Alice's Adventures, Abductive Reasoning and Islamic Thought

Int J Semiot Law (2016) 29:359–388
DOI 10.1007/s11196-016-9459-8
Alice’s Adventures, Abductive Reasoning and the Logic

of Islamic Law
Valentino Cattelan1
Published online: 4 February 2016

© Springer Science+Business Media Dordrecht 2016
Abstract How does a Muslim jurist think the law and how, accordingly, he judges
a fact? Using Alice in Wonderland as hermeneutical device to explore the logic of
fiqh, this article identifies a divergence between Western and Islamic legal thinking
in the application of abduction as key form of inference in the law of Islam. In
particular, looking at the fact/law relation in symbolic terms, the article highlights
how, while a dichotomy between fact and law characterizes Western legal thinking,
fiqh upholds a connection between the “real” and the “right” (ḥaqq), where the
effort (ijtihād) in understanding sharī‘ah postulates the actualization of the “rule”
(ḥukm) in God’s creation. Thus, if sharī‘ah pre-scribes the Law, not only is the rule
discovered through the sources (uṣūl), but the right has to be justified through a
verdict de-scribing the fact, for the law to be validly stated for the given situation. In
this sense, abduction as explanatory “hypothesis” (Peirce) and “inference to the best
explanation” (Harman) of sharī‘ah provides an account for the probabilistic nature
of fiqh, its ramification (furū‘) through verdicts, as well as for the epistemic and
narrative function of the tradition as core aspects of the logic of Islamic law. At the
same time, doubts can be raised about the compatibility between this logic and the
deductive logic of modern state law, as a sub-product of Western legal thinking.
Keywords Islamic law · Fiqh · Semiotics · Logic · Legal reasoning · Abduction
This article is based on ideas that I originally presented in 2014 under the title Beyond Islamic Law:
Analogy, Dialectics and Dialogue, at three seminars held at the University of Oxford (respectively at the
Centre for Socio-Legal Studies, the Oriental Institute and the Oxford Centre for Islamic Studies) and at
the workshop The Shari‘ah Project (Institute of Arab and Islamic Studies, University of Exeter). I wish to
thank all the participants in these events for their helpful feedbacks, Dr. Rafat Y. Alwazna for his
editorial work, and an anonymous reviewer for his comment on the text.
& Valentino Cattelan

cattelanvalentino@libero.it
1
University of Florence, Florence, Italy
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360 V. Cattelan
1 [Who stole the tarts?] Alice, Semiotics and the Muslim Jurist
Lewis Carroll’s Alice’s Adventures in Wonderland [8], as a book written for

children’s delight, is far from being a simple novel. Rather, all its riddles, non-sense
anecdotes, linguistic puns and games of words may render the reading a thought-
provoking, while enjoyable, enterprise even for adults.1
Mentioning Alice as opening reference in an article dealing with legal semiotics
may appear at a first glance inappropriate. Even worse, eyebrows may rise (and I
suspect they will do, on some conservative faces) if Alice is put close to Islamic
law, and more precisely to the logic underpinning the “understanding” (fiqh) of
sharī‘ah as the distinctive manifestation of Muslim normativity.
As a matter of fact, Alice has never been quoted in Islamic law literature: but, in
principle, this is not a good reason to reject Carroll’s novel as a valuable reference
(being, if anything, possibly true the opposite). So, why Alice in Wonderland?
First of all, Alice can help in clarifying the objective and methodology of this
article.
As far as its purpose is concerned, the present study aims at investigating the
logic of Islamic law by examining how a Muslim jurist (the expert of fiqh: faqīh, pl.
fuqahā’) thinks the law and, accordingly, judges2 a fact; and how, by thinking the
fact, he subsequently states (finds?) the (a?) law for the given situation.
Far from being a game of words by the Mad Hatter, the fact/law symmetrical
relation provides an immediate link to semiotics as methodological framework for
this article. Assuming that law and fact are necessarily intertwined in any legal
judgement, this study focuses on the logic of Islamic law as pragmatics of a subject-
in-action, the Muslim jurist, where the syntax and the semantics of the langue are
embodied in the parole, and the subject is both recipient and performer of fiqh-
language.
The study of the logic of fiqh from a semiotic perspective, in the light of how a
Muslim jurist thinks the law (/the fact) by judging a fact (/stating a law),
differentiates this article from much of existent scholarship on Islamic law.
This literature has usually overlooked the role of the Muslim jurist as subject-in-
action. To a certain extent, by replicating the langue of Western law as “language-
source” to compare the “target”,3 the parole of the Muslim jurist has been often
marginalised. To make up for this hermeneutical limit, this article departs from
classic tòpoi of mainstream comparative scholarship. Consequently, it is not the
1
As well-known, Lewis Carroll (pseudonym of Charles Lutwidge Dodgson, 1832–1898), wrote his novel
to collect the fantasy stories that he invented for little Alice Liddell during a boat trip in Oxford. For a
comprehensive portrait of Alice’s world, see Gardner [14].
2
The verb “to judge” is used here in the sense of “assessing”, “evaluating” the fact in order to define its
legal qualification and derive/discover the legal effects from the revealed sources. The intellectual activity
of the Muslim jurist can result in a legal opinion (fatwā) or be related to the judiciary, when he acts as
qāḍī.
3
The adoption of Western law as “study-language” to investigate non-Western “targets” constitutes, in
my opinion, the issue par excellence of comparative law methodology. In this sense, Norman Calder notes
how “Western scholarship (even when written by Muslims) has rarely presented Islamic law in such a
way as to demonstrate its value rather than the values of the observer” [7, p. 979].
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Alice’s Adventures, Abductive Reasoning and the Logic of… 361
theory of Islamic law (the so-called uṣūl al-fiqh, the “roots of jurisprudence” [e.g.
43, 52]) or its substantive law (furū‘al-fiqh, the “branches of the law”) to be under
investigation in these pages. Neither they refer to the dialectics between theory and
practice embedded in the opposition between “law in books” and “law in action” (i.
e. official/positive law vs. socio-legal reality).4
Rather, it is what Behnam Sadeghi has recently described as the “process of
reasoning in Islamic law” [44, p. i] to be at stake when dealing with the logic of fiqh.
Notwithstanding, the object of this study differentiates from Sadeghi’s for at least
three reasons. First, Sadeghi’s research involves aspects of legal history and
sociology that are not examined in these pages. Second, while his book concentrates
on the Muslim jurist as producer of the “law”, this article explores the semiotics of
fiqh also by looking at the “Law” as only God’s prerogative in Islam (§ 3). Third, if
Sadeghi’s work focuses on Muslim fiqh as “actual postformative legal interpreta-
tion” in the furū‘ genre [44, p. 35], this article rather refers to the subject-in-action
and his reasoning in-between the uṣūl and the furū‘ (§ 4).
‘Then you should say what you mean,’ the March Hare went on.
‘I do,’ Alice hastily replied; ‘at least – at least I mean what I say – that’s the
same thing, you know.’
‘Not the same thing a bit!’ said the Hatter. ‘Why, you might just as well say that
‘I see what I eat’ is the same thing as ‘I eat what I see’!’.
The vivid remark by the March Hare and the sarcastic pun by the Mad Hatter
suggest that one should reasonably cope with the dilemma “to say what he means”.
What this introduction intends “to say” is that looking either at the fact or the law
may hinder a full comprehension of the logic of fiqh as pragmatics of a subject-in-
action: this “means” that, in order to outline the specific mode of reasoning of the
Muslim jurist (both recipient and performer of fiqh-language), his logic has to be
located, on the contrary, in the fact/law interplay.
Apart from the Hare’s and the Hatter’s help in defining the object of this study,
another and more significant reason justifies the reference to Alice’s Adventures.
This reason is to be found at chapters XI–XII, where a trial is set up to judge the
theft of the Queen’s tarts.
… a cry of ‘The trial’s beginning!’ was heard in the distance.
‘Come on!’ cried the Gryphon, and, taking Alice by the hand, it hurried off…
In the court, the King and the Queen of Hearts are seated on their thrones, the Knave
of Hearts standing before them, accused of the theft, in chains, with a soldier on
each side to guard him. The White Rabbit, blown three blasts on his trumpet, reads
the accusation:
‘The Queen of Hearts, she made some tarts,
All on a summer day:
4
Following the Austro-Hungarian scholar Eugen Erlich, the sociological approach theorizes the likely
divergence between the theory and practice of law. In this regard, Palmer remarks how “Roscoe Pound’s
essay on Law in Books and Law in Action immediately followed Erlich’s work and Max Weber stressed
that formal law is often modified or subverted at the level of application” [39, p. 283].
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362 V. Cattelan
The Knave of Hearts, he stole those tarts

And took them quite away!’
Using Alice’s trial as hermeneutical device, this study will attempt to explain the
logic of fiqh from a semiotic perspective, postulating a divergence between Western
and Islamic law in their respective modes of legal inference.
To this aim, § 2 will reflect on the application of semiotics in comparative studies
by looking at law as a specific language, a symbolic system developing the fact/law
interplay.
After that, § 3 will focus on the semiotics of fiqh. Here, the paradigm of the
divine creation in Islam (§ 3.1) will be linked to a “distinctive manner of imagining
the real” where the effort (ijtihād) of understanding sharī’ah requires the jurist to
think the “right” (ḥaqq) as a “rule” (ḥukm) whose effects are to be defined in
connection with the fact (§ 3.2).
§ 4 will employ Alice’s trial to characterize the logic of fiqh in terms of
abduction, in the light of Peirce’s notion of “hypothesis” (§ 4.1) and Harman’s
description of “the inference to the best explanation” (§ 4.2.2). In particular, the
article will show how, to the extent to which the trial appears paradoxical to Alice
(whose legal mind, we suppose, is a Western one), its abductive procedure actually
works in the logic of fiqh, and can clarify why if only sharī‘ah pre-scribes the
“Law”, the right has to be justified through a verdict de-scribing the fact for the
“law” to be validly stated by the jurist. In this frame, abductive reasoning will
provide an account for the probabilistic nature of fiqh (§ 4.2.1), its ramification
(furū‘) through verdicts (§ 4.2.3), as well as for the epistemic and narrative function
of the tradition (§ 4.2.2).
§ 5 will conclude the study with some considerations on the interaction between
Islamic fiqh and state law in contemporary Muslim societies by commenting on their
supposed incompatibility, as recently theorised by Wael B. Hallaq [19]. In
particular, keeping an eye on Carroll’s novel, it will be the Cheshire Cat to provide
some advice on this topical issue.
2 [‘Consider your verdict’…] Comparative Law and Semiotics:

