Reason, Revelation and Law in Islamic and Western Theory and History 9789811562440, 9789811562457

Table of contents :
Foreword
Acknowledgments
Praise for Reason, Revelation and Law in Islamic and Western Theory and History
Contents
Notes on Contributors
Chapter 1: Introduction: Reason, Revelation, and Law in Global Historical Perspective
References
Chapter 2: The Historical Relation of Islamic and Western Law
Introduction
Western as well as Other Non-Islamic Influence on Islamic Law
The Historical Influence of Islamic on European Law
Conclusion
References
Chapter 3: Through the Lens of the Qur’anic Covenant: Theories of Natural Law and Social Contract in al-Ṭabarı̄’s Exegesis and History
Preface
Introduction
Natural Law Theory: ‘Western’ Concepts
‘Social Contract’
Covenant, Constitution, Social Contract
Islamic Natural Law and Social Contract
Summary and Procedure
Natural Law and Social Contract in the Qur’an
Al-Ṭabarı̄’s Exegesis and History
Al-Madhhab al-jarı̄rı̄
Exegesis of al-Nisāʾ, Q. 4: 1
Exegesis of Āl ʿImrān, Q. 3: 79
Creation in al-Ṭabarı̄’s History
Conclusions
Bibliography
I. Primary Sources
A. al-Ṭabarı̄’s Works
B. Other Arabic Sources
C. English Translation
II. Reference Literature
Chapter 4: Al-Ghazali’s Ethics and Natural Law Theory
The Prima Facie Opposing Case
Objectivity of Obligation
Objectivity of Value
Reason and Human Nature
References
Chapter 5: Elitist Democracy and Epistemic Equality: Aristotle and Ibn Rushd on the Role of Common Beliefs
Aristotle’s Endoxic Method
Whose Endoxa? Which Method?
Limitations
Endoxic Method in Aristotle’s Politics
Ibn Rushd on Common Opinions: Bādı̄ al-rāʾı̄ and the Unwritten Law
Conclusion
References
Chapter 6: “A Comparative Study of Reason and Revelation in Relation to Natural and Divine Law in al-Farabi and Ibn Rushd”
References
Chapter 7: Epilogue: Critical Reflections in Retrospect and Prospect
Distinguishing Disciplines, Positioning Scholarship
Disciplinary Calibrations
Framing the Question, Selecting the Genre: Islamic Natural Law Between Theology and Law
Islamic Natural Law as Legal Theory
Hard Natural Law
Soft Natural Law
Maqasid al-shari‘a: Controlling for the Slippery Slope
Islamic Natural Law as Legal Practice?
The Politics of Islamic Natural Law Theory
Conclusion
References
Index

Citation preview

ISLAM AND GLOBAL STUDIES

Reason, Revelation and Law in Islamic and Western Theory and History Edited by  R. Charles Weller · Anver Emon

Islam and Global Studies Series Editors Deina Abdelkader University of Massachusetts Lowell Lowell, MA, USA Nassef Manabilang Adiong Co-IRIS (International Relations and Islamic Studies Research Cohort) University of the Philippines Diliman Quezon City, Philippines Raffaele Mauriello Allameh Tabataba’i University Tehran, Islamic Republic of Iran

Islam and Global Studies series provides a platform for the progression of knowledge through academic exchanges based on multidisciplinary socio-­ political theory that studies the human condition and human interaction from a global perspective. It publishes monographs and edited volumes that are multidisciplinary and theoretically grounded and that address, in particular, non-state actors, Islamic polity, social and international justice, democracy, geopolitics and global diplomacy. The focus is on the human condition and human interaction at large. Thus cross-national, cross-­ cultural, minority and identity studies compose the building block of this series; sub-areas of study to which Islamic theory and socio-political praxis can provide an alternative and critical lens of inquiry. It explores Islam in history and in the contemporary world through studies that: a)  provide comprehensive insights of the intellectual developments that have defined Islam and Muslim societies both in history and in the contemporary world; b) delineate connections of pre-colonial Muslim experiences to their responses, adaptations and transformations toward modernity; c) evaluate old paradigms and emerging trends that affect Muslims’ experiences in terms of political state system, democracy, secularization, gender, radicalism, media portrayals, etc.; d)  show empirical cases of intra-Muslim and Muslim–Non-Muslim relations. More information about this series at http://www.palgrave.com/gp/series/16205

R. Charles Weller  •  Anver M. Emon Editors

Reason, Revelation and Law in Islamic and Western Theory and History

Editors R. Charles Weller Al-Farabi Kazakh National University Almaty, Kazakhstan Washington State University Pullman, WA, USA

Anver M. Emon Institute of Islamic Studies, University of Toronto Toronto, ON, Canada

ISSN 2524-7328     ISSN 2524-7336 (electronic) Islam and Global Studies ISBN 978-981-15-6244-0    ISBN 978-981-15-6245-7 (eBook) https://doi.org/10.1007/978-981-15-6245-7 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Singapore Pte Ltd. 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-­01/04 Gateway East, Singapore 189721, Singapore

Foreword

As Aristotle says in Politics, “humans are, by nature, social animals”. They live in and interact with other members of their societies. As citizens, their interactions are governed by both ‘natural law’ and other legal norms as well as by spiritual, moral, religious, and cultural criteria. In such contexts, it is important to examine current systems of states based on secular and religious features by examining the parallel ideas of reason and faith, philosophy and religion, ‘natural law’ and religious law’. In many cases, the religiously related problems are due to a lack of understanding of the relation between the principles of religious law and secular state laws and, as such, they reflect misunderstandings born out of cross-cultural communication. While state-adopted legislation regulates the sphere of religion, demands to execute legislation in the modern world in full accordance with religious laws and principles leads to encouragement of extremist and terrorist actions. These issues arise from the misunderstanding of the interconnection between reason and faith and their related counterparts of ‘natural law’ and ‘divine law.’ What the compilation of scholarly articles within this volume can offer is analysis of some of the sources of philosophical and religious worldviews within Islamic and Western societies. This analysis can provide effective ways to evaluate the peculiarities of the legal traditions based on those worldviews as well as a scholarly lens through which to view the integration of cultures in the modern globalized world. One can see in the example of medieval Islamic philosophy that it was considered quite viable and effective to govern based not only on religious convictions (cf. laws), but v

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on philosophy grounded in human reason. It was typical for medieval Islamic philosophy to regard reason and revelation, not as contradictory sources of knowledge, but rather as tools which help reveal the truth by complementing one another. In spite of the long centuries which have intervened between the classical Islamic period and our own day, the importance of religion in the regulation of human relationships has not lost its relevance. This can, among other places, be readily seen within the post-Soviet independent Central Asian states, where certain Muslims remain unsatisfied with the strictly secular nature of the state, and leave their states with the aim of building an Islamic state. If one looks at the history of Islam, it can be observed that various Muslim peoples started to eliminate Islamic legislative boundaries from their social and political lives based on pragmatic requirements, and gradually shifted to secular laws based on social contract. Numerous historical examples show that the medieval model based on the Qur’an alone cannot serve as the basis for the modern state’s full-­ fledged political and social development. The appropriation of religion for political purposes has been recognized recently as a global concern. This appears to be due to a lack of training in or acceptance of rational thinking and critical reasoning skills as a basis for assessing and determining social and political law. Religion, as a moral internal regulator of human beings, should not be harmful to others. ‘Religious law’ can help regulate the inner essence of an individual, whereas the relationship between peoples of various faiths and life philosophies must be regulated by the law of a state. In this context, the chapters compiled in this volume are important for learning about traditions of natural and religious law within various social and political contexts in Western and Islamic history. They provide an important historical background for understanding and reflecting upon the nature of today’s state-mosque and state-church relations in connection to ideas of ‘natural’ and ‘religious’ law. The volume thus makes an important contribution to the rapprochement of cultures through shared scholarly approaches to common global issues. Department of Religious and Cultural Studies Al-Farabi Kazakh National University Almaty, Kazakhstan 

Ainur D. Kurmanaliyeva

Acknowledgments

Special thanks to Tugrul Keskin, editor-in-chief of the Sociology of Islam list serve and Sociology of Islam journal, for his support and assistance in helping bring this publication to light, particularly in its initial stages; Deina Abdelkader and Charles E. Butterworth for offering critical feedback on various editorial decisions along the way; the editors of the ‘Islam and Global Studies’ series as well as Palgrave Macmillan for their support of and partnership in this project; Laura Shelley for her meticulous work in proof-reading the final manuscript and producing a thorough index which, along with the introductory chapter, helps tie together the volume as a unified whole; Washington State University Department of History and the University of Toronto Faculty of Law and Institute of Islamic Studies for providing funding for the specialized index; Richard E. Rubenstein and Ziba Mir-Hosseini for their endorsement of the volume; and, last but not least, all those we do not have time or space to name but who have contributed to and supported this project in a variety of ways.

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Praise for Reason, Revelation and Law in Islamic and Western Theory and History “The traditions associated with ‘Islam’ and ‘the West’ have long engaged in philosophical and religious debates on relations between human reason and divine revelation. The essays in this volume engage with the sources of these debates from different disciplinary perspectives—sociology, philosophy, political science and history. They shed light on how the debates have left their mark on the histories and identities of various Muslim and Western cultures, and how they have shaped the course of their past and present encounters with one another. Reason, Revelation and Law in Islamic and Western Theory and History is an important and challenging contribution to overcoming current ‘othering’, and to developing the possibilities of mutual respect and co-existence amid difference.” —Ziba Mir-Hosseini, SOAS, University of London “Reason, Revelation and Law in Islamic and Western Theory and History makes an important contribution to ongoing efforts to understand the profound intellectual and spiritual connections that long made relations between Islam and the West seem more like a family quarrel than a “clash of civilizations.” The well documented, vividly argued essays edited by R. Charles Weller and Anver Emon should be of considerable interest to lawyers, diplomats, and conflict resolution specialists as well as to sociologists, historians of religion and related fields. By demonstrating how great Muslim and Christian scholars jointly discovered and developed essential concepts like natural law, this book revives one’s faith in the possibility of future cooperative relations.” —Richard E. Rubenstein, University Professor, School for Conflict Analysis and Resolution, George Mason University

Contents

1 Introduction: Reason, Revelation, and Law in Global Historical Perspective  1 R. Charles Weller 2 The Historical Relation of Islamic and Western Law 25 R. Charles Weller 3 Through the Lens of the Qur’anic Covenant: Theories of Natural Law and Social Contract in al-Ṭabarı̄’s Exegesis and History 45 Ulrika Mårtensson 4 Al-Ghazali’s Ethics and Natural Law Theory 83 Edward Moad 5 Elitist Democracy and Epistemic Equality: Aristotle and Ibn Rushd on the Role of Common Beliefs101 Karen Taliaferro

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6 “A Comparative Study of Reason and Revelation in Relation to Natural and Divine Law in al-Farabi and Ibn Rushd”123 Ainur D. Kurmanaliyeva 7 Epilogue: Critical Reflections in Retrospect and Prospect135 Anver M. Emon Index157

Notes on Contributors

Anver  M.  Emon  is Professor of Law and History; Canada Research Chair in Islamic Legal History; and Director, Institute of Islamic Studies, University of Toronto. Emon has published widely in Islamic legal history, including authoring Islamic Natural Law Theories (2010) and co-­ authoring The Natural Law: A Jewish, Christian and Islamic Trialogue (2014). Ainur D. Kurmanaliyeva  (PhD) is professor and Chair of the Department of Religious and Cultural Studies at Al-Farabi Kazakh National University, Almaty, Kazakhstan. Kurmanaliyeva’s research interests include the philosophy of Al-Farabi within the context of broader Arab-Muslim Philosophy, relevant issues of religious education in modern Kazakhstan, and the contemporary religious situation in Kazakhstan. Her publications include a co-authored article with A.  Kulsaryieva and D.  Sikhimbaeva, “The Religious Situation in Kazakhstan: The Main Trends and Challenges,” World Applied Sciences Journal (Vol 25, No 11, 2013: 1612–1618) and “Educating for Tolerance in Kazakhstan.” CLCWeb: Comparative Literature and Culture (Vol 20, No 2, 2018: https://doi.org/10.7771/1481-­4374.3237) co-­authored with S. Rysbekova and K. Borbassova. She has served as principle investigator of the following research projects for the Ministry of Education and Science of Kazakhstan: The role of religion in modern Kazakhstan (2012–2014), the contours of missionary activity in modern Kazakhstan (2015–2017).

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NOTES ON CONTRIBUTORS

Ulrika  Mårtensson  is professor at the Department of Philosophy and Religious Studies, the Norwegian University of Science and Technology, where she teaches Islamic studies from a Comparative Religious studies perspective, and with a focus on institutions and disciplines. She has a PhD from Uppsala University (2001) on the dissertation ‘The True New Testament: Sealing the Heart’s Covenant in al-Ṭ abarı̄’s History of the Messengers and the Kings’. Since then, she has continued to work on the various aspects of al-Ṭ abarı̄’s madhhab, alongside subjects such as Qur’an exegesis and theories of Qur’anic Arabic language and rhetoric, historiography, and modern Islamic movements and thought. A particular interest concerns relationships between religion and theory and their implications for concepts of ‘religion’, in Islamic contexts and more generally within the Comparative Religion-paradigm. Edward Moad  is Associate Professor of Philosophy in the Department of Humanities, Qatar University. He received his PhD in Philosophy from University of Missouri-Columbia (2004), and his research focuses on the intersection between Metaphysics, Philosophy of Religion, Islamic Philosophy, and Comparative Moral Epistemology. For more information: https://philpeople.org/profiles/edward-­moad. Karen  Taliaferro  is an assistant professor in the School of Civic and Economic Thought and Leadership, Arizona State University. She is the author of The Possibility of Religious Freedom: Early Natural Law and the Abrahamic Faiths (2019). Her research focuses on religion and the history of political thought with an emphasis on Islamic philosophy. Karen was a 2015–2016 Thomas W.  Smith Postdoctoral Fellow at the James Madison Program, Princeton University, and has held fellowships at Georgetown University’s School of Foreign Service in Qatar and in Morocco through the Boren National Security Educational Program. R. Charles Weller  is Senior Research Fellow, Al-Farabi Kazakh National University, and Associate Professor of History (Career), Washington State University. Among works in English and Kazakh, Weller most recently edited 21st-Century Narratives of World History: Global and Multidisciplinary Perspectives (Palgrave Macmillan, 2017). He is working on two related monograph projects: Mosaic and Sharia Law in American National History and Identity (Brill Academic) and ‘Pre-­Islamic Survivals’ in Tsarist and Soviet Ethnography of the Kazakh and Central Asian Muslim Peoples.

CHAPTER 1

Introduction: Reason, Revelation, and Law in Global Historical Perspective R. Charles Weller

This volume originally emerged from exchanges on the Sociology of Islam listserve in June 2016. Since then it has taken new shape and direction, with new contributors joining along the way. The final product is a collection of essays by scholars from various geo-political and cultural backgrounds both within and beyond the Western and Islamic worlds, representing distinct disciplinary approaches and perspectives, who have come together to address the proposed theme. The objective of the volume is to clarify the relation of reason and revelation in connection to diverse meanings and interpretations of Islamic and Western law which have affected entire peoples and societies across the globe, past and present. The essays contribute to ongoing dialogues across cultural, civilizational, religious, and national borders as well as to the myriad debates that have preceded such exchanges. * * *

R. C. Weller (*) Al-Farabi Kazakh National University, Almaty, Kazakhstan Washington State University, Pullman, WA, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 R. C. Weller, A. M. Emon (eds.), Reason, Revelation and Law in Islamic and Western Theory and History, Islam and Global Studies, https://doi.org/10.1007/978-981-15-6245-7_1

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First, with respect to the much debated and problematic constructs ‘Islamic’ and ‘Western,’ we retain them only with some trepidation, due in large measure to the way in which they have been used and abused to promote reified boundaries between allegedly fixed and defined ‘civilizations’ which, so the narrative goes, are entirely at odds and incompatible with one another, only destined to continue their historic clashes from time immemorial. But such a description of the problem represents only its most extreme form, variously articulated by or ascribed to those often labeled ‘the far right,’ including most recently their farthest fringes, ‘the alt-right.’ Depictions of “the far (neo-liberal) left” are meanwhile presented as blissfully, naively oblivious to any concerns whatsoever, deniers of “Islamic terrorism” and other forms of “threat” from “the Islamic world” (cf. Qureshi and Sells 2003; Herschinger 2011; Rose 2013). Both of these more extreme narratives represent a ‘Western’ vantage. Or so at first it seems. As Edward Said realized in the “Preface” to the 25th Anniversary Edition of Orientalism: “This is [only] one side of the global debate. In the Arab and Muslim countries the situation is scarcely better. …the region has slipped into an easy anti-Americanism that shows little understanding of what the United States is really like as a society” (Said 2003: xxix). “Anti-Americanism” is, in this context, easily interchangeable with “anti-Westernism” more generally (cf. Carrier 1995; Buruma and Margalit 2004; Aydin 2007; Duvall 2019). But the conundrum of terminological definitions—which at its heart concerns questions of how accurately or inaccurately those definitions represent corresponding realities, cohering conceptions, or (falsely) imagined/invented constructs—eventually carries us into the debates over not only ‘orientalism’ and ‘occidentalism,’ but ‘post-modernism,’ ‘post-­ structuralism,’ ‘deconstructionism,’ ‘the linguistic turn,’ ‘the cultural turn’ and more. The details of those debates need not be rehearsed here (cf. Evans [1997] 1999; Breisach 2003; Iggers [1997] 2005), though the volume by all means speaks to them in various ways at various junctures, both implicitly and explicitly. Meanwhile, Anthony D.  Smith has done some of the best work thus far in both analyzing and synthesizing the deeper historical and theoretical issues lying beneath and behind “cultural,” “ethnic,” “national,” and other related (cf. “civilizational,” “racial,” etc.) identities, placing them in historical context and proposing his own middle-ground position along the way (Smith 2000). Within my own chapter, I demonstrate that within a larger world historical context of crosscultural contact and exchange, various forms of

