2 The Function of Legal Analogy

The second way of extending the Law to unaddressed situations that al-Juwayni’s definition of legal reasoning captures is the ratio legis-based anal­ogy (qiyas al-^rilla). In contrast to qiyas al-ma^cnd, it needs rational reflection about the meaning, i.e., the ^rilla. Thejurist establishes a connection (ta^cllq) between a ruling and a meaning suggestive of it (mukhll) and suitable for it (mundsib). In contrast to the first type of extending the Law to new circum­stances, in the ratio legis-based analogy the jurist’s task is to identify a mean­ingful ratio legis in the textually established ruling. It does not come to mind intuitively. (How to recognize a ratio legis’ suggestiveness and suitability will be discussed below.)

As a third type of legal reasoning al-Juwayni lists analogy of indication (qiyas al-dalala), namely when the analogy is based on a suitable and sugges­tive meaning but this meaning is not agreed upon for the ruling of the source; it is putative.88 Qiyas al-shabah is a fourth type of analogy, which is based only on resemblance; the meaning is neither suitable nor suggestive for the ruling.8⁹ Al-Juwayni mentions that some scholars consider qiyas al-dalala its own category of qiyas, though he says that sometimes it belongs to qiyas al-^cilla and sometimes to qiyas al-shabah?⁰ We see here that in contrast to al-Shirazi, who rejects analogizing based on resemblance and deems qiyas al-dalala as a less perspicuous form of ratio legis-based analogy, al-Juwayni expands what counts as valid analogical reasoning and sees the indication-based analogy as a transitional form in between ratio legis-based analogies and those based on resemblance depending on how suggestive and suitable their meanings are. This expansive view of analogy allows al-Juwayni to extend scriptural rulings to circumstances that are only loosely resembling the original case, thereby facilitating, to a greater degree than al-Shirazi, that no instance is devoid of a divine ruling.

2.1 Determining the Ratio Legis

The type of qiyas of interest to our topic is the ratio legis-based analogy. The jurist deduces suggestive suitable meanings from rulings established in the texts and by Consensus and transfers the ruling to instances not addressed in these sources in which the same suggestive suitable meanings are confirmed and which are free from invalidating factors.^[769] Al-Juwayni explains that one has to scrutinize the meaning of divine speech (ma^rna) in relation to the pre­scribed rulings, looking for a sign (^ralam) that is considered informative about the textually expressed ruling (mush^cir bi-l-hukm), pointing toward it (mus∕ur ilayhi), and suggestive of it (mukhll bihi)?^[770] For al-Juwayni, the most impor­tant criteria to determine the correctness of the ratio legis is that its mean­ing is suggestive (mukhll) and suitable (munasib) for the ruling, and free from countervailing evidence and invalidation. He emphasizes that suitable sugges­tive meanings are only probable signs (^calam) and ^cillas requiring the ruling. Moreover, suggestiveness by itself is not enough to identify the correct ratio legis?^[771] Notably, he does not mention efficacy (ta^jthlr) and rejects identifying rationes legis by co-presence and co-absense (tard∖va-^raks), saying there is no evidence that the Companions used this method^{[772] [773]}

In contrast to the other jurists discussed in this study, al-Juwayni is much more explicit that there is a meaningful relationship between the ratio legis and its ruling. A meaning that is suggestive and suitable for its ruling is, within the realm of probability, the ’illa of the ruling. So how does a jurist deter­mine suitability and suggestiveness in a meaning? Despite spending many pages defending the requirement of ikhala and munasaba to correctly iden­tify the ratio legis, al-Juwayni never defines these terms in a tangible manner.

