Shifting Legal Authority from the Ruler to the ῾Ulamā᾿: Rationalizing the Punishment for Drinking Wine During the Saljūq Period

Abstract

This paper argues that the encroachment of the Saljūq political authorities onto the religious arena prompted jurists to tighten their legal arguments in order to bolster their legitimacy in determining the laws of Muslim society not established in the textual sources of the law. A key case in the ‘tug-of-war’ between the political and religious authorities over the sphere of law was the post-prophetic ruling on punishing the wine drinker. That this important ruling was established during the first caliphs provided a claim for secular authorities over jurisdiction of large areas of the law, including matters deemed of religious significance. This paper presents the different justifications given to this ruling by al-Juwaynī, al-Ghazālī, and Fakhr al-Dīn al-Rāzī, showing how this post-prophetic ruling was successively incorporated into the religious law that derived its authority from being grounded in the textual sources of Islamic law. While al-Juwaynī rationalized the punishment for drinking wine with a counter-implication argument, al-Ghazālī made a first step toward deriving it in analogy (qiyās) to the authoritative texts, an intellectual move which was successfully completed by al-Rāzī. Their different rationalizations reflect the increasing use of Greek logic in legal reasoning during that time period. Furthermore, this case also mirrors the general efforts by legal theorists at that time to make Islamic law a viable alternative to secular legislation (siyāsa).