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Published online by Cambridge University Press: 11 January 2021
The duty to obey juristic injunctions in Islamic law is often assumed to follow a simple model: God commands, the jurists discover the meaning of those commands, and the faithful follow the jurists’ interpretation. By examining the arguments advanced by some prominent classical Islamic jurisprudes in support of the claims for law's normativity, I show that the jurists saw themselves as representatives of their communities in the quest to formulate opinions about actions in a way that is faithful to revelation. This model can be summarized as follows: (1) the jurists, by virtue of their knowledge, inform individuals of how to act according to revelation; (2) the pronouncement of a jurist who is knowledgeable and fair may be followed without revisiting their justifications; (3) everyone has a duty to act according to revelation and to rebuke those who do not. A reasonable individual should be motivated to follow juristic pronouncements when all these conditions are present. My main claim is that the basic model wherein God is an authoritative commander and the jurists are informants is unsatisfactory. The jurists saw themselves as more than mere discoverers and informers. This Islamic model has unique features when it comes to understanding authority in general. The uniform commitment to a formal moral source, coupled with the contingent nature of the robust reasons given by the system, make the Islamic model distinct from some modern accounts. The Islamic model offers a view of legal authority that is specific to a cohesive community that shares a basic moral commitment. This model fits the classical need for a theory of authority that is both persuasive and authoritative.
1 A classic article analyzing (and denying) such obligation is Smith, M. B. E., “Is There a Prima Facie Obligation to Obey the Law?” Yale Law Journal 82, no. 5 (1973): 950–76CrossRefGoogle Scholar. A detailed descriptive account of the arguments for such an obligation can be found in Landesman, Bruce, “The Obligation to Obey the Law,” Social Theory and Practice 2, no. 1 (1972): 67–84CrossRefGoogle Scholar. Recently, Frederick Schauer argued that the use of force is the central reason for which subjects of modern legal systems obey the law: “although we know that a legal system could in theory exist without sanctions and without coercion, we know as well that, with somewhere between few and no exceptions, no such legal systems actually exist.” Schauer, Frederick, “Coercing Obedience,” in The Force of Law (Cambridge, MA: Harvard University Press, 2015), 93–109, at 93Google Scholar. In addition to Schauer, this negative answer to the question was generally commonplace within the positivist tradition. See, for example, Raz, Joseph, “The Obligation to Obey: Revision and Tradition,” Notre Dame Journal of Law, Ethics and Public Policy 1, no. 1 (1985): 139–55Google Scholar. For an opposite position, see Finnis, John, “Law as Co-ordination,” Ratio Juris 2, no. 1 (1989): 97–104CrossRefGoogle Scholar.
2 It is worth noting that, while the question of whether there is an obligation to obey a hypothetical, obviously unethical divine command is often raised in theological ethics and the philosophy of religion, the question often centers on the exceptional questionable divine command, not on the fact that a religious system of law succeeds to generate reasons for its followers to obey its commands. On that theological question see Morriston, Wes, “What If God Commanded Something Terrible? A Worry for Divine-Command Meta-ethics,” Religious Studies 45, no. 3 (2009): 249–67CrossRefGoogle Scholar.
3 Wael Hallaq has alluded to the lack of serious engagement with Islamic legal theory at a theoretical level. His view is that “there remains a serious problem that continues to be—perhaps unnecessarily—a subject of great controversy. Many scholars have viewed legal theory as an exclusively theological discourse, studying it as though it were an extension of that genre. In doing so, they have in effect reduced it to a discourse that has little to do with [substantive laws], much less with the realia of judicial practice.” Hallaq, Wael B., Sharīʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 73CrossRefGoogle Scholar.
5 Weiss, Bernard G., The Spirit of Islamic Law (Athens: University of Georgia Press, 2006), 114Google Scholar.
6 For another example of the view that the jurist's job is to discover God's will, see Gleave, Robert, “Deriving Rules of Law,” in The Ashgate Research Companion to Islamic Law, ed. Peters, Rudolph and Bearman, Peri (Farnham: Ashgate, 2014), 57–72, at 57Google Scholar.