However, we get some inkling of what al-Juwayni means with suggestive­ness and suitability by looking at how he employs these terms elsewhere in al-Burhan. One example of using ‘suitability’ and ‘suggestiveness’ is found in his discussion of explicit (nass), apparent (zdhir), and indeterminate (mujmal) meanings. As mentioned before, al-Juwayni holds that speech conveys mean­ing. The meaning understood from an utterance is delineated by conventional coinage and usage. In this context, al-Juwayni remarks that the meaning of the verbal noun (ma^cnd al-masdar), although it is formally a noun, stands in the place of a verb. Hence, the verbal noun cannot be used to signify the plural (jam^f) as usually possible for nouns. The verbal noun, he says, is nei­ther conducive (Idyasluh) for the plural, nor disposed to inform about it (la yatahayya^,u li-l-ish^cdr bih), nor is it conceivable that the plural is suggesting the verb (takhayyul al-fi^cl). He adds that “there is no suitability (mundsaba) between the verbal noun and the plural, neither by way of linguistic conven­tion (al-∖vad^r lahu) nor by way of being disposed (tahayyu^,) [toward it] nor by conduciveness (salaA).”^[774] In another example, al-Juwayni also draws on lin­guistic understanding to describe suitability of the ratio legis for its ruling. He says about the qur’anic verse 5: 38 “as for the male and female thief, cut off their hands” that the derivation of the noun used in this verse, i.e., theft, “is suitable for the ruling connected to the noun” (cutting hands of a thief); the wording (slgha) entails (taqtadι) the ratiocination (ta^clll). Likewise, with regard to the qur’anic ruling (24: 2) that the adulterer and the adulteress are to be flogged, the derivative form adultery is suitable to be the ratio legis of the ruling of the Aadd-punishment.9^[775] In these examples, the linguistic conventions and the context in which a word is used is deemed conducive (salaha) to establish meaning.

In addition to suitability and suggestiveness, we find in al-Juwayni’s thought another dimension to determine the ^rilla of a ruling, namely by investigating its purpose (gharad, maqsad). That speech, including divine speech, is pur­poseful is a common theme throughout al-Juwayni’s Burhan. He frequently refers to the maqsud al-khitdb or uses similar expressions that indicate that the Lawgiver expresses a purpose in His speech and in imposing His Law.9^{[776] [777] Meaning informs about the speaker’s intention (qasd) with making the utterance.99 To recognize the purpose of a ruling, a jurist has to look not only at the linguis­tic form of the speech but, al-Juwayni emphasizes, also at its context.[778] He illustrates this point with an example from the mundane world of a father prohibiting his son to eat a particular weed because it is poisonous. This pro­hibition, al-Juwayni says, cannot be generalized[779] [780] [781] [782] [783] [784] to prohibit the son from eat­ing every poisonous substance on account of the prohibition. Rather, it is the father's compassion and care to prevent harm (dirdr) from his son that leads to generalize the command.102 Another example that al-Juwayni mentions is tes­tifying. The objective of witnesses' testimony in court is to clarify the intended of what was witnessed so that the judge can adjudicate accordingly. The objec­tive behind the Law requiring four witnesses in the case of adultery, al-Juwayni explains, is to have utmost possible clarification about the intended.103 In both examples, we see that it is not the fact situation - poisonous weed and giving testimony - that is seen as ratio legis of the ruling but the objective behind the ruling, namely averting harm and establishing intentionality. Al-Juwayni's examples are also an indirect criticism of determining the ratio legis by co-presence and co-absence. For him, the act of providing testimony does not effect the judge's verdict, unless its purpose of establishing intentional action on part of the accused is accomplished.}

The objective or purpose underlying the prescribed action is grasped by identifying the meaning of rulings. Moreover, this purpose can serve as ratio legis in analogy. Al-Juwayni even states that the strongest method of identify­ing the ratio legis of a ruling is confirming the purpose (qasd) of the Lawgiver by an apparent utterance.^ω4 While he likely has in mind utterances that convey purpose, such as ‘li-anna’ or ‘li-ajl’,⁰⁵ he does not restrict discerning the pur­pose of a ruling to particles that lexically convey reason. He also determines the objective of a ruling by looking at its consequences. Al-Juwayni mentions that the purpose of retaliation (qisds) is to protect against bloodshed and to preserve life (siydnat al-dama^,wa-hfz al-muhaj, al-sawnfi-l-nafs)™ The same meaning (ma^rna), he says, obtains when somebody is killed with a blunt object (muthaqqal); hence, by analogy the killer is subject to retaliation.^{[785] [786] [787] [788] [789] [790] The divine legislative intent, thus, serves as ratio legis to transfer rulings to situations in which the same purpose is apparent.}

