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FOREWORD

JOHN COUGHLIN AND JOHN SEXTON

An eminent jurist, al-Qādī al-Nuʿmān (c. 872-962) counts as a major figure in the development of the Islamic legal tradition, and his work concerning the legal schools’ conflicting principles of interpretation opens a window onto a sophisticated and erudite methodology for the interpretation and application of legal texts. Devin J. Stewart has translated one of the most significant texts of the Islamic legal tradition. Together with al-Shāfiʿī’s The Epistle on Legal Theory, translated in this same series by Joseph Lowry, this work acts as a conversation partner in the perennial dialogue about the question “What is law?” At a time when Islamic law is often disparaged in the popular media as gruesome and inhumane, editions and translations of these classical religious texts testify to the contribution of Muslim jurist to this fundamental question in legal theory and praxis.

The publication of Disagreements of the Jurists serves to remind us that law and religion have much in common as historical institutions and contemporary social phenomena. As with the other great religious traditions of the world, Islam has generated a vast legal literature of which al-Qādī al-Nuʿmān’s work is exemplary. He devoted his life to exploring issues such as the relation between revelation and reason, the development of law and the resolution of individual cases on the basis of that relation, the role of religious authority in the interpretation of law, the significance of prayer in understanding legal texts and affording just solutions to cases, the interpretation of legal texts through correct hermeneutics, the function of courts in resolving disputes and appeals from the decisions of such courts, the usefulness of legal education, and setting the optimal legal conditions in which the individual might prosper as a member of the community. Al-Qādī al-Nuʿmān’s efforts in the tenth-century Islamic world preceded the work of the medieval canonists of the Christian world starting in the twelfth century with the publication of Gratian’s Decretum. Harold Berman has posited that works of the medieval canonists denoted a “revolution” in law that laid the bedrock of the modern Western legal tradition. By making the text of Disagreements of the Jurists available to contemporary legal scholars, Stewart bolsters the case for the religious origins of modern legal institutions and structures. Along with Lowry’s rendition of al-Shāfiʿī’s The Epistle on Legal Theory, Stewart’s presentation of Disagreements of the Jurists retrieves an understanding according to which the power of law to bind derives not merely from positive law enacted by secular governments but also from the very nature of the human person as a social being.

Islamic legal theory shares with Judaism and Christianity certain theological characteristics which promise to enrich the contemporary discussion about law, the rule of law, and legal systems. Consider the relation between law and theology in terms of theological anthropology, the valuation of the historical, and the role of judgment. First, the shared theological anthropology portrays the creation of the human person as endowed with an inviolable dignity. The shared theology constitutes a transcendent predicate for the recognition of universal human rights. By affirming the goodness of material creation, the theology also elicits respect for the environment. The theology invites humanity to act, not as exploiters, but as wise stewards of the natural world. Second, in adopting an understanding of history as salvation history, the shared theology elucidates the relationship between law and history. God’s activity in history signifies that historical circumstances have meaning for law; in other words, law ought not to be reduced to a static set of rigid rules but must be interpreted in light of changing historical circumstances. Moreover, the theological valuation of history means that law’s function in shaping social, political and economic contexts remains dynamic and subject to critique. Third, the shared theology espouses an approach to judgment based on the integration of justice and mercy. It calls for law not focused solely on punitive retribution but on the possibility of reconciliation through conversion and compassion. The publication of the classical Islamic legal texts thus operates as a corrective to the dislocation of contemporary secular legal theory from its theological fonts which are gushing with creative and generative principles for a renewed understanding of law in an increasingly positivistic legal culture.

