1 Religious Accountability (Taklif) and Legal Norms

Moreover, one notices that, in contrast to al-Shirazi and al-Dabbusi, al-Juwayni goes a step further in his preference of contextual over lexical meaning, argu­ing that investigating the context of divine meanings allows to recognize what is intended (maqsud) by and the objective (gharad) of God's speech.çç He fre­quently affirms that God's speech is purposeful, using formulations such as maqsud al-khitdb. ç⁴ This objective, he emphasizes, is not recognized simply by the linguistic form of divine speech but has to be seen in its context?⁵ To avoid, in Ash^tari fashion, that God's actions are constrained in any way by purposes, al-Juwayni explains at length in his discussion on divine volition (Irada) that the objective (gharad) of the speaker is not necessarily the same as what the recipient understands?⁶ God's inscrutability prevents people from truly know­ing what He wants.

1.2 LegalNorms

Al-Juwayni understands religious culpability in legal terms, saying that takllf means “imposing a task that involves some difficulty (ilzdm mafh kulfa)" which includes acts that are considered obligatory, prohibited, recommended, and reprehensible?⁸ He excludes from one's accountability the category of permis­sible (mubdh) because it is the only legal norm in which the religiously respon­sible truly has a choice in her action?⁹ Not to contradict his position that legal normativity is only imparted by Revelation, he maintains that the category of

permissible is still counted as part of what is mentioned in the divine Law by way of interpretation (ta^,wll)^[723] Similar to the other jurists presented above, al-Juwayni considers under divine accountability only a person who is capable (mutamakkin) to perform the imposed act, who understands it (Jahima)^[724]' and deliberately performs it (qasdan ilayh), excluding a person who is drunk, for­getful or unaware of her duties.^[725] Consciously understanding the imposed act is for al-Juwayni a decisive criterion of takllf. Hence, he holds a person who is coerced to an act still accountable for it, since she understands what she is doing.4³

The legal norm of an action is recognizable from the revealed speech. Al-Juwayni, like our other jurists, mostly pays attention to the speech forms of command (amr) and prohibition (nahy). As mentioned above, he conceives of command as an expression of inner speech.

What, then, is the connection between the form of an utterance and its legal norm? Preferring context over lexical meaning, al-Juwayni, different from al-Shirazi, does not restrict command to the imperative form. Command may take different forms, such as raising one's voice, and the imperative form (if'al) may be used when expressing not a command but a desire.^[726] Al-Juwayni goes into a lengthy discussion about the various forms of command (and prohibi­tion). His emphasis on context leads him to conceive of command (amr) in a fairly broad fashion, saying that “command is a speech act (qawl) that by itself is requiring (muqtadι) the commanded person's obedience (td^ra) to do the commanded.’^[727] A command, thus, is any articulation of a request (talab) to do something that should not be omitted. An unqualified divine command (amr mutlaq), al-Juwayni emphasizes, imposes upon the religiously account­able (mukallaf) the obligation (Ijdb) to act, unless there are contextual indica­tions to the contrary.^{[728] [729] [730] [731]}

