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Usul al-fiqh and Dworkin’s integrity: two ways of saying law is more than its rules

Hamza Qureshi Fellow
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LawAnalyticIslamicJewishIslamic jurisprudenceAl-Shafi’iAl-ShatibiRonald Dworkin#law-as-integrity#legal-interpretation#maqasid#usul-al-fiqh
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I read Iqbal and Hart side by side for a living, more or less, and lately I have been adding Dworkin and al-Shafi'i to the pile. I want to test a comparison that I find tempting and suspect is partly false.

Dworkin argued against Hart that law is not just a set of rules identified by a test of pedigree. It also contains principles, such as the principle that no one should profit from his own wrong, which the New York court relied on in Riggs v. Palmer to deny an inheritance to a grandson who had murdered his grandfather. Judges find these principles by constructing the best justification of the legal practice as a whole.

Al-Shafi'i's Risala is often presented as the founding text of usul al-fiqh, the theory of the sources: Qur'an, Sunna, consensus, analogy. Analogy (qiyas) requires the jurist to identify the effective cause ('illa) of a ruling and extend it. That already looks like a principle at work. And centuries later al-Shatibi's theory of the objectives of the law (maqasid) looks even more Dworkinian: interpret rulings in light of the purposes they serve.

But there are deep differences. Dworkin's principles come from a community's political morality; the jurist in usul is seeking a ruling whose ultimate author is God. Dworkin's Hercules is confident there is one right answer; classical jurists debated whether every qualified jurist who exercises effort is correct.

Is the resemblance real or a false friend? I would welcome correction from people who know either side better than I do.

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  1. Khalid Mahmood Awan

    Fellow

    From practice: the resemblance is real at the level of method and false at the level of authority. In court I have watched lawyers invoke public interest (maslaha) and the objectives of the law in exactly the way an American lawyer invokes principle. But I have also watched maqasid become a licence for the jurist's preferences in classical dress. Al-Shafi'i was famously hostile to juristic preference (istihsan) precisely because he feared that. Dworkin's critics say the same about Hercules.

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  2. Layla Haddad

    Fellow

    One historical caution. The Risala is above all a theory of how revealed texts explain one another, bayan, and of how the Sunna relates to the Qur'an. Its centre of gravity is textual interpretation, not principle-construction. The more Dworkinian moves come later, with the jurists who developed analogy and especially with al-Shatibi in fourteenth-century Granada.

    And the epistemic stance differs. Dworkin's judge claims to find the right answer. Many classical jurists thought the jurist reaches a probable opinion (zann), and that differing qualified opinions can be equally legitimate. That humility is a real difference, not a detail.

  3. Rabbi Eliana Gutman

    Fellow

    May I add a third party? The rabbis faced a similar question. The Talmud preserves interpretive principles, such as the thirteen rules associated with Rabbi Ishmael, and it also tells the story of the oven of Akhnai, where a heavenly voice sides with Rabbi Eliezer and the sages reply that the Torah "is not in heaven". Once given, it is to be interpreted by the community of scholars by majority.

    That is strikingly close to Dworkin: a divinely authored text, interpreted through a human practice that claims authority over its own reading. It suggests the difference you name, divine versus communal authorship, may matter less in practice than it seems in theory.

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    1. Hamza Qureshi

      Fellow

      Eliana, that story is wonderful, and it unsettles my neat contrast. Perhaps the right line is not between divine and human sources but between traditions that keep the losing opinion on the page and those that do not. Your Talmud does. Our fiqh manuals, with their recorded disagreements between the schools, also do. Dworkin, with his single right answer, is the odd one out.

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  4. Deepa Nair

    Fellow

    Dworkin's own image in Law's Empire (1986) is the chain novel: each judge writes the next chapter of a story begun by others, constrained by what has been written but trying to make the whole the best it can be. That fits a precedent-bound common law system well. It fits a system with four or more recognised schools rather less well, unless you imagine several chain novels written in parallel and occasionally borrowing from each other, which may be the most accurate description of fiqh there is.

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