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Western and Islamic law have reciprocally influenced one another throughout their long centuries of interaction, from the rise of Islam in the early seventh-century to the fifteenth-century CE and beyond. These centuries-­ long exchanges took place by way of their shared borders and living spaces around and across the Mediterranean world and included not only legal, but cultural, economic, political, and other forms of crosscultural influence. Thus, various forms of Western law (and culture) already contain within them varying degrees of influence from diverse forms of Islamic law (and culture), and vice versa. Along, therefore, with a great deal of diversity and variation within Western and Islamic societies themselves, both historically and presently, the large amount of shared heritage and reciprocal exchange across fourteen centuries results in inclusive (as opposed to exclusive) understandings of each society: various ‘Western’ societies are, in varying measure, partly ‘Islamic’ and various ‘Islamic’ societies partly ‘Western.’ This brings us back full circle to the question of whether ‘Islamic’ and ‘Western’ societies should be distinguished in such dichotomized terms. In spite of the way in which the Israeli-Palestinian conflict, the Iranian Revolution, 9/11, and other “clashes” have contributed to the further politicization of the question, respective cases can be made for not only “Judeo-Christian,” but “Islamo-Christian” (cf. Bulliet 2004), “Judeo-Islamic,” and “Judaic-Christian-Islamic” syntheses—replete with all their similarities and distinctions, harmonies, and tensions—which have ebbed and flowed in various times and places amid the historical interactions of these three monotheistic Middle Eastern religious-cultural traditions and their related societies. Beyond this, a mutually reflexive relationship between various ‘Islamic’ and ‘Western’ societies implies numerous other streams of historical influence from multiple other non-Western and non-Islamic sources. These sources would include not only the philosophical rationalism (as well as medical approaches) of ancient Greek civilization from which Jewish, Christian, and Muslim societies have all drawn (cf. Rubenstein 2003), but also the Indian, Persian, Central Asian, East Asian, African, and multiple other traditions. This provides a more accurate representation of the complexity of human history viewed in global perspective, without denying the uniqueness which various combinations of factors have produced among particular human communities across both time and space (see esp. Ansary 2019; cf. also McNeil and McNeil 2003; Bowden 2007). It is a vision of continuing historical transformation in the face of ongoing crosscultural exchange as opposed to static monolithic traditions placed in

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opposition to one another who are entirely unaffected by their encounter with ‘the other’ and even seek to insulate themselves from such encounters. Academic debates (at least within Western scholarship) regarding these kinds of interchanges between various human communities both historically and contemporaneously can be traced back to the mass human migrations of the nineteenth and early twentieth centuries resulting from a combination of factors associated with industrialization, imperialism, and the global economy. The most important articulations of these debates found expression in the works of Oswald Spengler and Arnold Toynbee respectively during roughly the second quarter of the twentieth century (cf. esp. Costello 1994). The ongoing dynamics of ‘globalization’ and corresponding resurgence of studies in transnational, transregional, world, and global history carry these debates forward in our day. Important questions remain, of course, as to what degree and at what pace religious, ethnic, cultural, civilizational, and other related transformations are intentional or unintentional, forced or voluntary, internally or externally driven, and whether the results are for better or worse, but answers are best found in complex equations incorporating all these elements in ebbs and flows as opposed to simplistic, isolated juxtapositions inflexibly positing one or the other option. * * * The particular global encounter which gave rise to this small collection of essays was, in fact, what, two years later, finally culminated in 2018 in the denial of citizenship to a Syrian Muslim family by Swiss authorities. This denial came after their two sons, ages 14 and 15 at the time (April 2016), “requested an exemption from shaking a female teacher’s hand” (Taylor 2016; O’Grady 2018). In barring the Syrian Muslim family from citizenship, the Swiss authorities insisted that “[t]he handshake is part of our culture” and “the public interest concerning gender equality as well as integration of foreigners far outweighs that concerning the freedom of belief of students” (O’Grady 2018). Meanwhile, the president of the Federation of Islamic Organizations in Switzerland suggested that the boys and their family were “misinterpreting” the teachings of Islam, that “the Islamic commandment of mutual respect” far outweighed an alleged injunction against shaking hands with opposite genders (Taylor 2016). Others cried out, with historical precedent, that ‘neo-imperialist foul play’ was involved on the side of the Swiss authorities. Although magnified

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within the post-9/11 context, this was not really a ‘clash of civilizations,’ or at least did not need to be. At heart, it was merely one in a multitude of crosscultural communication issues occurring all throughout human history. This particular case reflected the intersecting of religion, custom, law, rights, and citizenship, with conceptions of ‘natural’ and ‘divine law’ grounded respectively in ‘reason’ and ‘revelation’ all in the mix. And once again we have, in the latter two pairs, concepts which have often been juxtaposed, yet which are not mutually exclusive, as the essays of Mårtensson, Moad, Taliaferro, and Kurmanaliyeva all demonstrate. Ultimately then, this volume speaks to the way that concepts and practices of both ‘natural’ and ‘divine law’ (cf. ‘human reason’ and ‘divine revelation’) shape the histories and identities of various Islamic and Western societies, particularly in the course of their encounters with one another and ‘others’ within the global community. Within the covers of this book, Ulrika Mårtensson, drawing on the work of John Finnis, references “the history of natural law theory from Plato and especially Aristotle, via Thomas Aquinas, into the Universal Declaration of Human Rights (UDHR 1948).” Filling in the gaps between Aristotle and Aquinas, Matthew Levering has elsewhere traced out “the sources of Christian reflection on natural law” in “five influential patristic theologians, namely Origen and John Chrysostom in the East, and Ambrosiaster, Pelagius, and Augustine in the West” (Levering 2014: 66–67). Levering likewise notes, “the extensive development of natural law doctrine by Christians since the medieval period” (ibid.). As he demonstrates, Christian commentators throughout the ages have advanced various ‘natural law’ theories based on an oft-cited passage from the first-century Jewish-Christian theologian Paul of Tarsus (i.e., “the Apostle Paul”), whose writings were eventually incorporated into the Christian New Testament via later church councils. The passage, in English translation, reads: “when Gentiles who do not have the Law do instinctively the things of the Law, these, not having the Law, are a law to themselves, in that they show the work of the Law written in their hearts” (Romans 2:14–15, NASB). Against this historical backdrop, the drafters of the UDHR included Dr. Charles Malik. Along with having “played a major role in Lebanese politics,” he was “[a] Greek Orthodox Christian” and “theologian who successfully reached across religious lines, appealing to his fellow Eastern Orthodox Christians, Roman Catholics and Evangelicals alike” (Hijazi 1987: D19; DHL n.d.). But apart from the initial passing reference to Plato and Aristotle— which leaves out Euripides, the Stoics, and more (Moyn 2014:

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365–366)—this brief historical overview thus far emphasizes Christian contributions to the UDHR, and predominantly “Western” Christian ones at that.1 The contributions of “the ancient rabbinic sages” and their descendants, particularly Maimonides, merit inclusion within this historical stream of influences as well (Novak 2012; 2014: 30–31; cf. Neusner 1996; Cohen 2017: 62). Likewise, as my own chapter within this volume suggests: “[t]aking…the influence of Islamic thinkers on Christian theoreticians in the Western tradition—particularly Aquinas and Mirandola…— into consideration, the Islamic contribution to the United Nation’s Universal Declaration of Human Rights and its ongoing appropriation around the globe deserves recognition” as well. And our brief survey here has not even taken into account the possible streams of historic influence from Confucianism, Buddhism, Hinduism, Sikhism, Shintoism, African, Native American, and numerous other spiritual and cultural perspectives around the world. Indeed, we must agree with Roman Tokarczyk (1991: 77) who, in treating many of these world historical sources, argues that “[r]econstructions of the natural-law basis of social order in different traditions call for comparative studies, suggesting [a] multidimensional universalism.” Tokarczyk’s inquiry carried forward, some four decades later, the vision of the Natural Law Institute at the University of Notre Dame from the 1950s when, among their Proceedings, they published a volume treating natural law in the Judaic, Muslim, Hindu, Buddhist, and Chinese traditions (Barrett et al. 1953). That many, if not all, of these worldviews shaped the drafting of the UDHR is evident in the fact that, according to one estimate, “thirty-seven of the member nations stood in the Judeo-Christian tradition, eleven in the Islamic, six in the Marxist, and four in the Buddhist tradition,” with efforts made “to draw up a declaration that was acceptable to all the participating states” (Morsink 2011: 21 citing Chapelle 1967: 44). In spite, however, of increasing recognition which has come with “discussions of transnationalism, international regimes, and the limits to political realism” since the 1980s (Waltz 2001: 45), we still lack a clear picture and, thus, full appreciation of the way in which “the UDHR constitutes an essential cornerstone in the modern history of human rights by drawing upon ancient to contemporary philosophies” (Duan 2017). As the history of the UDHR has been further explored across the past several decades in particular, “it has become more complex, and more nuanced,” not only with regard to the role played by “small states” (Waltz 2001: 45, 2002), but multiple religious-cultural traditions as well. To the point: concepts

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and practices of both “natural” and “divine law” have shaped not only the histories and identities of various Islamic and Western peoples, but the entire globe, through the UDHR and beyond. This broader global vision adds new dimensions to the question of the historical relation of ‘reason’ and ‘revelation.’ Meanwhile, the historic tensions between these concepts and their corollaries of ‘natural’ and ‘divine law’ remain entrenched in various Islamic and Western societies. Polarizations have resulted in extremes at either end of the spectrum. Among those arguing for recognition of specifically religious contributions, assertions of superiority or outright exclusivist claims continue to be voiced regarding the allegedly Jewish, Christian, or Islamic origins of ‘human rights’ as well as their often closely associated form of government—‘democracy.’ For example, an influential Muslim scholar in the Kazakh context, Murtaza Bulutai, has argued that [t]he acceptance throughout the world in recent times of the more highly developed doctrines such as the dialogue between religions which continues to be formed, the granting of freedom, the looking upon one another in a favorable way, [and] the protection of human rights is one of the results, the fruits, of having understood the benefits which Islam has preached for centuries. (Bulutai 2000: 278; cf. Weller 2014: 160–170)

Elsewhere in relation to similar claims, Bulutai promotes the idea that Qur’anic “principles serve as a basis for the formation of a state system (statehood)” (Bulutai 2004). While Bulutai speaks of incorporating these ideas into “a secular state,” he clearly envisions a foundational role for the Qur’an and Islamic principles of law therein. The Organization of Islamic Cooperation (or Conference, OIC)— founded in 1971 and eventually becoming “the second largest inter-­ governmental organisation after the United Nations,” with 57 member states who claim to collectively function as “the collective voice of the Muslim world” (SESRIC n.d.)—maintains an Independent Permanent Human Rights Commission (IPHRC). At their 19th annual gathering in 1990, the OIC issued the Cairo Declaration on Human Rights in Islam. The Declaration opens with the following affirmations as part of the foundation for their vision: Reaffirming the civilizing and historical role of the Islamic Ummah which God made the best nation that has given mankind a universal and well-­

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balanced civilization in which harmony is established between this life and the hereafter and knowledge is combined with faith; and the role that this Ummah should play to guide a humanity confused by competing trends and ideologies and to prove solutions to the chronic problems of this materialistic civilization. Wishing to contribute to the efforts of mankind to assert human rights, to protect man from exploitation and persecution, and to affirm his freedom and right to a dignified life in accordance with the Islamic Shari’ah. (OIC 1990: 3; cf. OHCHR 2011)

Here again we have aspirations “to contribute to the efforts of mankind to assert human rights” mixed with claims that God himself created “the Islamic Ummah” as “the best nation” offering “mankind a universal and well-balanced civilization.” A claim is thus made for “the [lead] role that this Ummah should play to guide…humanity” along the path to achieving genuine human rights. Though it is doubtful at best that the UN would take such claims at face value, the importance of this 57-member cooperative’s vision for human rights is nonetheless indicated, among other things, by the roundtable which the Office of the UN High Commissioner for Human Rights (OHCHR) organized in October 2011 with the OIC and the Non-Alignment Movement (NAM) in order to discuss “development as a human right” (OHCHR 2011). Meanwhile, within the Egyptian context, other internationally known Muslim groups have been accused by certain Middle Eastern activists of “promoting human rights in a politicized manner in order to gain grounds on international platforms” (ETS 2019; cf. Qutb [2000] 2019). From a Western Christian vantage, Rodney Stark—a former longtime professor of sociology at the University of Washington who moved to Baylor University in 2004—argues for The Victory of Reason: How Christianity Led to Freedom, Capitalism and Western Success (2005; cf. also Stark 2014). His vision of “freedom” and “Western Success” incorporates claims regarding “the role of early and medieval Christianity in fostering new ideas about human rights” through “[t]he blessings of a theology of reason” (2005: xiv, 23). Contrary to the claims of Jews, Muslims, and all others, religious or non-religious, Stark contends that “only Christianity has devoted serious and sustained attention to human rights” (2005: 31). More recently, in the summer of 2019, Samuel Gregg—research director at a conservative Christian “think tank” in Michigan called the Acton Institute—published a volume (via Gateway, an imprint of the avowedly

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conservative publisher Regnery,) titled Reason, Faith, and the Struggle for Western Civilization. Gregg, in agreement with Pope Benedict XVI, emphasizes only “Jewish, Greek, Roman, and Christian sources” filtered through the Enlightenment in relation to the UDHR.  Accordingly, he highlights only the contributions of Charles Malik, the Lebanese Greek Orthodox member, and the “secular French Jew, René Cassin” (Gregg 2019, chapter 7). These are only several of numerous other examples from both Muslim and Christian sources where religious scholars, missionaries, and religiously based political groups attempt to establish their own religious faith tradition as the main source and guide for human rights and democratic government around the globe. Most of them share in common an approach which extols their own faith in an exclusivist manner while denigrating the other(s) in the process, instead of inclusively affirming and welcoming the contributions of all, equally mindful of the limitations and shortcomings of each in fairness and balance, without necessarily holding to an entirely neutral and egalitarian form of ‘cultural relativism’ in the process. Religious contributions to the history of human rights and justice cannot be denied (cf. e.g., the movements led by Gandhi and MLK). Then again, very serious human rights abuses and injustices have also been committed in the name of these same religions, including oppressive attempts to convert others to ‘the truth’ (as they each interpret it) through socially coercive or even threatening means. The topic is thus delicate and freighted with pitfalls; those who do not belong to these faith traditions quite understandably carry deep concerns as to the motives and agendas of those pursuing such discussions. These historic abuses and questionable agendas have led to more secularized ideals centered in human reason (cf.  both ‘natural’ and ‘positive’ law’). While this includes atheistic approaches, the emerging ideals have not always been in opposition to or exclusion of divine revelation, but have rather included them by positing natural scientific processes, human history and/or human rational thought as various means of divine revelation themselves, as was the case with many of the Islamic Golden Age and European Enlightenment philosophers. Over the past century or more others have incorporated both reason and revelation in similar ways based in more pluralistic humanist and religious visions. Along with the Parliament of the World’s Religions originally meeting and still based in Chicago since 1893, other more recent efforts incorporating both ‘reason’ and ‘revelation’ as well as ‘natural’ and ‘divine law’ perspectives include the Global Conference on the World’s Religions hosted by McGill University in Canada and the Congress of the Leaders

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of World and Traditional Religions hosted by the government of Kazakhstan in Nur Sultan (formerly Astana). All of these working groups have produced a ‘Declaration’ addressing, among other matters, issues of human rights and democratic ideals, explicitly working in conjunction with the United Nations and UNESCO (PWR 1993; GCWR 2016; cf. Greenaway 2016; CLWTR 2018). Among the chapters in this volume, Taliaferro alone explicitly notes how her discussion addresses “modernity’s aspirations of democracy, equality and self-rule.” Mårtensson’s reference to the UDHR implies that she is ultimately concerned with similar matters. But whether implicit or explicit, all the chapters discuss in some way or other various Islamic theories of natural law, contributions to common and other forms of law, or democratic ideals. Thus questions of “Islam and democracy” are, however near or far, certainly in view (cf. Sachedina 2001; Bhutto 2008; Esposito et al. 2015; Kubicek 2015; al-Ahsan and Young 2017). Theoretical comparisons as well as historical connections with Western Christian and secular traditions bring questions of reason, revelation, and law to the foreground, all against this complicated and controversial historical backdrop. Ulrika Mårtensson, “Through the Lens of the Qur’anic Covenant: Theories of Natural Law and Social Contract in al-Ṭ abarı̄’s Exegesis and History,” (Chap. 3), follows my treatment of “The Historical Relation of Islamic and Western Law” (Chap. 2). Mårtensson first: • sets forth the UDHR as a comparative point of reference in the late modern age, • highlights the debate over Muslim religious-cultural rights as an issue of human (minority) rights in the Swiss citizenship case, • reviews the question as to whether human reason necessarily precludes sources of divine revelation in relation to theories of natural law, as is sometimes asserted within Western scholarship, • provides “an exposition of” two major competing interpretations of “the Biblical-Jewish concept of Covenant and its significance in American Puritan and revolutionary contexts,” thus supplying another important and helpful comparative point of reference which is historically prior to the UDHR, reaching back as far as the ancient and medieval periods, and • overviews debates concerning Islamic natural law theory.

