A Handbook of Legal Theory:
Imam al-Haramayn al-Juwayni, Kitab al-Waraqat fi usul al-fiqh.

Complete translation by David Vishanoff from the text given in Jalal al-Din Muhammad ibn Ahmad al-Mahalli al-Shafi`i, Sharh al-waraqat fi `ilm usul al-fiqh, `ala waraqat abi al-ma`ali imam al-haramayn `abd al-malik ibn yusuf ibn muhammad al-juwayni al-shafi`i, wa ma`ahu hashiyat al-shaykh ahmad ibn muhammad al-damyati al-shafi`i (Cairo: Matba`at al-Madani), 5-14.

Links in the translation point to glossary entries in my undergraduate course web sites.  In the version with commentary, the frame at the foot of the page shows my own brief commentary, intended to orient unitiated readers to the issues addressed in this text.  To show the relevant part of the commentary, click the grey plus sign () to the left of a heading.  You can also view a version without commentary.


In the name of God, the merciful, the compassionate.

[The Nature of the Roots of Legal Science.]

[The division of the discipline into a theory of the stuff of revelation and a methodology of interpretation.]

These pages comprise knowledge of aspects of the roots of legal science. This consists of two distinct parts: the root is that on which something else is built (whereas the branch is that which is built on something else), and legal science is the knowledge of the divinely legislated values that are arrived at by diligent inquiry.

[The Legal Value Function.]

There are seven legal values: obligatory, recommended, permitted, proscribed, disapproved, valid, and invalid. Obligatory is what one is rewarded for doing and punished for omitting. Recommended is what one is rewarded for doing but not punished for omitting. Permitted is what one is neither rewarded for doing nor punished for omitting. Proscribed is what one is rewarded for omitting and punished for doing. Disapproved is what one is rewarded for omitting but not punished for doing. Valid is what is effective and relied upon. Void is what is neither effective nor relied upon.

[Types of knowledge.]

Legal science has a narrower meaning than knowledge.

Knowledge is to know the thing known as it actually is. Ignorance is to imagine something as other than what it actually is. Immediate knowledge is that which does not result from rational or evidentiary inquiry, whereas acquired knowledge rests on rational and evidentiary inquiry. Rational inquiry is reflection on the object of inquiry. Evidentiary inquiry is the search for evidence. Evidence leads to what is sought.

Belief is acknowledging two possibilities, one of which is more likely than the other.
Doubt is acknowledging two possibilities, neither of which is superior to the other.

[Subdivisions of the Discipline.]

The roots of legal science are its means [to knowledge], taken together, and the manner of using them in evidentiary inquiry. The roots of legal science fall under the following headings: the divisions of speech, command and prohibition, the general and the particular, the summarized and the elaborated, the definite and the apparent, acts, the abrogating and the abrogated, consensus, reports, analogy, proscription and permission, the prioritizing of evidences, the characteristics of the issuer of legal opinion and the seeker of legal opinion, and the qualities of practitioners of diligent inquiry.

[The Stuff of Revelation.]

[The Divisions of Speech.]

At the very least, speech must consist of two nouns, a noun and a verb, a verb and a particle, or a noun and a particle.

It is divided into command, prohibition, report, and inquiry, as well as wish, offer, and oath.

In another respect, it is divided into literal and figurative speech. Literal means it is used in the sense for which it was coined, or according to some, that it is used according to convention. Figurative means that it is taken beyond the sense for which it was coined. Literal use can be linguistic, revealed, or customary. Figurative use can be based on the surplus, deficiency, transference, or borrowing [of meaning]. Figurative use by surplus is like God’s saying “There is nothing like his likeness.” Figurative use by deficiency is like God’s saying “Ask the town.” Figurative use by transference is like ‘hollow’ being used for what comes out of a person. Figurative use by borrowing is like God’s saying “a wall that wants to collapse.”

[Command and Prohibition.]

A command is a verbal demand obliging an inferior to perform an act. The verbal form that indicates command is if‘al [the imperative]. When unqualified, and in the absence of contextual indications [to the contrary], it is interpreted as obligation, except when some evidence indicates that recommendation or permission is meant, in which case it is interpreted accordingly. The correct view is that command does not require the repetition of the act, unless some evidence indicates that repetition was intended; nor does it require immediate action. The command to bring about an action is a command to perform both the act and whatever is required for the completion of the act, just as the command to perform the prayers is a command enjoining the purity that paves the way for them. If the act is performed, then the person to whom the command was addressed is released from the charge laid upon him.

Who is included in command and prohibition, and who is not: The believers are included in God’s address, but the inattentive, young people, and the possessed are not. Unbelievers are addressed concerning the branches of the revealed laws, and concerning islâm, without which [the performance of the branches] is not valid, because God has said “What has landed you in hell? They said, we did not pray.”