7 Ashʿarism, or Ashʿariyya, is an Islamic school of theology that believed, among other things, that it is impossible to know norms and actions independently of divine revelation, that humans are unable to fully comprehend God's design and judgment, and that the word of God is eternal, and not created. It is believed to have been a historically dominant school in Sunni Islam, although accounts of Ashʿarī dominance have been contested. For an overview of the development of this school, see Watt, Montgomery, The Formative Period of Islamic Thought (Edinburgh: University Press, 1973)Google Scholar. See also Campo, Juan E., “Ashari School,” in Encyclopedia of Islam, ed. Campo, Juan E., 2nd ed. (New York: Facts on File, 2016), 66–67Google Scholar.
8 Relevant to this analysis of the nature and background of this jurisprudential position, in a rare study dedicated to the question of the duty to obey the jurists, Mohammad Fadel offers a helpful account of the prevalent position in classical jurisprudence on the duty to follow the jurists: “most individual Muslims were non-specialists (muqallids) who were obligated to identify an appropriate scholar-specialist—one who has mastered the tools of jurisprudence (mujtahid or mufti)—and to follow the jurisprudential opinions of that scholar-specialist without affirming or rejecting that scholar-specialist's reasoning (ijtihad) in support of that opinion (taqlid).” Fadel, Mohammad, “‘Istafti qalbaka wa in aftāka al-nasu wa aftūka’: The Ethical Obligations of the Muqallid between Autonomy and Trust,” in Islamic Law in Theory: Studies on Jurisprudence in Honour of Bernard Weiss, ed. Reinhart, A. Kevin and Gleave, Robert (Leiden: Brill, 2014), 105–26, at 106Google Scholar.
9 The “epistemic reason” is one in which someone indicates or shows a reason for another. See Enoch, David, “Reason-Giving and the Law,” in Oxford Studies in the Philosophy of Law, ed. Green, Leslie and Leiter, Brian, vol. 1 (Oxford: Oxford University Press, 2011), 1–38, at 4Google Scholar.
10 Enoch, “Reason-Giving and the Law,” 4–5.
11 Those two types of reason (internal and external) can be distinguished as the legal or internal and real or external reasons for action. The former can also be referred to as legal obligation, while the latter refers to a “political obligation,” or law's “authority.” For a helpful account of such distinctions, see Leslie Green, “Legal Obligation and Authority,” in Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (2012), https://plato.stanford.edu/archives/win2012/entries/legal-obligation.
12 Wael Hallaq holds that “Islamic law could and did accommodate a measure of legal intervention by the political sovereign, but to an extent that did not exceed the peripheral or the marginal, especially in terms of determining the substance of the law.” Hallaq, Sharīʿa, 361. The idea of Islamic law as a type of self-rule evolved into an arrangement that Hallaq terms “the Circle of Justice.” Hallaq, Sharīʿa, 197–221, 361. Some studies have attempted to nuance the historical independence of Islamic law from the state, but, in the end, classical legal theory remains firmly committed, as I discuss below, to the idea that lawmaking was a domain of juristic knowledge. See, for example, Burak, Guy, The Second Formation of Islamic Law: The Ḥanafī School in the Early Modern Ottoman Empire (New York: Cambridge University Press, 2015), 1–20CrossRefGoogle Scholar.
13 Such a comprehensive survey can be found in Fadel, “‘Istafti qalbaka wa in aftāka al-nasu wa aftūka’.”
14 See, for example, Zysow, Aron, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Atlanta: Lockwood Press, 2013), 1, 49–51Google Scholar. Robert Gleave, “Deriving Rules of Law,” 57; Sherman A. Jackson, “Fiction and Formalism: Toward a Functional Analysis of Usul Al-Fiqh,” in Weiss, Studies in Islamic Legal Theory, 177–201.