Uncovering the Fact/Law Dialectics in Symbolic Terms
Some lines above, we left the White Rabbit reading the accusation of theft.
Immediately after that, while the King of Hearts is inviting the jurors (twelve
creatures, as Carroll informs us) to deliver the verdict, his voice promptly reacts.
‘Consider your verdict,’ the King said to the jury.
‘Not yet, not yet!’ the Rabbit hastily interrupted.
‘There’s a great deal to come before that!’
Indeed, “a great deal” has still to be examined with regard to the intersection
between comparative law and semiotics when dealing with Muslim fiqh.
While in the theory/practice dialectics legal phenomena are often conceptualized
either as abstract categories or social facts, by opposing the “ideal” law-in-books to
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the “real” law-in-action [49, pp. 43–44], in comparative scholarship a more sensible
interconnection between the abstract and the empirical appears in Patrick Glenn’s
well-known description of the “legal tradition” as “information transmitted through
generations” [16]. Around 20 years before Glenn, it was cultural anthropologist
Clifford Geertz to conceive law as “part of a distinctive manner of imagining the
real” [15, p. 184], a language, a system of symbols and meanings. His approach was
mirrored by Sally Engle Merry’s definition of legal phenomena as “keys to
understanding the social institutions and cultural formulations that surround them
and give them meaning” [34, p. 886]. If one looks at law as “a cultural code for
interpreting the world” [ibidem], “then the whole fact/law problem appears in an
altered light. The dialectic… between brute fact and considered judgment, between
what is so and what is right, turns out to be between… a language, however vague
and unintegral, of general coherence and one, however opportunistic and
unmethodical, of specific consequence” [15, p. 184].
Embracing this approach by looking at the dialectics fact/law as a “language”, a
symbolic system, the challenge of legal comparison becomes a fruitful arena for
semiotics.
In fact, if “legal facts” are never “simple” facts (but facts that have been shaped
according to a “distinctive manner of imagining the real”), then any “legal
language” creates its own “legal reality”. Hence, not only as Kelsen pointed out
“just as everything King Midas touched turned into gold, everything to which the
law refers becomes law, i.e., something legally existing” [27, p. 161], but different
legal languages produce alternative “legal realit-ies”.
Nevertheless, the conceptualization of the fact/law relation in symbolic terms is
far from easy to be recognized within a certain legal reality. On the contrary, “[j]ust
as fish always in the sea have no consciousness of being wet, scholars always
immersed in the ocean of their own normative order may well be unaware that this
order permeates the very conceptual tools that they use to understand each other” [3,
p. 31]. As Boaventura de Sousa Santos highlights,
[b]ecause people are permanently (even if inconsistently) socialised and
acculturated in the types of scale, projection, and symbolisation that are
characteristic of… [their own] legal order, they refuse to recognise as legal
those normative orders that use different scales, projections, and symbolisa-
tions. Some… legal orders are too close to everyday reality to be viewed as a
fact of law (a legal fact). Other… legal orders are too remote from everyday
reality to be viewed as a law of fact (a legal fact) [45, p. 298].
It is indeed within the fact/law interplay that, paraphrasing the White Rabbit,
“there’s a great deal” in “targeting” the logic of fiqh, due to the risk of replicating
the logic of Western law as “language-source” (see here, note 3). To cope with this,
semiotics can offer precious methodological guidance to free Western scholars from
their “normative ocean”.
As well-known, while the first definition of semiotike as “the doctrine of signs”
(from the Greek sēmeiōsis, “the action of the sign”) dates back to John Locke
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364 V. Cattelan
(1632–1704),5 the birth of contemporary semiotics is largely related to two great

protagonists: Swiss linguist Ferdinand de Saussure (1857–1913) and American
philosopher Charles Sanders Peirce (1839–1914).
In his Cours de linguistique générale [46], Saussure presented a dyadic model of
the sign, composed of a “signifier” (signifiant)—the form of the sign: words,
images, acts…—and a “signified” (signifié)—the concept to which the sign refers—.
In his view, there is no arbitrariness in the relation sign-referent (what the sign
denotes); to be arbitrary, as a result of a convention between the community
members, is the relation, internal to the sign, between signifier and signified, which
is the proper subject-matter of semiology. To describe the interconnection between
the abstract and the empirical levels of a language, Saussure introduced the
fundamental dyad langue and parole, where the langue represents the system of the
language, and the parole its concrete usage in social life.
Differently from Saussure, Peirce [41; see also 28] proposed a triadic model of
the sign, involving a representamen (the form of the sign), an interpretant (the sense
made of the sign) and an object (the mental representation of something to which the
sign refers). As in the Saussure’s dyadic scheme, the referent remains external to the
triadic model, but in Peirce’s elaboration the final meaning is always the result of a
series of successive interpretants, whose never-ending combinations give rise to the
language as a system of signs,6 and the interpreter enriches each sign with further
signification.
The semiotic description of law as a language, a symbolic system, makes the fact/
law interplay more manageable.
The Saussurian couple langue and parole, in particular, proves helpful in
describing the dual nature of laws-as-languages where the langue-s materialize in
the parole-s of the subjects-in-action. Each law-as-language consists of signs, which
are usually words taken from natural languages but also symbols, practices, rituals.
The peculiarity of these signs is to incorporate a certain “legal reality”, whose fact/
law relation becomes difficult to uncover in comparative terms if one maintains his
own “language-source”. Indeed, if each legal language creates its own legal reality,
a “fish always in the sea” can hardly have a comparative view on other oceans of
meaning: underestimating the semiotic distance between different legal realities can
easily lead to misperceptions of foreign legal languages, where the relation fact/law
is conceived in a different way from the language-source.
In the end, only by looking at the Muslim jurist as subject-in-action with his own
“distinctive manner of imagining the real” and managing the fact/law interplay in
his own symbolic terms, the logic of fiqh can emerge from the depth of comparative
sea.
5
A doctrine dealing with “the nature of signs the mind makes use of for the understanding of things, or
conveying its knowledge to others” [30, p. 461].
6
In fact, “the representamen and its semiotic object are mediated by a third term, the interpretant. As a
result of such mediation, the sign takes on value, meaning, and importance as a representamen doing its
thing along with its neighbors within the vast river of semiosis—the process of signs becoming other
signs” [33, p. 34].
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3 [… ‘There’s a great deal to come’] Who is the Muslim Jurist? Thinking

the Law According to the Semiotics of Fiqh
The “great deal to come” announced by the White Rabbit involves another issue.
If “law” is “part of a distinctive manner of imagining the real” (Geertz), “a
cultural code for interpreting the world” (Merry), who is the Muslim jurist as subject
imagining the real?
Of course, any attempt to look for an abstract definition of the Muslim jurist
would be contradictory; and, since the logic of Islamic law has been deeply affected
by the rise of the modern state in Muslim societies in the last two centuries, one
could also argue that even the nature of the faqīh has radically changed from the
past of pre-modern tradition. While in the tradition, in fact, fiqh was intended as “a
system of ethical and juristic norms… whose authors consider it to be the normative
interpretation of the revelation” [24, p. 1], “state Islamic law” departs from this
definition for many reasons. This is not to deny that also in the past the
interpretations of the fuqahā’ have historically satisfied different functions,
providing standards for the judiciary, as well as acting as instrument of legitimacy
for political rulers.
Fiqh… is, from the eighth century of our era onwards, increasingly viewed as
providing the judiciary with the standards for judgements… Insofar as the
judiciary… is controlled by the caliphs […], the specialists of fiqh and the
norms developed by them acquire an increasing importance in the political and
religious culture of the ‘Abbāsid caliphate (750–1258 C.E.) [24, p. 3].
As much as the employ of fiqh normative solutions taken in contemporary Muslim
states find precedents in the history of Islamic law, new political issues are emerging
today, that will find proper consideration later on (§ 5).
In this article, at any rate, the logic of fiqh will be specifically intended as that
symbolic system (§ 2) through which the faqīh moves in-between the “sources”
(uṣūl) and the body of “substantive law” (furū‘al-fiqh), according to specific modes
of logical inference that will be clarified at § 4. In other terms, without denying that
the subject-“Muslim jurist” has historically acted not only as interpreter of God’s
will, but also as judge, arbiter, legal consultant for the ruler, adviser to private
parties, bureaucrat, and so on, our attention will be focused here on the practice of
fiqh as the “science of proofs” of God’s revelation.7
As much as this choice implies a simplification, it has the advantage to offer a
convenient definition of the Muslim jurist as the specialist of the normative
interpretation of the revelation. The faqīh moves in-between the uṣūl to the furū‘ for
the assessment of the fact, receiving and performing the logic of fiqh as subject-in-
action: in the following pages the symbolic relation fact/law will be investigated
with regard to this subject.
7
“From the perspective of the Muslim jurist, legal theory can be regarded as the “science of proofs”,
leading to standards that regulate human actions. These standards derive primarily from a discovery… of
the aḥkām, the qualification… or, more specifically, God’s determination of the moral value of individual
acts” [50, p. 33].
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3.1 Fiqh and the Qur’ānic Creator Paradigm
While Islamic theological knowledge (kalām) upholds the authority of rational

