From Norm Evaluation to Norm Construction

Abstract

This study examines the issue of norm construction in al-Ghazālī’s thought focusing on the grounds advanced to support his radical infallibilist position. To fulfill such end, al-Ghazālī, I explain, relies on two types of arguments, the first one relates to the presumptive nature of legal texts in order to highlight their fundamental indeterminacy and the second links to the interpreter to show the impossibility to fall into error. To buttress these arguments, al-Ghazālī both draws on epistemological principles and metaethical ones. As it will be shown in the study, al-Ghazālī ultimately explains the divergence in interpretation of norms using the concept of ṭabʿ (nature, disposition or appetitive self) drawing on his well-known relativist ethical theory concerning norm evaluation and therefore brings in a unique way this typical feature of Ashʿarism within his own radical infallibilist theory of norm construction. The concept of ṭabʿ allows to bridge the gap between the ambiguity in the revealed text and the mujtahid’s interpretation in the norm construction process, and ultimately serves to justify ex post the choices made by the mujtahid. In doing so, al-Ghazālī assigns to theology a critical role in revealing the origin of the illusion of the jurists who naively think that licit and illicit are qualities of things themselves.