15 The fact that the Islamic tradition developed a fairly elaborate theory of law is a fact that can, in turn, be explained through the discipline's historical function of providing the epistemological and institutional links between divine revelation and human practical reasoning. For an analysis and historical account of the discipline, see Hallaq, Sharīʿa, 72–85.
16 Muḥammad b. al-Ṭayyib al-Bāqillānī, Al-Taqrīb wa l-irshād al-ṣaghīr [The simplicifation and guidance], ed. ʿAbd al-Ḥamīd ʿAlī Abū Zunayd, vol. 1 (Beirut: Muʾassasat al-Risāla, 1998), 306. All translations from the Arabic sources are mine.
17 Al-Bāqillānī, Al-Taqrīb, 305.
18 Al-Bāqillānī, 305 (emphasis added).
19 For example, Vikør, Knut S., Between God and the Sultan: A History of Islamic Law (London: Hurst, 2005), 2–3Google Scholar. On the development of the law from juristic opinions, see Bsool, Labeeb Ahmed, “The Emergence of the Major Schools of Islamic Law/Madhhabs,” in The Routledge Handbook of Islamic Law, ed. El Fadl, Khaled Abou, Ahmad, Ahmad Atif, and Hassan, Said Fares (London: Routledge, 2019), 141–55, at 141–42Google Scholar. See also Hallaq, Sharīʿa, 78–83.
20 Ahmed al-Dawoody, “Jihad, Sovereignty, and Jurisdiction: The Issue of the Abode in Islam,” in Fadl, Ahmad, and Hassan, The Routledge Handbook of Islamic Law, 301–12, at 306.
21 For more on the variation in the obligation to know the tenets of various classical Islamic disciplines, see Fadel, “‘Istafti qalbaka wa in aftāka al-nasu wa aftūka,’” 105–07. The argument that, from the layperson's perspective, seeking legal knowledge is a farḍ kifāya can also be found in Nyazee, Imran Ahsan, “The Scope of Taqlīd in Islamic Law,” Islamic Studies 22, no. 4 (1983): 1–29, at 3Google Scholar.
22 Fadel explains this argument as such: “The muqallid does not, as discussed previously, defer to the mujtahid because he lacks the capacity for independent moral reasoning. Presumably, he chooses to be a muqallid because, given the various options available to him in his life, he would rather spend his time doing something, e.g. farming or trading, other than becoming a theological/ethical/legal specialist, a task that could very well be quite burdensome.” See Fadel, “Istafti qalbaka wa in aftāka al-nasu wa aftūka,’” 120. My contention here is that this type of practical argument was one among several ways in which the jurists justified their authority, and that, at least in al-Bāqillānī's theory, deferring to the jurists was seen as a rational act.
23 Abū Isḥāq al-Shīrāzī, Al-Lumaʻ fī uṣūl al-fiqh [The sparks in legal theory], ed. Maḥmūd Ḥusayn Abū Khalaf, 4th ed. (Cairo: al-Maktaba al-Tawfīqiyya, 2018), 505.
24 Al-Shīrāzī, Al-Lumaʻ fī uṣūl al-fiqh, 508. Consistently with his position that unquestioning following is only a permission, he also held that the obligation to perform legal reasoning (ijtihad) is only conditional when it comes to the jurists. This obligation applies if a jurist has the time and means to conduct original legal reasoning in a given question, otherwise it is not necessary.
25 See for example, Ahmed, Rumee, Sharia Compliant: A User's Guide to Hacking Islamic Law (Stanford: Stanford University Press, 2018)CrossRefGoogle Scholar. This entire book is dedicated to the question of how Muslims can claim back fiqh from the jurists who, Rumee claims, continue to monopolize, for no good reason, the production of fiqh. Another manifestation of the discontent with the seemingly excessive authority that classical jurisprudence granted to the jurists can be found in Fadel, “‘Istafti qalbaka wa in aftāka al-nasu wa aftūka,’” 119–20.