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With these matters in view, she proceeds to exegete both the Qur’an and the legal tradition of Muḥammad b. Jarı̄r al-Ṭ abarı̄ (d. 310/923) in the light of natural law and social contract theory. She first argues that the Qur’an itself functioned as a form of social contract grounded in natural law. This was accomplished by way of the concept of haqq, interpreted by Mårtensson as a type of “right”, flowing forth from and situated within God’s act of Creation as narrated in the Qur’an which serves as “the universal Creation Covenant between God and humans.” She then argues that al-Ṭ abarı̄ “grounded his madhhab [law school] in a Qur’anic Covenantal natural law and social contract theory…(mı̄thāq)” which was built upon “a concept of the common good (maṣlaḥa)” as a means for protecting the rights (ḥuqūq) which were granted. Because Ṭ abarı̄ located the social contract in Creation, he “did not limit [it] to the Prophet’s polity,” but “conceptualized it in ‘universal’ terms.” Ṭ abarı̄ thus represents an early form of this viewpoint and approach among Muslim interpreters which would eventually culminate in the articulation of “a set of defined ‘objectives’ of the law (maqāsị d): preservation of religion, life, intellect, lineage, and property,” the clearest expression of which would come nearly two centuries later in the work of al-Ghazzālı̄ (d. 505/1111). Mårtensson’s aim in all this is not, however, to trace out the path of historical development from Ṭ abarı̄ to Ghazzālı̄, but to accentuate the contribution of Ṭ abarı̄ within the context of debates over Islamic natural law theory and history. Edward Moad, “Al-Ghazali’s Ethics and Natural Law Theory” (Chap. 4), employs both historical-critical analysis and extensive philosophical, analogical argumentation to “make the case that we can accurately describe [Abu Hamid al-] Ghazali’s position as a natural law theory.” In so doing, he concentrates on “the compatibility between the thought of…al-Ghazali (1058–1111), and the dimension of natural law pertaining” not to Islamic law schools and issues of legality, but “morality and moral epistemology.” In the course of his inquiry into this moral dimension of al-Ghazali’s natural law theory, Moad takes “the moral theory of Saint Thomas Aquinas as paradigmatic,” which means, among other things, that “reason is capable of discovering moral norms independent of” divine revelation without dismissing all forms of divine guidance. This includes, most importantly, the conviction that “objective moral norms rooted in human nature are discoverable by reason.” Ultimately then, in spite of the extensive philosophical argumentation of both Ghazali and Moad which are encountered throughout the essay, Moad’s study is at heart a comparative historical

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inquiry concerned with how closely the ideas of Ghazali regarding natural law on a moral level align with those of Thomas Aquinas. Moad’s conclusion is that Ghazali’s “natural law” theory—which shares a “basic similarity” with “that of his contemporaries among the Muslim falāsifa [philosophers]”—is, in fact, “comparable in its essential components to that of Saint Thomas Aquinas,” and thus, by implication, other Western theories across the centuries which have been shaped by Aquinas. In advancing his argument, Moad challenges the “strictly ‘occasionalist’ interpretation of Ghazali’s metaphysics of nature” which “depends on an oversimplification” and “a hasty conclusion,” proposing that even if such an interpretation be granted, there is every possibility that Ghazali’s ideas touching on natural law are simply “inconsistent with” (or perhaps an exception to?) his general theory of metaphysics. In raising this latter possibility, Moad does not delve into questions of how Ghazali’s ideas may have developed historically, but nonetheless offers “a plausible reading of the relevant sections of Ghazali.” In the final analysis, “it remains the case that the ethics [Ghazali] does expound is a natural law theory in all essential respects.” Karen Taliaferro, “Elitist Democracy and Epistemic Equality: Aristotle and Ibn Rushd on the Role of Common Beliefs,” (Chap. 5), comparatively traces out approaches to public knowledge and dialogue in the fourth-century BCE Greek philosopher Aristotle and his later twelfth-­ century commentator, the Iberian Muslim philosopher Ibn Rushd. These are “Aristotle’s ‘endoxic method’ approach to political and moral inquiry” and Ibn Rushd’s “bādı̄ al-rāʾı̄,” otherwise known as his “immediate point of view” or “unexamined opinion” approach. Aristotle’s “endoxic method” provides, she argues, “a discursive approach to knowledge”—a type of correlation theory of truth—which takes into account “the common beliefs or opinions” of the populace, functioning as “the fundamental data of a system of ethics” within a democratic decision-making process. Ibn Rushd’s “immediate point of view” sifts out common beliefs and opinions which have “communal underpinnings” by virtue of their being “immediately” convincing and/or “widely accepted” to most common people on the streets. This “does not preclude the possibility that common opinion is shared by the elites, nor…cultural particularities among such opinions,” but leaves room for more than “one version of ‘common opinion,’” perhaps best understood as a collection of ‘common opinions’ among major segments of a given society which share core ideals and values. Taliaferro holds that this “communal knowledge” helps us perceive

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those “unwritten laws” that, according to Ibn Rushd, “are in the nature of everyone,” thus outlining a natural law theory. Taliaferro recognizes in all this that “vesting authority in common opinion, elite opinion, or religious revelation are perhaps equally likely to fall prey to blind spots.” Despite potential shortcomings, however, it remains, she argues, “an invaluable starting point in moral argumentation, especially considering the alternatives of religious fideism, inflammatory populism, or appeals to mere self-­ interest.” It reflects an “epistemologically humble” approach which seeks “a plurality of voices and opinions,” helping us “move beyond not only the elite/common divide but also to move past the equally unhelpful revelation vs. reason and religion vs. politics antinomies.” She frames her study around a concern for modern trends in democratic societies where “certain voices rise to the fore in the public sphere while others are suppressed,” suggesting that the related yet distinct approaches of Aristotle and Ibn Rushd might provide helpful guidance for achieving “modernity’s aspirations of democracy, equality and self-rule” by bridging, at least in part, the “divide between elites and…ordinary citizens,” without denying the need for “an adequate education,” including some kind of “moral education,” in the process. In the final chapter of the volume (six), Ainur Kurmanaliyeva offers “A Comparative Study of Reason and Revelation in Relation to Natural and Divine Law in al-Farabi and Ibn Rushd.” She describes al-Farabi (870–950  CE)—who hails from the same Turkic-Kipchak steppe of Central Asia as Kurmanaliyeva, with her university now named in his honor—and Ibn Rushd as both “interpret[ing] divine revelation and human reason as two forms of knowledge which complete rather than nullify each other.” Farabi, however, according to Kurmanaliyeva, “extolled the reliable nature of knowledge grounded in [human] reason.” Indeed, in her view, “[t]he rational position peculiar to the treatises of al-Farabi is proof of the advanced character of medieval Islamic philosophy.” Ibn Rushd, meanwhile she suggests, held more to a middle-ground of balance between the two. Rushd, in fact, she says, argued that “once divine revelation and human reason are both considered means of attaining truth, then truth and truth cannot contradict each other; on the contrary, they develop in correlation with each other.” Nonetheless, Rushd recommended that in cases where “divine revelation has principle contradictions” with conclusions reached by human reason and natural science, an “allegorical interpretation of the Qur’anic words” was the best approach to resolving any such apparent conflicts. Intersecting with the work of Taliaferro, though

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from a differing angle, Kurmanaliyeva notes along these lines how Ibn Rushd considered “[d]aily repetition of public opinion” and a lack of “encounter[ing] any viewpoints contrary to what is habitually affirmed” the reasons that the uncritical, unthinking masses accepted “the view that the world was created out of nothing.” This suggests the willingness of Rushd to call into question, not the divine revelation itself, but prevailing interpretations which, in his view, had not been critically examined. Thus Rushd supported “the opposite view of the arguments of religious scholars such as al-Ghazali and al-Ash’ari.” Still, according to her reading of Rushd, he believed that “religion constructed solely on the basis of human reasoning [was] weak.” Among much else, her own conclusion to her comparative study says it best: “The ability of al-Ghazali to promote his own opinion in reaction to the questions raised by Al-Farabi, Ibn Sina and other Islamic philosophers, followed by Ibn Rushd’s reaffirmation of the harmony between human reason and divine revelation, and the unique dialogue that ensued—this is the cultural heritage of the classical Islamic era.” Kurmanaliyeva’s final note, and indeed her entire treatment of the relation between divine revelation and human reason in connection to divine and natural law, and the ability of Muslim scholars to engage these questions through open academic dialogue, hints at her own post-Soviet context. This is reflected in the Foreword she has written for this volume which expresses explicit concern for “understanding…the relation between the principles of religious law and secular state,” particularly within “the post-Soviet independent Central Asian states, where certain Muslims remain unsatisfied with the strictly secular nature of the state, and leave their states with the aim of building an Islamic state.” In this, she also— like all of us, including the Muslim philosophers she and the other contributors to this volume examine—is a “child of her time.” In her own case, she lives in the shadow and still vivid memory of some 70 years of Soviet atheistic suppression of the freedom of both speech and religion now complexly layered over by not only an initial pendulum swing of Islamic (and other religious) revivalism (cf. Weller 2014), but the post-9/11 “War on Terror.” The Soviets of course, as an off-shoot Western secular society, shared deep concern for the trends of Islamic revivalism giving birth to Islamic states along their southern border, particularly in Iran and Afghanistan. Thus the Soviet-Afghan War (1979–89) followed immediately on the heels of the 1979 Iranian Revolution and resulted in, among other things, US aid being funneled to Osama bin Laden and the

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Mujahideen resistance. The success of their US-supported resistance against the Soviets within the broader context of the Cold War gave rise to the very thing both the Soviets and US feared, namely the Taliban at the head of an Islamic Afghan state in 1996. By this time, the post-Soviet Central Asian states, inclusive of Kazakhstan where Kurmanaliyeva herself resides, had gained independence. Indeed, they gained it in 1991, due in part to the failed Soviet military offensive in Afghanistan and subsequent collapse of the Soviet Union. The Central Asian states were now free to not only run their own governments, but take over the task of safeguarding them from penetration by militant and other extremist groups whose aim was the founding of an Islamic state established solely and strictly upon Sharia as a divinely revealed code of law. How, then, to manage the genuine, productive revival of their main historic religious tradition, Islam, in a post-atheistic context without it resulting in a full-fledged Islamic state? This remains one of the long-standing, though dynamically transforming challenges they have faced. Meanwhile the Taliban in Afghanistan provided refuge for al-Qaeda which, in turn, gave rise to Islamic State of Iraq and Syria (ISIS) which, in turn, has generated renewed debate over potentially reviving the Islamic Caliphate based in Sharia law (cf. Kennedy 2016; Hassan 2017), which, in turn, brings us back full circle to the longstanding debates of “Islam and democracy” (see above) and the various approaches to law within Islamic and Muslim-majority states (cf. Otto 2010; Daniels 2017). This no doubt is an over-simplified summary, but it hopefully helps clarify some of the various strands which connect the larger global context embracing all the contributors to this volume, with Kurmanaliyeva’s Foreword and Emon’s Epilogue reflecting this context most explicitly. And yet, real and important though it be, this over-simplified narrative too often over-shadows the more important dimensions of “the cultural heritage of the classical Islamic era.” And here the post-Soviet heritage is just as much an asset as a liability, in that the Soviets promoted the study of Islamic Golden Age philosophers by Central Asian (and other) Soviet Muslim peoples. In doing so, they in fact highlighted many of the same points which al-Ghazali did in his Tahāfut al-Falāsifa (Incoherence of the Philosophers), albeit for precisely the opposite purpose. Whereas Ghazali was keen to condemn “the hide-bound atheists of our day” (Al-Ghazali [c. 1095] 1963: 3) for their naturalist-based scientific and philosophical theories about metaphysical topics such as God and the cosmos, the Soviets employed these selfsame findings as propaganda for their own cause. But

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this, like Soviet and American meddling in Iran and Afghanistan, proved a double-edged sword, for the majority of Central Asian (and other) Soviet Muslim peoples were quite capable of politely ignoring the atheistic campaigns—even if at times forced to pay them public lip-service—and instead exploit the opportunity to further explore and safeguard their historic Muslim heritage. Kurmanaliyeva is among the second generation of post-­ Soviet Central Asian scholars to carry forward this legacy, aiming to help recover for her own day the balance between faith and reason as well as open academic inquiry which she explores in the work of Farabi and Rushd (cf. Altayev 2016). The Soviets did not simply choose, however, to attempt to co-opt Islamic Golden Age scholarship of their own free will and innovative thinking. They were rather forced to do so by the sheer weight of authority which the tradition carried among Central Asian Muslim peoples from the time of the Golden Age down to the Soviet subjugation of Central Asia in the early 1920s. Indeed, as important as Baghdad and the Middle East were, the main origins and sustenance (of at least the eastern branch) of the Islamic Golden Age were located in the Central Asian heartlands among the Turko-Persian scholars of Merv, Tus, Nishapur, Khorezm, and other hubs of learning (cf. Starr 2013). This raises the question of the alleged “decline of the Islamic Golden Age.” Sparing much detail on a topic which remains widely contested to this day, one thing is certain: in spite of the many important insights supplied by scholars such as Starr, Ghazali (and/or the Asharites) did not single-handedly bring it all to an end. To whatever degree he influenced subsequent scholarship—which was certainly significant—that influence included Ghazali’s view that whoever “thinks that it is his religious duty to disbelieve…those things in which the philosophers believe, and which do not come into conflict with any religious principle…is really unjust to religion, and weakens its cause” (Al-Ghazali [c. 1095] 1963: 6). True, Ghazali did argue for the unequivocal, unquestioning primacy of revelation over reason. But the application of human reason in the quest for truth, in and of itself, Ghazali insisted, “involves no contradictions which might deserve our attention” (ibid.: 12). And thus, in spite of Omar Khayyam’s complaint in the early twelfth-­ century Abbasid realm that they “were being tried by the disappearance…of the men of learning, of whom only a handful are left, small in number but large in tribulations” (Khayyam 1851:2, 129ff; cf. Grunebaum 1966: 693n1), other factors beyond Ghazali’s critique played a role. And the “disappearance” was not necessarily permanent, certainly not in any

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historically deterministic manner. The impact of “the Mongol devastation” (1258) cannot be minimized or dismissed on the supposed grounds that Ghazali’s critique had already settled the matter fully and finally for all time to come. The Mongol conquest contributed significantly to further set back, at least in the more eastern realms. But none of this brought the tradition to a complete and final end. Ibn Khaldun bears witness to the continuation of the study of the Islamic sciences across North Africa, the Middle East, and Central Asia, in varying measure, down to his own time in the late fourteenth century (Ibn Khaldun [1377] 1958, Ch 6; cf. Dale 2015). Still, we must, within the Central Asian heartland, acknowledge a gap between Ulugh Beg Mirza (d. 1449), who carried out his scientific work within the Timurid Chagatai khanate centered in Samarqand, and the rise of the nineteenth-century Central Asian “Jadid” movement as one branch of the various Muslim modernist reform movements (cf. Kurzman 2002). Beyond the latter movements, Anver Emon’s “Epilogue” offers “Critical Reflections” from an established expert of Islamic natural law theory (cf. esp. Emon 2010) on efforts among Islamic scholars to engage these issues in the twentieth and early twenty-first centuries, with a view to how questions of reason and revelation relate to the study of Islamic law within various disciplinary approaches. As for the Soviet atheistic-scientific rejection of any and all ideas of divine revelation as simply ‘opium of the people,’ this was only one form of Western secularist ideology which contributed to fundamentalist and extremist religious reassertions of their own divinely established authority in the world. University Professor of Conflict Resolution and Public Affairs at George Mason University, Richard E. Rubenstein (2003), offers thought-provoking suggestions for the Euro-American branch of this selfsame struggle between the religious and secular, between faith and reason in his study of Aristotle’s Children: How Christians, Muslims, and Jews Rediscovered Ancient Wisdom and Illuminated the Dark Ages. After detailing the many scientific, social, and cultural achievements which arose from “a stormy, productive dialogue between faith and reason” (p. 281) in a long lineage of Jewish, Christian, and Muslim thinkers who interacted with Aristotle and one another, Rubenstein likens the dismantling of the negotiated settlement between Western Christianity and Aristotelian rationalism to “a sort of intellectual nuclear fission…generating a coldly objectivist science and a passionately subjectivist religion” (p.  289; cf. 278–279). Indeed, this dismantling involved a “denial that Aristotle’s

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ideas and those of his medieval interpreters played any progressive role at all in the course of human enlightenment.” Helping connect various strands within this volume, Rubenstein compares this to “the rewriting of history that we associate with Stalinism in the Soviet Union—the ‘airbrushing’ out of figures and events embarrassing to the current regime.” Instead, however, of co-opting the creative tension of reason and faith as the Soviets did, various “[l]eading philosophers of the early modern period” within Western Christian Europe “did not merely attack Aristotelian Christianity, they dismissed it” (pp.  284–285). Helping tie together still more strands within this volume, Rubenstein astutely observes how “obliterat[ing] the Aristotelian revolution” not only “served the interests of Europe’s new leaders,” since “Aristotelian Christianity was an obstacle to all those who wished to break the power of the Catholic Church,” it also had “the advantage of disguising the West’s enormous debt to a more advanced Islamic civilization” (p. 286), namely “the cultural heritage of the classical Islamic era” which Western Civilization became heir to as well. One final point should be made here regarding the relation of revelation and reason, at least from this editor’s perspective: interpreting natural scientific processes, human history, and/or human rational thought as vehicles of divine revelation in and of themselves remains fraught with what are ultimately unverifiable assumptions which risk conflating ‘acts of nature’ and/or ‘acts of humans’ with ‘acts of God,’ or likewise ‘thoughts of humans’ with ‘thoughts of God.’ Such conflations can too easily serve to divinize alleged theories of racial hierarchies and the like leading to social, political, cultural, and other forms of injustice and inequity, while at the same time also provide the very foundations of constitutional democracies and human-civil rights, at least in their originally conceived forms. As for the more traditional views of divine revelation within Judaism, Christianity, and Islam, which result in allegedly sacred and thus inerrant or infallible scriptural canons and law codes, they must all fairly and honestly engage the questions of historical context and human agency in the processes of alleged reception, initial communication, preservation (cf. scribal or isnadic transmission), textual criticism, canonization, trans-­ historical as well as crosscultural communication of the messages via interpretation and translation, and tests of internal consistency and historical reliability. All such critical engagement necessarily involves human reason guided by the established theories and methodologies of various academic disciplines, which is what the essays in this volume are grounded in.

