“For Every Three Judges, Two Are in the Fire”: Richard Posner and the Usul al-Fiqh
posted by Nate Oman
I’ve been reading Richard Posner of late, and it strikes me that there is an odd analogy between the his vision of the pragmatic judge and the position of the judge under the classical usul al-fiqh of Islamic law. It seems to me that ultimately Judge Posner’s theory of adjudication rests on a radical rejection of the ex post perspective. On his view all judicial decisions are — and ought to be — forward looking, focusing solely on the consequences for the future that will come from deciding one way rather than another. Of course, a concern for future consequences needn’t preclude a certain respect for past practices, expectations, and rule of law values, but none of this stuff has any force in and of itself. It only matters in so far as it impacts the future. One of the implications of this theory is that the judge can never hide behind the “the law” as a way of distancing him or herself from moral responsibility for her decisions. The law does not dictate particular results in any case. Rather, it is always a matter of the judge making an individual — albeit practically constrained — judgement about what would — all things considered — be best. One doesn’t get any sense that Judge Posner spends much time thinking about the personal moral status of the judge, but it seems to me his theory makes the judge into a radically responsible moral agent. If the consequences of one of Judge Posner’s decisions is really bad, it really is Judge Posner’s fault.
Where Judge Posner’s theory of law is radically ex ante, the theory of law (usul al-fiqh) proposed by the classical Islamic jurists purported at any rate to be radically ex post. In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God’s law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind. The task of a jurist is to discover the divine law as revealed in the Qur’an and the example of the Prophet Muhammed. Put in more concrete terms, the classical Islamic jurists claimed that every rule necessary for the proper government of society could be discovered — not deduced from or promulgated in accordance with — with the sacred texts of Islam. At this point in their theory, however, the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation. The Qur’an is not a legal code. Rather it is a collection of “recitations” — often in the form of religious poetry — given by God to the Prophet, often in response to concrete questions or problems raised by the early Islamic community. It was only in the generation after his death that these “recitations” were collected into the Qur’an. Not surprisingly, it takes some nimble exegetical gymnastics to transform this religious ur-stuff into a functioning body of substantive law. What haunted the classical jurists was that they might be wrong in their exegesis. As Marshall Hodgson has written, for a Muslim “every person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will.” Hence, there was no sense in which a jurist could hide behind some abstraction like office or “the law” to shield himself from full responsibility for his judicial decisions. He was to apply the law of God, and if he got it wrong he was responsible for that mistake.
According to one Muslim legal aphorism, “For every three judges, two are in the fire.” The fire in question here is the hell reserved by God for judges who do not apply His law. Indeed, there are stories of great classical legal scholars who fled from Baghdad at the prospect of being made an actual judge by the Caliph. The reason was that once one moved from exegetical speculation to deciding actual cases, one’s eternal soul was on the line. I don’t think that Judge Posner is much worried about hell fire, but ironically his radically ex ante approach leaves him in a similar moral position personally to the radically ex post approach of the ulema.
June 10, 2008 at 12:37 pm
Posted in: Articles and Books, History of Law, International & Comparative Law, Jurisprudence, Legal Ethics, Legal Theory, Religion
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A.J. Sutter - June 10, 2008 at 1:32 pm
Apropos of “In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God’s law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind”:
The Jewish tradition seems somewhat different. There is a famous story from Talmud about how “the Torah is made on earth,” and that even G-d is helpless to change this. (The story is almost certainly somewhere within the 900 pages of “The Book of Legends: Sefer Ha-Aggadah,” complied by Bialik & Ravnitzky and translated by Braude (Schocken 1992), but it’s quoted or paraphrased in many other places too. Apologies for not being able to find the precise cite this evening.)
The gist of the story is that one rabbi, R. Eleazar ben Hircanos, disagreed with I think 6 of his colleagues about a certain point. He challenged them by saying things like, “If I’m right, this tree will jump in the air,” upon which the tree shoots a hundred feet into the air; “If I’m right, this river will run uphill,” which it promptly does, and sundry other divine miracles. Finally, he says, “If I am right, a voice from heaven will prove it.” Sure enough, a voice from heaven booms down, saying to the group, “Don’t you know that the Law is like what R. Eleazar says, in every case?” One of the other rabbis looks to heaven and replies: “You already gave us the Torah. The Torah isn’t made in heaven — it’s made down here on earth! You and Eleazar against the six of us: You’re outvoted!” Later, the rabbis meet the prophet Elijah and ask him what was G-d’s reaction to this; the prophet reports that G-d laughed, saying “My children have outsmarted me!”