26 For example Ahmed, Sharia Compliant, chapter 1.
27 Al-Bāqillānī, Al-Taqrīb, 306.
28 In reference to this relative nature of the obligation to follow the jurists among themselves, Wael Hallaq speaks of a “spectrum of taqlid.” Hallaq, Wael B., “Taqlīd: Authority, Hermeneutics, and Function,” in Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001), 86–120, at 87–89CrossRefGoogle Scholar. Another discussion of the types of intra-madhhab taqlid that were permitted in classical jurisprudence can be found in Fadel, “‘Istafti qalbaka wa in aftāka al-nasu wa aftūka,’” 114–19. The duty of jurists to follow other jurists in certain cases is not my main concern here. Unlike the duty of the non-jurist to follow the jurist, the relative authority of jurists within the school of law has been the subject of extensive research. Some noteworthy works on the subject include Jackson, Sherman, “Kramer versus Kramer in a Tenth/Sixteenth Century Egyptian Court: Post-formative Jurisprudence between Exigency and Law,” Islamic Law and Society 8, no. 1 (2001): 27–51CrossRefGoogle Scholar. Hallaq, Wael B., “From Regional to Personal Schools of Law? A Reevaluation,” Islamic Law and Society 8, no. 1 (2001): 1–26CrossRefGoogle Scholar.
29 Al-Bāqillānī, Al-Taqrīb, 307.
30 Al-Bāqillānī, 308.
31 For an extensive historical analysis of the internal hierarchies and dynamics of the school of law in the Islamic legal tradition, see Hallaq, “Taqlīd.”
32 This position was held by other legal theorists. See for example Abū Isḥāq al-Shāṭibī), Al-Muwāfaqāt fī uṣūl al-sharīʿa [The reconciliation of the fundamentals of Islamic law], ed. Muḥammad al-Fāḍilī, vol. 4 (Beirut: al-Maktaba al-ʿAṣriyya, 2007), 168.
33 Abū Ḥāmid al-Ghazālī, Al-Mustaṣfā min ʿilm al-uṣūl [The refined principles in the science of jurisprudence], ed. Tāha al-Shaykh (Cairo: Dār al-Tawfīqiyya lil-Tibāʿa, 2010), 690–95.
34 Al-Ghazālī, Al-Mustaṣfā, 693.
35 Al-Ghazālī, 693.
36 Al-Ghazālī, Al-Mustaṣfā, 693. Al-Ghazālī relied on the authority of consensus to justify the authority of the jurists, which may appear circular: the consensus of the scholars (or, in this case, the Companions) is the source of authority of scholarly determinations. His attempt to escape the apparent circularity of this argument rested on an equivalence between consensus (ijmāʿ) and divine miracle (muʿjiza). Since, for al-Ghazālī, miracle is the most fundamental method of establishment of objective truth, ascribing the authority of consensus to miracle allowed him to argue that a layperson's uncritical acceptance of juristic pronouncements is, in fact, a rational stance, since it does ultimately rely on a justifiable form of authority.
37 Sayf al-Dīn al-Āmidī, Al-Iḥkām fī uṣūl al-aḥkām [The rigorous treatise in legal theory], ed. Ibrahim al-Ajūz, vol. 2 (Beirut: Dār al-Kutub al-ʿIlmiyya, 1985), 450–51.
38 Al-Āmidī, Al-Iḥkām fī uṣūl al-aḥkām, 453–54. Fadel also alludes to al-Ghazālī's argument from consensus to highlight the epistemological nature of the argument for the duty to obey the jurists. While I share Fadel's view that al-Ghazālī's position leans towards a strict formalized type of authority (for Fadel, that is contrary to moral autonomy), my analysis of al-Bāqillanī, I believe, shows that this duty was initially anchored in a range of rational considerations. See Fadel, “‘Istafti qalbaka wa in aftāka al-nasu wa aftūka,’” 110.