arguments in understanding God [24, p. 3], fiqh follows the opposite direction in
deriving norms for human acts from the authority of the revelation. In “the
disciplined search for the ḥukm (determination, assessment, ruling, judgement) that
is appropriate to a given situation or act” [42, p. 188; italics added], human intellect
follows, never precedes, divina voluntas.
The divina voluntas is the logical prius of the disciplined search for the ḥukm
performed by the faqīh, as God rules any event occurring in the world. The absolute
freedom and extension of God’s will as sovereign of all the universe is well
summarized by Ian Richard Netton in the “Qur’ānic Creator paradigm”, which
“embraces a God who (1) creates ex nihilo; (2) acts definitely in historical time; (3)
guides His people in such time; and (4) can in some way be known indirectly by His
creation” [36, p. 22].
(1) (2) In Islam, not only is God the sovereign of all the universe, but also the
original owner of all that He creates.8 Human actions are part of His creation, and
the human being becomes God’s agent in acquiring (kasb, iktisāb) the action created
by God. More precisely, the action comes into existence through a co-existensive
occasion (sabab) that brings human duty, as well as the corresponding right, into
effect. It is indeed the “real” created by God that brings the “right” into effect9: thus,
the right (ḥaqq), as the outcome of God’s Rule (ḥukm), connects His eternal
creativeness to human agency in historical time.10 It is in this light that fiqh
semiotics sees time as a series of events, where the occasional reason (sabab) for the
coming-to-be entails the legal qualification (ḥukm) to be discovered through the
juridical proofs provided by the revelation.
(3) (4) The complementary truths of God’s omnipotence (as the only Actor) and
human responsibility (as God’s agency) find their reconciliation in the revelation of
sharī‘ah (literally, “the road leading to water”: Q. XLV:18). But, although God has
given the right Path, it depends on men to recognize the Guidance through their
endeavour (ijtihād). In this sense, “for the Muslim the whole religion itself is in a
very real sense a synonym of God’s guidance: Islam is “being rightly guided”” [36,
pp. 24–25]. Anyway, the clarity of the Truth does not mean that it is manifest, and
ilm al-fiqh (literally “science of understanding”) is the discipline specifically aimed
at making manifest God’s will as clearly revealed in the Qur’ān and exemplified by
8
“To Him is due the primal origin of the heavens and earth. When He decreeth a matter, He saith only
“Be,” and it is” (Qur’ān II:117) (see also Qur’ān III:47, 59; VI:73; XVI:40; XXXVI:82; XL:68). In this
sense, the word “will” is also expressed by “the term mashī’ah, “volition”, and so it is that the word shay’,
“thing”, deriving from the same root, is sometimes glossed as “what has been willed [by God] to exist”
[38, p. 192].
9
“The occasion is, of course, preceded by an order to do something. But… it is nevertheless the occasion
that brings the duty into effect and not the command” [42, p. 197].
10
The dogma of the absolute sovereignty of God is linked to an atomistic conception of time, inserting
the flow of human contingent agencies in the eternal creativeness of God. Accordingly, al-Ghazālı̄ upheld
that “the world comes to be at the time when the eternal… stands in nexus with its coming-to-be” [38,
p. 193]. God’s personal command, “Be! and it is” (kun fa-yakūn) governs any event in time: “Allāh is the
Lord of each instant” [5, p. 58].
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the Prophet (sunna). To discover God’s will, Islamic jurisprudence follows an array
of principles, the so-called uṣūl al-fiqh, which consist of “the aggregate… of legal
proofs and evidence that… will lead either to certain knowledge of a sharī‘ah ruling
or to at least a reasonable assumption concerning the same” [4, p. 2]. Since any
human occurrence is a sign of God’s creativeness, each event, although not directly
regulated in the two textual uṣūl (Qur’ān and sunna), can be seen as manifestation of
God’s intent, on which the scholars can reach an interpretive consensus (ijmā‘). The
assessment of a new case may also lead to the search for the underlying ‘illa (the
efficient reason for the legal effect), that justifies the transference of the judgement
from a precedent through analogy (qiyās).
In this sense, the law of Islam does not acquire any conclusive knowledge on
God’s will, but is aimed at discovering the connection between His will and His
creation through a “hermeneutic discipline which explores and interprets Revelation
[…] (within the) tradition” [7, p. 980]. In this process of understanding, it is the
constant effort (ijtihād) of the jurists to represent the “dynamic, forward-looking
component of the law” [1, p. 244].
3.2 The Right (Ḥaqq) as Rule(Ḥukm)-in-the-Real
If any fact is the direct outcome of God’s creativeness, His sovereign ruling (ḥukm,
pl. aḥkām) acquires a specific dimension from a semiotics perspective.
Ḥukm (that can be translated in English into (legal) ruling, rule, but also decision,
verdict, status, qualification, judgement) [51] derives from the Arabic root Ḥ-K-M,
meaning “to sentence”, “to order”, “to rule”, and implying a divine judgement on
the ontological status of human actions. In view of that, Al-Ghazālı̄ explains in his
al-Mustaṣfā (The Quintessence), that “a rule (ḥukm)… denotes the dictum of the
revelation when it is linked to the acts of those made responsible” [quoted in 35,
p. 9]: in other words, the rule is the result of God’s will over the person responsible
(mukallaf) for the action he acquires. The ḥukm, as the “legal consequence of the
facts of a case” [51], shapes a universe which “doesn’t subsist unless by an eternal
creation” and where “everything depends, in any instant, on the completely free will
of God the creator” [9, pp. 7–8].
If everything depends on God’s will, whose rule (ḥukm) establishes the status of
the human act, the “rights” (ḥuqūq, sing. ḥaqq) are the means thanks to which God
realizes (in the proper sense of “making real”) the (de-)ontological status of the
action established by the rule (ḥukm). Thus, the term ḥaqq, stemming from the
Arabic root Ḥ-Q-Q, whose primitive meaning was “to carve” (on the wood, the
metal or the stone), holds a series of connotations about “being real”, but also “true,
legal, right, correct”. As much as the primary meaning of ḥaqq is “established fact”
or “reality” (al-mawjūd al-thābit), in the field of law its dominant meaning becomes
“right” as “something true” or “that which corresponds to facts” [26, p. 342]. “To
sum up, the meanings of the root Ḥ-Q-Q, from that of the ‘carved’ statute, valid and
permanent, have extended to the ethical concepts of legal and real and right and
true, and developed till including the divine and spiritual reality” [32, p. 85].
Within the peculiar semiotics of fiqh where human agency reflects God’s
sovereignty, the ḥukm and the ḥaqq merge in a divine creation established in the
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“rule” and realized by the “right”. In this light, Clifford Geertz recognizes the
interdependence ḥukm-ḥaqq in Islamic legal thinking pointing out how the notion of
ḥaqq entails
a vision of reality as being in its essence imperative, a structure not of objects
but of wills. The moral and ontological change places, at least from our point
of view. It is the moral, where we see the “ought”, which is a thing of
descriptions, the ontological, for us the home of the “is”, which is one of
demands. […] The “real” here is a deeply moralized, active, demanding real,
not a neutral, metaphysical “being”, merely sitting there awaiting observation
and reflection; a real of prophets not philosophers [15, pp. 187–188].
In a reality holding legal/ethical connotations as materialization of God’s will, the
distinction fact-law loses the relevance that it has in Western legal thinking.
While the “real” becomes in its essence imperative, a structure of revealed
assertions (aḥkām), the “right” (ḥaqq) is essentially empirical: in Merry’s words, “in
Islamic legal sensibility, to determine the empirical situation is to determine the
jural principle. Facts, in other words, are normative; there is no fact/law dichotomy”
[34, p. 886]. In the semiotics of fiqh, the moral and ontological change places: the
legal/moral/deontological (where we see the “ought”) is de-scribed “in the fact” as
fiqh “law”; the real/ontological (for us the home of the “is”) is pre-scribed “in the
sharī‘ah” as God’s “Law”. Hence, the “right” (ḥaqq) identified by fiqh law (as an
interpretation of God’s Law) becomes empirical, casuistic, distinctive of the de-
scribed fact as “rule”(ḥukm)-in-the-real: and “the energies that, in the Western
tradition, have gone into distinguishing law from fact and into developing
procedures to keep them from contaminating one another have, in the Islamic
[tradition], gone into connecting then, and into developing procedures to deepen the
connection” [15, p. 195].
It is exactly by thinking the “right” as “rule”-in-the-real that, if on the one side
the pre-scription (ḥukm) of the Law is discovered through the revealed juridical
proofs (uṣūl), on the other side the jurist has to justify the right (ḥaqq) through a
verdict de-scribing the fact in the furū‘, for the (a) law to be validly stated (found)
for the given situation.
4 [Alice’s evidence] Finding a Law for the Given Fact: Islam,

Law-Making and Abductive Reasoning
“… [T]he distinction between Is and Ought in modern law… can never obtain in
any form of Islamic governance […] In premodern Islamic tradition and its
discourses, … Is and Ought and fact and value being one and the same” [19, p. 82].
Wael B. Hallaq’s words reaffirm the fact/law identity in the law of Islam,11 while
11
Similarly to Geertz, Hallaq stresses how in Islam “the physical world is not a scientific site subject to
cold and bland rational explanation and calculation but rather a natural world saturated with spirituality
and psychology, one wholly subservient to moral actions taken by the very humans that were created by
God” [19, p. 84].
123
introducing a dialectics between the “tradition of fiqh” and the “modernity of state
Islamic law” to which this article will refer at § 5.
But, at this point, time has finally come to attend Alice’s trial. In particular,
chapter XII of Carroll’s novel offers precious hermeneutical hints to disclose how,
far from Western law thinking, abduction constitutes the key form of inference in
the logic of fiqh.
Hence, after denoting the meaning of abduction (“hypothesis”) in Peirce’s
scholarship (§ 4.1), the article will follow Carroll’s novel, underlining how, to the
extent to which the trial appears paradoxical to Alice, its procedure can actually
describe how the faqīh thinks the fact/law interplay through an abductive approach
(§ 4.2). In this regard, the reference both to Peirce and to Harman’s “inference to the
best explanation” (§ 4.2.2) will provide an account for the probabilistic nature of
fiqh (§ 4.2.1), its ramification (furū‘) through verdicts (§ 4.2.3), as well as for the
epistemic and narrative function of the tradition (§ 4.2.2).
4.1 Peirce’s Abduction: The Conceptual Leap to an Explanatory