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It is hoped that these analyses—arranged both historically and topically and tied together by the overall theme of the volume—will prove beneficial to scholars and students of religious studies, interreligious, intercultural, and international relations, political science, history, sociology, and related fields both within and beyond the Western and Islamic worlds, as well as generally educated readers who take interest in these issues and their ramifications. They are offered in a spirit of earnest, open and respectful academic dialogue. Although this volume is one of the first works to appear within Palgrave Macmillan’s new “Islam and Global Studies” series, it adds to a growing list of related Palgrave titles (see esp. Booth 2006; Cook et al. 2013; Bsoul 2016; Dunn 2016), all of which take their place alongside other important contributions to a cluster of overlapping fields (see esp. Morris 2003; Dobie 2009; Hyman et  al. 2010; Kalin 2010; Al Ghouz 2018; Diagne 2018; Dobie 2019; El-Tobgui 2019, in addition to works already cited above).

Note 1. The extent to which ‘Eastern’ Orthodoxy can rightfully be included among the ‘Western’ Christian traditions is debatable. Opinions are bound to differ, particularly with respect to Orthodox traditions in Lebanon and the broader Middle East. They are intimately connected to the Greek Orthodox, French Catholic, and Maronite traditions historically. Yet Christianity, like both Judaism (and Islam) before it, was originally a ‘Middle Eastern’ religion. To what degree Malik’s tradition in particular was shaped by Western cultural norms and/or fostered its own distinctively Middle Eastern heritage is a question beyond the scope of this Introduction.

References Al-Ahsan, Abdullah, and Stephen B. Young. [2010] 2017. Qur’anic Guidance for Good Governance: A Contemporary Perspective. Basingstoke and New  York: Palgrave Macmillan. Al-Ghazali, Abu Hamid. [c. 1095] 1963:3. Tahāfut al-Falāsifa (Incoherence of the Philosophers). Tr. Sabih Ahmad Kamali. Lahore: Pakistan Philosophical Congress. Al Ghouz, Abdelkader, ed. 2018. Islamic Philosophy from the 12th to the 14th Century. Göttingen, Germany: Vandenhoeck & Ruprecht Gmbh & Co. and Bonn University Press.

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Altayev, Zhakipbek. 2016. Әл-Фараби мұрасының қазақ даласына қайта оралуы [The Return of Al-Farabi’s Legacy to the Kazakh Steppe]. Kala men Dala, June 4. Ansary, Tamim. 2019. The Invention of Yesterday: A 50,000-Year History of Human Culture, Conflict, and Connection. New York: PublicAffairs Books. Aydin, Cemil. 2007. The Politics of Anti-Westernism in Asia: Visions of World Order in Pan-Islamic and Pan-Asian Thought. New York: Columbia University Press. Barrett, Edward F., ed. 1953. Natural Law Institute Proceedings, Volume 5. Notre Dame: University of Notre Dame Press. https://scholarship.law.nd.edu/ naturallaw_proceedings/5/. Bhutto, Benazir. 2008. Reconciliation: Islam, Democracy, and the West. New York: Harper. Booth, Anthony. 2006. Islamic Philosophy and the Ethics of Belief. London and New York: Palgrave Macmillan. Bowden, Brett. 2007. The River of Inter-Civilisational Relations: The Ebb and Flow of Peoples, Ideas and Innovations. Third World Quarterly 28 (7): 1359–1374. Breisach, Ernst. 2003. On the Future of History: The Postmodernist Challenge and Its Aftermath. Chicago: University of Chicago Press. Bsoul, Labeeb Ahmed. 2016. Islamic History and Law: From the 4th to the 11th Century and Beyond. London and New York: Palgrave Macmillan. Bulliet, Richard W. 2004. The Case for Islamo-Christian Civilization. Rev. ed. New York: Columbia University Press. Bulutai, Murtaza. 2000. Ata-baba dini [The Religion of the Fathers]. Almaty, KZ: Bilim Publishers. ———. 2004. Islam and Globalization. (URL: web article). Buruma, Ian, and Avishai Margalit. 2004. Occidentalism: The West in the Eyes of Its Enemies. New York: Penguin Books. Carrier, James G. 1995. Occidentalism: Images of the West. Leicester, UK: Clarendon Books. De La Chapelle, Philippe. 1967. La Declaration universelle des droits de I’homme et le catholicisme. Paris: Librarie General de Droit et de Jurisprudence; R Pichon et R. Durand-Auzias. (CLWTR) Congress of the Leaders of World and Traditional Religions. 2018. Declaration – VI Congress of the Leaders of World and Traditional Religions. Astana, Kazakhstan, October 11, 2018. http://www.religions-congress.org/ content/view/467/1/lang,english/. Cohen, Mark R. 2017. Maimonides and the Merchants: Jewish Law and Society in the Medieval Islamic World. Philadelphia: University of Pennsylvania Press. Consiglio, Elena. 2015. Early Confucian Legal Thought: A Theory of Natural Law? Rivista di filosofia del diritto IV (2): 359–380.

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Cook, M., N. Haider, I. Rabb, and A. Sayeed, eds. 2013. Law and Tradition in Classical Islamic Thought: Studies in Honor of Professor Hossein Modarressi. London and New York: Palgrave Macmillan. Costello, Paul. 1994. World Historians and Their Goals: Twentieth-Century Answers to Modernism. DeKalb: Northern Illinois University Press. Dale, Stephen Frederic. 2015. The Orange Trees of Marrakesh: Ibn Khaldun and the Science of Man. Cambridge, MA: Harvard University Press. Daniels, Timothy P., ed. 2017. Sharia Dynamics: Islamic Law and Sociopolitical Processes. Basingstoke and New York: Palgrave Macmillan. (DHL) “Drafting of the Universal Declaration of Human Rights: Drafting Committee.” Dag Hammarskjold Library. n.d.. http://research.un.org/en/ undhr/draftingcommittee. Diagne, Souleymane Bachir. 2018. Open to Reason: Muslim Philosophers in Conversation with the Western Tradition. Trans. Jonathan Adjemian. New York: Columbia University Press. Dobie, Robert J. 2009. Logos and Revelation: Ibn ‘Arabi, Meister Eckhart, and Mystical Hermeneutics. Washington, DC: The Catholic University of America Press. ———. 2019. Thinking Through Revelation: Islamic, Jewish, and Christian Philosophy in the Middle Ages. Washington, DC: The Catholic University of America Press. Duan, Fengyu. 2017. The Universal Declaration of Human Rights and the Modern History of Human Rights. SSRN Electronic Journal, November. Dunn, Dennis. 2016. A History of Orthodox, Islamic, and Western Christian Political Values. London and New York: Palgrave Macmillan. Duvall, Nadia. 2019. Islamist Occidentalism: Sayyid Qutb and the Western Other. Berlin: Gerlach Press. El-Tobgui, Carl Sharif. 2019. Ibn Taymiyya on Reason and Revelation: A Study of Dar’ ta’arud al-‘aql wa-l-naql. Leiden: Brill Academic. Emon, Anver M. 2010. Islamic Natural Law Theories. Oxford and New  York: Oxford University Press. Esposito, John L., Tamara Sonn, and John O. Voll. 2015. Islam and Democracy After the Arab Spring. Oxford and New York: Oxford University Press. (ETS) Egypt Today Staff. 2019. Egyptian Activist Refutes False Info. Presented by Outlawed Muslim Brotherhood in Geneva Seminar. Egypt Today, March 2. http://www.egypttoday.com/Article/2/66449/Egyptian-activist-refutesfalse-info-presented-by-outlawed-Muslim-Brotherhood. Evans, Richard J. [1997] 1999. In Defense of History. New York: W.W. Norton & Co. (GCWR) Global Conference on World’s Religions. 2016. Declaration of Human Rights. http://worldsreligions2016.org/wp-content/uploads/2016/02/ Declaration-of-Human-Rights-by-the-Worlds-Religions-EN-WEB_01.26.pdf.

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Gilson, Etienne. 1938. Reason and Revelation in the Middle Ages. New  York: Charles Scribner’s Sons. Greenaway, Kristine. 2016. Declaration of Human Rights by the World’s Religions Issued at Global Conference. World Council of Churches, September 27, 2016. Gregg, Samuel. 2019. Reason, Faith, and the Struggle for Western Civilization. Washington, DC: Gateway Editions (Regnery Publishing). von Grunebaum, G.E. 1966. Muslim Civilisation in the Abbasid Period. In The Cambridge Medieval History. Volume IV.  Part I, The Byzantine Empire. Byzantium and its Neighbours, ed. J.M.  Hussey, 662–695. Cambridge, UK: The University Press. Hassan, Mona. 2017. Longing for the Lost Caliphate: A Transregional History. Princeton, NJ: Princeton University Press. Herschinger, Eva. 2011. Constructing Global Enemies: Hegemony and Identity in International Discourses on Terrorism and Drug Prohibition. London: Routledge. Hijazi, Ihsan A. 1987. Charles H.  Malik of Lebanon, 81; Was President of U.N. Assembly. New York Times, December 29. Hyman, Arthur, James J. Walsh, and Thomas Williams, eds. 2010. Philosophy in the Middle Ages: The Christian, Islamic, and Jewish Traditions. Indianapolis, IN and Cambridge, MA: Hackett Publishing Company. Ibn Khaldun, Abu Zayd ‘Abd ar-Rahman ibn Muhammad. [1377] 1958. The Muqaddimah: An Introduction to History. 3 Vols. Trans. Franz Rosenthal. New York: Pantheon Books. Iggers, Georg G. [1997] 2005. Historiography in the Twentieth Century: From Scientific Objectivity to the Postmodern Challenge. Middletown, CT: Wesleyan University Press. Kalin, Ibrahim. 2010. Knowledge in Later Islamic Philosophy: Mulla Sadra on Existence, Intellect, and Intuition. Oxford and New  York: Oxford University Press. Kennedy, Hugh. 2016. Caliphate: The History of an Idea. New York: Basic Books. Khayyam, Omar. [c. ] 1851. L’Algèbre d’Omar Alkhayyami. Trans. and ed. Franz Woepke. Paris: Benjamin Duprat, Libraire de L’Institut. Kubicek, Paul. 2015. Political Islam & Democracy in the Muslim World. Boulder, CO: Lynne Rienner Publishers, Inc. Kurzman, Charles, ed. 2002. Modernist Islam: A Sourcebook. Oxford and New York: Oxford University Press. Levering, Matthew. 2014. Christians and Natural Law. In Natural Law: A Jewish, Christian, and Islamic Trialogue, ed. Anver M. Emon, Matthew Levering, and David Novak, 66–110. Oxford and New York: Oxford University Press. McNeill, J.R., and William McNeill. 2003. The Human Web: A Bird’s-Eye View of World History. New York and London: W. W. Norton & Co.

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Morris, Zailan. 2003. Revelation, Intellectual Intuition and Reason in the Philosophy of Mulla Sadra: An Analysis of the al-hikmah al-‘arshiyyah. London and New York: Routledge. Morsink, Johannes. 2011. The Universal Declaration of Human Rights – Origins, Drafting, and Intent. Philadelphia: University of Pennsylvania Press. Moyn, Samuel. 2014. The Universal Declaration of Human Rights of 1948 in the History of Cosmopolitanism. Critical Inquiry 40 (4): 365–384. Neusner, Jacob. 1996. Religion and Law: How through Halakhah Judaism Sets Forth Its Theology and Philosophy. Atlanta, GA: Scholars Press. Novak, David. 2012. Maimonides and Aquinas on Natural Law. In St. Thomas Aquinas and the Natural Law Tradition: Contemporary Perspectives, ed. John Goyette, Mark S.  Latkovic, and Richard S.  Myers, 43–65. Washington, DC: Catholic University of America Press. ———. 2014. Natural Law and Judaism. In Natural Law: A Jewish, Christian, and Islamic Trialogue, ed. Anver M.  Emon, Matthew Levering, and David Novak, 4–44. Oxford and New York: Oxford University Press. O’Grady, Siobhán. 2018. After Refusing a Handshake, a Muslim Couple Was Denied Swiss Citizenship. Washington Post, August 18. https://www.washingtonpost.com/world/2018/08/18/after-refusing-handshake-muslim-couplewas-denied-swiss-citizenship/. (OHCHR) Office of the UN High Commissioner for Human Rights. 2011. OIC  – NAM Roundtable in Cooperation with OHCHR: The Right to Development: Constraints and Perspectives. October 19, 2011. https://www. ohchr.org/EN/Issues/Development/Pages/OIC-NAMroundtable.aspx. (OIC) Organization of Islamic Cooperation/Conference. 1990. Cairo Declaration on Human Rights in Islam. Cairo, Egypt, July–August, 1990. https://www. oic-iphrc.org/en/data/docs/legal_instruments/OIC_HRRIT/571230.pdf. Otto, Jan Michiel, ed. 2010. Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present. Leiden: Leiden University Press. (PWR) Parliament of the World’s Religions. 1993. Towards a Global Ethic: An Initial Declaration. Chicago, IL. https://parliamentofreligions.org/sites/ default/files/Global%20Ethic%20booklet-update-web_0.pdf. Qureshi, Emran, and Michael A. Sells, eds. 2003. The New Crusades: Constructing the Muslim Enemy. New York: Columbia University Press. Qutb, Sayyid. [2000] 2019. Social Justice in Islam. Trans. John B.  Hardie and Hamid Algar. Lahore, Pakistan: Idara Saqafte Islamia. Rose, Gideon. 2013. The Clash of Civilizations?: The Debate: Twentieth Anniversary Edition. New York: Council on Foreign Relations. Rubenstein, Richard E. 2003. Aristotle’s Children: How Christians, Muslims, and Jews Rediscovered Ancient Wisdom and Illuminated the Dark Ages. San Diego, CA: Harcourt.

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CHAPTER 2

The Historical Relation of Islamic and Western Law R. Charles Weller

Introduction The historical relation of Islamic and Western law includes questions of both Islamic influence on Western law and Western (as well as other non-­ Islamic) influence on Islamic law within broader world history. With respect to crosscultural contact and exchange within that broader world historical context, the Western and Islamic worlds have, since the rise of Islam in the early seventh-century CE, shared borders and even living spaces around the Mediterranean (particularly in Spain, Italy, and Anatolia), certain coastal areas (in France, Syria-Palestine, and elsewhere), and the Mediterranean islands (especially Sicily, Sardinia, Corsica, Cyprus, and Crete). For many long centuries, they engaged in not only military conflicts which included hostage taking and exchange as well as the

R. C. Weller (*) Al-Farabi Kazakh National University, Almaty, Kazakhstan Washington State University, Pullman, WA, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 R. C. Weller, A. M. Emon (eds.), Reason, Revelation and Law in Islamic and Western Theory and History, Islam and Global Studies, https://doi.org/10.1007/978-981-15-6245-7_2

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negotiation of peace treaties, but a great deal of trade across a vast, complex web of both land and sea routes leading to market places where merchants daily mingled. This was all supplemented by diplomatic missions, religious pilgrimages, political alliances, and other forms of encounter (see esp. Boisard 1980). Reciprocal influence has thus occurred economically, culturally, religiously, scientifically, philosophically, politically, and legally through these centuries-long sustained encounters. In fact, it can be argued that because of this long history of contact and exchange, ‘the West’ is itself partly Islamic just as Islam is partly Western. Notwithstanding appreciable differences, the great irreconcilable chasm between the two civilizations does not, in reality, exist. The boundaries remain, down to the present, blurred and shifting through ongoing interaction across space and time.

Western as well as Other Non-Islamic Influence on Islamic Law With a view to the historical context in which Islam arose and took shape across the late sixth to eighth centuries, possible historical sources for sharia and broader Islamic law include the pre-Islamic Arabian, classical Greek and Roman, Byzantine, Syrian, Sassanid Persian, and Ethiopian as well as various Jewish, Christian, and Zoroastrian traditions. The disentanglement of sources becomes even more complex when considering that arguments, for example, for pre-Islamic Arabian influence, in whatever measure, must also take into consideration the possible degree of Byzantine, Persian, Syrian, Ethiopian, Jewish, and/or Christian influence upon pre-Islamic Arabia, and vice versa. Indeed, when locating the consolidation of the foundational sharia law schools sometime between the mid-eighth and mid-tenth centuries, the dynamic, multi-layered, reflexive influences of all these possible sources on not only the various sharia law schools, but one another across the span of two or more centuries present a formidable challenge to scholarship on the origins of sharia and broader Islamic law (cf. Potz 2011: 36 on “the transfer of Roman-Byzantine law to Baghdad as well as its ‘re-import’ into the occident”). Amid these interactions, Islamic law “assimilated and generated diverse ‘Near Eastern’ legal traditions” as part of a long historic process of “interplay” (Salaymeh 2016: 8). One prominent example of this is the “Covenant of Umar” which, as part of sharia law, grants “religious toleration” to “the

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People of the Book”—namely Jews, Christians, and Zoroastrians. In brief overview of an otherwise deeply complex historical subject, the origins of the “jizya” (“poll” or “head tax”) as paid by “the People of the Book” briefly referenced in the Qur’an (9.29) were shaped by pre-existing Greek Byzantine, Sassanian Persian, and/or pre-Islamic Arabian laws and customs (cf. al-Tabari [c. 920] 1999: 252-263, esp. n625; Goodblatt 1979; Ashtor and Bornstein-Makovetsky 2007; cf. Duri 1974 and Watt 1968: 49-50). Likewise, the variations found between not only the “Constitutions of Medina” (Ibn Ishaq [767] 1998: 232-233) and the Covenant of Umar, but the distinct and evolving forms of the Covenant of Umar itself point to historical transformations across time and space. It is doubtful a coincidence that, as part of these historical transformations, the general contours of the Covenant of Umar share essential features as well as related official ceremonies with the Sassanian Persian regulations and practices governing Jewish and Christian minorities in their otherwise officially Zoroastrian empire. The Persian codes were forged in the fourth and fifth centuries CE, prior to the Islamic conquest, and then continued by the Mongols upon their later conquest of the Islamic realms (cf. Gilman and Klimkeit 1999: 111-143). This continuation of tradition across three empires points to the active part played by the Jewish and Christian communities in negotiating their relations with each new conquering power, a fact attested in the versions of the Covenant of Umar as recorded by Ibn Askir of Damascus in approximately 1170 CE (cf. Tritton 1930: 6-8). These kinds of historically layered questions involving reflexive crosscultural contact and exchange among multiple peoples and cultures over the span of several centuries are related to, yet distinct from the question of whether the Arabs became “assimilated into the dominant cultures of their new environments” or achieved a “distinctively Islamic cultural synthesis that was not defined by ethnicity” (El Shamsy 2013: 2). Those who seek to limit the sources of Islamic Law to divine revelation—what we might call “purists” in this context—typically view its origins within the confines which Ibn Khaldun, writing in late fourteenth-century Tunisia, laid out: “These (laws) are derived from the Qur’an and the Sunnah (traditions), and from the evidence the Lawgiver (Muhammad) has established for knowledge of (the laws)” (Ibn Khaldun [1377] 1958: 3; cf. Kizilkaya 2012). But even if the Muslim architects of Islamic law who guided the historic process of its canonization understood and defined their Qur’anic and Hadith sources as being only divinely revealed (with no human influence via non-Islamic peoples and cultures), complex historical