39 On the “preemptive” function of legal authority, see Raz, Ethics in the Public Domain, 214. I discuss this later in the article.
40 Al-Ghazālī, Al-Mustaṣfā, 634.
41 Al-Ghazālī, Al-Mustaṣfā, 635–37.
42 Al-Shāṭibī, Al-Muwāfaqāt fī uṣūl al-sharīʿa, 185.
43 For example, Fadel observes that, in certain respects, the mujtahid appears to be “a law unto himself.” See Fadel, “‘Istafti qalbaka wa in aftāka al-nasu wa aftūka,’” 119. This epistemic hierarchy between the knowledgeable jurist and the non-knowledgeable layperson appears to have had its counterpart in Shīʿī thought, as is evident in the thought of al-ʿAllāma al-Ḥillī (d. 1325 CE/AH 725): “It is incumbent upon the ordinary person (al-ʿāmmī) to practice taqlid in the practical norms of the Law if he is not capable of practicing ijtihad.” John Cooper, ed. and trans., “ʿAllāma al-Ḥillī on the Imamate and Ijtihād,” in Authority and Political Culture in Shi'ism, ed. Said Amir Arjomand (Albany: State University of New York Press, 1988), 240–49, at 247.
44 Al-Ghazālī, Al-Mustaṣfā, 693.
45 Al-Ghazālī, 694. For more on that argument, see Fadel, “‘Istafti qalbaka wa in aftāka al-nasu wa aftūka,’” 108.
46 Raz, “The Obligation to Obey,” 139.
47 For more on consensus as a source of juristic authority, see Nyazee, “The Scope of Taqlīd in Islamic Law,” 5.
48 For a critique of rule-utilitarianism, see Smith, “Is There a Prima Facie Obligation to Obey the Law?”
49 This constitutional argument, along with al-Ghazālī's argument from consensus, were also advanced by Abū l-Muẓaffar al-Samʿānī, Qawāṭiʿal-adilla fī l-uṣūl [The decisive proofs in legal theory], ed. Muḥammad Ḥasan Ismāʿīl al-Shāfiʿī, vol. 1 (Beirut: Dār al-Kutub al-ʿIlmiyya, 1997), 363.
50 Al-Bāqillānī, Al-Taqrīb, 171.
51 The probabilistic pronouncement made by a jurist can also be seen as a “reasoned opinion,” as described in Fadel, “‘Istafti qalbaka wa in aftāka al-nasu wa aftūka,’” 105.
52 Al-Bāqillānī, Al-Taqrīb, 172.
53 Al-Bāqillānī, 172.
54 Al-Bāqillānī, 172.
55 Al-Bāqillānī, 267. See also Al-Ghazālī, Al-Mustaṣfā, 8–9.
56 Al-Bāqillānī, Al-Taqrīb, 286.
57 Al-Bāqillānī, 276.
58 Al-Bāqillānī alludes to the theological issue of God's power to guide human actions. His view is that God is the owner of all things in the world, and that grants him the right to seek control of his creation. This argument will not concern us, since it is clear at this point that the normative force of legal injunctions cannot be reduced to mere divine will. Al-Bāqillānī, 286.
59 Al-Bāqillānī, 276–78.
60 Al-Bāqillānī, 239.
61 In an attempt to capture the complex nature of the concept, Nasir describes taklīf as “a commandment (of God) and obligation (for the subject).” Nasir, Mohamed Nasrin, “The Concept of Taklīf According to Early Ash‘arite Theologians,” Islamic Studies 55, nos. 3–4 (2016): 291–99Google Scholar. Elsewhere, taklīf has been explained as “accountability before God.” Padela, Aasim and Mohiuddin, Afshan, “Ethical Obligations and Clinical Goals in End-of-Life Care: Deriving a Quality-of-Life Construct Based on the Islamic Concept of Accountability Before God (Taklīf),” American Journal of Bioethics 15, no. 1 (2015): 3–13CrossRefGoogle Scholar. The idea of taklīf thus appears to take on different connotations depending on one's perspective. For the purposes of the discussion of law's authority, taklīf is best understood, literally, as an act of burdening, and the mukallaf as the recipient of that burden, or the reason-receiver.