“Hypothesis”
Charles Sanders Peirce understood the term “logic” in two senses: in “its narrow
sense, it is the science of the necessary conditions of the attainment of truth”; in its
broader sense “it is the science of the necessary laws of thought, or, still better… it
is general semeiotic, treating not merely of truth, but also of the general conditions
of signs being signs” (CP: 1.444) [41].
The central role of Peirce in modern semiotics has been already remarked in § 2.
What is most relevant at this point is the contribution that he gave to the study of the
“necessary laws of thought” through the “discovery” of abduction12 as a third form
of logical inference besides the classic deduction (where the conclusion is inferred
by subsuming a case in a general rule) and induction (where from a list of cases
holding a certain connotation, a rule is generalized by ampliative inference). Peirce
differentiated induction from another kind of ampliative inference, abduction,
where a conceptual leap (something more than a mere generalisation) is required to
reach an explaining hypothesis.
Induction… [is] the generalisation of a property from a sample to the whole
class. Abduction… is the conceptual leap from data to an explaining
hypothesis. […] To give a trivial example, it is one thing to see a few apples
fall to the ground, and from there infer by generalisation that all apples will
always do so. (This is induction). It is quite another thing to see apples fall to
the ground, and from there infer that all bodies are attracted to the earth in a
force that is proportional to their mass. (This would require abduction.) […]
[W]hereas induction only involves a generalisation of an obvious property of
some apple (falling to the ground) to the whole class, abduction involves some
conceptual leap… to an entirely different level of abstraction, and to concepts
that cannot even be directly observed (mass, force) [11, p. 471].
12
A term that he claimed corresponds to what Aristotle describes in Prior Analytics, II, ch. 25 (CP:
7.249) [41].
123
370 V. Cattelan
In Pierce’s words:
The great difference between induction and hypothesis [abduction] is, that the
former infers the existence of phenomena such as we have observed in cases
which are similar, while hypothesis [abduction] supposes something of a
different kind from what we have directly observed, and frequently something
which it would be impossible for us to observe directly (CP: 2.640) [41].
Since consistency in terminology was never Peirce’s strongest point and abduction
is also called “hypothesis” (as above), “retroduction”, “presupposition” or
“presumption”, a precise account of his idea is not simple to summarize. As most
commentators remark, at least two different conceptualizations of abduction can be
found in Peirce’s writings. In his early production, he employed the terms
deduction, induction and abduction as different modes of inference, using the
permutations of an Aristotelian syllogism to give their outline through the
combinations of a rule, a case, and a result (CP: 2.623) [41].
DEDUCTION.
Rule. – All the beans from this bag are white.
Case. – These beans are from this bag.
Result. – These beans are white.
INDUCTION.
HYPOTHESIS. [i.e. ABDUCTION]
But, as Peirce came to realize in his later work, these combinations failed to bring
out the real nature of abduction [10, p. 60]. Because of this inadequacy, Peirce
rejected his early notion of abduction and came to define it in a more general sense
“as the process of forming ANY explanatory hypothesis” [11, p. 471], according to
the formula (CP: 5.189) [41]13:
The surprising fact, C, is observed;
But if A were true, C would be a matter of course;
Hence, there is reason to suspect that A is true.
The next section of the article will employ the formula of abduction to investigate
the peculiar fact/law interplay existing in fiqh semiotics. To this specific objective,
Alice’s trial will provide helpful hints.
13
“[W]hereas deduction and induction were demoted to merely phases of testing an already formed
hypothesis” [11, p. 471].
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4.2 Fiqh, Uṣūl and Furū‘: Abduction, Juridical Proofs and Best
Explanation
As remarked in § 1, the study of the logic of fiqh as the specific mode of reasoning
of the faqīh in-between the uṣūl and the furū‘ has rarely been considered by
comparative scholarship. In particular, little attention has been given to the
distinctive semiotics of fiqh as a logic where the “right” (ḥaqq) realizes what the
“rule” (ḥukm) establishes (§ 3.2).
Another frequent connotation of comparative scholarship is the detachment of the
theory (uṣūl) from the practice (furū‘) of Islamic law. In this regard, two recent
works, although maintaining this dichotomy, offer valuable elements of reflection
for our investigation: namely, a volume by Rumee Ahmed, dealing with the logic of
medieval Islamic legal theory (uṣūl al-fiqh) [2]; and a book by Behnam Sadeghi,
already mentioned in § 1, devoted to the study of “actual postformative legal
interpretation” by looking at “juristic discussions of concrete points of law as found
in legal handbooks in the furū‘ genre” [44, p. 35].
Ahmed’s volume is a learned study of the legal theories of two leading uṣūlī
scholars of classical Hanafı̄ school, Abū Zayd al-Dabūsı̄ (d. 1039 AD) and
˙
Muhammad b. Ahmad al-Sarakhsı̄ (d. 1096 AD). Through the investigation of the
˙ ˙
sources, his book argues that the logical ties between the theory of fiqh and the
practical applications of law were nothing more than “rhetorical, though mythical,
connections… usually presented as rational syllogisms” [2, p. 4]. Ahmed holds that
the rhetorical stratagems applied by legal theorists to legitimize their jurisprudential
elaboration often presented examples of induction in the Hanafı̄ school, or
˙
deduction for the Shāfi‘ı̄s, but these logical arguments were more pretentious than
14
effective. Thus, following the teachings by Neil MacCormick [31], he suggests
that, in reality, legal theory manuals were not about “discovering” either the
principles or injunctions of one’s legal school, since “jurists were less concerned
about discovery and more concerned about justification” [2, p. 4; italics in the
original text]: it is precisely with regard to the notion of “justification” that he
mentions Peirce’s abduction.15
The process of justification in Islamic legal theory follows a type of logic that
involved neither the induction of principles nor the deduction of injunctions.
Rather, legal theory’s logic is most accurately described by the term
‘abduction’ coined by CS Peirce. Abduction… involves ‘studying facts and
devising a theory to explain them.’ In the process of abduction, facts are
neither created nor posited; they are accepted, explained, and justified. In the
same way, legal theorists did not question or innovate principles or
injunctions; they were ‘facts’ and part of the inherited legacy of their legal
school. […] In legal theory manuals, jurists analyzed previously established
14
“What one quickly finds is that legal theory manuals are dedicated neither to the induction of
principles nor the deduction of injunctions, for both are considered already resolved” [2, p. 6].
15
To my knowledge, Ahmed’s book is the first work on Islamic law to refer explicitly to Peirce’s
abduction to explain the logic of fiqh, prior to the present study.
123
372 V. Cattelan
principles and injunctions – the ‘facts’ that were practically unchangeable –

and justified them to help jurists abduce cases [2, pp. 7–8].
Considering the “justification” of norms as the main task of legal theory manuals,
Ahmed describes abduction as the process of “studying facts and devising a theory
to explain them” (where these “facts” are the principles or injunctions inherited
from one’s legal school).
Looking at the fact/law interplay in jurists’ activity this article takes quite a
different approach to the matter by arguing, instead, that abduction was not applied
to justify inherited legal norms, but to understand the “real” created by God as result
of the “Rule” communicated through the revelation. It is the “right” as “rule”-in-the-
real that abductive reasoning discloses in the logic of fiqh: in other terms, if the
jurist explores the tradition of principles and injunctions (see § 4.2.2), this is to
guide his understanding of the ḥaqq, not to justify their contents. Only by locating
these contents in the “fact” the Muslim jurist can adapt the “law” by adopting God’s
will as “source” (aṣl) for the understanding of “positive law” (furū‘). In this regard,
moving from the uṣūl to the furū‘, the findings by Behnam Sadeghi’s book [44] will
show some unexpected parallelisms with the logic of Alice’s trial.
4.2.1 [‘Rule Forty-two. All persons more than a mile high to leave the court.’]
Adapting the Law to Adopt God’s Will: Uṣūl, Hypotheses and Probabilistic
Logic
‘Call the first witness,’ said the King; and the White Rabbit blew three blasts on
the trumpet, and called out ‘First witness!’
The trial has finally begun. It’s the turn of the Mad Hatter, whose reluctant
answering frustrates the King, and later of the Duchess’ Cook. In the meanwhile,
Alice begins steadily to grow larger, to the disappointment of the Dormouse, who,
sitting next to her, can hardly breathe. Then, to her own astonishment, her name is
called as third witness.
… Imagine her surprise, when the White Rabbit read out, at the top of his shrill
little voice, the name ‘Alice!’
But, “quite forgetting in the flurry of the moment how large she had grown in the
last few minutes”, she accidentally knocks over the jury box, “upsetting all the
jurymen on to the heads of the crowd below”, with the King ordering the animals to
be placed back into their seats before the trial continues. Probably discomforted by
Alice’s excessive height, or to protect the safety of the jurors, the King reads out
from his book what does not seem a codified rule, causing Alice discontent.
‘Rule Forty-two. All persons more than a mile high to leave the court.’
Everybody looked at Alice.
‘I’m not a mile high,’ said Alice.
‘You are,’ said the King.
‘Nearly two miles high,’ added the Queen.
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‘Well, I sha’n’t go, at any rate,’ said Alice: ‘besides, that’s not a regular rule:
you invented it just now.’
Far away from Ahmed’s argumentation, according to which the manuals of uṣūl are
mainly aimed at justifying previous norms of the tradition, the texts of legal
“branches” (furū‘al-fiqh) show an impressive “invention” of new norms that are not
“regular rules” derived from the revelatory sources.
This phenomenon has been highlighted in numerous contributions to the study of
Islamic law: in a book edited by Bernard G. Weiss [52], in particular, two relevant
essays are dedicated to the function of uṣūl al-fiqh in relation to the furū‘.
Dealing with the discussion of pledges (ruhūn) in Ibn Rushd the Grandson’s (d.
1198 AD) Bidāyat al-Mujtahid wa Nihāyat al-Muqtaṣid, Mohammad Fadel [12]
shows that the actual impact of uṣūl al-fiqh on the positive law of the furū‘ was quite
marginal. The arguments are dominated by the “practical reasoning” of juristic
preference or discretion (istiḥsān), filling the gaps left by the revelatory sources
through the formulation of hypotheses regarding the law. In this sense, Fadel
underlines how legal scholars invented new rules that were not immediately
derivable from the uṣūl.
… [A]t least in purely quantitative terms, rules derived from non-revelatory
sources make up the vast majority of actual Islamic law, viz., the rulings found
in the furū‘ manuals, at least in the Mālikı̄ school. Indeed Mālik is reported as
having said, “Istiḥsān is nine-tenths of [legal] knowledge (Al-istiḥsān tis‘at
a‘shār al-‘ilm)” [12, p. 164].
For instance, from the reading of the Qur’ān (al-Baqarah 283: “If you are on a
journey and cannot find a scribe [to record the debt], then let there be a pledge
taken”) Ibn Rushd postulates the requirement of the possession of the property
(whether for purposes of validation or perfection of the pledge: Bidāyah, 5:236 and
5:239–240), as well as the rights and obligations of the pledgor (al-rāhin) and the
pledgee (al-murtahin) (5:241). But his reasoning is merely conjectural16: Ibn Rushd
seems to make a “conceptual leap” to infer additional rules as explanatory
hypotheses of God’s will.
The second essay, by Sherman Jackson [22], takes even a more radical view than
Fadel’s by interpreting the relation uṣūl—furū‘ in the light of the movements of
Critical Legal Studies and New Legal Formalism. In summary, Jackson considers
the rule as created (!) by the interpreter and reflecting his presuppositions and pre-
conceptions. Then, a fiction of derivation from authoritative sources is applied to
validate the law ex-post, while imposing constraints on the interpretive process.
From the point of view of Critical Legal Studies, therefore, the function of
uṣūl al-fiqh is, not to create the law, but to validate it. […] New Legal
Formalism is able to accord to such theory the function of imposing
constraints on the interpretive process, that is to say, upon the creation of
meaning and of law. These constraints take the form of rhetorical tools that
16
Since the verse al-Baqarah 283 exclusively refers to evidentiary problems arising from the parties’
inability to record a contract away from urban centres.
123
374 V. Cattelan
must be employed in order to convince others of the truthfulness and