Sometimes, al-Juwayni associates the purpose behind God imposing par­ticular rulings with maslaha, though often calling it istislah. For example, he says that the prohibition of usurious transactions of dates is istislah by the Lawgiver, since dates are a staple food.^ω8 Similarly, he maintains that guard­ianship for minors is istislah™ We see that al-Juwayni views the purpose for which divine rulings are imposed to achieve something good. Although, this ‘good’ is not tangibly defined by al-Juwayni, it is clear that in these cases istislah does not refer to otherworldly but to mundane benefits and interests. As Eissa puts it, al-Juwayni “assumes that divine legislation is not only benefi­cial but that humans can, with aid of revelation, uncover and appreciate these benefits.”ⁿo Like in al-Dabbusi’s work, the semantic field of the term maslaha and istislah shifts toward the mundane world and does not primarily designate benefits in the Afterlife, as we saw ^tAbd al-Jabbar and al-Basri use this term. Soufi’s presentation of al-Juwayni’s understanding of analogy also highlights that he considers divine rulings to be tied to material benefit intended by the Lawgiver. in One may say that maslaha is pulled into the mundane realm and - given the lack of normativity in this world - a function of God’s decree.

Can God’s purpose by itself serve as ratio legis - as al-Ghazali employs the unattested maslaha? For al-Juwayni, the answer is yes, although he does not call it unattested (mursal) but rather subsumes such forms of reasoning under inference (istidlal). Inference, al-Juwayni says, is when the ratio legis is affixed to “a meaning that informs about and is suitable for the ruling in that ratio­nal thought requires [the ruling], although no agreed upon source is found.^,'^π2 These meanings, al-Juwayni explains, are maslahas and sources of excellence in the Sharia. In order to be valid, they have to be close to and resemble those found in the sources.^{[791] [792] [793] [794] [795] [796] [797] Al-Juwayhijustifies using meanings that are not directly attested to in the sources of the Law with the practice of the Companions and the eponyms of the schools of law.π4}

Endorsing the use of purpose as ratio legis in analogy does not imply that al-Juwayni considers that there is a necessary causal relationship between God's legislative intent, the ratio legis and its ruling. An ^rilla, he says, does not indicate on account of itself but only indicates that God set it as a sign (⅛lαm).^π5 In other words, in these instances, God made His legislative intent known in order to take it as a sign to extend it to other instances.

Although al-Juwayni deems the purpose behind divine rulings to be dis­cernable by investigating the meaning of the revealed texts, he does not make an explicit connection between the purpose of a divine ruling and identifying its ratio legis by its suggestiveness and suitability for the ruling. He does not define suitability as something that procures maslaha and as purpose of the Law, as we later see in al-Ghazali's work^u6 He does, however, indirectly link suitability to maslaha when saying that determining suggestiveness and suit­ability in a meaning, without finding any invalidating factors, is the method of analogy practiced by the Prophet's Companions.^π7 He states that legal ^rillas (^rilal sam^rιyya) are not indicated for their own sake but the Companions made rulings dependent on maslahas!⁸ The Companions, al-Juwayni maintains, grasped meanings and maslahas from the content (mawarid) of the Shari^ta upon which they relied for determining rulings for incidents not addressed in the texts.11⁹ But, according to al-Juwayni, the Companions did not use any and every maslaha as ratio legis, rather the maslahas they accepted were congru­ent (muwdfaqa) with the textually attested rulings and with prophetic legal practice.^[798] In this regard, al-Juwayni resembles al-Dabbusi’s understanding of analogizing based on conduciveness (salah), propriety (^cadala), and absence of invalidating factors. Yet, while al-Juwayni validates using considerations of maslaha in law-finding with the practice of the Companions,121 Siddiqui rightly remarks that “despite identifying a broad desire on the part of the compan­ions to take public interest into consideration, al-Juwayni is unable to point to a single historical instance in which the companions explicitly referred to maslaha in the course of legal derivation.”^