62 Al-Bāqillānī, Al-Taqrīb, 239.
63 Al-Bāqillānī, 239.
64 Al-Bāqillānī, 240.
65 Al-Ghazālī, Al-Mustaṣfā, 8.
66 Al-Ghazālī, Al-Mustaṣfā, 8–9.
67 The nonnaturalistic stance that no proper legal-normative conclusions could be attained without divine revelation is typical of Ashʿarī doctrine. A history and overview of Ashʿarī doctrines can be found in Thiele, Jan, “Between Cordoba and Nīsābūr: The Emergence and Consolidation of Ashʿarism (Fourth–Fifth/Tenth–Eleventh Century),” in The Oxford Handbook of Islamic Theology, ed. Schmidtke, Sabine (Oxford: Oxford University Press, 2016), 225–41Google Scholar.
68 Al-Ghazālī, Al-Mustaṣfā, 80.
69 The identification of normative attributes (which here Bernard Weiss calls “Sharīʿa categorization”) with divine revelation can be seen in later works of Ashʿarī jurisprudence, such as the work of Sayf al-Dīn al-Āmidī. See Weiss, Bernard G., The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi (University of Utah Press, 2010), 93–95Google Scholar.
70 Later Ashʿarīs, such as Nāṣir al-Dīn al-Bayḍāwī (d. 1286 CE/AH 685), as reflected in the commentary on his Minhāj al-wuṣūl (The method of attainment of knowledge) by ʻUmar b.ʻAlī al-Mulaqqin, appear to have sided with al-Ghazālī on this classification. Al-Bayḍāwī held that divine revelation divides human actions into either required (muqtaḍā) or permitted. The idea here is that most human actions would fall into the permitted category, whereas a small minority would be required, either positively or negatively. See ʻUmar b.ʻAlī al-Mulaqqin, Kāfī al-muḥtāj ilā sharḥ al-Minhāj [Fulfilling the needs in the explanation of the method] (Beirut: Dār al-Kutub al-ʻIlmiyya, 2016), 37.
71 Al-Mulaqqin, Kāfī al-muḥtāj ilā sharḥ al-Minhāj, 37. Al-Shīrāzī, by contrast, directly maintained that obligation and prohibition meant the imposition of reward and punishment. See Al-Shīrāzī, Al-Lumaʻ fī uṣūl al-fiqh, 76–77.
72 Al-Ghazālī, Al-Mustaṣfā, 119–20.
73 This intuitive model can be exemplified by some of the more practically inclined jurisprudes, such as Abū l-Muẓaffar al-Samʿānī (d.1066 CE/AH 562), who was of the view that “knowledge of legal rulings,” even though it implies epistemological certainty, is a straightforward and appropriate way of explaining the discipline of fiqh. His view was that, even though juristic pronouncements themselves are probabilistic, they both derive from, and indicate certainties. For him, making legal pronouncements is akin to declaring that there will be a Day of Judgment: it is a type of belief in the sense that no one has, in fact, witnessed it, but it both derives from a certain source (divine revelation), and points to an inevitable outcome. Al-Samʿānī, like al-Ghazālī, maintained that juristic rulings are declarations of normative attributes that are imposed upon actions and known through divine revelation, as opposed to other attributes that can be known by mere observation. Al-Samʿānī, therefore, adopts a model of law-making closer to the “discovery” idea: jurists are, primarily, informants who seek to discover the law and declare it to the community. Everyone should have a motive to follow them simply by virtue of their being representations of divine commands. Al-Samʿānī's notion of taklīf did not differ significantly from al-Ghazālī's. Jurists and laypersons alike are “burdened” by these injunctions uniformly, as they are all under the sovereignty of the only lawmaker: God. The fact that the search for legal “truths” is the task of only a segment of society is a mere matter of practicality: if that was not the case, no life in society would be possible. Legal subjects ought to follow the jurists because they are closer to the truth, and therefore obedience allows them to obtain rewards and avoid punishments. Only jurists need to be aware of the justifications of rules: non-jurists simply need to follow juristic pronouncements. Al-Samʿānī, Qawāṭi ʿal-adilla fī l-uṣūl. The same with al-Shīrāzī, who maintained that fiqh consisted of “the knowledge of legal judgements through ijtihād.” Al-Shīrāzī, Al-Lumaʻ fī uṣūl al-fiqh, 74.