acceptability of one’s interpretation. Interpretation is thus not an entirely free
and individualistic activity but is confined to those possibilities that the tools
of rhetoric allow [52, p. xxiii].
Interestingly, the notion of “normative validation” used by Jackson radically departs
from that of “normative justification” applied by Ahmed: in fact, if Jackson looks at
the Muslim jurist from a “creative” perspective, Ahmed attributes to the faqīh the
role of “ratifying” as immutable “facts” the norms inherited from the tradition or the
revelatory sources.
But, to a certain extent, neither Jackson nor Ahmed are able to reconcile in their
analysis the “creative” and the “justificatory” role of the Muslim jurist as subject-in-
action interpreting the reality in the light of the semiotics of fiqh. To this objective,
on the contrary, the recent volume by Behnam Sadeghi [44] represents an important
step forward. His
pioneering study examines the process of reasoning in Islamic law…
[exploring] the decisions of thirty jurists from the largest legal tradition in
Islam: the Hanafı̄ school of law. He traces their rulings on the question of
˙
women and communal prayer across a very broad period of time – from the
eighth century to the eighteenth century – to demonstrate how jurists
interpreted the law and reconciled their decisions with the scripture and the
sayings of the Prophet [44, p. i].
It is exactly in-between the interrelated processes of “rule justification” (through the
adoption/interpretation of the sources) and “rule creation” (through the adaption/
reconciliation of the furū‘ to the uṣūl) that Sadeghi locates the hermeneutics of the
furū‘ genre in post-formative positive law (i.e. after the revelation of the Qur’ān and
the prophetic sunna).
In the introduction of his volume, Sadeghi admits that among the ideas expressed
by other scholars, “the views of Sherman Jackson in his article on the uṣūl al-fiqh
have the greatest relevance and affinity to mine” [44, p. 35]. In particular, he agrees
with Jackson that the legal theory did not generate post-formative law, rather
serving the function of validating norms. At the same time, Sadeghi remarks how,
looking at the furū‘ genre, one realizes that neither the uṣūl generated the laws, nor
the hermeneutic principles (implicitly or explicitly, consciously of unconsciously
used by the jurists) brought about actual norms [44, p. 36].
So, how do positive law (the furū‘) come about?
According to Sadeghi, to explain legal continuity and change in post-formative
Muslim fiqh is to recognize that the revelation (that is to say, the (i) canon of the
Qur’ān and the sunna and (ii) its techniques of interpretation), as transmitted by the
heritage of the tradition (of (iii) previous legal decisions), has to be inserted along
centuries of mutable reality ((iv) the present social conditions, needs, and values of
the law-making class), where “the legal precedents normally determine the laws, but
when they clash with present conditions, they can be overridden” [44, p. 165]. In
this logical process, if the uṣūl serve to justify the law, not to generate them, also
“the legal reasons—that is, the reasons jurists give for the laws—are secondary in
123
relation to the laws they justify. They adapt to the laws. […] When a law changes,
the justifications given for it are adjusted” [44, p. 165].
And, how does the law change in relation to the fact?
To reply to this question is to look at the Muslim jurist in the interplay law/fact
according to his own “distinctive manner of imagining the real” (Geertz). The
interrelation between revelation, tradition and reality merging in the furū‘ leads the
jurist to a hermeneutic flexibility that Sadeghi describes in terms of “deductions”
[44, pp. 166 ff.] whose “premises” can be re-adjusted for the law to be properly
adopted for the judgement of the fact: this “exemplifies a general pattern in the
adaptation of laws to real-life social concerns, namely that principles are adjusted to
avoid unacceptable or intolerable legal effects. In this sense legal effects enjoy a
form of priority over legal principles” [44, pp. 167–168].
While generally agreeing with Sadeghi’s conclusions, it seems to me that his
explanation of Muslim legal reasoning in terms of “adjustable deductions” should
be rectified. The inference that he describes is actually an abduction, whose logic,
with regard to fiqh, can be summarized as follows.
Fiqh as Abduction
The understanding (fiqh) of God’s revelation occurs in the form of hypotheses
suitable to explain the reality in the light of the inherited tradition. Each
explaining hypothesis requires a “conceptual leap” from the reality (§ 4.1),
since it refers to something which it would be impossible for us to observe
directly (God’s will): this is the specific function of the uṣūl that, as
hermeneutical “proofs” of the revelation, allow to infer a law as the best
possible explanation of God’s Law for the given fact. Under a criterion of
probability, not of certainty, a plurality of norms co-exist as possible
interpretations of God’s will, leading to the ramification of rules in the furū‘ (§
4.2.3). Thus, the law of Islam is “adduced” in the sense that the Muslim jurist
provides legal evidence and factual reasons to support his understanding,
which in turn justify fiqh law as understanding of God’s Law. In the process of
inferring the best explanation of sharī‘ah the tradition plays a fundamental
epistemic and narrative function as truth-conducive instrument to validate the
rule (§ 4.2.2).
The hermeneutical limit of Sadeghi’s conclusions is probably to maintain a
dichotomy fact/law which, in semiotic terms, is unable to reflect the “distinctive
manner of imagining the real” (Geertz) as direct result of God’s will, where “to
determine the empirical situation is to determine the jural principle” (Merry). In the
logic of fiqh, inasmuch as the revealed “Rule” (ḥukm) is infallible, the human
assessment of a case, the human “rule” leads the jurist to a fallible understanding
(A) of what is “right” (ḥaqq), merging the “surprising fact” (C) (the direct
expression of the mystery of divine creativeness whose archetype is in the “Rule”)
with the morality of the “rule”-in-the-real.
Peirce’s formula of abduction matches this form of logical inference:
The surprising fact, C, is observed;
But if A were true, C would be a matter of course;
123
376 V. Cattelan