The command to do something is the prohibition of its opposite, and the prohibition of something is the command to do its opposite.

A prohibition is a verbal demand obliging an inferior to omit an act.

The verbal form of command occurs with the meaning of permitting, threatening, giving alternatives, or creating.

[General and Particular Expressions.]

A general [expression] encompasses two or more things without delimitation. It can be expressed in four forms: a noun made definite by an alif and a lâm [that is, the definite article]; a plural noun made definite by a lâm; nouns of indeterminacy such as ‘who’ for rational beings, ‘what’ for non-rational things, ‘any’ for both of these, ‘where’ for place, ‘when’ for time, ‘what’ for inquiry and partition and other things; and ‘no’ applied to indefinite nouns. Generality is an attribute of utterance, and it is not permissible to claim generality for other things such as action or the like.

Particular [expressions] are those that are not general. Particularization is to distinguish part of a whole. It is divided into connected and disconnected particularization. Connected particularization comprises exception, condition, and qualification by an attribute.

Exception is the exclusion of that which an expression would otherwise include. Exception is only valid on condition that there remains something of that from which the exception was made. Another condition is that the exception be connected to the expression [from which exception is being made]. That which is excepted can be mentioned before that from which it is excepted. Exception can be from a class, and from other things.

A condition can precede that which is made conditional [upon it.]

The unqualified is interpreted in accordance with what is qualified by an attribute. For example, ‘slave’ is qualified by faith in some passages, so unqualified [references to slaves] are interpreted in accordance with the qualified ones.

The Book can be particularized by the Book, the Book by the Sunna, the Sunna by the Book, the Sunna by the Sunna, and utterance by analogy, where by utterance we mean the speech of God (He is exalted) and the speech of the Prophet (God’s blessing and peace be upon him).

[Summarized and Elaborated Speech.]

Summarized [speech] stands in need of elaboration. Elaboration is to remove something from the domain of the problematic into the domain of the evident.

[Definite and Apparent Meaning.]

Definite [speech] admits of only one meaning. Some say it is speech whose interpretation is its revelation. [The word definite (nass)] is derived from the minassa, or throne, of the bride.

Apparent [speech] is that which admits of two meanings, one of which is more apparent than the other. Apparent speech is interpreted by means of evidence, and [its meaning is then] called ‘apparent by virtue of evidence.’

[Actions as a Form of Revelation.]

An action of the bearer of the revealed law either relates to piety and obedience [or does not. If it does, then] if some evidence indicates that it is peculiar to him, it is understood as peculiar to him; but if no evidence so indicates, then the action is not peculiar to him, because God has said “In the Prophet of God you have had a good example.” [Such an act] is understood as obligatory by some of our colleagues, while some of them say one should suspend judgment about it. If, however, the action relates to something other than piety and obedience, it is understood as permissible.

The acquiescence of the bearer of the revealed law in a saying constitutes a saying of the bearer of the revealed law, and his acquiescence in an act is as his own act. Whatever was done during his lifetime outside his presence, that he came to know of and did not disown, is assessed as though it had been done in his presence.

[Abrogating and Abrogated Speech.]

The [ordinary] meaning of abrogation is to cause to pass away. One says “the sun has abrogated the shade” when it makes it disappear. Some say its meaning is to copy, because people say “you have abrogated what is in the book” when you copy it in the form in which it was written.

Abrogation is defined [technically] as speech that indicates the removal of a value established by a previous speech, in such a way that without [the second speech] the value would remain. There must be a delay [between the first speech and the second.]

A text can be abrogated while the value [it indicates] remains; an value can be abrogated while the text remains, or both can be abrogated together.
Some abrogation substitutes [a new requirement for the old one], and some does not. Some abrogation results in a tougher [requirement], and some in a lighter [requirement.]

The Book can be abrogated by the Book, and the Sunna can be abrogated by the Book. What is collectively transmitted can be abrogated by what is collectively transmitted, and what is individually transmitted can be abrogated by what is individually or collectively transmitted, but what is collectively transmitted cannot be abrogated by what is individually transmitted.

[Methods of Interpretation.]

Section.

If two utterances contradict one another, then they must be either both general, or both particular, or one general and the other particular, or each general in one respect and particular in another respect.

If they are both general, then if they can be reconciled one reconciles them, but if they cannot, one suspends judgment concerning them if their dates are unknown, but if they are known the earlier is abrogated by the later. Similarly if they are both particular. If one is general and the other particular, the general is particularized by the particular. If each is general in one respect and particular in another respect, then the generality of each is particularized by the particularity of the other.

Consensus.

