[^62] In that respect...

[^62] In that respect, another aspect of the reliance on legal epistemology and theology is reflected: judicial error derived by means of ijtihād is not only tolerated, but also enjoys a positive reward since the very quest for the word of God itself is a desirable norm. In fact, the dual-stratum paradigm enables the possibility of judicial error and its being a test of religious obedience. A further expression of this meaning can be seen in the words of Abu Hamd al-Ghazali (d.

1111 CE), when he explained the problem of judicial error in relation to this dualistic structure with the analogy to alms-giving:[^63] … Everything that depends on an effort of personal interpretation is of this sort. For example, for legal almsgiving the recipient may be poor in the personal judgment of the donor, whereas secretly he is wealthy. This mistake is not sinful because it was based on conjecture.

… In this way the prophet and religious leaders were forced to refer the faithful to personal interpretation, despite the risk of error. The prophet – peace be upon him – said, ‘I judge by appearances, it is God who looks after what is hidden.’ This means, ‘I judge according to general opinion taken from fallible witnesses, though they may be mistaken.’ If the prophets themselves were not immune to error in matters of personal judgment, how much more so ourselves?

Ghazali argues against viewing the instructions of the Imam as the ultimate solution to the problem of the incorporated restricted legal knowledge, and instead advocates the ijtihād as the preferable method. For him, ijtihād explicitly derives from the fundamental nature of legal knowledge as partly revealed. Hence, fallibility is a substantive and essential feature of the divine law itself.

In that respect, alms-giving perfectly exemplifies the shift from the result of the ruling to the preceding intention – “since he is not punished, except in accordance with what he thought.” 4.1 The Talmudic Typology of Judicial Errors, Sherira b. Hanina and Moses Maimonides Medieval Rabbinic theory of judicial error should be understood against the background of the Talmudic reflections on this phenomenon.