My colleague Professor Robert Gibbs (philosophy; dir. Jackman Humanities Institute) and I recently were awarded a grant to begin a 3 year project exploring reasoning in Islamic and Jewish law, and the implications of our findings for a philosophy of law more generally. I'd like to share our general proposal and methodological approach, and invite comments.
Our questions revolve around the general concern of the roles of reason and authority in interpreting and determining law in religious traditions. While the question of authority and reason arises in every legal culture, we propose to focus on these two traditions because of their explicit and extensive reflection on questions of reason, and in specific we will gain a sharper and in some ways more complex purchase on the questions by considering how jurists interwove resources that were intrinsically human, and so would be qualified as rational in their time, with both political and religious authority.
By looking at juristic and judicial practices, by following lines of interpretation that originate in revealed texts and flow through chains of multiple and evolving interpretations, we will be able to see bands of different relations between the authority of the revealed text and the reasoning of the community of scholars. In interpreting legal matters, human reason is not only required, but it also plays a contributing role in rationalizing, even in developing, the authoritative tradition. Indeed, the ideal is to discern precise the role of reason as internal to the legal religious traditions.
The set of issues we will consider arise in explicit discussions of political, juridical, and religious authority within traditional legal texts. A preliminary list of issues includes: 1) the role of judicial institutions: questions of adjudication, jurisdiction, and enforcement; 2) how the articulation of law defines boundaries of identity (both of the legal system and of the legal subject); 3) in what ways the history of law is made explicit in the legal traditions; 4) how are minorities (religious and otherwise, including their legal systems) treated in the two legal systems under study.
Close textual readings in a workshop is the method we propose for exploring the two traditions together. In cooperation with our participants, we will select a set of texts from each tradition that will include scriptural texts, early strata of interpretation, and later codified treatments. The goal would be to set up parallel strings of traditional texts, so that as we read through Jewish strings we could also see similar and different approaches in Islamic strings of texts. The method would require careful playing with the texts, and the exploration of the range of innovation in each interpretation.
The goal is not to find the common ground, but to find differences in parallel and overlapping legal contexts. The project involves reading together with scholars who are committed to the texts and to the ability of their texts to call for reasoning. Such reading together creates new possibilities in understanding both the other tradition and one's own.
Not only will the project yield new insights in Philosophy of Law, but we believe it will also help frame a new method for comparative studies.