Consensus is the agreement of a generation of scholars concerning an event. By scholars we mean jurists, and by event we mean a legal event. The consensus of this community, and no other, is an authoritative proof, because [the Prophet] has said “my community does not agree upon an error.” Revelation has stated the infallibility of this community. Consensus is an authoritative proof for the following generation, and for every generation. The probative authority of consensus is not conditional upon the passing of the generation [in which it is reached]. If we made it conditional on the passing of the generation, then one would take into consideration the [dissenting] statement of someone who was born during their lifetime and studied law and became one of the people of diligent inquiry, and the value [that had been agreed upon] could then be revoked.

Valid consensus can be established by the scholars’ words, or by their actions, or by the words or actions of only some of them, if those words or actions are disseminated and the others remain silent about them. The saying of a single Companion is not an authoritative proof over others, according to the new opinion.

Reports.

A report is that which can be characterized by truthfulness or lying.

Reports are individually or collectively transmitted.

A collectively transmitted report makes knowledge obligatory. It is related, [at every stage of its transmission] all the way back to the one from whom it is reported, by a group the likes of which could not conspire to lie. It must originate in eye-witnessing or hearing, not in diligent inquiry.

An individually transmitted report makes action obligatory, but does not make knowledge obligatory, since it could contain an error. There are two categories of individually transmitted reports: those that are attributed [to the Prophet], and those that are traced [to the Prophet]. Traced reports have a continuous chain of transmission, and attributed reports have a discontinuous chain of transmission. If a report is attributed by anyone but a Companion, it does not constitute authoritative proof, except for the reports attributed by Sa‘îd ibn al-Musayyab, which have been scrutinized and found to be traced.

Relating a report “from so and so” qualifies as a form of tracing. If the master reads a report, the one who relates it from him may say “he told me” or “he informed me.” If the one who relates the report reads it to the master, he says “he informed me,” but does not say “he told me.” If the master authorizes him [to relate traditions from him] without any reading, the one who relates from him says “he authorized me,” or “he informed me by authorization.”

Analogy.

Analogy is relating the branch to the root by a common characteristic that gives them the same value.

There are three kinds of analogy: analogy by common characteristic, by indication, and by resemblance. Analogy by common characteristic is analogy in which the common characteristic entails the value necessarily. Analogy by indication is using one case as evidence for a parallel case; the common characteristic indicates the value but does not entail it necessarily. Analogy by resemblance is relating a branch that could be related to either of two roots, to the one that most resembles it.

The branch must be like the root in regard to that whereby they are both given the same [value.] The root must be established by evidence that is accepted by both parties. The common characteristic must be consistent in [the values] it entails, without exception either in expression or in meaning. The value must be coextensive with the common characteristic. The common characteristic brings about the value, and the value is brought about by the common characteristic.

Proscription and Permission.

Some people say that all things are proscribed, except what the divine law has permitted. Some people say the opposite, namely that the original state of things is permissibility, except for what revelation has proscribed.

‘Carrying forward the state’ means carrying forward the original state in the absence of a revealed indicator.

[The Prioritizing of] Evidences.

Clear evidences are given priority over obscure ones, and those that produce knowledge over those that produce belief. Utterance is given priority over analogy, and clear analogy over obscure analogy. If one finds an utterance that alters the original state, [then the original state is altered], but if not then one carries forward the state.

[The Characteristics of the Issuer of Legal Opinion and the Seeker of Legal Opinion.]

The issuer of legal opinions must be knowledgeable of the roots and branches and controversies and schools of law. He must be fully competent in diligent inquiry. He must know all that he needs to know for deducing values, in several fields: grammar, language, the science of the men who related traditions, the explanation of legally relevant verses, and legally relevant reports.

The seeker of legal opinion must be one who follows existing opinions, and he must follow the opinion of the issuer.

[The Qualities of Practitioners of Diligent Inquiry.]

A scholar may not follow existing opinion.

To follow existing opinion is to accept what someone has said, without proof. According to this definition, to accept what the Prophet said is called following existing opinion. Some say that to follow existing opinion is to accept what someone has said without knowing where he got it. On this definition, if we hold that the Prophet used to speak on the basis of analogy, then accepting what he said can be called following existing opinion.

Diligent inquiry is to go to the limits of one’s ability to achieve one’s objective. If a fully competent practitioner of diligent inquiry inquires diligently into the branches of law and judges correctly, his is a double reward. If he inquires into them diligently and errs, his is a single reward. Some say that all who inquire diligently into the branches of law judge correctly, but it cannot be said that all who inquire diligently into theological roots judge correctly, because that would require us to agree with those who are in error, Christians and Magians and infidels and atheists. The proof of those who say that not all who exercise diligent inquiry concerning the branches of law judge correctly, is that the Prophet said “whoever inquires diligently and judges correctly, his is a double reward, and whoever inquires diligently and errs, his is a single reward.” This is a proof because the Prophet declared the practitioner of diligent inquiry to be in error in one instance, and affirmed him in another.

God (He is glorified and exalted) is higher and more knowing.


The opinions or statements expressed herein should not be taken as a position of or endorsement by the University of Oklahoma.