I don’t know how religious an upbringing Judge Posner had, and certainly it would not fully determine his jurisprudence in any case (baruch HaShem, by which I don’t mean I am a fan of Posner), but I just though you might be interested in the cultural difference.
Patrick S. O'Donnell - June 10, 2008 at 2:18 pm
Nate,
Interesting analogy, but in practice Islamic jurisprudence does in fact include ex ante legal reasoning, in fact, I think Islamic jurisprudence artfully combines both ex post and ex ante reasoning and perspectives, as you might infer below from part of my discussion of fiqh. In any case, subsidiary and supplemental principles were often used by way of incorporating ex ante concerns:
Islamic law itself is the product of the application of usūl al-fiqh (the ‘roots’ or sources of law), the principles and methods through which practical rules are developed from the tradition’s foundational sources: a) the Qur’ān, b) the Sunnah, c) ijmā‘ (consensus) of Muslim scholars on a legal rule about a topic not explicitly covered in the aforementioned sources (Shī‘ī jurists deny this is possible; and differences arise as to the possible value of ‘implied’ or ‘silent’ consensus, with Hanafī jurists speaking in its favor), and d) analogy (qiyās), involving reliance on precedent. In conjunction with these sources, subsidiary or supplemental presumptions and principles may aid the jurist in deriving interpretive rules: istihsān (considerations of equity and the application of discretion or preference, the ratio legis or ‘effective cause of the ruling’ differing from one obtained strictly through qiyās); ‘unregulated interest’ or masālih mursalah, explained by Wael Hallaq as arising in relation to a rationally suitable benefit motivated by public interest ‘that is not sustained by textual evidence,’ later this method of reasoning was approved provided ‘it could be shown that the feature of public interest adopted in a case was suitable (munāsib) and relevant (mu‘tabar) wither to a universal principle of the law or to a specific…piece of textual evidence’ (Hallaq); and istishāb, the rational presumption of continuity.
And the statement that “the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation” is not at all how Muslims would characterize such things, finding a logic to the time and place of the revelations as revealed in the predominant forms of Qur’anic exegesis (tafsir and ta’wil). Moreover, while the strictly “legal” verses in the Qur’an are comparatively few (350 out of 6,200), they are classified by topic, with 180 of them being labeled qati’ or absolutely certain, the remaining “probable” or “assumed” (zanni), and thus subject to some discussion or debate. In sum, while the Qur’an may appear to the outsider as “unsystematic” and “ad hoc” in character, the science of Qur’anic exegesis belies that characterization, as does the fact that the Qur’an explicitly encourages the use of one’s reason to understand its revelations. The variety of legal schools (pl., madhahib) and the number of respected authorities within these schools, as well as the development of the schools in different times and places (in different geographic regions, under different regimes) softens this “radically” ex post perspective or character of the legal system.
That said, it is rather unusual to find mention of Islamic law without any obvious tendentiousness, and for that I thank you.
Nate Oman - June 10, 2008 at 2:31 pm
I try to keep all of my tendentiousness esoteric.
You are of course correct that in actual practice Islamic law is not as relentlessly ex post as some of its rhetoric claims. It would be a miracle if it was! Furthermore, by saying that the religious ur-stuff was ad hoc, I don’t mean to imply that the jurists don’t have ways of classifying and rendering it rational, or that Muslims regard it as ad hoc. On the other hand, the very elaborateness of their exegesetical tools testifies to the fact that any order within the Qur’an — to say nothing of the Hadith — is latent rather than patent.
I also think that it is important realize that there is a distinction between fiqh and sharia. Yes there are many different schools, and the ijma of these schools may have normative force, but all of the ulema was also say — I think — that there is an actual fact of the matter with regard to the demands of the sharia, notwithstanding the multiplicity of the fiqh, and that it is the duty of a judge to get to the fact of the matter, even though this is probably beyond the competence of most (all?) judges.
Which, of course, is why it is much better to be a law professor than a judge. Less danger of hell fire ;->…
Patrick S. O'Donnell - June 10, 2008 at 3:04 pm
I agree about the importance of the difference between fiqh and Shari’ah, as in the following:
fiqh: understanding, knowledge; Islamic jurisprudence (law) as derived from Sharī‘ah (lit., the way; divine law, God’s will). Sharī‘ah is perfect: immutable and infallible, God’s will as abstractly and ideally understood, while fiqh is fallible and changeable, the product of a human attempt to understand that which is divine. There is, in other words, a logical, conceptual and practical distinction between Sharī’ah and fiqh, however much the latter is inspires the former. Nonetheless, and in the words of Knut S. Vikø, “It is more common to use ‘Sharī’a’ as a name for the Islamic legal rules that we actually see applied in our human existence. Then one distinguished between fiqh as the science used to derive the legal rules from their sources and the Sharī’ah as the result of this endeavor, the actual body of laws and rules in all their variations and internal inconsistency.”
