Epistemic and dialectical meaning in Abū Isḥāq al-Shīrāzī’s system of co-relational inferences of the occasioning factor (original) (raw)
Related papers
One of the epistemological results emerging from this initial study, is that the different forms of co-relational inference, known in the Islamic jurisprudence as qiyās represent an innovative and sophisticated form of reasoning that not only provide new epistemological insights of legal reasoning in general but they also furnish a fine-grained pattern for parallel reasoning that can be deployed in a wide range of problem-solving contexts and that does not seem to reduce to the standard forms of analogical argumentation studied in contemporary philosophy of science. More specifically the main claim is that a dialectical framework provides the right instrument to stress three of the most salient features of this form of inference: (1) the interaction of heuristic with logical steps, (2) the dynamics underlying the meaning-explanation of the terms involved,(3) the unfolding of parallel reasoning as similarity in action. They display what we take to be the main epistemological idea behind the qiyās, namely: the open texture of the extension of normative statements subject to this kind of parallel reasoning. In the present paper we will only discuss the case of so-called co-relational inferences of the occasional factor. The other kinds of inferences will be studied in a second paper.
One of the epistemological results emerging from this initial study is that the different forms of co-relational inference, known in the Islamic jurisprudence as qiyās, represent an innovative and sophisticated form of reasoning that not only provides new epistemological insights into legal reasoning in general but also furnishes a fine-grained pattern for parallel reasoning which can be deployed in a wide range of problem-solving contexts and does not seem to reduce to the standard forms of analogical argumentation studied in contemporary philosophy of science. in the present paper we will discuss the case of so-called co-relational inferences by indication and ressemblance. More precisly, in the present paper we focus on the ways to transfer a juridical ruling to a new case when the ratio legis is not present.
: One of the epistemological results emerging from this initial study, is that the different forms of co-relational inference, known in the Islamic jurisprudence as qiyās represent an innovative and sophisticated form of reasoning that not only provide new epistemological insights of legal reasoning in general but they also furnish a fine-grained pattern for parallel reasoning that can be deployed in a wide range of problem-solving contexts and that does not seem to reduce to the standard forms of analogical argumentation studied in contemporary philosophy of science. More specifically the main claim is that a dialectical framework provides the right instrument to stress three of the most salient features of this form of inference: (1) the interaction of heuristic with logical steps, (2) the dynamics underlying the meaning-explanation of the terms involved,(3) the unfolding of parallel reasoning as similarity in action. They display what we take to be the main epistemological idea behind the qiyās, namely: the open texture of the meaning of normative statements subject to this kind of parallel reasoning.
Unfolding Parallel Reasoning in Islamic Jurisprudence
Arabic Sciences and Philosophy
One of the epistemological results emerging from this initial study is that the different forms of co-relational inference, known in the Islamic jurisprudence as qiyās, represent an innovative and sophisticated form of reasoning that not only provides new epistemological insights into legal reasoning in general but also furnishes a fine-grained pattern for parallel reasoning which can be deployed in a wide range of problem-solving contexts and does not seem to reduce to the standard forms of analogical argumentation studied in contemporary philosophy of science. However, in the present paper we will only discuss the case of so-called co-relational inferences of the occasioning factor and only in the context of Islamic jurisprudence.
This paper will examine an important group of illegitimate moves involving causal properties as identified by Medieval Muslim jurists in the intertwined domains of legal theory (uṣūl al-fiqh) and dialectic (jadal). More precisely, we will focus on discussions around the dialectical objection called kasr, or “breaking,” which deliberate the proper and improper paths to challenging and defending a correlational argument (qiyās) in which the ratio legis (ʿilla) of the source-case’s ruling is a compound of two or more properties. In the present study, we will therefore restrict our analyses to the relevant discussions of two 11th century CE theorists: the renowned Shāfiʿī jurist Abū Isḥāq al-Shīrāzī (d. 1083) and his equally prominent one-time pupil, the Mālikī jurist Abū al-Walīd al-Bājī (d. 1081), who each elaborated two main pathways to “breaking” an opponent’s compound ʿilla. Moreover, we will confront the fallacious modes they denounce with forms of deontic paradoxes and puzzles which we group under the name logical extrapolation fallacy. Our primary claim is that whereas logical extrapolation produces fallacies or paradoxes by unsafely applying inference rules of standard alethic and/or logical necessity to the deontic realm, the fallacies generated by invalid modes of kasr in Islamic legal theory (wherein logical rules are expressed dialectically) constitute a genuine source for reflecting on what patterns of reasoning should be endorsed for determining causality in Law—and, perhaps, more generally, also for establishing causality in certain natural (as opposed to normative) epistemological contexts. Translations of the original Arabic sources relevant to this study are included in an appendix. Ultimately, the current paper is the first step towards a larger study of kasr, which will encompass both a comparison between kasr and other dialectical objections and analyses of critical discourses from later Muslim legal theorists and dialecticians.