It is the adoption of the revealed “Law” as archetype of the reality that allows the
adjustment of the “law” (eventually through the insertion of ad hoc legal principles:
the ‘Rule Forty-two’ of Alice’s trial) by the Muslim jurist, according to the
parameters given by the tradition. Thus, the adaptation of the “legal principle” in
order to adopt the most suitable “legal effect” for the given situation allows to
define NOT “the” law (in the Western sense), BUT “a” legal decision, which is only
applicable to the given case, and not immediately replicable to other cases. In this
logical process, as highlighted by Sadeghi, “principles are adjusted to avoid
unacceptable or intolerable legal effects. In this sense legal effects [the revealed
Rules] enjoy a form of priority over legal principles [the human rules]” [44,
pp. 167–168]. This logic of adjustment, as manifestation of abductive reasoning,
connects continuity and change in the development of fiqh along the centuries.
Therefore, stating the law in Islam as it could be recorded in Western codes has no
point in the logic of fiqh, since the “law” is aimed at a constant understanding of
God’s creation through the revelatory proofs. In Hallaq’s words,
the law was an ijtihadic process, a continuously renewed exercise of
interpretation. It was an effort at mustering principles as located in specific
life-situations, requiring the legists to do what was right at a particular
moment of human existence… to resolve a situation in due consideration of
the unique facts involved therein. […] Islamic law was not fully revealed unto
society until the principles meshed with social reality and until the interaction
of countless social, moral, material and other types of human relations
involved in a particular case was made to come full circle…. Islamic law is not
that found in the books of the jurists, but rather the outcome of a malleable and
sensitive application of rules in a complex social setting. To know what
Islamic law was, therefore, is to know how actual Muslim societies of the past
lived it… [18, pp. 166–167].
This connection between the law and the fact, to the extent that “to know what
Islamic law was… is to know how actual Muslim societies of the past lived it”,
enlightens how the fallible effort (ijtihād) of understanding entails the logical
necessity of collecting a variety of possible solutions, in order to adapt legal
principles to the best explanation of the legal effects to be adopted for the given fact.
It is this probabilistic logic (unknown to Western law) that explains the role of the
tradition in fiqh literature: the “conceptual leap” in explaining sharī‘ah is performed
not only through the juridical proofs of the uṣūl, but also through the guidance of the
tradition, which acts as a constraint to direct the interpretive process of the faqīh
(see Jackson, above).
4.2.2 [‘Where shall I begin?’… ‘Begin at the beginning… and go on till you come
to the end: then stop.’] Harman’s “Best Explanation” and the Epistemic
and Narrative Function of the Tradition
Similarly to Hallaq, Calder describes fiqh as a “conceptual replica of social life”,
123
not necessarily aspiring to be either complete or practical, but balanced

between revelation, tradition and reality, all three of which feed the discussion
and exemplify the concepts. The literature of uṣūl identifies the divinely
sources of the law (Qur’ān and Sunna), auxiliary sources (like consensus –
ijmā‘), and the hermeneutic disciplines which permit the complex intellectual
cross-reference between revelation, tradition and reality which is exemplified
in a work of furū‘ [7, p. 981].
Indeed, in the literature of furū‘, the tradition acquires a core hermeneutical function
in linking the (present, actual—in human terms—, deontological) reality, where the
“right” (ḥaqq) is de-scribed by the faqīh, with the (eternal, Actual—in divine terms—,
ontological) “Rule” (ḥukm) that the revelation has pre-scribed.
In remarking the centrality of the tradition in the law of Islam, not only does
Calder assert that fiqh can be defined as “a hermeneutic discipline which explores
and interprets revelation through tradition”, but also as “a discipline that explores
tradition, and uses tradition to discover (and limit) the meanings of revelation” [7,
p. 980]. The shift of meaning from the first to the second definition reminds the
“justificatory” procedure that according to Ahmed characterizes the perception of
previous norms as “facts”, and the idea postulated by Jackson that the tradition
would act as imposing constraints on the interpretive process of the faqīh. In this
light, it is not the tradition to “limit” the meanings of the revelation: in reverse, the
illimitable semantics of the revelation, while investigated by the individualistic
ijtihādic process in form of hypotheses (§ 4.2.1), can correctly be located in the
reality only by limiting the hermeneutical freedom of the interpreter through the
boundaries of the tradition. In the abductive reasoning governing the logic of fiqh, it
is the explanatory function of the tradition to be of fundamental relevance in the
form of a collective knowledge of God’s will, an epistemic narration of a divinely-
created social reality.
In fact, if the law of Islam proceeds from the juridical proofs of the revelation to
the best understanding of God’s will (where the “conceptual leap” is possible thanks
to the uṣūl), it is in the tradition that the Muslim jurist finds possible (better,
probable) explanations to be adduced. In other terms, it is by considering the body
of fiqh literature, the “narration” of discovering sharī‘ah, that the Muslim jurist finds
appropriate hints directing (as well as limiting the arbitrariness of) his judgement.
Where shall the Muslim jurist begin, then? As for the White Rabbit, having found
a letter that looked like a piece of evidence, there is no alternative than examining it
carefully.
‘Begin at the beginning’, the King said, very gravely, ‘and go on till you come
to the end: then stop.’
The best explanation for the reality created by God, reflecting His will as “rule”-in-
the-real, can be found by listing proofs from the tradition (“from the beginning to
the end”: i.e. comprehensively enough to validate the fallible opinion of the jurist),
in order to de-scribe the “right” as result of the pre-scribed “Rule”. Of course, if this
procedure focuses on the tradition, it is not merely directed to it (contra Calder):
123
378 V. Cattelan
rather, the Muslim jurist looks at the tradition as an instrument of legal evidence to
“infer the best explanation” of God’s will.
This “inference to the best explanation” as a kind of abductive reasoning was first
identified by Gilbert H. Harman [20] (see also Lipton [29]), by underlining that, in
general,
there will be several hypotheses which might explain the evidence, so one
must be able to reject all such alternative hypotheses before one is warranted
in making the inference. Thus one infers, from the premise that a given
hypothesis would provide a “better” explanation for the evidence than would
any other hypothesis, to the conclusion that the given hypothesis is true [20,
p. 89].
In this sense, if the tradition provides several hypotheses, the process of explanation
of God’s will occurs in two steps: by “generating potential explanations of the
evidence and then selecting the best explanation from the list of potential ones as an
actual explanation or as the truth. Practical considerations and interests affect both
steps” [40, p. 229]. The abductive reasoning underlying the logic of fiqh can be
understood “either as a heuristic procedure or as an epistemic rule” [21, p. 340].
According to the former, it equates to a search strategy for potential explanations
which is guided by explanatory considerations17; but, in Harman’s opinion, not only
does abductive inference compare and choose among rival hypotheses, but it is also
truth-conducive: by looking at the tradition of fiqh as epistemic narration, “true or
highly probable explanations are favoured while false, or low-probability rules, are
discarded” [21, p. 341]. In this light, the disagreement (ikhtilāf) among scholars on
the correct assessment of an action which is reported by the tradition, far from
witnessing a weakness of Islamic legal doctrine (as it may been perceived from the
“normative ocean” of Western legal thinking), constitutes a device to provide
scholars with “several hypotheses” from which selecting the best explanation of
God’s will for the fact under judgment.
This abductive procedure is well illustrated by Calder with reference to the issue
of the distribution of zakāt in the Muhadhdhab by Shāfi‘ı̄ jurist al-Shı̄rāzı̄ (d. 1083
AD), by highlighting how the co-existence of several possible solutions is
functional, in the logic of fiqh, to the inference of the best (i.e. most probable,
actual) explanation of God’s will.
Chapter on the distribution of alms
1:1 It is permissible for the owner of wealth to distribute zakāt on hidden goods by
himself. Hidden goods are gold, silver, trade goods and precious stones. This
ruling is based on the ḥadīth from ‘Uthmān, that he said in the month of
Muharram, This is the month of your zakāt, so he who has a debt, let him pay
˙
his debt, then let him pay zakāt on the remainder of his wealth. […]
2:0 On the question which is the best mode of conduct, there are three views.
17
“Explanatory considerations” that are not necessarily based on available revelatory sources, but can
also be grounded on “juristic preference” (see § 4.2.1).
123
2:1 The best mode of conduct is that the owner of wealth should distribute his
zakāt by himself. This is the evident meaning of the text… [of the ḥadīth].
Further he is secure in respect of his own paying, but not secure in respect of
anyone else paying.
2:2 The best mode of conduct is that he should pay the Imām, whether the Imām is
just or unjust. This is because of what is related concerning Mughı̄rah ibn
Sha‘bah. He said to a client of his, who had the stewardship of his property in
Tā’if, What do you do about alms on my property? The client replied, “Some
˙
of it I distribute directly as alms, and some of it I give to the authorities.”
Mughı̄rah asked what he knew about the latter portion. The client explained,
“They buy land and marry women with it.” Mughı̄rah said, “Pay it to them; for
the Prophet of God commanded us to pay them.” Another reason: the Imām is
more knowledgeable about the poor and the extent of their need.
2:3 Amongst our companions there are some who say that if the Imām is just,
payment to him is the best mode of conduct, but if he unjust, then distribution
by the owner of the wealth is best. This is because of the Prophet’s words, He
who asks for it as it should be, let him be given it; he who demands more than
he should, let him not be given it. Further, the donor is secure in paying it to a
just Imām, but is not secure in paying it to an unjust Imām, for the latter may
spend it on his own desires [7, pp. 991–992].
As Calder notes, each paragraph (2.1, 2.2 and 2.3) is constituted by a rule and a
justificatory argument, BUT the ikhtilāf is unresolved, since none of the three
reasons for concern18 unequivocally overrides the others.
In concluding his analysis of al-Shı̄rāzı̄, Calder remarks how his normative
outline has to be read as “an abstract analysis of concepts and should NOT be
mistaken for a set of practical rules” [7, p. 992; my emphasis]: it is a way of thinking
the law holding an intrinsic variability, casuistry [23], proliferation of substantive
factors that are, by definition, contrary to any systematization and open to
interpretive disagreement (ikhtilāf).
In a logic where the theory of law is in the practice of the fact (since the “right”
has to be understood as “rule”-in-the-real), its systematization consists in a persistent
production of norms to be adapted to the given situation in order to guarantee the
best adoption of God’s will… What may appear rather strange, if not paradoxical,
from a Western perspective, becomes the only logical way to proceed in the law of
Islam.
4.2.3 [‘Sentence first – verdict afterwards’.] Empirical Situation as Jural Principle:

The Ramification (Furū‘) of Fiqh Through Verdicts
At a certain point of the trial Alice loses her patience. The absurd procedure seems
to subvert all basic rationales of law, as it is in her experience.
18
Zakāt as (2.1) a personal duty to God; (2.2) a communal duty implemented by the Imām; (2.3) a
functional provision for the poor.
123
380 V. Cattelan
‘Let the jury consider their verdict,’ the King said, for about the twentieth time
that day.
‘No, no!’ said the Queen. ‘Sentence first – verdict afterwards.’
‘Stuff and nonsense!’ said Alice loudly. ‘The idea of having the sentence first!’
Alice’s frustration is definitely understandable: indeed, from her (Western)
perspective the verdict must precede the sentence. But, what about the logic of fiqh?
In Western legal thinking, the verdict, as the formal finding of fact by the jurors
on matters submitted by the judge, necessarily anticipates judge’s sentence: “finding
the fact” precedes “giving the law”. Verdict first – sentence afterwards.
But in the logic of fiqh things go rather in a reverse way.
This is not only due to the fact that the divine qualification (ḥukm) of the action
enjoys an ontological primacy over the deontological reconstruction of the right
(ḥaqq) by the jurist (§ 3.2), to the extent that, as Sadeghi remarks, “legal effects
enjoy a form of priority over legal principles” [44, p. 168] (§ 4.2.1). It is also from
the perspective of the abductive inference of fiqh that the “judgement” precedes the
“fact”, or, better that law and the fact are bilaterally interlinked in adducing
legal/factual evidence to justify the interpretation of sharī‘ah: “in Islamic legal
sensibility, to determine the empirical situation is to determine the jural principle.
Facts, in other words, are normative: there is no fact/law dichotomy” [34, p. 886].
The intersection between legal and factual evidence in the logic of fiqh provides
an indirect account for Ahmed’s position (§ 4.2) according to which Muslim jurists
“did not question or innovate principles or injunctions; they were ‘facts’ and part of
the inherited legacy of their legal school… ‘facts’ that were practically unchange-
able” [2, pp. 7–8]. The explanatory certainty of inherited rules transforms principles
and injunctions into “(legal) facts”, that are logically comparable to “(real) facts” in
the semiotics of fiqh.
But, at the same time, evolution belongs to the continuity of the tradition. Hence,
within the fact/law interplay, as underlined by Sadeghi, the outcome is a “general
pattern in the adaptation of laws to real-life social concerns, namely that the
principles are adjusted to avoid unacceptable or intolerable legal effects” [44,
pp. 167–168]. In other words, the definition of the “right” as the best explanation of
the “rule”-in-the-real implies the adaptation of legal principles in order to adopt
legal effects which are suitable for the specific fact and reflect the primacy of the
Rule. Sentence first – verdict afterwards.
If we look at the fact/law relation in symbolic terms, a striking distance emerge
between Western law and Muslim fiqh, where in the former a dichotomy between
fact and law characterizes legal reasoning, while the latter upholds a connection
between the “real” and the “right” (ḥaqq) in the actualization of the “rule” (ḥukm).
In Western law, the “premise major” (rule) of the legal syllogism can be held as
“given” (i.e. “established” as something positum, from which the notion of “positive
law”), and the case (by “finding the fact” through the verdict) is located as “premise
minor” to infer the result (i.e. the sentence), according to Peirce’s scheme:
DEDUCTION.
123