That al-Juwayni sees a connection between the purpose of the Law, maslaha, and rationes legis also comes through in his presentation of what he calls five types of ustιl al-shaπ^ca. In this section, ustιl does not refer to the sources of the Law but to foundational principles in the Shari^ta.12³ These foundational principles are underlying rationales for divine rulings that function as rationes legis in analogy, at least in the first two of his five categories.^⁴ Al-Juwayni divides these principles into a hierarchical order that reflects their applicabil­ity as ratio legis in analogy and that guide jurists to the appropriate principle to draw upon when faced with unaddressed situations to which competing ratio­nes legis apply.12⁵ Although he does not use the term maslaha when describ­ing these five categories of principles underlying divine laws, he justifies the preponderance of one over another in terms very similar to those al-Ghazali employs in his discussion of maslaha as presented in the Introduction to this study. These principles/rationales are a precursor to al-Ghazali’s hierarchy of maslahas that are valid to use as ratio legis in analogy.¹²⁶

Al-Juwayni explains that the first and strongest category are those principles in which an intelligible meaning pertains to a necessary matter (amr damn) for universal governance and general order of society (al-iydla al-kulliyya wa-l-siyasa al-^cdmmiyya). As example, he mentions the obligation of retali­ation (qisas), which, he says, is ratiocinated to the inviolability of innocent blood and deterrence against transgressing it. Wherever that meaning mani­fests itself, one extends the ruling in analogy. Under this principle also falls the general validity of sale transactions since, al-Juwayni argues, there is obvi­ous necessity (darura zahira) for people to exchange what they own. Necessity extends to the general category, i.e., trade as a whole, as well as to the specific instance, i.e., the individual sale transactions. There is no need to verify that the meaning of necessity exists in every case.12⁷

Into the second category fall principles that are connected to a general need (hdja 'amma) but do not reach the level of necessity, such as permitting the practice of leasing (jdra), which violates contract law because no property changes hand. There is no universal necessity for rental contracts, but a tan­gible need since without them harm (dirdr) befalls people who do not own property. The principle of ‘need’ is general but not universal like the necessity for sale, and it is not connected to rulings that maintain order in society as a whole.12⁸

When al-Juwayni presents the other three categories of foundational prin­ciples, he already departs from generalizing them or using them as valid rationes legis for analogies, because, he says, the meaning of their objective is not clearly perceivable. They have to be simply taken as they are and only God knows their purpose.^⁹ These rulings have an ’illa but are not analogiz­able. He says about the third category that it encompasses principles/rationes legis the meaning of which neither pertains to necessity nor general need but some noble conduct (makrama) is thereby attained or its deficiency averted. As examples, al-Juwayni mentions to require ablution after a minor impurity

126 Al-Ghazali, al-Mustasfa, 2: 481-485.

127 Al-Juwayni, al-Burhan, 923-924. We see here that al-Juwayni does not treat necessity (darura) as a licence (rukhsa) that is only valid for the particular case under consider­ation but as a general dispensation.

128 Ibid., 924.

129 Ibid., 941, 956-957, and 959.

(taharat al-hadath) and removal of filth (izalat al-khabath).^{[799] [800] [801] [802] [803] Into the fourth division fall those principles that are not based on need or necessity but that are expressly recommended (mandub). They cannot be analogized because, apart from textually explicit recommendation, their ratio legis is not intelligible and might even be contrary to other principles. An example is contractual manumission (kitaba), the objective of which is to result in the emancipation of the enslaved. Contractual manumission goes against univer­sal rules concerning contracts, because the owner exchanges his own property (enslaved) for his own property (labor of his enslaved). Al-Juwayni states that contractual manumission is an occasion (sabab) with regard to emancipation.™ His use of sabab instead of rilla reinforces that a ratio legis used in analogy has a perceptible purpose that fulfills a necessity or need, which is lacking in this textually established, recommended practice. The fifth and last category of principles/rillas that al-Juwayni lists are those for which no meaning comes to the jurist's mind about the ruling that would make it a necessity, need, or incite to noble conduct. Such rulings are rare, he says. As example he refers to the bodily acts of worship. Performing them does not have an apparent benefit or avert harm but one may suggest that the constant remembrance of God leads to avoiding sinful and reprehensible acts.132}