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questions remain about how those non-Islamic peoples and cultures may have influenced and shaped the interpretations of those divinely revealed sources by the architects of the various Islamic law schools. Whether such influence was a part of what Khaldun identified as “evidence not derived from texts [which] causes (still) other differences of opinion” (ibid.) is unclear, but most Islamic Golden Age philosophers certainly embraced ideas from non-Islamic peoples and cultures as part of God’s divine revelation by viewing God as the source for all truth regardless of the channels through which it came, whether the Greeks, Persians, Hindus, or others (cf. Bertolacci 2018). The rank and authority they attributed to those various divine and human sources in relation to one another differed among scholars. Adding still other complications, Khaldun noted that “the traditions (Sunnah)” on which the various law schools depend “differ widely in respect of the reliability of the recensions.” He thus acknowledged, at least by implication, the need for historical-critical analysis of those sources (Ibn Khaldun [1377] 1958: 3). Even more central is the history of the Qur’anic text itself. While perhaps not differing as “widely” as the Sunnah, textual variants still require the unraveling of historical layers through the science of “textual criticism” (see esp. Sinai 2017: 92-110; Al-Imam 2007:14-57; al-A`zami 2011; Small 2011; Hilali 2017; Hilali and Burge 2019). Foreign loan words within or etymologically behind Qur’anic and Islamic legal terminology, likewise, provide some evidence of borrowing from Greek, Syriac, and other traditions (cf. Potz 2011:28; Jeffrey [1938] 2007; Luxenberg 2007; Al-Imam 2007:58-73; cf. also Salaymeh 2016:1, who “explored other legal traditions and observed a common legal grammar”). Furthermore, the Qur’an certainly references Hebrew and Christian biblical material. While ‘purists’ contend that such references represent fresh, new, direct revelations from God, the historical context in which Islam arose, which included substantial contact and exchange between Muhammad and various Jewish and Christian groups, makes such an extreme position historically untenable. While differences of opinion over degree of influence are understandable, there is no historically viable reason to doubt that these prior Middle Eastern ‘Abrahamic’ faith traditions exerted some measure of influence on the general contours of Islamic faith and practice, including its moral-ethical, social, and legal thought. Knut Vikor has skillfully overviewed the history of the most prominent scholarship and related historiographical debates in a chapter on “The Origins of Sharia” ([2014] 2016). Lena Salaymeh (2016) has, likewise,

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made a substantial contribution to unraveling the complicated history behind The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions. In the process of reviewing past scholarship from her own methodological vantage, she criticizes Western historiography’s linear developmental preoccupation with the “origins” of Islamic law, its pre-­ Islamic sources, and the emergence of an allegedly predominant “orthodoxy” (pp.  3-4). She argues instead for Islamic law’s “rootedness in historically situated societies,” with emphasis on “the interchange between law and history” in a continuous “interplay between innovation and tradition” from Muhammad down to the present (p.  1). She insists that throughout its history “Islamic law is generated by multiple groups and institutions (legal polycentricity) and non-Islamic legal traditions coexist with Islamic ones (legal pluralism)” (p. 3). In the Ottoman Empire, for example, particularly its ports, a “plural legal system…based on a shared Mediterranean tradition of commercial and diplomatic treaties signed between Muslim states and foreign communities” was common from at least the fourteenth to the late eighteenth centuries. In this, the Ottomans followed earlier Seljuk Turkish, Ilkhanid Persian, and Greek Byzantine traditions dating as far back as 1220 CE. (Zarinebaf 2018: 91-95). With whatever measure of innovation, the continuing application by the Ottomans in these situations of the Covenant of Umar in accordance with the norms of sharia law points to legal traditions of religious toleration which share at least some of their roots with Sassanian Persia, branching off in multiple directions in the coming centuries (see above). Along somewhat similar lines, Potz (2011: 37) points to the studies of Rafael Altamira (1866–1951; cf. Chapman 1922) on Spanish legal history which highlighted “examples in the areas of the leasing of land, irrigation regulations, agrarian consortia and in types of concubinage and marital property systems, which originate not in classical Islamic law but in Berber customary law.” This accords with the later work of Clifford Geertz who did a comparative anthropological study of Islam Observed: Religious Development in Morocco and Indonesia. Geertz likewise highlighted, by way of French colonial policy, a distinction between “the sharia, the Islamic law” and the Berber’s “own customary courts” (1971:109). French colonial rule in Morocco added yet another dimension to the long, historic interaction between pre-Islamic ‘Near Eastern’ and broader Afro-Eurasian, Arab Islamic, and later local customary law among the multiple peoples who embraced Islam in the course of its worldwide spread. Following the French conquest of Algeria in 1830, “French legal

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principles and shari’a” were likewise merged into “a hybrid Islamic-French law” (Motadel 2014: 5-6). “In Britain’s colonies,” too, “an enlightened ‘Anglo-Mohammedan’ law emerged through legislation and case law” (Otto 2010: 624). And in Muslim domains of the Tsarist empire, the Russian government, amid ongoing debate, ultimately backed “the uniform enforcement of particular shari`a norms derived from the holy book” through “the functioning of Islamic courts.” This application of “shari’a, backed by tsarist law,” included “many practices that the bureaucracy found consistent with…orthodox Islamic interpretation grounded in the Qur’an or in a small number of Hanafi legal manuals” (Crews 2006: 87, 145, 153-54). Thus, while Islamic law within European colonial empires at times “presented a threat because it was a rival to imperial law and potential ideational font of resistance,” particularly in cases of armed conflict (Reynolds 2014: 194), it was more common, even necessary, to achieve various negotiated approaches to the incorporation of sharia and other forms of Islamic law in relation to European imperial law once the imperial powers established their rule (cf. Moosa 2009; Sartori 2016). The dynamic interaction—both in tension and cooperation—of Western and Islamic law, including sharia, has continued in whatever complexly limited and waning measures through ongoing (though debated) Western prominence in world affairs and its emerging patterns of globalization across the latter part of the twentieth and early twenty-first centuries (cf. Otto 2010: 619-25). As Salaymeh (2016) and other studies have amply shown, sharia and broader Islamic law require interpretation and application in each new historical context, whether that context be the original rise of Islam, the later various Islamic states and empires which spread across the Afro-­ Eurasian world in the pre- and post-Mongol periods, the European colonial era or post-colonial globalization. Judging by the standards of modern international human rights within the present historical context of globalization, diverse approaches spanning the entire globe range from those considered ‘barbaric and savage’ to those shaped by and conforming to modern international standards in varying degree. Indeed, through dynamic interaction with ‘modernity,’ modern progressivist interpretations and applications of sharia and broader Islamic law have themselves had a role in helping forge those very standards, and continue doing so (cf. Gabitov 2017: 287-288). Taking this as well as the influence of Islamic thinkers on Christian theoreticians in the Western tradition—particularly

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Aquinas and Mirandola (see below)—into consideration, the Islamic contribution to the United Nation’s “Declaration of Human Rights” and its ongoing appropriation around the globe deserves recognition, in spite of the fact that no experts from a distinctively Muslim background were included among its original authors (see “Introduction”). The importance of these questions of Western as well as non-Western, non-Islamic influence on sharia and broader Islamic law is seen in the following points of debate: (1) Some argue that non-Islamic sources deriving from foreign peoples and cultures with which Islam has come into contact in the course of its worldwide historical spread are the underlying sources of the ‘barbaric and savage’ practices (such as ‘female genital mutilation’) typically associated with an otherwise pure and just sharia law; (2) Some attempt to undermine the claims of divine authority made for sharia law (which are derived from claims of divine revelation) by demonstrating that various non-Islamic and, thus, non-divine sources are the actual, historical sources of that law; (3) Some contend that similarities between Islamic and Western law (see above) are the result of earlier forms of Western legal influence on Islamic law, particularly those stemming from interactions between the Judeo-Christian and Islamic traditions during the latter’s rise, as well as those occurring between the Greek Byzantine and early Islamic empires, thus making Islamic law largely a product of the allegedly Western Judeo-Christian and Greco-Roman heritage; according to this view, Islamic law was not, therefore, a genuine source of ‘influence’ deserving of any credit for alleged contributions, but simply an additional tributary of Western law, re-­infusing the original civilizational heritage back into the streams of Western civilizational history by way of an outside loop, while itself following an aberrant and corrupted course; (4) Some hold that crosscultural contact and exchange between the Western and Islamic legal traditions within the course of broader world history has resulted in genuinely unique Western and Islamic varieties which share common elements from the same historic heritage, thus providing a basis for mutual understanding, negotiation, and cooperation both within and between their respective societies. While the other positions may, at times, have varying measures of merit, the latter view is most in accord with the historical evidence.

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The Historical Influence of Islamic on European Law Against the backdrop of many long centuries of interaction and exchange around the Mediterranean, from the rise of Islam onward, the influence of Islamic law on European law is reasonably possible, probable, and actual at a number of junctures across the centuries. For example, trade as well as administrative and tax terms—including “tariff,” “customs office,” and “mayor”—are part of a much broader Euro-American vocabulary borrowed from Arabo-Persian Muslim sources (Potz 2011: 28; cf. Watt 1972: 85-92 and Rahim 2008). The transfer of these and other terms common within legal trade agreements and practices is bound up with Europe’s conscious and intentional borrowing (between the eleventh to thirteenth centuries) of Arabic numerals together with Islamic accounting and early capitalist practices (Labib 1969; Banaji 2007; Koehler 2014) which trace their origins “back to the pre-Islamic caravan contract between the investor and the caravan leader” (Potz 2011: 32). Further exchanges in commercial maritime law and practice may have accompanied Europe’s known borrowing of oceanic cartographical and navigational knowledge as well as instruments (in the form of maps, information regarding annual trade wind patterns, the compass, and more) from the eleventh century onward. Likewise, Louis IXth issued “laws regarding naval affairs and trade” which he picked up during his crusading campaigns in the Middle East between 1248 and 1254 (Boisard 1980: 433-34, 440-41). Of particular significance in Islamic-Western legal exchange are “The Assizes (or Constitutions) of King Roger,” a Norman Sicilian law code promulgated in the mid-twelfth century. Roger II’s (r. 1130-54) code states at the outset that “[b]ecause of the variety of different people subject to our rule, the usages, customs, and laws which have existed among them up to now are not abrogated unless what is observed in them is clearly in contradiction to our edicts here” (Loud 2012: 315). Islamic law, including sharia, was—together with earlier Roman and Byzantine imperial law—thus incorporated into and became an integral part of late post-­ classical European law, at least within Norman Sicily (cf. Mallet 2013: 673). Following Roger II, the Norman King William II of Sicily (r. 1166-89) likewise appears to have permitted Muslims to “hold firm to the Muslim divine law” (though the eye-witness making that assertion, Ibn Jubayr, was almost hagiographic in his depiction of Sicily’s Muslims as “the splendour of his realm”; Ibn Jubayr [c. 1190] 1952: 337-341). As in

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Spain, this intercultural exchange was facilitated by a European Christian population which co-existed (albeit in segregated fashion) with the Muslims and was, thus, largely fluent in Arabic, including King William II and possibly some of the other Norman Sicilian kings (Ibn Jubayr [c. 1190] 1952:337-341; cf. Scarfiotti and Lunde 1978: 31-32). Roger II’s “Constitutions” went on to influence other European canons of law, most notably those of Frederick II of Germany and Norman England (Loud 2012: 314; cf. Mallet 2013: 673; Potz 2011: 35). In the case of Frederick, reasonable evidence suggests that he borrowed from Islamic practices of direct and indirect taxation as well as customs duties (Boisard 1980: 436-37). In the case of Norman England, although the evidence must be recognized as comparative and circumstantial, “the frequent exchange of ‘administrative staff’” between the two Norman realms, along with a high degree of similarity between the respective codes, argues in favor of Islamic influence on English Common Law via the Sicilian connection (Potz 2011: 35 and 39, referencing a 1904 study in German by Erich Caspar; cf. Makdisi 1990 and 1999, esp. section V and Conclusion). Prevailing Christian influence on English common law has often been presumed among English as well as American Christians (cf. e.g., Montgomery 1978:451), but Thomas Jefferson and others have long since challenged these assertions (Jefferson 1814 and 1824; cf. J. Allison n.d.). Eminently more qualified than Jefferson to speak to this particular subject, one of the most prominent legal commentators of the eighteenth century, William Blackstone, in his Commentaries on the Laws of England (1765-70), recognized clearly that [t]he great variety of nations that successively broke in upon and destroyed both the British inhabitants and constitution…must necessarily have caused great confusion and uncertainty in the laws and antiquities of the kingdom; as they were very soon incorporated and blended together, and, therefore, we may suppose, mutually communicated to each other their respective usages, in regard to the rights of property and the punishment of crimes. So that it is morally impossible to trace out, with any degree of accuracy, when the several mutations of common law were made, or what was the respective original of those several customs we at present use, by any chemical resolution of them to their first and component principles.

Against this historical backdrop, there is a strong case to be made for Islamic law entering English common law during the reign of King Henry

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II (r. 1154-89) via his Norman Sicilian connections (Makdisi 1990:146; cf. Lima 2008). King Henry II’s reign not only followed immediately upon that of Roger II of Sicily, but was marked by Henry’s explicit interest in Arabic scholarship (Burnett 1996:31-32, citing correspondence from Adelard of Bath to King Henry II in 1150 CE). Thus John A. Makdisi argues that, in particular, permission of “the transfer of property ownership on the sole basis of offer and acceptance through the action of debt” which appeared within contract law, the right to reclaim property (“the assize of novel disseisin”) within property law, and the institution of “a rational procedure for settling disputes through trial by jury” within the royal courts all came into English common law via Islamic law: “The royal English contract protected by the action of debt is identified with the Islamic [su’c’]aqd, the English assize of novel disseisin is identified with the Islamic istihqaq, and the English jury is identified with the Islamic lafif” (Makdisi 1999: 1635-36). But even if—in the face of such compelling historical evidence—Islamic legal influence be denied, the similarities between certain portions of the Islamic codes with those of English common law demonstrate that Islamic law is not entirely ‘alien’ to or a civilizational ‘other’ in comparison with Western law. Other avenues of influence from Islamic law on European common law came by way of the law and justice program at the University of Naples in Italy which translated Arabic legal texts and circulated them to other parts of Europe (Boisard 1980: 440, 444). To what extent “natural law” theories among Islamic legal scholars and philosophers may have influenced post-classical (cf. “medieval”) European thinkers remains an important question calling for further research (cf. Inglis 2002). This is particularly the case with the “natural law” theory of Thomas Aquinas, who not only studied at the University of Naples, but displays and acknowledges a general debt to Islamic philosophers, even if at times disagreeing with some of their conclusions (cf. Smith 1944: 220ff; Starr 2013: 421; Shah 2016). Moad within this volume, in fact, concludes his study of Ghazali’s “natural law” theory by pointing out that it “is comparable in its essential components to that of Saint Thomas Aquinas” (see below; cf. esp. Allison 2013). Meanwhile, given that the Norman Sicilian approach to the negotiated integration and co-existence of Islamic law within their Christian European realm stood in considerable contrast to practices within the Roman and Byzantine Christian empires (325–1453), as well as those observed in Catholic Spain following the reconquests (1085–1492) and other parts of Christian Europe during especially the times of Inquisition (1100s–1700s),

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it is both reasonable and possible that the Norman Sicilian code may have followed the model of the ‘dhimmi’ system of the various Islamic caliphates, adapted as it was from Sassanian Persia (see above), and allowing the observance of Christian and Jewish law codes within their overall legal framework. In spite of Catholic Spain’s persecution of Muslims and suppression of their lifeways, it remained one of the most important conduits for the influence of Islamic scholarship on Christian Europe. Along these lines, King Alphonse IX (r. 1188-1230) was instrumental in translating numerous Arabic texts and founding the University of Salamanca, an early fountainhead for international law. Indeed, Alphonse codified an important body of laws known as the Partidas which “appears both in form and content as a direct adaptation of Muslim law” (Boisard 1980: 435-36). Likewise, the close resemblance of the Spanish Consuls of the Sea (1340) to classical Islamic law raises legitimate questions of influence by the latter on the former within the context of such centuries-long contact and exchange. The importance of this question lies in the Consuls essential “contribution to early international law, as a codification of maritime rules and customs.” (Boisard 1980: 433, 435; cf. also 441-42). Later, both the legal philosophy of Francisco Suárez (1548-1617), which emanated from the formerly Islamic center of Granada in the south of Spain to Paris and Rome, as well as the international human rights ideals of the Spanish Jesuit Bartolomé de Las Casas (1484-1566), which anticipated in many ways the Geneva Conventions, shared much in common with pre-existing Andalusian Islamic law (Boisard 1980: 445). To what extent they were influenced by prior Islamic legal traditions remains another important avenue of research waiting to be (funded and) pursued. With respect to legislation regarding prisoners of war, it is doubtful a coincidence that codes regarding the latter were significantly modified within Europe in the twelfth century following the start of the Crusades (Boisard 1980: 443). Meanwhile, probable reciprocal influence between Islamic and European legal norms for the protection of foreign travelers and merchants can be glimpsed in the 1489 treaty between the Republic of Florence in Italy and the Ottoman Mamluk domain in Egypt which took three years to negotiate. Islamic influence within this particular exchange involves explicit reference to sharia (Boisard 1980: 433), again showing that various aspects of sharia law were not historically at odds with or a threat to Western legal traditions.