Classical Islamic texts such as the Disagreements of the Jurists exemplify the kinds of sacred literature that the late renowned comparative scholar Huston Smith described as constituting the “world’s wisdom.” The translation of this wisdom into the vernacular entails an exacting science and creative art that transcends mere equivalency in the challenge of communicating a dynamic meaning. Recent translations of the Sanskrit Upanishads into English by Patrick Olivelle, Vernon Katz, and Thomas Engles convey how the Hindu dharmas facilitate the sublimation of an individual’s private subjective desire to true human flourishing. Likewise, Edward Conze’s rendering of texts from Buddhism’s Pāli Canon has proved to be an invaluable resource for those who are interested crossing the river from the pain of dukkha into the compassion of nirvāna. In moving from Hebrew into English, the epic labors of scholars such as Jacob Shachter, Harry Freedman, Isidore Epstein, and Michael Rodkinson, to mention but a few, have endowed humanity with sources of rabbinic sagacity, prudence, good judgment, and pragmatism which is the Babylonian Talmud. The universal appeal of the Taoist doctrine about a return to naturalness and the complementarity of yin and yang have been made accessible to English readers by Stephen Mitchell’s translation of Lao-tzu’s Tao Te Ching. Arthur Walley performed a similar service in regard to The Analects of Confucius and the Chinese sage’s call for each individual to become a cultivated human being. Nor should one overlook the seminal work of Mircea Eliade in rendering into English the sacred texts of early peoples and his analysis of sacred time and sacred place as characteristic of human consciousness ab origine. Stewart’s translation extends to the reader an eloquent, enjoyable, and penetrating invitation to understand the richness of Islam and the enduring peace one may attain through submission to the divine mystery.

The world’s wisdom is, of course, not limited to religious texts. One need only think of the Loeb Classical Library which was originally endowed in 1911 by James Loeb, a German-born American philanthropist, and which is presently administered by the Harvard University Press. The initial volumes, edited and translated by T. E. Page, W. H. D. Rouse, and Edward Capps, were followed by the addition of many more volumes to the series. These early translations have been justly critiqued for sometimes bowdlerizing the original texts, and in recent years, the deceptive reversal of gender and expurgation of references to sexuality in the early translations have been corrected to reflect the original texts’ true meaning. The Loeb Classical Library has also been faulted on the ground of its minimal critical apparatus. By presenting the original Greek or Latin text on each left-hand page and an English translation on the facing page, the Loeb Classical Library has nonetheless made the literature of Greek and Roman antiquity accessible to the broadest possible audience, often to the delight of students if not to their teachers! Students and teachers alike will rejoice in the publication of Disagreements of the Jurists. Like the titles in the Loeb Classical Library, the paperback publication of Stewart’s work is an attractive, user-friendly, and approachable presentation of a time-honored text to a wide spectrum of English readers. At the same time, Stewart’s translation represents a painstaking and fruitful undertaking to present a reliable critical edition of the classical text in fidelity to all of the text’s secular and religious wisdom.

The significance of the publication of a paperback edition, such as that of al-Qādī al-Nuʿmān’s Disagreements of the Jurists, ought not to be underestimated. During the nineteenth century, a Catholic priest Jacque Paul Migne compiled three series of classical Christian texts known collectively as the Patrologiae cursus completus, consisting of the Patrologia Latina, 221 vols. (1844–55); the Patrologia Graeca, first published only in Latin (85 vols., 1856–57); and subsequently published with Greek text and Latin translation (165 vols., 1857–58). Fr. Migne founded a press, the Imprimerie Catholique, at Petit-Montrouge, in Paris’ 14th arrondissement in order to make the sacred texts available at affordable prices for clergy. In 1868, a devastating fire burned the Migne publishing enterprise to the ground, and following that disaster, Migne found his efforts condemned by the Archbishop of Paris, a censure that was approved by a Vatican decree expressly denouncing Migne for encouraging the clergy to spend their Mass stipends for the purchase of books. Despite these natural and hierarchical impediments, Migne’s contribution was consummated. Although critical and more accurate texts have supplanted the original cursus completus, Migne’s inexpensive and widely distributed texts initiated a scholarly and popular renaissance in the understanding of the Christian tradition. In contrast to the unsuccessful attempt to thwart Minge by the abuse of religious authority, the sponsorship of the NYU Abu Dhabi Institute and of its Library of Arabic Literature project epitomizes the enlightened dedication of resources in the dissemination of the Islamic intellectual tradition.

Prior to any pragmatic purpose, the paperback publication of Disagreements of the Jurists as a volume in Library of Arabic Literature advances the fundamental good of knowledge. To paraphrase Aristotle, owing to their wonder, human persons began to philosophize in order to escape from ignorance and not for any utilitarian end. Along with advancing a fundamental good, the publication of this classical Islamic text contributes to the development of legal theory that respects both unity and diversity in human experience, and it dispenses a healthy dose of sacred wisdom as a therapeutic cue of the spiritual sense of what it means to be fully human.

John Coughlin

Global Distinguished Professor of Religious Studies and Law, NYU Abu Dhabi, and Affiliated Faculty, NYU Law School

John Sexton

President Emeritus, New York University, and Benjamin Butler Professor of Law, NYU Law School