In order to know what type of speech act is a command, al-Juwayni, sim­ilarly to al-Dabbusi, relies on the intuitive understanding of language by its speakers. Arabs, he says, necessarily (Ida dtirdr) differentiate between the imperative and the negative imperative (if al wa-la tafal) and between say­ing ‘there is no harm in you doing or leaving it' and saying ‘do!'.5i Hence, com­mand excludes the categories of permissibility (ibdha) and recommendation (nadb) because in both cases the addressee has a choice in acting, whereas command, al-Juwayni says, does not admit to omit the act.5² Yet, as said before, the grammatical mood is not decisive in assessing the resulting legal value of the act spoken about. Al-Juwayni does not conceive of the imperative by itself to entail obligation (wujdb), because, he says, “obligation, for us, is not know­able without the qualification (taqyld) of threat upon omission.... Obligation is grasped from the threat.’^³ The importance of divine threat (wa^clcd) of pun­ishment to establish obligation leads al-Juwayni to even say that his approach is quite similar to that of ^tAbd al-Jabbar.^{[732] [733] [734] Though, he immediately backtracks from the position that without the threat of punishment the imperative does not impose obligation, saying that with regard to the divine Law any request (talab) is threatened with punishment upon omission.55 One may say that for al-Juwayni any divine request, even if unqualified, constitutes command and is obligatory to perform. The obligation to comply is not only entailed in the linguistic form of command but derives from the covenant ('aqd) that informs humans about voluntarily submitting (Jdhdn) to the commands of God.5θ Revelation informs that one ought to obey divine requests, with the implica­tion of punishment for non-compliance. Command, thus, entails obligation to fulfill the requested when it is possible to do so.5[735] [736] [737] Additionally, al-Juwayni argues that command entails whatever is needed for the commanded to be validly performed. Hence, the command to perform the prayer (salat) encom­passes the command to do so in a state of ritual purity (tahdra).5s}

Al-Juwayni structures his discussion of prohibitions (nawahl) similarly. He says that “prohibition is a category of speech residing in the soul, namely per­taining to the requirement of refraining (Inkijdf) from the prohibited in the same way as command pertains to requiring the commanded.”⁵¹¹ The emphasis on interpreting divine speech according to the language conventions of Arabs also leads him to hold, contrary to his fellow Ashtaris al-Baqillani and al-Shirazi, that command does not encompass the prohibition of the opposite of what is commanded.^[738] Instead, al-Juwayni constructs prohibition in light of negation (nafy). He argues that, based on Arabs' usage of negation, prohibition (nahy) is not the opposite of affirmation (Ithbdt) but rather negation refers to the general class (Jins) of the act. He supports his position by referring to Arabic speech conventions. When Arabs say ‘I saw a man', it entails that the speaker saw a single man. Whereas, when it is said ‘I did not see a man,' it entails that he did not see any man, i.e., men as a class. Hence, al-Juwayni argues that the negative imperative, when unqualified, refers to the whole class of the act in the sense of ‘never do’.^{[739] [740] [741] [742] [743] [744] [745]}

Prohibition (nahy), al-Juwayni says, is related to the legal category of forbid­den (muharram, mahzur).’² Stressing the contextual setting of rulings, he holds that prohibition (nahy) is not only expressed through the grammatical mood of negative imperative (la tafal)^l'∙ⁱ but includes those acts that the Lawgiver deters from and puts blame upon committing^⁴ Moreover, an unqualified (mutlaq) prohibition not only entails that the act is forbidden (mahzur) but also encompasses the invalidity (fasad) of the forbidden act.6⁵ Different from command, invalidation of the prohibited act, however, only affects the prohib­ited act itself. Hence, he argues, for example, that prayer on usurped land does not invalidate the prayer, because the command to prayer and prohibition against usurpation are not connected since both rulings have different inten­tions and objectives (maqsud, aghrad).’’ This example shows that al-Juwayni, despite the general Ash^tari aversion to attributing purposes to God, evaluates divine rulings as to their objectives, a feature that is of relevance in his under­standing of the ratio legis.

We see that al-Juwayni conceptualizes command and prohibition as a com­bination of linguistic and contextual indications, which together lead to the assessment of the legal status. They inform about a requirement (iqtida^,) to perform an act or about a deterrent (zajr) to refrain from it. He constructs the legal categories that Revelation informs about in terms of blame (lawm) - namely blame for not complying with the divine request (talab). In addi­tion, al-Juwayni uses human choice and being given choice (khlra, takhylr, takhayyur) to differentiate between different legal norms. Hence, he defines the five legal norms as follows: Obligatory (wajib), he says, is “an action required by the Lawgiver for which the person omitting it is blamed legally.’⁴’⁷ The human agent, absent of legally valid impediments, is not given a choice in acting or omitting.^[746] Al-Juwayni remarks that his definition of obligatory is qualified by ‘blame’ (lawm) in order to differentiate it from the category of rec­ommended (mandub). Recommended acts are those that are legally required without incurring blame upon omitting. 6^[747] In this category, the agent has been given a choice to do or omit the act.^{[748] [749] With regard to acts that one should not do, al-Juwayni uses the criterion of deterrence (zajr). Prohibited (mahzur) are those acts that “the Lawgiver deterred from and put blame upon engaging in.”7i It is differentiated from the reprehensible act (makruh) by the latter being deterred from but free of blame upon committing?[750] Different from command, reprehensible acts are neither requested (matlub) nor required (muqtadd);[751] [752] [753] [754] the addressee has a choice in performing them or not?4 Permissible (mubah), al-Juwayni says, are acts in which “the Lawgiver gives a choice between doing or omitting without requirement and deterrent.’^5}