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With respect to the development of certain cardinal democratic principles and ideals within the history of Western civilization, a convincing case has been made that Abu’ l-Ala al-Ma’arri’s risalat al-ghufran (Epistle of Pardon, c. 1033 CE [see al-Ma’arri 1943]) and its ideals of “tolerance,” socio-political critique (cf. freedom of speech) and government for the people served as a model for Dante Aligheri’s Divine Comedy (1308-1321) (see esp. Palacios [1918/1926] 2007: xiii-xiv; Goddard 2000: 104; Schildgen 2014: 104; Mallat 2015: 88; cf. Nicholson [1921] 1969:106-107, who, after citing al-Ma’arri, “the people’s prince is servant of those he rules,” declared: “It is not remarkable that an Oriental writer should plead for just and rational government. …Ma’arri is alone in anticipating the modern democratic theory that the heads of the state are its paid servants”; cf. also Cantor 1996). Dante’s Divine Comedy was clearly influenced in other ways by other Islamic literature and science (cf. Starr 2013:166; Schildgen 2014:112). Likewise, as an essential source for ideas of “civil” and “human rights” for each dignified human being, the Italian Renaissance philosopher Pico della Mirandola, in his Oration on the Dignity of Man (1486), tells readers: “I have read in the ancient writings of the Arabians that Abdallah the Saracen on being asked what, on this stage, so to say, of the world, seemed to him most evocative of wonder, replied that there was nothing to be seen more marvelous than man.” He then goes on to highlight how, “committed to the teachings of no one man, I have ranged through all the masters of philosophy, examined all their works, become acquainted with all schools. As a consequence, I have had to introduce all of them into the discussion lest, defending a doctrine peculiar to one, I might seem committed to it and thus to deprecate the rest.” Taking Mirandola’s reference to “the Arabians” as clearly embracing non-Arab (specifically Persian and Turkic) Islamic scholars who wrote in Arabic, he noted that [a]mong the Arabians, there is in Averroës something solid and unshaken, in Avempace, as in Al-Farabi, something serious and deeply meditated; in Avicenna, something divine and platonic. What should have been our plight had only the philosophical thought of the Latin authors, that is, Albert, Thomas, Scotus, Egidius, Francis and Henry, been discussed, while that of the Greeks and the Arabs was passed over, since all the thought of the barbarian nations was inherited by the Greeks and from the Greeks came down to us? For this reason, our thinkers have always been satisfied, in the field of

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philosophy, to rest on the discoveries of foreigners and simply to perfect the work of others. (Mirandola [1486] 2012:108ff)

In addition to the Arabic Muslim influences which Mirandola named in his Oration, he had translated Ibn Tufayl’s philosophical novel, Hayy Ibn Yaqzan, into Latin in the latter part of the fifteenth century (Attar 2012:121). Mirandola’s Oration on the Dignity of Man is, of course, a foundational source text for the study of this concept as it emerged within the Western socio-legal tradition.

Conclusion The foregoing study documents nearly fourteen centuries of encounter, exchange, and negotiated co-existence—albeit sometimes following on the heels of conquest—between the legal codes of various Western and Islamic societies. Although the discussion has focused on encounters, exchanges and negotiated co-existence occurring in and around the Mediterranean from the rise of Islam in the early 600s down to the work of Pico della Mirandola in 1486, some reference has been made to later European imperialism encompassing most of the Islamic societies of North Africa, the Middle East, Central Asia, South Asia, and beyond, as well as the late modern global era, from approximately the mid-eighteenth century down to the present. Much work remains to be done in unearthing this vast topic, but even this cursory glance demonstrates a fair measure of harmony, compatibility and negotiated settlement between various forms of Islamic and Western law across the centuries. Recognition of the mutual interdependence of these various societies historically has the potential to (not entirely resolve and eradicate, but nonetheless) reduce conflict and, in its place, promote mutual understanding, peace, and cooperation through recognition of the significant heritage which they have come to share. Still more, it underscores the need for a fundamental redefining of the way we understand ‘the West’ and ‘Islam’ and their relation to one another, both historically and presently. Not only are various ‘Western’ and ‘Islamic’ societies complex, with varying measures of difference and similarity between and among themselves; they each contain varying degrees of influence from one another so that Western societies are, in part, Islamic and Islamic partly Western. Reaching beyond these two overly simplified world civilizational constructs (‘Islam’ and ‘the West’), the storyline raises questions about the

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influence of the legal traditions of certain (formerly) non-Western and non-Islamic peoples and cultures within the broader frame of world history. In this respect, it points toward the elusive fulfillment of that noble goal UNESCO set forth not long after its inception in 1945, namely a genuinely global history of humanity—and in this case, a history of its legal traditions—which recognizes and incorporates the contributions of all the world’s various peoples and cultures (see Duedahl 2011; cf. Al-Rodhan 2009, Sustainable History and the Dignity of [Humankind]). The achievement of that goal remains elusive after nearly 75 years for many complicated reasons, including but not limited to the weaving of hegemonic and imperialistic agendas—both explicitly and implicitly, intentionally and unintentionally—into various historiographical accounts. The goal nonetheless retains its nobility and endures as a worthwhile endeavor. This brief essay attempts to make a small contribution to that end.

Note 1. Montgomery (1978), for example, argues that: “Anglo-American jurisprudence—the common law of England before the nineteenth century and the common law of America since the eighteenth century—is permeated with the spirit of Christianity to a greater degree than any other system of law except canon law. …where common law is at its best, you feel that Christ Himself would have smiled upon its judgments. It is so because in many cases the judges have not hesitated to draw their inspiration and light from the words of Christ and His Apostles, particularly St. Paul.”

References al-Azami, Muhammad Mustafa. 2011. The History of the Qur’anic Text: From Revelation to Compilation, a Comparative Study with the Old and New Testaments. 2nd ed. Malaysia: Al-Qalam Publishing; Islamic Book Trust. Al-Imam, Ahmad Ali. 2007. Variant Readings of the Quran: A Critical Study of Their Historical and Linguistic Origins. Herndon, VA: International Institute of Islamic Thought. Allison, Anthony. 2013. Love, Law, and Reason in the Thought of Al-Ghazali and Aquinas. PhD thesis, University of Glasgow. Allison, James. n.d. Is Christianity Part of English Common Law. The Constitutional Principle: Separation of Church and State. http://candst.tripod.com/ joestor4.htm.

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al-Maʻarrı̄, Abū al-ʻAlāʼ. 1943 [c. 1033]. Risalat ul ghufran: A Divine Comedy. Ed. Kāmil Kı̄lānı̄. Cairo: al-Maaref Print. and Pub. House. Al-Rodhan, Nayef R.F. 2009. Sustainable History and the Dignity of Man: A Philosophy of History and Civilizational Triumph. Zürich, Switzerland and Berlin, Germany: LIT Verlag. al-Tabari, Muhammad ibn Jarir. 1999 [c. 920]. The History of al-Tabari: Volume 5: The Sassanids, the Byzantines, the Lakhmids, and Yemen. Translated and annotated by C.E. Bosworth. Albany: State University of New York Press. Ashtor, Eliyahu, and Leah Bornstein-Makovetsky. 2007. “Kharāj and Jizya.” Encyclopaedia Judaica. 2nd ed. Farmington Hills, MI: Thomson Gale. Attar, Samar. 2012. Suppressed or Falsified History? The Untold Story of Arab-­ Islamic Rationalist Philosophy. In The Role of the Arab-Islamic World in the Rise of the West: Implications for Contemporary Trans-Cultural Relations, ed. Nayef Al-Rodhan, 116–143. Basingstoke, UK and New York: Palgrave Macmillan. Banaji, Jairus. 2007. Islam, the Mediterranean and the Rise of Capitalism. Historical Materialism 15 (2007): 47–74. Benkheira, Mohammad H. 2019. Reevaluating the Role of the Epigons (tabi’un) in the Formation of Islamic Ritual and Jurisprudence. In Geneses: A Comparative Study of the Historiographies of the Rise of Christianity, Rabbinic Judaism, and Islam, ed. John Tolan, 132–147. London and New York: Routledge. Bertolacci, Amos. 2018. Arabic and Islamic Metaphysics. The Stanford Encyclopedia of Philosophy, Summer 2018 Edition, ed. Edward N. Zalta. https://plato.stanford.edu/archives/sum2018/entries/arabic-islamic-metaphysics. Boisard, A. 1980. On the Probable Influence of Islam on Western Public and International Law. International Journal of Middle Eastern Studies 11 (4): 429–450. Burnett, Charles. 1996. The Introduction of Arabic Learning into England. London: The British Library. Cantor, Paul A. 1996. The Uncanonical Dante: The Divine Comedy and Islamic Philosophy. Philosophy and Literature 20 (1): 138–149. Chapman, Charles E. 1922. A History of Spain founded on the Historia de España y de la Civilizacion Española of Rafael Altamira. New  York: The Macmillan Company. Crews, Robert D. 2006. For Prophet and Tsar: Islam and Empire in Russia and Central Asia. Cambridge, MA: Harvard University Press. Duedahl, Poul. 2011. Selling Mankind: UNESCO and the Invention of Global History, 1945–1976. Journal of World History 22 (1): 101–133. Duri, ‘Abdal ‘Aziz. 1974. Notes on Taxation in Early Islam. Journal of the Economic and Social History of the Orient 17 (2): 136–144. El Shamsy, Ahmed. 2013. The Canonization of Islamic Law: A Social and Intellectual History. Cambridge: Cambridge University Press.

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Etkileri [Reading the History of Islamic Law from Ibn Khaldūn’s Perspective: Ibn Khaldūn’s Impact on Historiography of Islamic Law within the Modern Era]. Belleten 76 (277): 741–774. Koehler, Benedikt. 2014. Early Islam and the Birth of Capitalism. Lanham: Lexington Books. Kusha, Hamid R. 2002. The Sharia Law’s Genesis: A Brief History. In The Sacred Law of Islam: A Case Study of Women’s Treatment in the Islamic Republic of Iran’s Criminal Justice System, 13–50. London and New York: Routledge. Labib, Subhi Y. 1969. Capitalism in Medieval Islam. The Journal of Economic History 29 (1): 79–96. Lima, Manlio. 2008. English Common Law and Islam: A Sicilian Connection. Best of Sicily Magazine. http://www.bestofsicily.com/mag/art283.htm. Loud, Graham A. 2012. Roger II and the Making of the Kingdom of Sicily: Selected Sources Translated and Annotated. Manchester and New  York: Manchester University Press. Luxenberg, Christoph. 2007. The Syro-Aramaic Reading of the Koran: A Contribution to the Decoding of the Language of the Koran. Berlin: Prometheus Books. Makdisi, John A. 1990. An Inquiry into Islamic Influences During the Formative Period of Common Law. In Islamic Law and Jurisprudence, ed. Nicholas Heer, 135–146. Seattle, WA: University of Washington Press. ———. 1999. The Islamic Origins of the Common Law. North Carolina Law Review 77 (5): 1635–1739. Mallat, Chibli. 2015. Philosophy of Nonviolence: Revolution, Constitutionalism, and Justice Beyond the Middle East. Oxford and New York: Oxford University Press. Mallet, Alex. 2013. The Assizes of Roger. In Christian Muslim Relations: A Bibliographical History. Volume 5, 1350-1500, ed. David Thomas and Alex Mallet, 672–674. Leiden: Brill Academic. Mirandola, Pico della. 2012 [1486]. Oration on the Dignity of Man: A New Translation and Commentary. Edited by Francesco Borghesi, Michael Papio and Massimo Riva. Cambridge: Cambridge University Press. Montgomery, John Warwick. 1978. Law and Gospel: A Study in Jurisprudence. Oak Park, IL: Christian Legal Society. Moosa, Ebrahim. 2009. Colonialism and Islamic Law. In Islam and Modernity, ed. Muhammad Khalid Masud, Armando Salvatore, and Martin van Bruinessen, 158–181. Edinburgh: Edinburgh University Press. Motadel, David, ed. 2014. Islam and the European Empires. Oxford and New York: Oxford University Press. Nicholson, Reynold A. 1969 [1921]. Studies in Islamic Poetry. Cambridge: Cambridge University Press.

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CHAPTER 3

Through the Lens of the Qur’anic Covenant: Theories of Natural Law and Social Contract in al-Ṭ abarı̄’s Exegesis and History Ulrika Mårtensson

Preface The discussions that inspired this volume sparked by a debate on the Sociology of Islam email list in June 2016 over whether there is such a thing as cultural and religious rights, if practices conflict with the norms of the majority. For example, does a school boy have the right not to shake his female teacher’s hand for religiously motivated reasons, even though the teacher and, apparently, ‘the Whole Nation’ (Switzerland, in this case) considers it a crime against social cohesion, should such a crime exist? The debate carried on to the feasibility or not of multiculturalism, the policy that protects minority- and individual right to differ from the majority culture without suffering discrimination. The multicultural right to differ

U. Mårtensson (*) Department of Philosophy and Religious Studies, Norwegian University of Science and Technology (NTNU), Trondheim, Norway e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 R. C. Weller, A. M. Emon (eds.), Reason, Revelation and Law in Islamic and Western Theory and History, Islam and Global Studies, https://doi.org/10.1007/978-981-15-6245-7_3

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refers, in international legal contexts, to human rights, which in turn are grounded in natural law theory (Finnis 2012: 100). Consequently, discussions veered toward the questions of whether there can be such a thing as ‘natural law’ (lex naturalis); whether this English-Latin concept has any counterpart in Islamic contexts; and whether natural law theory is premised upon the ‘free use of reason’, in the sense of ‘not referring, for substance and authority, to religious scripture’, that is, divine revelation? This study begins with an Introduction, containing general definitions of natural law theory and its relationship with social contract theory; an exposition of the Biblical-Jewish concept Covenant and its significance in American Puritan and revolutionary contexts; and a brief survey of the debate over Islamic natural law theory. I then apply these outcomes to analysis of natural law theory and social contract in the Qur’an, and in al-Ṭ abarı̄’s methodology, Qur’an exegesis, and history.

Introduction Natural Law Theory: ‘Western’ Concepts In the Internet Encyclopaedia of Philosophy, Kenneth Einar Himma distinguishes between two forms of natural law theory. The first is natural law theory of morality, which Himma illustrates by the Catholic Aristotelian scholastic Thomas Aquinas (d. 1274). Aquinas posited ‘reason’ as the first principle of human acts, and thus as the measure and definition of their morality. Given that humans are ‘by nature’ rational beings, it is morally appropriate that they should behave in a way that corresponds with their rational ‘nature’. As Himma puts it, ‘Aquinas derives the moral law from the nature of human beings’. The concept of the divine plays an important part, since Aquinas defined human nature as the expression of Biblical divine creation and providence (Himma, IEP). The second form is the natural law theory of law. Here the premise is that laws depend for authority ‘not on some pre-existing human convention, but on the logical relationship in which they stand to moral standards. Otherwise put, some norms are authoritative in virtue of their moral content, even when there is no convention that makes moral merit a criterion of legal validity’ (Himma, IEP). John Finnis, a natural law theory scholar with a Catholic background, has highlighted the epistemic claim that underpins assumptions and definitions of ‘reason’ and ‘normative moral standards’: a moral standard

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is necessarily supported by a claim of truth. In Finnis’ words, the truth-­ claim that underpins natural law theory aspires to universal justification and validity for the norms in case: A theory of natural law claims to be able to identify conditions and principles of practical right-mindedness, of good and proper order among persons, and in individual conduct. Unless some such claim is justified, analytical jurisprudence in particular and (at least the major part of) the social sciences in general can have no critically justified criteria for the formation of general concepts, and must be content to be no more than manifestations of the various concepts peculiar to particular peoples and/or to the particular theorists who concern themselves with those people. (2011 [1980]: 18)

Consequently, Finnis conceptualizes the history of natural law theory from Plato and especially Aristotle, via Thomas Aquinas, into the Universal Declaration of Human Rights (UDHR, 1948), as the history of the epistemic claim that a certain moral standard is true, and as a conscious critique of the relativist episteme (Finnis 2012). Finnis’ contemporary example of natural law theory is, then, the Universal Declaration of Human Rights, promulgated by the United Nations General Assembly in Paris on December 10, 1948: Preamble: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world; (…). Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law (my italics) (…). Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

This Preamble sets up recognition of the inherent dignity and of the equal and inalienable rights of humans as the moral standard for the Declaration’s substantive rights, and the rule of law as the practice that protects these rights against tyranny. Article 1 identifies ‘reason’ and ‘conscience’ as something all humans have by nature, but it does not identify these as the sources of the recognition of human dignity and rights, and the requirement

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of the rule of law to protect human rights against tyranny. Rather, the starting point is the epistemic claim that inherent freedom and equality in dignity and rights must be recognized as true. It is the ensuing text of the Declaration, which defines these rights substantively, that constitutes the authoritative source of the human rights. Consequently, the authoritative text of the Declaration does not premise human dignity and rights on reason and conscience, but defines these as coinciding. The norm that humans should act toward one another in a spirit of brotherhood therefore follows from the epistemic claim, not from ‘reason’. ‘Social Contract’ The UDHR Preamble, then, identifies ‘the rule of law’ as the practice that protects human rights. According to Finnis, in the context of natural law theory the rule of law refers to a constitutional ‘social contract’. Following the Encyclopedia Britannica online, social contract generally refers to ‘an actual or hypothetical compact, or agreement, between the ruled and their rulers, defining the rights and duties of each’. In Finnis’ words, a social contract that reflects the rule of law holds rulers ‘to their side of a relationship of reciprocity, in which the claims of authority are respected on condition that authority respects the claims of the common good (of which a fundamental component is respect for the equal right of all to respectful consideration)’ (Finnis 2011[1980]: 272–273). In another definition, by the political scientist Jeremy Waldron, the rule of law includes ‘procedure’: The Rule of Law comprises a number of principles of a formal and procedural character, addressing the way in which a community is governed. The formal principles concern the generality, clarity, publicity, stability, and prospectivity of the norms that govern a society. The procedural principles concern the processes by which these norms are administered, and the institutions—like courts and an independent judiciary that their administration requires. On some accounts, the Rule of Law also comprises certain substantive ideals like a presumption of liberty and respect for private property rights (Waldron 2016).

