ventions of Arabs at the time of Revelation. A person’s religious culpability is known from divine command and prohibition, which are associated with reward and punishment, respectively. Command means that an act is obliga­tory to perform and when done goes unpunished. Prohibition means that an act is obligatory to not do and when disobeyed deserves punishment. Legal acts, as we saw, are primarily defined in terms of punishment and lack thereof. Reward only factors positively into the category of recommended; permissible acts are defined negatively as absence of punishment or reward. Where ^tAbd al-Jabbar and al-Basri relied on blame for differentiating between legal norms, al-Shirazi draws on punishment.

Command and prohibition, moreover, are narrowly defined by their lin­guistic mood of imperative and negative imperative and are constructed as binaries.6⁵ In the same way as command obliges to act, prohibition obliges not to act. Somewhat counterintuitively, this narrow framework of command and prohibition allows wide space for the other legal norms. Scriptural state­ments that do not follow the imperative and negative imperative mood are, by default, not obligatory to do or omit. As mentioned, the category of bad acts is restricted to prohibition (nahy) - reprehensible acts are not bad. Al-Shirazi’s approach thereby limits punishable acts and allows for a broad area of human autonomy. People can decide for themselves whether or not to abstain from a reprehensible act without the fear of divine punishment. Let’s turn to how divine command and prohibition impacts the assessment of acts beyond the immediate confines of God’s revealed word and look at al-Shirazi’s conception of the role of legal analogy (qiyds) to determine religious accountability.

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