ভূমিকা

Shiavault - a Vault of Shia Islamic Books Legal Comparability and Cultural Identity: the Case of Legal Reasoning in Jewish and Islamic Traditions Legal Reasoning and Judicial Error ===================================== The reception of foreign legal institutions is not a matter of nationality, but of usefulness and need. No one bothers to fetch a thing from afar when he has one as good or better at home, but only a fool would refuse quinine just because it didn’t grow in his back garden.

Rudolf Jhering [^59] Despite Sa’adya’s opposition to legal reasoning, the similarities between the Islamic theories of legal reasoning and the Jewish theories are salient. Moreover, as shown above, even Sa’adya’s criticism is expressed within the Islamic jurisprudential discourse as a view of an insider. Indeed, the dual-stratum structure also suggests a new perspective on the phenomenon of judicial error.

Erring in reference to legal norms of the first category, principally defined as revealed norms, would simply be considered a deviation from the existing and obligatory laws. On the other hand, with regard to the second category, which encompasses all derivative propositions, it would be difficult to identify valid criteria as to what precisely is a true proposition and what is an erroneous one.

If legal reasoning itself is responding to the ingrained limited knowledge of the law, how can we indubitably identify the correct proposition and distinguish it from the erroneous one?[^60] Thus, even though it entails a realistic metaphysics as discussed above and presumes right answer to every legal problem, creating a legal norm by legal reasoning is not measured in terms of deviation from the ‘right’ answer.

Likewise it ascribes a different religious evaluation to the phenomenon of judicial error. Indeed, in the Sunni legal tradition, a special religious virtue is given to the jurist’s very process of legal reasoning. Accordingly, the scholars’ ijtihād is appraised independently as to the results of these endeavors.[^61] Hence, ijtihād is also measured as a religious deed by which the believer’s obedience is tested.

The religious value of a mistaken judgment is well-articulated in the famous tradition that states “He who is mistaken in his personal judgment deserves reward, while he who judges correctly deserves a double reward” .