In other words, the contemporary human rights dependency on rule of law for protection equals a dependency on democratic constitutional separation of powers and related procedures and norms for legislation, public administration, and the justice system.

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Covenant, Constitution, Social Contract As Charles Weller shows in his Introduction to this volume, Finnis’ trajectory of natural law theory (Plato—Aristotle—Thomas Aquinas—the UDHR) is a truncated one. One of the important legacies it excludes is the Jewish and Christian concepts of Covenant. Daniel Elazar has defined the Biblical Israelite Covenant with God as ‘the voluntary establishment of a people and body politic’ that precedes and founds a constitution, and which reflects natural law theory (1998: 29). Drawing also on Aristotle’s model of a political system, Elazar identifies three components of Covenant-based constitution. (1) The moral basis, including concepts of justice, right and good. This dimension corresponds with Himma’s definition of natural law theory of law as deriving its authority from a moral principle, which is then the substance of what Finnis identifies as the epistemic claim of natural law theory. (2) The socioeconomic basis, including class, ethnicity, economy, and distribution of power. (3) The frame of government, including the document(s) that define the institutions of government and their powers, who should govern, and how they are chosen (1998: 29–30). Moreover, Elazar frames Biblical Covenant as a contractual partnership, applied also in later Jewish political theory. The term ‘sons of Covenant’ (benai berith) signifies the polity’s practice of forming new covenantal entities with several partners bound together like sons in a family, while ‘masters of Covenant’ (baʿalei berith) signifies the polity’s practice of entering peace treaties with external parties (1998: 25–26, 128–139). In the Bible, Abraham’s covenants illustrate both terms. Moreover, as God’s contract partner, Abraham can negotiate with Him, for example, regarding the rights of his treaty partners. However, God has the final right of decision, signifying that Covenant is a hierarchical partnership (1998: 132–133). Elazar extends his model of the Biblical Covenant to early modern Anglo-American Puritan versions, and subsequent North American compacts, though the latter departed from the divine frame and focused on the civil ‘body politic’ as the locus for defining rights and obligations, with corresponding egalitarian ideals (1998: 31). Elazar traces also the term ‘social contract’ to the Covenant model, although he stresses that in the French Jacobin republican context, the concept took a radically secular turn. By comparison, Elazar argues, the American republican ‘compact’ continued the Covenantal model by insisting on a moral foundation for

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constitution and law, even after the contractual link with God was severed (1998: 32). Steven Green (2015) takes a slightly different approach. Referring to the eighteenth-century American revolutionary context, he identified two legacies: The Puritan Covenant theology, which restricted rights by referring to God’s ‘highest law’, and the social contract legacy from Locke and Deist Enlightenment thinkers, who followed the medieval Magna Carta legacy of ‘God-free’ voluntary compacts, which enhanced rights. Thus, Green argues, when some politician-jurists in the revolutionary context argued for natural law and natural rights, in line with social contract, but referred to God as the source of the natural ‘highest law’, in line with Puritan Covenant legacy, their aim was to limit the powers of parliament. In Green’s view, then, early modern revolutionary American contexts show how divine Covenant becomes a rights-restricting referent, while Elazar rather sees the compacts that accompanied American democracy as a continuation of Covenant in its ancient and medieval sense of conferring rights to a polity. Since my own cases pertain to the early medieval period, I will follow Elazar’s model of Covenant, and explore its possible compatibility with natural law theory of law, in Himma’s sense. Islamic Natural Law and Social Contract None of the above definitions of natural law theory preclude that such theory can derive from divine revelation, that is, scripture. Instead, Elazar (1998) defines Biblical Covenant as a natural law theory, while Green (2015) shows that natural law and natural right-arguments did in fact refer to God’s ‘highest law’. Within Islamic studies, however, the fact that the Qur’an as divine revelation, together with the Prophet’s sunna, constituted the textual sources for lawmaking has been seen as precluding natural law theory because of the nature of the corresponding Islamic social contract theory. Thus, the historian Patricia Crone argued that Muslim political thinkers defined social contract as originating with God, not with human public deliberation, because they conceived of human ‘nature’ as flawed and in need of divine revelation through a prophet. The polity was therefore conceptualized as starting with the Prophet as giver of the divine law. Consequently, Islamic social contract is not ‘man-made’, like those of, for example, Hobbes and other European theorists, and this fact rules out natural law theory, as well (Crone 2004: 262–272). Hence, Crone’s analysis means that the Qur’an’s status as a revealed text prevents it from

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functioning as an agreed-upon moral standard for lawmaking, in line with a publicly negotiated social contract. Anver Emon (2004–2005; 2010), who is a scholar of Islamic law, has challenged Crone’s framing of the Qur’an’s function. Instead, he makes a case for Islamic natural law theory by focusing on the jurists’ hermeneutical methodologies, allowing us to see the Qur’an as any text that jurists employ as moral standard for lawmaking. He shows how the jurists constructed concepts of divine Creation as statements of ‘facts’ from which they deduced moral standards, and then derived rules, with reference to the Qur’an and sunna. Thus, the jurists used divine Creation ‘as a site where fact and value are fused’ (Emon 2010: 3), in line with Himma’s definition of natural law theory of law as the law deriving its authority from a moral standard. Concerning ‘natural rights’, Emon refers to the principle ḥuqūq Allāh wa ḥuqūq al-ʿibād, ‘the rights of God and the rights of the servants’, which in his view pertains to the concept maṣlaḥa, ‘common good’ or ‘public welfare’. Thus, ḥuqūq Allāh refers to God obligating the administration to protect maṣlaḥa, in the sense that God has a right to hold administrators to account for this obligation, while ḥuqūq al-ʿibād refers to the individual’s rights in relation to the administration and the law (Emon 2004–2005: 379–381). Regarding hermeneutics, Emon argues that the jurists developed moral standards in a referential relationship to scripture, through two distinct methodologies. ‘Rationalism’ or ‘Hard Naturalism’ (Muʿtazila) defined moral standards and read them into Scripture: ‘God wants X because X is good’. ‘Positivism’ or ‘Soft Naturalism’ (al-Ghazzālı̄ and the Ashʿarites) instead used the model ‘X is good because God wants it’, deriving standards from Scripture. Thus, the ‘Soft Naturalist’/‘positivist’ al-Ghazzālı̄ used a concept of the common good (maṣlaḥa) as the moral standard for legislation, and identified the common good with five defined objectives (maqāsị d) of the law—religion, life, intellect, lineage, and property— which he derived from the Qur’anic text (Emon 2004–2005: 366, 378; 2010: 24–37). Both these hermeneutical approaches align with Himma’s definition of natural law theory of law, since they posit a moral standard for deriving law.1 Summary and Procedure Combining Himma’s definition of natural law theory of law, Finnis’ epistemic perspective, and the approaches adopted by Elazar and Emon, I

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assume here that natural law theory of law allows the law’s moral standard to be derived from scripture, and that God can serve as the authority that makes a scriptural truth-claim absolute. I apply ‘social contract’ in the general sense, as a compact between the ruler and the ruled, regulating the rights and obligations of each, with reference to Elazar’s Covenant model and Emon’s common good-oriented approach. As a first step, I apply natural law theory of law and social contract to Qur’anic concepts of Covenant, Creation, and ḥaqq. My thesis is that these Qur’anic concepts constitute the divine claim that establishes a true and right moral standard for rights and obligations, and a voluntary, mutual contract. Thus, like Biblical Covenant, Qur’anic Covenant enables, for example, Abraham to hold God to His terms. In spite of the fact that the divine claim to truth and right is not negotiable, as such, it nevertheless depends on the ability of God’s prophets and messengers to persuade people of the truth.2 The fact that persuasion does not always work suggests that gaining the people’s recognition of God’s moral standard as true and right is the key deliberative problem that the Qur’an addresses. Like the UDHR, then, the Qur’an as reference text establishes the epistemic claim that must be recognized. The second step is analysis of al-Ṭ abarı̄’s Qur’an exegesis, methodology, and history, applying Elazar’s and Emon’s approaches. I focus on his exegesis of the ‘Creation-verse’ Q. 4:1 for natural law theory, Q. 3:79 for social contract theory, and sections of his History to identify the ‘facts’ he fused with the Covenantal moral standard. I will argue that he conceived of Qur’anic Covenant as a theory of natural law and rights, and social contract, where the ruler and the administration are subject to the jurists’ law and obligated to protect ‘the common good’ and the people’s welfare.

Natural Law and Social Contract in the Qur’an The Qur’an is, according to its own self-description, the writing that God makes descend to the Prophet, with the command that he communicate its message to his people, as God has previously sent it down to other prophets and messengers to other peoples. A key point is that God communicates His message in each people’s language, so that the messengers can clarify God’s terms fully to them (e.g., Q. 14:4–5). The terms constitute a contractual partnership, with mutual rights and obligations for God and people. Hence, one of the earliest Meccan sūras, Quraysh (Q. 106), describes a contract where the Prophet’s people

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Quraysh has both the right and obligation to serve God at the Temple, while God provides food and security for Quraysh: . For Quraysh’s contract of protection (liʾı̄lāf Quraysh): 1 2. Their contract of protection is the journey of the winter and the summer, 3. So let them serve the Lord of this House, 4. Who provided food for them against hunger and secured them3 against fear (alladhı̄ ʾat ̣ʿamahum min jūʿin waʾāmanahum min khawf)! In Ibrāhı̄m (Q. 14), 35–37, a late Meccan sūra,4 we see Abraham negotiating with God, asking Him to fulfill His obligation to feed the people, in return for their serving Him: 35. But Abraham said: “My Lord, make this city secure and keep me and my sons away from serving the idols!” 36. “My Lord, [the idols] have led many people astray, but he who follows me is of me, while the one who disobeys me: surely, You are All-­ Forgiving Protector of life!” 37. “Our Lord, I have settled some of my descendants in a valley without crops, by Your Inviolate House, our Lord, so that they can enact standing to the prayer. Then incline the hearts of the people towards them and sustain them of the harvest fruits: hopefully, they will become thankful!”

In al-Baqara (Q. 2), 125–126, from Medina, God refers to the contract He has entered with Abraham and his son Ismail, with the same terms as above.5 Note that verse 126 states that God materially supports (yumattiʿu) even the one who rejects His security (kafara), deferring punishment to the future judgment: 125. When We made the House a meeting place for the people and a secure haven: “Take for yourselves from Abraham’s standing place a place for prayer!” We entered a contract with Abraham and Ismail: “Purify My House for those who circle it, absorbed in worship, and kneeling in prostration!” 126. When Abraham said: “My Lord, make this a city that is secure (rabbi ijʿal hādhā baladan ʾāminan) and sustain of the harvest fruits those of its inhabitants who enact security through God and the Far-away Day!” (God)

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said: “As for the one who rejects security, I shall support him a while, then subject him to the chastisement of the fire: a painful outcome!”

This contract, with mutual rights and obligations, follows the universal Creation Covenant between God and humans, described in al-ʾAʿrāf (Q. 7), 172, from the late Mecca period:6 172. And when your Lord took from the sons of Adam, from their backs, their descendants and made them testify against themselves: “Am I not your Lord?” they said: “Certainly, we testify!” so that you cannot say on the Day of Standing to trial: “But we were actually unaware of this!”

Thus, with the Creation of Adam, God has entered into a Covenant with humanity, that He is their Lord, and since humans know this term as a ‘fact’ they are obligated by it, and God can rightfully hold them to account on it.7 Consequently, Covenant can be seen as the reference for the Qur’anic term ḥaqq. Since ḥaqq carries the two senses of ‘truth’ and ‘right’, the ‘truth’ that the Qur’an communicates also confers ‘right’, which makes the right ‘true’, not a vacuous claim.8 One of many relevant passages is from al-Baqara, Q. 2: 176–177 (Medina). Verse 176 makes a claim to ḥaqq on behalf of the writing,9 from which follows a list of commands in verse 177. Here it is stated that ‘fulfilling contract’ is a virtue, in line with the Covenantal obligation to fulfill one’s terms: 176. That is because God has made the writing descend with the truth and the right, and indeed: those who disagree about the writing are indeed in far-reaching dissent! (dhālika biʾanna ’Llāha nazzala ’l-kitāba bi’l-ḥaqqi waʾinna ’lladhı̄na ’khtalafū fı̄ ’l-kitābi lafı̄ shiqāq baʿı̄d) 177. Righteousness (al-birr) is not to turn your faces in the direction of the East and the West, but righteous is rather the one who enacts security through God, the furthest day, the angels, the writings, and the prophets; who gives of the property, in spite of his love for it, to his close kin, the orphans, the poor, the wayfarers, and the beggars, and for the freeing of slaves, and who enacts performance of the prayer and pays the community tax (al-zakāt). And those who fulfil their contracts that they have entered, and patiently endure privation, affliction, and times of battle: those are the ones who are truthful, and those are the ones who fulfil their obligations!

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In al-ʾAnʿām, Q. 6: 149–152, verse 149 introduces another list of contractual obligations by referring to God’s persuasive proof. This outline signals that God has to prove the truth and right of the message in order for people to obey the commandments, but that the proof does not always work: 149. Say: ‘For God has the persuasive proof (fali’Llāhi ’l-ḥujja l’-bāligha), so had He wished, He would have guided you all!’

Verses 151–152 then outline the contractual terms, a Qur’anic version of the Ten Commandments: 151. Say: ‘Come, I will recite what your Lord has made inviolate for you: that you must not make anything partner with Him; goodness towards the parents; that you do not kill your children out of fear of poverty: We provide sustenance for you and for them; that you do not approach indecencies, whether outwardly or inwardly; and that you do not kill a person, who God has made inviolate, except for a rightful cause. That is what God obligates you: hopefully you will grasp it! (laʿallakum taʿqilūna) 152. Do not lay kinship claims to the orphan’s property, except for what is more good, until he comes of age, and give full measure and weight equitably! We do not obligate a person except with its capacity, so when you make statements, be just, even if it is a close kin, and fulfil God’s contract (ʿahdi ’Llāhi). That is what He obligates you, so that you may honour it (laʿallakum tadhakkarūna)!

Social contract as topic appears in the Medina sūra al-Fatḥ, Q. 48: 10, where it refers to the allegiance to the Prophet. This too is part of Covenant, since God authorizes the pledge: 10. Indeed, those who pledge allegiance to you (alladhı̄na yubāyiʿūnaka) are actually pledging allegiance to God, God’s hand being over their hands, so that he who breaks his oath breaks it against himself, while he who fulfils what he has contracted with God will receive from Him an immense reward!

Finally, in line with Elazar’s point that the Biblical Jewish Covenant entailed treaties and compacts with parties external to the divine Covenant, al-Māʾida, Q. 5: 44–48 (Medina) defines the category ahl al-kitāb and their contract with the Prophet’s polity. Here, the Qur’an speaks as the

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scripture of the sovereign polity, acknowledging that since the Torah and the Gospel contain the same divine guidance, light, and justice as ‘this kitāb’, Jews and Christians can rule by their laws within their contract with the Prophet. Hence, this passage states that the social contract originates before the Prophet, in line with the Qur’an’s location of Covenant in Creation (Q. 7: 172, above): 44. Indeed, We made the Torah descend! In it is guidance and light, by which the prophets who promoted peace judged for those who guided (i.e. the Jews), as did the masters and scribes by what they were made to preserve of God’s writing (kitāb Allāh), upon which they were witnesses. So do not fear the people but fear Me, so that you do not buy by My signs for a small price! Those who do not judge by what God has made descend: those are the ones who reject security (humu ’l-kāfirūna)! 45. And in it We wrote for them that a person’s life is by a person’s life, an eye is by an eye, a nose is by a nose, an ear is for an ear, a tooth is for a tooth, and that damages are recompense so whoever pays compensation for it, it is an atonement for him. Whoever does not judge by what God has made descend: those are the ones who do wrong (humu ’l-ẓālimūna)! 46. And We let follow in their tracks Jesus son of Mary, confirming what was before him of the Torah when We gave him the Gospel. In it is guidance and light, confirming what was before him of the Torah, as guidance and admonition to those who fulfil their obligations (li’l-muttaqı̄na)! 47. So let the people of the Gospel judge by what God has made descend in it! Whoever does not judge by what God has made descend: those are the rebellious (humu ’l-fāsiqūna)! 48. And We have made descend to you the writing by the right and truth (waʾanzalnā ʾilayka ’l-kitāba bi’l-ḥaqqi), confirming the writing that is before it and surpassing it. So judge between them by what God has made descend and do not follow their arbitrary whims instead of the right that has come to you! For each of you We have made a path to guidance and a method; had God wished to, He would have made you one community, but He is testing you through what has come to you so compete in doing good! To God is your return, all of you, and thus He is announcing to you concerning the issues about which you disagree!

In sum: the Qur’an models the relationship between God and humans as a Covenant, which extends into further rules and laws for the polity, and its ‘other’ contract partners. The Covenant terms are absolutely ‘true’ and

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‘right’ because they come from God, and yet they cannot be implemented in society unless the people are persuaded of their good. Viewed from the perspective of the jurists and scholars who derived rulings and guidance from the Qur’an, the prophetic need for persuasiveness appears to reflect their need to persuade the collegiate to validate points of law and doctrine derived from the Qur’an (cf. Q. 4: 59). Thus, the context for using the Qur’an was and is deliberative.