In al-Juwayni’s definitions of the five legal norms, blame (lawm) is the criterion that determines whether a divine speech act requires an action or deters from it. A speech act that requires action and incurs blame upon non-compliance is obligatory. A speech act that deters from an action and incurs blame upon non-compliance is prohibited. In either case, the agent is given no choice - only obedience prevents blame. Although al-Juwayni provides rather precise definitions of the various legal norms, he still is at some pain to explain the dif­ference between recommended and reprehensible and permissible. He reverts to saying that recommendation and reprehensibility arejoined to (bi-l-idafa ila) command and prohibition, respectively. “[Reprehensibility] is in relation to prohibiting like recommendation is in relation to obliging.”76 They are, one may say, a lesser degree of the two extreme legal norms.

The way al-Juwayni constructs legal norms also sheds light on his approach to the relationship between God and His creatures. Being utterly dependent on God, humans ought not to incur His blame and threat of punishment. For al-Juwayni, it seems, God is a wrathful God, threatening possible punishment for disobedience, but not reward or praise for obedience or supererogatory acts. Apart from references to God's beneficence (ihsan), al-Juwayni does not define ‘good' or legal norms in terms of praise or reward. People are, thus, only negatively motivated by consequentialist considerations. They follow God's commands and prohibitions to avoid potential harm to themselves. Outside of what they understand as command and prohibition, humans have been given a choice with regard to those acts that are deemed recommended and repre­hensible, though both fall under their religious culpability. Only permissible acts do not fall under takllf, but are included by interpretation. Integrating them into acts of religious culpability is driven by Ash^tari legal universalism to make all of human actions religiously assessable, even if no blame or deter­rence is associated with them.

Not defining ethical or legal norms in terms of praise or reward, one won­ders why the believer should perform or stay away from acts that are recom­mended or reprehensible. Compliance can only be explained in deontological terms. God's covenant puts His creation in a state of obedience. It is a person's duty to follow God's directives, irrespective of the prospects of benefit or harm. Al-Juwayni may be closer in his approach to ^tAbd al-Jabbar than he would like to admit - a finding that echoes that of Syed and Eissa.^[755]

At first sight, al-Juwaym's maximalist construction of command and pro­hibition leaves the religiously accountable with a wide range of autonomy in her action and empowers her decision-making in all those acts that fall out­side of amr and nahy. It is her choice to do ‘the right thing.' This is, however, a double-edged sword. By subsuming any type of request under the heading of command and, thus, obligatory, and leaving the understanding of what constitutes a request to the individual's linguistic sensibilities without delin­eating any boundaries, like al-Shirazi does, the believer is in a constant state of insecurity whether his actions could possibly be subject to divine request. In light of God's omnipotence and transcendence, people can never be sure of being punished or rewarded for their actions. They have to rely on God's revealed word, scrutinizing its language and context to arrive at what they deem its intended meaning - whether a divinely requested act is obligatory and whether there is a threat of punishment for non-compliance associated with it.

Being left to their own, subjective understanding, it is the task of the jurists - as specialists - to correctly analyze the language and context of Revelation to guide people's behavior in all circumstances that impact their Afterlife. Let's turn to how al-Juwayni envisions to apply the divinely imposed Law to instances not expressly addressed by Revelation.