74 Al-Bāqillānī, Al-Taqrīb, 293.
75 Al-Bāqillānī, 293.
76 The idea of law being constituted of two different orders or types of rule was famously advanced by H. L. A. Hart, The Concept of Law, 2nd. ed. (Oxford: Clarendon Press, 1997), 79–99.
77 The Ashʿarīs argued that actions did not have intrinsic moral values, and that mere revelation-independent reasoning cannot reach categorical moral judgments. For a brief account of the rise of the Ashʿarī school and some of their basic views, see Watt, W. Montgomery, Islamic Philosophy and Theology (Oxon: Routledge, 2017), 82–89, 106–33Google Scholar.
78 This is a view that was indeed advanced by less theoretically inclined classical Muslim scholars such al-Samʿānī. For al-Samʿānī, an obligatory action is one for which one is rewarded, and for the omission of which one is punished. Al-Samʿānī uses a linguistic claim to make this argument: to “obligate” (awjaba) literally means to bind or to impose something. Obligation, therefore, is a burden placed by God on a person by the imposition of punishment in the case of omission. Al-Samʿānī, Qawāṭiʿal-adilla fī l-uṣūl, 23.
79 Al-Bāqillānī, Al-Taqrīb, 280.
80 Al-Bāqillānī, 280.
81 A similar definition was offered by al-Bayḍāwī. As shown in al-Mulaqqin's commentary, al-Bayḍāwī held that obligation is the requirement to commit an act and refrain from the opposite, whereas requiring an act without prohibiting omission is mere recommendation. Permission (ibāḥa), by contrast, does not involve requiring an act at all. See al-Mulaqqin, Kāfī al-muḥtāj ilā sharḥ al-Minhāj, 43.
82 Al-Ghazālī, Al-Mustaṣfā, 94.
83 Al-Ghazālī, Al-Mustaṣfā, 95.
84 An extensive account of Muʿtazilī theories of moral value can be found in Vasalou, Sophia, Moral Agents and Their Deserts: The Character of Muʿtazilite Ethics (Princeton: Princeton University Press, 2008)Google Scholar.
85 Al-Ghazālī, Al-Mustaṣfā, 81–82.
86 For example, Moore, George E., Principia Ethica, ed. Baldwin, Thomas, 2nd ed. (Cambridge: Cambridge University Press, 1994)Google Scholar.
87 Interestingly, in modern jurisprudence, the rare view of norms as “characteristics” of actions can be found in the writings of Karl Llewellyn, a legal realist. See, for example, Llewellyn, Karl N., The Theory of Rules, ed. Schauer, Frederick (Chicago: University of Chicago Press, 2011)CrossRefGoogle Scholar.
88 Raz, “The Obligation to Obey.”
89 Raz, 140.
90 Raz, Ethics in the Public Domain, 214.
91 Raz, “The Obligation to Obey.”
92 Smith, “Is There a Prima Facie Obligation to Obey the Law?,” 950.
93 Enoch, although he argued that normativity, when seen clearly, was not a particularly puzzling issue, acknowledged that legal positivism is often seen to present a challenge to normativity because it sees law as a set of social facts. See Enoch, “Reason-Giving and the Law,” 1–2.