On the contrary, a corresponding deductive reasoning is precluded in the logic of
fiqh.19
What is given, in a divine creation that connotes the “real” in legal/deontological
terms (§ 3), is the “fact” rather than the “rule”, the specific situation that actualizes
God’s will. And it is by “finding the (a?) law” that the jurist infers “the given fact”
precisely as expression of God’s will.
The surprising fact, C, is observed —
As much as it may appear paradoxical in the eyes of the Western jurist, the “roots”
(uṣūl) of understanding here do not act as “legal sources” (in our conventional
sense), but allow a “conceptual leap” to the revelation. In other terms, they
constitute the foundations of a legal epistemology whose methodological tools are
not aimed at a synthetic/abstract representation of the real, but, rather, at offering
legal evidence towards an understanding (fiqh) in details and a posteriori of the
reality as expression of God’s will. Accordingly, for Louis Massignon, the
peculiarity of uṣūl is “synthétiser l’ensemble des faits sociaux, en usant d’une
logique spéciale, expérimentale” [quoted in 9, p. 17], whose canon is abductive
probability: through de-scribing the reality by providing factual reasons for the
judgment, a fallible (human) rule is adduced from the revelatory proofs to find the
pre-scribed (divine) Rule.
This “Rule”, the divine “legal effect”, while already pre-scribed by the signs
derivable from the uṣūl, has to be discovered. To this aim, its understanding (fiqh),
requires a hypothetical human “rule”, a probabilistic assertion, able to de-scribe the
reality of the given fact as God’s will. The underlying abductive process may
eventually adapt legal principles to adopt the best explanation of the Rule, in the
light of the peculiar social interests at stake.
— But if A were true, C would be a matter of course;
[If the supposed/probable interpretation of the ḥukm (A—the “rule” as actualization
of the “Rule”) were true, the ḥaqq for the given situation (C) would be a matter of
course. Hence, there is reason to suspect that the supposed “rule” is true. Sentence—
finding the law—first (A); verdict—giving the fact as expression of God’s will—
afterwards (C)].
It is in this precise way that, if sharī‘ah pre-scribes the Law, not only is the rule
discovered through the sources (uṣūl), but the right has also to be justified through a
verdict de-scribing the fact, for the (a) law to be validly stated (found) for the given
situation. In the Muslim legal tradition, what is “justified” (to a certain extent
paradoxically for us) is the “fact” to which the discovered “rule” applies, rather than
the “law” in a Western sense (cfr. Ahmed). Better, the law of Islam is “adduced” in
19
Deductive reasoning does not exclude that also induction (especially in common law countries) and
abduction appear in Western law [17]. But, with specific regard to modern state law, the centrality of the
rule as “major premise” (“established”, positum, by state sovereignty), however it later intervenes in the
formulation of the judgment, represents an element that cannot be denied (§ 5).
123
382 V. Cattelan
the sense that the Muslim jurist provides both legal evidence and factual reasons to
“validate” his understanding of sharī‘ah (cfr. Jackson).
Discovering the “rule” able to interpret God’s will (the “Rule”) embedded in the
real does not mean to “codify” the law in general and abstract terms: the rule is
always particular and empirical as “casuistry pertains to a process of social
differentiation that renders the universal validity of norms socially implausible” [23,
p. 135]. In this regard, the probabilistic nature of fiqh (§ 4.2.1) entails its necessary
ramification (furū‘) through the jurists’ verdicts, where “the validity of legal
concepts is confined to certain boundaries and… one has to determine whether or
not the individual case falls within these boundaries” [ibidem].
In the making of fiqh-knowledge, it is the casuistic de-scription of the “normative
fact” (the verdict of the Muslim jurist as “justification” of the given fact in the light
of the discovered law) that nurtures the abductive process of discernment. And it is
by delimiting the legal/factual finding to the specific occurrence of the “real” (ḥaqq)
that the verdict of fiqh law connects the “right” (again, ḥaqq) to the action,
discovering/justifying the legal effect, the “Rule” (ḥukm) given by God’s Law.
Within this logic, the practice of fiqh-judgement nourishes a theory of fiqh-
knowledge where casuistry, in Johansen’s words, “is part of the doctrine, not an
exterior element that explains it” [23, p. 156; cfr. Calder]. Accordingly, fiqh-
literature20 shows how jurists discuss dozens of cases, to such an extent that the
chapters on sale of fiqh textbooks
often read like an odd supermarket catalogue that mentions Transoxanian
yoghurt, tiger-bones, elephant-teeth, dogs, birds and glass, grain, flour and
mash, slaves and wine, musical instruments, chessboards and figures, fruits
and juices, snakes and scorpions, houses and dresses, and different sorts of
meat [23, p. 147].
Not only is the process of ramification exemplified by the casuistry of fiqh, but also
by a process of jurists’ disagreement (ikhtilāf) that can lie in the general
qualification of legal operations. For instance, the divergence of verdicts charac-
terizes the scholarly debate on the admissibility of ‘īna, a double-purchase
concealing an usurious loan. While the Shāfi‘ı̄s considered the contract fully lawful,
the Hanbalı̄s held any ‘īna sale illicit. With regard to the Hanafı̄s, Abū Hanı̄fa (d.
˙ ˙ ˙
767 AD) considered valid only a trilateral form of ‘īna; for Shaybānı̄ (d. 805 AD),
the double-sale was admissible, although morally reprehensible (makrūh); for Abū
Yūsuf (d. 798 AD), not only was it valid, but also not reprehensible. Diverging
opinions on the admissibility of ‘īna can be also found among the Mālikı̄s. For
another example of jurists’ disagreement (ikhtilāf), with reference to a specific issue
(the best mode of conduct in the distribution of zakāt), see also above, § 4.2.2.
On the law/fact interdependence that fosters the logic of fiqh, two conclusive
remarks can be added.
First, to the extent to which an abductive process nurtures the delivery of verdicts
for the best explanation of the juridical proofs, a circularity certainly appears in the
20
Johansen specifically refers to al-Sarakhsı̄ (d. 1096 AD)’s Mabsūṭ and al-Kāsānı̄ (d. 1191 AD)’s
Badā’i‘‘l-Ṣanā’ī‘in his study.
123
finding of the fact/law for the specific occurrence. Hence, fiqh explanations are
“self-evidencing”
in the sense that what is explained (the [fact/law] evidence) provides a reason
for believing that the explanation is correct. The circularity is that a hypothesis
explains the evidence while the evidence helps to justify the hypothesis. This
circularity, however, is not vicious, or problematic; rather it helps to
illuminate how explanation can guide inference and is well supported [40,
p. 233] [by the tradition].
In this frame, as previously remarked, fiqh-tradition offers the hermeneutical tools to
limit the discretionary judgement of the jurist (Jackson), guaranteeing a living
connection between the revelation of sharī‘ah and the reality of Muslim life.
As much as this circularity aims at discovering the revelation through the uṣūl, it
exemplifies the interpretation in the furū‘. To sum up, taking inspiration from Nobel
Prize Wisława Szymborska, it can be said that, in echoing God’s will while
amplifying it, a “centripetal fugue”, a “polyphony compressed” [48, p. 120]
describes the history of fiqh along the centuries.
Second, if fiqh-judgement in the fact/law interplay implies a ramified casuistry, a
polyphony (furū‘) of legal opinions, it is the tradition of fiqh-literature that
guarantees its epistemic unity, the centripetal nature of fiqh-knowledge in the
narrative function (§ 4.2.2) resulting from the record of verdicts.
Orienting the judgment of the faqīh while limiting his arbitrariness (Jackson), the
tradition does not justify previous norms as facts (Ahmed), nor it is the specific
object explored by the Muslim jurist and used to discover the meanings of revelation
(Calder). More correctly, the tradition defines the constant continuity, the echoing,
of the explanatory function of fiqh in “actualizing” (by amplification) God’s
message in the everyday life of the Muslim community and by answering practical
problems that emerge from social differentiation (Johansen).
Thus, not only is fiqh “a conceptual replica of social life” (Calder), but its
explanatory function of God’s will, indirectly, explains human nature as agency of
the divine Word (§ 3):
the human being as an ethical being is a being of the word. […] Humans can
therefore not be adequately understood in their ethical dimension as already
constituted beings “before the Law” who are then asked to find out by which
means they will reply. Or rather, they can be understood in this way only
because the law as a particular manifestation of the divine Word constitutes
them by way of word [47, p. 169].
If “humans in all cultures come to cast their identity in some sort of narrative form”
[13, p. 198], fiqh can be conclusively depicted as the peculiar narrative of the
Muslim community through which the eternal langue of God’s Word is actualized
along the centuries, disclosing the nature of the human being as historical parole (i.
e. as being of the word).
123
384 V. Cattelan
5 The Logic of Fiqh, Modern State Law and the Cheshire Cat’s Advice
Using Alice in Wonderland as hermeneutical device to explore the logic of fiqh, this
article has identified abduction as the key form of inference in the law of Islam. In
particular, maintaining that within the semiotics of fiqh “to determine the empirical
situation is to determine the jural principle” (Merry), the article has highlighted that
a divergence exists between the law of Islam and Western legal thinking.
While a dichotomy between fact and law characterizes Western law, fiqh upholds
a connection between the “real” and the “right” (ḥaqq), where the effort (ijtihād) in
understanding sharī‘ah assumes the actualization of the “rule” (ḥukm) in God’s
creation. Thus, if sharī‘ah pre-scribes the Law, not only has the rule to be
discovered through the sources (uṣūl) (the tool allowing the “conceptual leap” to the
revelation), but the right has to be justified by the Muslim jurist through a verdict
de-scribing the fact, for the (a) law to be validly stated (found) for the given
situation. In this sense, abduction as “hypothesis” (Peirce) and “inference to the best
explanation” (Harman) of sharī‘ah provides an account for the probabilistic nature
of fiqh (§ 4.2.1), its ramification (furū‘) through verdicts (§ 4.2.3), as well as for the
epistemic and narrative function of the tradition (§ 4.2.2) as core aspects of the logic
of Islamic law.
While Western legal theory locates the (specific, empirical) case within the
(general, abstract) norm to deduce the judgment, the logic of fiqh sees law as an
epistemological issue, being fiqh-judgement an atom of what constitutes fiqh-
knowledge, deposited in the tradition (an echoing amplification, where the human
word reflects the divine Word). It is in the epistemological challenge (ijtihād) of
“echoing God’s will” that legal reasoning embraces elements of presumption,
supposition, hypothesis, probability which do not assure any certainty over the Rule
(being the divine Truth, in its entirety, inaccessible).
The work of the jurist is precarious. With this universe of God’s discourse as
his source, the jurist arrives at a rule through his power of reasoning, a rule
which is supposed to be a statement of God’s transcendent will and intentions.
His reasoning, which is itself fallible, will nearly always be based on
knowledge gained from a presumption of truth and its results will be
probability. Inevitably, there will be differences of opinion on what the law is
[50, pp. 34–35].
Along this study, the references made to Alice’s Adventures have been helpful to
highlight how much something that may look contradictory to the eyes of the
Western lawyer, in reverse, becomes perfectly reasonable when the real is “imaged”
through the mind of the Muslim jurist. In this regard, if the common wisdom of
Islamic legal studies still adheres to Max Weber’s opposition between the “formal
rationality” of modern, secular, Western law and the “substantive rationality” of the
Kadijustiz embedded in the “sacred law of Islam”,21 Alice’s Adventures may help the
21
“Max Weber… opposes what he calls “substantive rationality” (materiale Rationalität) to “formal
rationality” (formale Rationalität). Substantive rationality dominates a sacred law in which ethical
imperatives, political maxims or utilitarian rules of expediency are developed into norms or general
123
interpreter to move from the Western normative ocean to the Muslim one, in
recognizing that what looks paradoxical holding a dichotomy fact/law becomes
perfectly logical when the dichotomy fact/law is removed.
In this light, the Weberian opposition between substantive and formal rationality,
as opposite ways of “thinking the law”, makes certainly sense when the subject-in-
action looks at law as something distinct from the fact. On the contrary, if the
subject assumes the fact/law identity, what he finds is a normative rationality which
is autonomous from Western legal thinking. The deductive logic holding “abstract
rules” (the “premise major” of the syllogism) applicable to the “case” (the “premise
minor”) is not applicable in a context of fact/law identity that, on the contrary, is
managed in terms of abductive reasoning.
In this light, the probabilistic conception of fiqh, its ramification through verdicts,
as well as the epistemic and narrative role of the tradition CANNOT be mistaken for
a set of practical rules (see above, Calder: § 4.2.2), subject to the discretion of the
single Muslim jurist (Weber’s Kadijustiz), but constitutes the outcome of a peculiar
normative rationality whose conceptualization of the reality holds the fact/law
interplay at the core of its logical inference: it is the abductive logic of fiqh that,
nurturing the reasoning of the Muslim jurist, leads to an abstract thinking of the law
as empirically connected to the fact.
In this regard, one may raise a final issue on the compatibility between Western
and Islamic law in modern Muslim societies, by referring to the encounter between
Alice and the Cheshire Cat in chapter VI of the novel.
… ‘Would you tell me, please, which way I ought to go from here?’
‘That depends a good deal on where you want to get to,’ said the Cat.
‘I don’t much care where – ‘said Alice.
‘Then it doesn’t matter which way you go,’ said the Cat.
‘– so long as I get somewhere,’ Alice added as an explanation.
‘Oh, you’re sure to do that,’ said the Cat, ‘if you only walk long enough’.
Indeed, the transformation of the “tradition of fiqh” into the “modernity of Islamic
law” [see 6, 25, 37], as well as the foundation of human “rights” (ḥuqūq) within the
boundaries of secular constitutions, may render the concept of “Islamic positive
law” or “state Islamic law” (with the transformation of the ḥukm into abstract
general norms) quite problematic, considering that
Islamic law is not positive law but substantive, principle-based atomistic rules
that are pluralistic in nature and ultimately embedded in a cosmic moral
imperative.
For Muslim today to adopt positive law of the state and its sovereignty means
in no uncertain terms the acceptance of a law emanating from political will, a
law made by men who change their ethical and moral standards as modern
conditions require [19, p. 89].
Footnote 21 continued
principles and take the place which… the logical generalization of abstract principles [as part of a
coherent system] occupy in a law which is characterized by the “formal rationality”” [24, pp. 49–50].
123
386 V. Cattelan
But, the “impossibility of the Muslim state” (Hallaq) [19] subsists only if one looks
at Western and Muslim legal thinking as equivalent in their logical connotations. On
the contrary, the political incompatibility between Muslim fiqh and modern positive
law becomes a Carroll’s non-sense when, by getting somewhere, one recognizes
their logical autonomy.
Fostered by alternative forms of legal reasoning (deduction; abduction), as much
as Western legal thinking is functional to the construction of the state as political
entity for the government of general policies (what in the Muslim tradition is called
siyāsa, “policy”, “administrative justice”), Muslim fiqh can be suitable for the
governance of the atomistic nature of social reality, in the light of the plurality of
human life (then leading to a modern siyāsa shar‘iyya).
Taking inspiration from the Cheshire Cat’s advice by shifting the issue of the
compatibility between Western and Muslim law from a political into a logical
ground, a reasonable suggestion could be to accommodate fiqh tradition into the
modernity of social structures in the form of a multi-level governance where the
deductive and abductive logics of Western law/Muslim fiqh could interact in the
most successful way. In this framework, the recognition of the autonomy between
Muslim legal reasoning from the Western one seems to me the first step to walk long
enough towards this direction.
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Alice's Adventures, Abductive Reasoning and Islamic Thought

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Int J Semiot Law (2016) 29:359–388

Alice’s Adventures, Abductive Reasoning and the Logic

Published online: 4 February 2016

Keywords Islamic law · Fiqh · Semiotics · Logic · Legal reasoning · Abduction

& Valentino Cattelan

Lewis Carroll’s Alice’s Adventures in Wonderland [8], as a book written for

The Knave of Hearts, he stole those tarts

2 [‘Consider your verdict’…] Comparative Law and Semiotics:

(1632–1704),5 the birth of contemporary semiotics is largely related to two great

3 [… ‘There’s a great deal to come’] Who is the Muslim Jurist? Thinking

3.1 Fiqh and the Qur’ānic Creator Paradigm

While Islamic theological knowledge (kalām) upholds the authority of rational

3.2 The Right (Ḥaqq) as Rule(Ḥukm)-in-the-Real

4 [Alice’s evidence] Finding a Law for the Given Fact: Islam,

4.1 Peirce’s Abduction: The Conceptual Leap to an Explanatory

principles and injunctions – the ‘facts’ that were practically unchangeable –

must be employed in order to convince others of the truthfulness and

Hence, there is reason to suspect that A is true.

Similarly to Hallaq, Calder describes ﬁqh as a “conceptual replica of social life”,

not necessarily aspiring to be either complete or practical, but balanced

Chapter on the distribution of alms

4.2.3 [‘Sentence ﬁrst – verdict afterwards’.] Empirical Situation as Jural Principle:

Result. – These beans are white.

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