These principles that are discernable as ^rillas of divine rulings stand in a hierarchical relationship to one another, with a ratio legis pertaining to a uni­versal necessity or general need at the top, and rationes legis that pertain to particular or specific necessity or need ranking lower. In case of contradic­tory considerations, al-Juwayni says that a ratio legis that pertains to universal necessity receives preponderance over one that is of particular necessity as long as it is conducive (salah.) to bring about general principles and precepts of the Law.133 He illustrates this with the rules regarding retaliatory punish­ment (qisas). Requiring retaliation for intentional bodily harm, he says, consti­tutes a maslaha at the level of universal necessity; requiring correspondence (mumathala) in retaliation is also a matter of maslaha, though it is particular in relation to the universal necessity of retaliation.^υi4 When a group of people kill a single person, the universal necessity prevails and, hence, all members of the group are subject to retaliatory punishment, even though it violates the particular maslaha of correspondence of a life for a life.^{[804] [805] [806] [807] [808] Another example that al-Juwayni mentions are the rules governing marriage. Marriage, he says, is clearly for the good of believers (Istislah al-4bad) universally. However, as a contract, marriage is also subject to laws governing contracts. When unad­dressed situations appear, al-Juwayni maintains, the jurist has to take the uni­versal maslaha of marriage into consideration and not look toward contract law to analogize but at the objective (gharad) of marriage, namely union and enjoyment of intimacy between the couple.^6 When weighing the strength of rationes legis, a general need, such as the permissibility of leasing, has prior­ity over a specific necessity, like the requirement of exchanging two existent goods in sale transactions; al-Juwayni calls this specific necessity a maslaha™}

Al-Juwayni’s discussion of rationes legis that are valid to employ in analogy foreshadows al-Ghazali’s categories of suitable ^cillas and maslahas, which the latter divides according to necessity, need, and matters of improvement.^⁸ His terminology is similar, though his categories do not match exactly those of al-Ghazali. Yet, it reflects that al-Juwayni understands the ratio legis of a ruling to be connected to the divine legislative intent in laying down the ruling and that he looks at the purpose apparent in the meaning of rulings in order to give preponderance in case of conflicting considerations. While he is not explicit about it, it is obvious that he looks at the outcome of rulings, namely the mun­dane maslaha or benefit that is attained, and the harm (he does not use the term mafsada) that is averted in this world. He repeatedly talks about good things (mahdsin), maslahas, and benefits in mundane terms, not as other­worldly reward or punishment. In al-Juwayni’s work, we see a clear step toward conceiving the ’illa as reflective of God’s purpose with laying down His Law for people’s mundane maslaha. In this context, he usually does not talk about ben­efit (nap) but uses the term maslaha, likely in order to avoid associations with rational estimation of benefit but making the ‘good’ dependent on what com­monly is associated with religious benefits. God’s Law serves beneficial conse­quences, namely maslaha. People’s obedience to God’s rulings is, thus, not only done out of deontological considerations but also for their beneficial mundane consequences. When it comes to identifying the ratio legis, al-Juwayni clearly displays a consequentialist perspective.'¹-¹⁹ God’s legislative intent aims at the well-being of His creatures in this world. This intent is discernable according to the coinage, usage, and context of the language of Revelation. Obedience to the divine Law is not only a deontic obligation but also done out of conse- quentialist considerations for one's own mundane well-being. If al-Juwayni's approach to the divine Law leaves the believer in a state of insecurity about being rewarded for his obedience to God's Law, it is counterbalanced by hav­ing mundane incentives for complying with God's impositions. Like in ^tAbd al-Jabbar's and al-Basri's scheme, God's Law is good - yet not because God only does what is good, but because its goodness is recognizable in this world by fulfilling people's this-worldly necessities and needs.

Al-Juwayni's expansive application of analogy, even accepting meanings that are not explicitly stated in the sources of the Law reinforces, and at the same time enables, his commitment to scriptural universalism. He maintains that if the source material (ma’ctkhidh} of rulings were restricted to the explicit texts and the meanings evoked therein, then the gate of ijtihad would not be wide open and one would have to suspend ruling on newly occurring incidents.^[809] Considering the meaning and purpose of rulings in addressing new situations is, thus, part of al-Juwayni's claim to an all-encompassing divine Law. Going beyond the explicit source texts and looking at the intention and meanings of divine injunctions enables the divine Law to cover the assessment of all acts. No incident remains devoid of God's ruling - the intellect's role in assessing the value of actions independently from Revelation is severely curtailed.

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