94 See, for example, Schauer, The Force of Law. Recently, Schauer plausibly made the claim that, while a legal system in which the addressees of legal directives follow them only because it is good to obey the law is not inconceivable, such system does not presently exist. Schauer rested his argument, among other things, on the empirical claim that, by and large, most modern citizens obey the law to avoid its coercive powers.
95 Raz, “The Obligation to Obey.”
96 Smith, “Is There a Prima Facie Obligation to Obey the Law?,” 950–51.
97 Smith, 951; Raz, “The Obligation to Obey.”
98 Raz, “The Obligation to Obey,” 140.
99 Rawls, John, “Legal Obligation and the Duty of Fair Play,” in Law and Philosophy: A Symposium, ed. Hook, Sidney (New York: New York University Press, 1964), 3–18, at 10Google Scholar.
100 “These arguments [from fair play] deserve great respect. Hart and Rawls appear to have isolated a kind of prima facie obligation overlooked by other philosophers and have thereby made a significant contribution to moral theory. However, the significance of their discovery to jurisprudence is less clear.” Smith, “Is There a Prima Facie Obligation to Obey the Law?,” 955.
101 Raz, “The Obligation to Obey.”
102 Finnis, John, “The Authority of Law in the Predicament of Contemporary Social Theory,” Notre Dame Journal of Law, Ethics, and Public Policy 1, no. 1 (1985): 115–37, at 133Google Scholar.
103 Raz, “The Obligation to Obey,” 150.
104 Historically, Islamic ideas of authority seem to have evolved closer to a Finnis-like model of social benefit. This can be seen, for example, in ideas of social interdependence and mutual interest as developed by, among others, al-ʿIzz b. ʿAbd al-Salām (d. 1262 CE/AH 660). For a recent study on ʾAbd al-Salām's theory of benefit, see Rami Koujah, “Maṣlaḥa as a Normative Claim of Islamic Jurisprudence: The Legal Philosophy of al-ʿIzz b. ʿAbd al-Salām,” in Locating the Sharīʿa: Legal Fluidity in Theory, History, and Practice, ed. Sohaira Z. M. Siddiqui (Leiden: Brill, 2019), 127–50. On benefit and the purpose of law in general, see Felicitas Opwis, “A Comprehensive Theory of Maṣlaḥa,” in Maṣlaḥa and the Purpose of the Law: Islamic Discourse on Legal Change from the 4th/10th to 8th/14th Century (Leiden: Brill, 2010), 247–333.
105 For more on “comparative philosophy,” see Ronnie Littlejohn, “Comparative Philosophy,” Internet Encyclopedia of Philosophy, https://www.iep.utm.edu/comparat/, accessed November 27, 2020. On the importance of “historical philosophizing,” see Bernard Williams, “Why Philosophy Needs History,” London Review of Books, October 17, 2002, http://www.lrb.co.uk/the-paper/v24/n20/bernard-williams/why-philosophy-needs-history.
106 Raz, “The Obligation to Obey,” 154.
107 Raz, 154.
108 This also aligns with Schauer's views. Schauer, The Force of Law.
109 From a sociohistorical standpoint, it may be worth noting that the “reputation” of the jurists extended beyond mere intellectual status. As Nimrod Hurvitz explains, “in some cases the authoritative figures who led the lay adherents of the madhhabs were not outstanding experts of law but rather individuals whose religious prestige was based on other factors, such as piety and moral activism.” Hurvitz, Nimrod, “Authority within the Hanbali Madhhab: The Case of al-Barbahari,” in Religious Knowledge, Authority, and Charisma: Islamic and Jewish Perspectives, ed. Ephrat, Daphna and Hatina, Meir (Salt Lake City: University of Utah Press, 2013), 36–47, at 36Google Scholar.
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