And:
Sharī‘ah: literally, something like ‘the way,’ or ‘the path to the watering hole (or spring),’ and refers to divine law or God’s will in Islam. Historically, the term Sharī‘ah refers to all the elements of a proper, i.e. righteous life; this includes moral behavior, proper respect towards Allāh, correct belief, personal piety, and so on. In other words, it means the right way to live one’s life as a Muslim in conformity to God’s will. In more recent times, the scope of its reference has narrowed to that which falls under the rubric of Islamic law (fiqh), but there is a logical, conceptual and practical difference between Sharī‘ah and fiqh. The latter involves the human process of understanding and implementing the divine law. It is a serious (religious, epistemological, ontological, ethical…) mistake to conflate Sharī‘ah and fiqh, or to use these terms, as often happens today, as synonyms. The Sharī‘ah, writes Khaled Abou El Fadl, ‘is God’s Will in an ideal and abstract fashion, but the fiqh is the product of the human attempt to understand God’s Will. In this sense, the Sharī‘ah is always fair, just and equitable, but the fiqh is only an attempt at reaching the ideals and purposes of Sharī‘ah (maqāsid al-Sharī‘ah). [….] The conceptual distinction between Sharī‘ah and fiqh was the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God.’ The function of Sharī’ah is here analogous or similar to that of Natural Law among the Stoics. Recently, Abdullahi An-Na‘im has made the provocative argument that ‘precisely because sharī‘a is supposed to be binding on Muslims out of religious conviction, a believer cannot be religiously bound except by what he or she personally believes to be a valid interpretation of the relevant texts of the Qur’ān and Sunnah. Yet, given the diversity of opinions among Muslim jurists, whatever the state elects to enforce as positive law is bound to be deemed an invalid interpretation of Islamic sources by some of the Muslim citizens of the state.’ Moreover, such ‘objections to the enforcement of sharī‘a through positive law and the notion of an Islamic state do not, of course, preclude Muslims from personally conforming with every aspect of sharī‘a.’ We might describe the function of Sharī‘ah along the order of a Platonic Form, at least in its ‘bedrock version’ as outlined by T.K. Seung in Intuition and Construction: The Foundation of Normative Theory (1993). In this account, intuition and construction are two integral processes intrinsic to the functional role of Platonic Forms (or ‘Ideas,’ ‘Archetypes,’ etc.). Platonic Forms—like the Sharī‘ah—are (is) indeterminate, while nonetheless serving as normative, intuitive, and nonpropositional foundations (in theory, accessible to any Muslim) for constructing (propositional) models as guides for determinate social realities, thus, for example, (the Form) Justice is only the normative foundation for constructing models of determinate social orders, none of which fully realizes Justice, and all of which endeavor to approach Justice, succeeding by degrees. What is more, the attempt to instantiate or embody the model is never wholly successful, given the nature of the human condition and the model’s idealized qualities in reference to the Form itself: ‘The indeterminacy of Platonic Forms makes them flexible standards, and their flexibility assures their eternal durability.’ Sharī‘ah is like the Platonic Form in being universal, abstract, indeterminate, and nonpropositional, and thus cannot directly serve as a normative standard (i.e., any interpretation of the Divine Will needs religiously rationalized justification by way of textual hermeneutics and exegesis). This is perhaps one reason Norman Calder writes that, ‘in modern academic analysis of Islamic law, the word Sharī‘ah is of little use: what we can study and describe is always fiqh.’ Fiqh represents a Platonic-like endeavor to translate Sharī‘ah into direct, concrete, and normative models for particular contexts. As with Platonic intuitionism in which all human beings have access to Platonic Forms, all Muslims, as noted by An-‘Naim above, have access to Sharī‘ah, indeed, they are under a spiritual obligation to attempt to understand (and live by that understanding) the divine law. Such understanding is necessarily partial and fallible and may vary according to the individual (every Muslim is different): ‘Indeterminacy and relativity are inseparable in the domain of realization.’ The divine nature of Sharī‘ah means it retains a normatively transcendent and evaluative function whatever the extent of its positivization as fiqh. In other words, law as such cannot exhaust the evaluative function of divine law as one’s understanding of same can always deepen, one’s intuitive discernment can always be keener. As a transcendent (nonpropositional) guide for action, and despite its integral relation to Islamic law, Sharī‘ah should not be confused or conflated with any of its propositional constructions by way of fiqh, or any political proposal for a putatively Islamic state. Nonetheless, fiqh can serve as an aid in coming to understand divine law insofar as it enables us to obtain further, dialectical insight into that which transcends positive law; discursive reasoning and rational understanding, in other words, and in this case intrinsic to the Islamic science of jurisprudence, are part and parcel of the process of acquiring nonpropositional insight into divine law. That is to say, there is a dialectical relation between divine and human law that represents, in epistemic terms, a dialectic between propositional knowledge and ‘knowledge by acquaintance’ in a Platonic sense or ‘knowledge by presence’ after Shihāb al-Dīn Suhrawardī: ‘The insight that transcends words cannot be attained except by means of words; what cannot be spoken of becomes manifest in the very act of speaking.’ Like Socrates in the agora, Islamic scholars (jurists, theologians and philosophers) can examine and refute propositions that claim to fully capture the nature or essence of the Divine Will, that pretend to fully embody the Sharī‘a. The jurist’s fallible, limited, and historical understanding of Sharī‘ah, in other words, is evidenced by his facility with ’usūl al-fiqh: how he has arrived at the determination of law, rather than simply the result, that is, the legal determination or ruling itself, or, in the case of furū‘ al-fiqh, the persuasiveness of the arguments explicating the concepts and rules that relate to religious rituals and ethico-religious conduct in the widest sense. And it is fitra, the Islamic term that designates our primordial inclination or general predisposition to the good as a constituent feature of human nature, that allows individual qua individuals, to have insight into the Divine Will (and thus functions like soul memory in Platonic thought: permitting individual intuitive awareness, however dim or partial, into the Good; this insight is what Socrates set out to awaken in his interlocutors in dialectical dialogue). In fact, fitra can serve as the Islamic equivalent of individual conscience, according individuals in effect the right of principled objection to interpretations of Sharī‘ah that violate their sincere and sustained endeavors (made in the context of the Islamic tradition) to realize this dispositional awareness of “the Good,” the Divine Will or Sharī‘a. That said, we’ll end this entry with the following comments from Professor Haider Ala Hamoudi from his blog “Islamic Law in Our Times: A Realistic Assessment of Islamic Law in Today’s World” (http://muslimlawprof.org/), as it helps us see the difference between concern with the “conceptual” and focus on the “empirical” or how, in practice, the normative is entangled or even conflated with the descriptive: “In Islamic studies departments, there’s this notion of shari’a as this sort of idealized, highly stylized lo
gic driven system that is sort of somewhere in the sky that nobody can see, and then there’s fiqh, which is any given juristic interpretation of this beauty written down on paper always with the flaws of that jurist, and then there’s actual law, which bears no necessary relationship to either. [….] Certainly shari’a and fiqh, the ideal and then the imperfect reflection of the ideal (still not real) is a favorite of this group, their law review articles go to great lengths to explain the difference between the two, because one must understand how this all works, this lovely thing up there in the sky, its shadow in the academy and then if you’re lucky they’ll attempt to relate all of that to reality in a way that is, ummm, perplexing. [….] [A]s with any law or rule of social order, when you want to understand what the shari’a is, you have to see what the shari’a actually does. What role in the social order? How? Who has the authority to declare it? Where and when does it conflict with national law and how do Muslims of various sorts react to that? Where is it important to most? Where do some care and not others? THAT is law.”
A.J. Sutter - June 10, 2008 at 8:15 pm
Patrick, thanks for your compliment in a recent comment to my comment in another post, but obviously your erudition, unlike whatever you think mine might consist of, is genuine!
Patrick S. O'Donnell - June 11, 2008 at 9:39 am
A.J.,
It only seems that way because this is the one area I have a modicum of training in. And I take nothing back from the compliment!
Don Meaker - June 14, 2008 at 3:41 pm
I wouldn’t have a problem with the Islamic version of Jurisprudence (where authorship of Law is left to Allah) if they left the enforcement to Allah as well. This is, or course, not done. Rather, any nutball can set himself up as G-ds messenger, and then start chopping off heads. After all, is that not the real message of Mohammed?
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