Nowadays, there is a quite considerable amount of literature on the use of analogy or more generally of inferences by parallel reasoning in contemporary legal reasoning, and particularly so within Common Law. These studies are often motivated by researches in artificial intelligence seeking to develop suitable software-support for legal reasoning. Recently; Rahman/Iqbal/Soufi (2019) developed a dialogical approach in the framework of Constructive Type Theory to what in Islamic Jurisprudence was called qiyās or correlational inferences. In their last chapter the authors suggested that such an approach contributes to the study of patterns of reasoning by precedent cases within contemporary common Law. In the present paper we will further motivate the deployment within Civil and Common Law of the dialog-ical framework developed. After a presentation of Scott Brewer's take on analogy within Common Law, that has striking structural similarities to reasoning by precedent case rooted in ratio legis (known in Islamic Jurisprudence as qiyās al-'illa or correlational inference by the occasioning factor), we will illustrate the implementation of the framework with a brief discussion of some cases of legal reasoning based in Spanish Civil Law but where the accent is put in the emerging ruling rather than in the existing of a case as in Common Law. Moreover; quite surprisingly, the case under study suggests that even cases of Law-interpretation fit the argumentation pattern of qiyās al-'illa. The present paper is a follow up of the paper "Parallel Reasoning by Ratio legis in Contemporary Jurisprudence. Elements for a Dialogi-cal Approach" by M.-D. Martínez Cazalla, T. Menéndez & S. Rahman (2020). More precisely the present paper works out the details of the dialogical structure studied in by M.-D. Martínez Cazalla, T. Menéndez & S. Rahman (2020). Spelling out the dialogical structure stresses the reasoning patterns shared by classical Islamic Jurisprudence and contemporary Law.
Parallel Reasoning by Ratio Legis in Contemporary Jurisprudence. Elements for a Dialogical Approach
2019
Nowadays, there is a quite considerable amount of literature on the use of analogy or more generally of inferences by parallel reasoning in contemporary legal reasoning, and particularly so within Common Law. These studies are often motivated by researches in artificial intelligence seeking to develop suitable software-support for legal reasoning. Recently; Rahman/Iqbal/Soufi (2020) developed a dialogical approach in the framework of Constructive Type Theory to what in Islamic Jurisprudence was called qiyās or correlational inferences. In their last chapter the authors suggested that such an approach contributes to the study of patterns of reasoning by precedent cases within contemporary common Law. In the present paper we will further motivate the deployment within Civil and Common Law of the dialogical framework developed in Rahman/Iqbal/Soufi (2020). After a presentation of Scott Brewer's take on analogy within Common Law, that has striking structural similarities to reasonin...
Elements for a Dialogical Approach on Parallel Reasoning. A Case Study of Spanish Civil Law
Logic, Argumentation & Reasoning, 2021
Nowadays, there is a quite considerable amount of literature on the use of analogy or more generally of inferences by parallel reasoning in contemporary legal reasoning, and particularly so within Common Law. These studies are often motivated by researches in artificial intelligence seeking to develop suitable software-support for legal reasoning. Recently; Rahman et al. (2019) developed a dialogical approach in the framework of Constructive Type Theory (CTT) to what in Islamic Jurisprudence was called qiyās or correlational inferences. In their last chapter the authors suggested that such an approach contributes to the study of patterns of reasoning by precedent cases within contemporary Common Law. In the present paper we will further motivate the deployment of the dialogical framework developed within Civil and Common Law. After a presentation of Scott Brewer's take on analogy within Common Law, that has striking structural similarities to reasoning by precedent case rooted in ratio legis (known in Islamic Jurisprudence as qiyās al-'illa or correlational inference by the occasioning factor), we will illustrate the implementation of the framework with a brief discussion of some cases of legal reasoning based in Spanish Civil Law, but where the accent is put in the emerging ruling rather than in the existing of a case as in Common Law. Moreover; quite surprisingly, the case under study suggests that even cases of Law-interpretation fit the argumentation pattern of qiyās al-'illa. The present paper is a follow-up