Al-Ṭ abarı’̄ s Exegesis and History Al-Madhhab al-jarı̄rı̄ Al-Ṭ abarı̄, whose full name was Abū Jaʿfar Muḥammad b. Jarı̄r al-Ṭ abarı̄, lived between 838/223–310/923. It seems his family were Abbasid vassals in the region of Ā mūl in the Caspian Sea province of Ṭ abaristān (Mårtensson 2016: 19). Having dreamed that his son would become a defender of the Prophet’s sunna, al-Ṭ abarı̄’s father Jarı̄r b. Yazı̄d dedicated his son to scholarship and sent him on a study journey that took him to other cities in the region, then to Egypt, Syria, and Iraq. He settled in the Abbasid capital Baghdad, where he studied and taught for the duration of his life, living off revenue from the family lands in Ā mūl.10 In the biographical sources, al-Ṭ abarı̄ is designated mujtahid mut ̣laq, a jurist who both made independent rulings and developed his own methodology: al-madhhab al-jarı̄rı̄, after his patronym Ibn Jarı̄r (Kern 1902: 18–19). He was a system-building scholar, in the sense that there are correspondences in doctrinal-legal substance and methodology between his works, which span several disciplines.11 These include legal methodology (uṣūl al-fiqh), rulings (aḥkām), doctrine (ʿaqı̄da), Qur’an exegesis (tafsı̄r, e.g., Jāmiʿ al-bayān ʿan taʾwı̄l ʾāy al-Qurʾān), the history of rulers and divine messengers from Creation to the year 302/915 in the region corresponding to the Abbasid Caliphate’s realm (taʾrı̄kh, e.g., Taʾrı̄kh al-rusul wa’l-mulūk), and Prophetic ḥadı̄th (Tahdhı̄b al-āthār). The treatise where al-Ṭ abarı̄ expounded his legal methodology, al-Bayān ʿan uṣūl al-aḥkām, is not extant. It is, however, described in biographical records from his student, the judge Abū Bakr b. Kāmil (d. 350/961), cited in Yāqūt’s biography (Stewart 2004). The title’s term bayān, ‘clarifying distinction’,12 refers to the hermeneutics pertaining to uṣūl al-fiqh since al-Shāfiʿı̄ (d. 205/820). The premise of bayān is that rulings and doctrine derive from both the Qur’an and ḥadı̄th, through

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interpretation that ‘clarifies’ the texts’ distinctions by harmonizing meaning across the Qur’an and sunna, with reference to a legal or doctrinal topic. This method applied in several ways, depending on whether the exegetes vested interpretive authority in a particular doctrine that they read into the text, or whether the text is the authority; and how the interpreter weighted the Qur’an and ḥadı̄th against each other (Vishanoff 2011). Al-Ṭ abarı̄’s application of bayān is most clear in his ḥadı̄th collection, organized according to Companion authorities (musnad). He harmonized meaning between the Qur’an and ḥadı̄th, and determined rulings and doctrine on the grounds of Qur’anic support for the meaning-­ substance of a ḥadı̄th, and meaning-agreement across Companion-­ transmitted ḥadı̄th with sound isnāds (Mårtensson 2016). Thus, al-Ṭ abarı̄ located authoritative legal and doctrinal consensus (ijmāʿ) in Companion ḥadı̄th (cf. Stewart 2004). By locating consensus in a textual source attributed to the Prophet, rather than in the consensus of jurists, al-Ṭ abarı̄ justified his own, independent madhhab as based on the Prophet’s sunna. Moreover, al-Ṭ abarı̄ generally attached great significance to the principle that binding contracts should be written, and hence to the Qur’an’s generic form as the writing (kitāb) that God sent down to His messengers, binding them to His Covenant (mı̄thāq) (Mårtensson 2009, 2011, 2016). As the divine writing, the Qur’an conveys God’s message about Covenant through bayān (Jāmiʿ al-bayān, 1:1, pp. 16–17). Al-Ṭ abarı̄ expressed this view in his definition of the opening sūra, al-Fātiḥa (Q. 1). According to him, al-Fātiḥa is the front and source of the Qur’an (ʾumm al-Qurʾān), which sums up and extends through the entire canonical corpus one meaning: the contract between God and His servants and its terms, including the servants’ right to sustenance through the material blessings of God’s creation (niʿma): What [al-Fātiḥa] contains of thanks and glorification and praise of [God] is exhortation for the servants about His magnificence and rule and power, and the magnitude of His kingship, so that they will honour Him for His favours and give thanks to Him for His material blessings (naʿmāʾihi). They have a right to the surplus of that from Him, and they are entitled to an abundant reward from Him. (…) That is the meaning of the extended clarification of the sūra ʾumm al-qurʾān, and of what corresponds to it in the other sūras of the Distinction (al-furqān), and that is the persuasive capacity for just judgement and the comprehensive proof (wadhālika ’l-ḥikma al-bāligha wa’l-ḥujja al-kāmila). (Jāmiʿ al-bayān, 1:1, p. 127; bold added)

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Exegesis of al-Nisāʾ, Q. 4: 1 Against this background, I turn to al-Ṭ abarı̄’s exegesis of Q. 4:1. Al-Nisāʾ is from Medina, and contains legal topics and rulings, including on inheritance and property rights. The first verse describes Creation: 1. O People! Fulfil your obligations towards your Lord, Who created you by dividing one person and thereby distinguishing from it its other half, and from the two of them dispersed numerous men and women! Fulfil your obligations towards God by Who you appeal to one another, and towards the family relationships, for indeed: God is continuously surveying you! (Yā ʾayyuhā al-nās ittaqū rabbakum alladhı̄ khalaqakum min nafsin wāḥidatin wakhalaqa minhā zawjahā wabaththa minhumā rijālan kathı̄ran wanisāʾa wa’ttaqū Allāha ’lladhı̄ tasāʾalūna bihi wa’l-ʾarḥāma ʾinna ’Llāha kāna ʿalaykum raqı̄ban)13

Al-Ṭ abarı̄ explained the verse as stating that all humans have rights by virtue of being God’s creatures: [God] (…) means by His statement (O People! Fulfil your obligations towards your Lord, Who created you by dividing one person): ‘Beware, O People, of your Lord so that you do not contravene what He has commanded you to do and what He has prohibited you from, for His punishment will descend upon you and you have no power over it!’ Then He (…) described Himself as the Uniquely One Who has created humankind as a whole from one individual (shakhṣ wāḥid), and He lets His servants know how the beginning was when He issued that forth from one person (nafs wāḥida), making them aware by that, that all of them are descendants of one man and one mother, so that they are from one another, and that the right (ḥaqq) of some of them over others is the obligation that one brother has to the right (ḥaqq) of his brother, because of their common descent from one father and one mother. What obligates them to guard over each others’ right (ḥaqq) after the coming together of the descent from the father who is common to them, is like what obligates them of that concerning the closest descent. By that they feel affection for each other so that they seek justice for each other, and do not oppress each other, and so that the strong exerts himself to protect the right (ḥaqq) of the weak, according to what God has obligated him to do. Therefore He said (Who created you out of one person), meaning from Adam (Jāmiʿ al-bayān, 3:4, 296; bold added).

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Thus, al-Ṭ abarı̄ established the moral standard, that because God has created all humans from one person, constituting a universal brotherhood, they all have rights like family members, and God commands especially that the strong shall protect the rights of the weak. Who ‘the weak’ are becomes apparent in the subsequent verses 4: 2–12, on orphans and their property rights, and married women and their rights and inheritance, including those ‘who your right hand owns’.14 Thus, verses 4: 2–3 state: 2. Give the orphans their properties without exchanging for good things useless ones, or consuming their property together with your own: that is indeed a great sin! 3. If you fear that you cannot provide equity for the orphans, you may marry those of the women who appeal to you: two, three or four. But if you fear that you cannot be just, then one, or what your right hands own; that is the lowest baseline to keep you from unfairness. (waʾātū ’l-yatāmā ʾamwālahum walā tatabaddalū ’l-khabı̄tha bi’l-ṭayyibi walā taʾkulū ʾamwālahum ʾilā ʾamwālikum ʾinnahu kāna ḥūban kabı̄ran waʾin khiftum ʾallā tuqsitụ ̄ fı̄ ’l-yatāmā fa’nkiḥū mā t ̣āba lakum min al-nisāʾi mathnā wathulātha warubāʿa faʾin khiftum ʾallā taʿdilū fawāḥida ʾaw mā malakat ʾaymānukum dhālika ʾadnā ʾallā taʿūlū.)

Al-Ṭ abarı̄’s exegesis of 4: 2–3 reflects a hierarchical society, where rights differ depending on legal and social status. Orphans and married women had property rights that respectively legal guardians and husbands were obligated to uphold, but there were also ‘owned ones’ (mamālı̄k) who did not have the same rights as orphans and wives to property and inheritance vis-à-vis the men addressed in these verses. According to al-Ṭ abarı̄, they are the ones referred to in 4:3 as ‘what your right hands own’ (mā malakat ʾaymānukum). Further on, in verse 4: 36, God commands doing good (ʾiḥsān) by ‘those who your right hands possess’: 36. Serve God and do not make anything partner with Him! Do good by your parents and relatives, the orphans, the poor, the close neighbour and the distant neighbour,15 the companion by your side, the traveller, and those who your right hands possess, for indeed, God does not love the self-­ aggrandising custodian! (waʿbudū ’Llāha walā tushrikū bihi shayʾan wabi’lwālidayni ʾiḥsānan wabidhı̄ ’l-qurbā wa’l-yatāmā wa’l-masākı̄na wa’l-jāri dhı̄ ’l-qurbā wa’l-jāri ’l-junubi wa’l-ṣāḥibi ’l-janbi wa’bni ’l-sabı̄li wamā malakat ʾaymānukum ʾinna ’Llāha lā yuḥibbu man kāna mukhtālan fakhūran)

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Al-Ṭ abarı̄, explaining 4: 36, refers to the Meccan exegete Mujāhid (d. 104/722),16 and argues for the following meaning: Our Lord, the All-Mighty, has obligated His servants to do good by all those, commanding His creatures to uphold His obligation towards them, and He granted His servants the right to God’s obligation being upheld regarding them, and then His Messenger (pbuh) upheld His obligation (faʾawṣā rabbunā julla jalāluhu bijamı̄ʿi hāʾulāʾi ʿibādihi ʾiḥsānan ʾilayhim waʾamara khalqahu bi’l-muḥāfaẓa ʿalā waṣiyatihi fı̄him faḥaqqa ʿalā ʿibādihi ḥifẓa waṣiyati ’Llāhi fı̄him thumma ḥifẓ waṣiyat rasūlihi (ṣaws)).17

Thus, God obligates (ʾawṣā) His creatures to do good by all His servants that are under their custody, and they in turn have the right to this obligation by virtue of being God’s servants and creatures. The term that al-Ṭ abarı̄ uses here, ḥaqqa ʿalā, means they have a right that corresponds to a specific obligation. In other words, even the ‘owned ones’ have the inherent right as humans to be ‘done good by’, albeit their rights otherwise correspond to their status as ‘owned’.18 Regarding al-Ṭ abarı̄’s method applied in the key verse Q. 4: 1 (above), he ‘read into it’ the term ḥaqq, which does not appear in this verse. However, it occurs in several other places in this predominantly legal sūra, verses 105, 122, 151, 155, and 170–171. Starting with 4: 105: 105. We have sent down to you the writing with the truth and the right in order for you to judge between the people by what God has made you see, and not be an advocate for those who deceive! (ʾinnā ʾanzalnā ʾilayka ’l-kitāba bi’l-ḥaqqi litaḥkuma bayna ’l-nāsi bimā ʾarāka ’Llāhu walā takun lil-khāʾinı̄na khaṣım ̄ an)

4: 122: 122. But those who promote security through faith and work for the common good We will let enter into gardens beneath which rivers flow to dwell there forever; God’s promise is a right, for whose speech is more trustworthy than that of God? (wa’lladhı̄na ʾāmanū waʿamilū ’l-ṣāliḥāt sanudkhiluhum jannātin tajrı̄ min taḥtihā ’l-ʾanhhāru khālidı̄na fı̄hā ʾabadan waʿda ’Llāhi ḥaqqan waman ʾaṣdaqu mina ’Llāhi qı̄lan)

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4: 155: 155. Because of their violation of their Covenant, their rejection of trust in God’s signs, and their killing the prophets without right (…). (fabimā naqḍihim mı̄thāqahum wakufrihim biʾāyāti ’Llāhi waqatlihim al-ʾanbiyāʾa bighayr ḥaqqin)

Finally, verses 4: 170–171 connect the fact that God’s Messenger brings ḥaqq to the people with God’s power over Creation: 170. O People! Since the Messenger has come to you with the truth and the right from your Lord, it is better for you to promote security. If you reject security: surely, to God belongs what is in the heavens and the land, and God is All-Knowing, Passing Judgment! (yāʾayyuhā ’l-nās qad jāʾakum al-rasūlu bi’l-ḥaqqi min rabbikum faʾāminū khayran lakum waʾin takfurū faʾinna liLlāhi mā fı̄ ’l-samawāti wa’l-ʾarḍi wakāna ’Llāhu ʿalı̄man ḥakı̄man) 171. O Adherents of Writing! Do not exceed the boundaries of your religion, and do not say upon God except what is the truth and the right (yā ʾahla ’l-kitāb lā taghlū fı̄ dı̄nikum walā taqūlū ʿalā ’Llāhi ʾillā ’l-ḥaqqa) (…) To Him belongs what is in the heavens and the land, so God suffices as legal guardian! (lahu mā fı̄ ’l-samawāti wa mā fı̄ ’l-ʾarḍi wakafā bi’Llāhi wakı̄lan)

Thus, it appears that al-Ṭ abarı̄ read the other references to ḥaqq in Q. 4 into his exegesis of the Creation-verse 4: 1. Arguably, he did so because he wanted to locate ‘human ḥaqq’ in Creation, in line with Emon’s analysis of how the jurists used Creation. Hence, the ‘fact’ that God created humans as a universal brotherhood generates the ‘value’ that people should uphold each other’s rights as brothers, and the strong should protect the rights of the weak. Exegesis of Ā l ʿImrān, Q. 3: 79 The next example, Q. 3: 79, refers to social contract. At al-Ṭ abarı̄’s time, two distinct but co-existing theoretical models of social contract are relevant. In the first model, the ruler is the legislator, capable of mastering in person the disciplines of the Qur’an, ḥadı̄th and legal reasoning. In the second model, the institution of the legal scholars legislates as experts in the law, while the Caliph and administration constitutes the executive

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power. The ruler is educated enough, however, to know how to seek council from the jurists, and preside over the court of appeal (maẓālim).19 I assume that al-Ṭ abarı̄ supported the second model, as expressed in his commentary on Q. 3: 79. The verse reads: 79. It is impossible that any human conveyor of the divine word (bashar) who God has given the writing, the ruling, and the prophecy, would say to the people: “Be servants to me instead of to God!” Rather, [he would say]: “Be masters (rabbāniyyı̄na) by virtue of the writing that you have been conveying knowledge of, and by virtue of what you have been studying!”

The verse establishes that to serve God means to study and teach the writing to the people, so that they become ‘masters’, not to make the people subservient to oneself. Al-Ṭ abarı̄ explained this in terms, which define the ‘masters’ as those who protect the people’s welfare and the common good (maṣlaḥa), and who supervise the state administration for this sake: [By ‘masters’ is meant] the scholar of jurisprudence (fiqh) and just judgement (ḥikma), who is among those who promote the common good (al-muṣliḥı̄na), and manage the people’s affairs by teaching them the good (al-khayr) and inviting them to that which is in their best interest (maṣlaḥatihim). [This kind of scholar] is just in judgement (ḥakı̄m) and fulfils his duties towards God, and is the governor who governs the people’s affairs according to the method (al-minhaj) of those among the promoters of the common good who promote social justice (al-muqsiṭūna min al-muṣliḥı̄na) (…) Thus, the ‘masters’ are the support of the people in jurisprudence, scholarship, and matters of the religion and the nearest life (al-dı̄n wa’l-dunyā). (…) Mujāhid said: They are above the scholars (wa-hum fawqa ’l-aḥbār), because the scholars are the learned men (al-ʿulamāʾ), whereas the master combines learning and jurisprudence so as to oversee politics and administration and represent (al-qiyāma bi) the affairs of the ruled so that their best interests are furthered in this life and in religion. (Jāmiʿ al-bayān, 3:3, pp. 444–45)

It follows from Mujāhid’s commentary, which al-Ṭ abarı̄ agrees with here, that ‘masters’ are those legal scholars who have the authority to oversee that politics and administration serve the interests of the ruled, and who must therefore be the legislators. If we correlate al-Ṭ abarı̄’s exegesis of Q. 3: 79 and Q. 4: 1, his natural law standard appears to refer to the second model of social contract, where the jurists are the legislators who

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ensure that the law reflects the common good, by protecting the people’s rights, especially the weak against the powerful. The key term in the exegesis on Q. 3: 79, maṣlaḥa, is a legal technical term, which occurs here together with the plural of the active participle, muṣliḥūna, referring to the ‘masters’. According to Abdul Aziz Bin Sattam, maṣlaḥa derives from the noun ṣalāḥ, antonym of fasād, ‘corruption, harm’, and carries the primary sense of ‘benefit’. In the fourth declination ʾaṣlaḥa, it signifies ‘to restore benefit after corruption’. In general, then, maṣlaḥa signifies ‘what brings benefit and counters corruption and harm’, and in this sense, it guided the jurists’ derivation of law (Bin Sattam 2015: 11–12). According to Felicitas Opwis, maṣlaḥa also means ‘public interest’ and ‘common good’ (2010: 1–2). Bin Sattam (2015: 18) argues that maṣlaḥa, understood as the technical principle of deriving laws through consideration of what is beneficent and good (ḥasan), derives from the Qur’an itself, for example, al-Naḥl, 16: 90: 90. Indeed, God by commanding justice, doing good to others, and giving to kin, and diverting from indecency, bad deeds, and aggression, admonishes you so that you may honour yourselves!

Furthermore, Bin Sattam identifies legal terms related to maṣlaḥa (e.g., istiṣlāḥ, ‘to seek the beneficent’, and istiḥsān, ‘to seek the good’) in early reports from the Prophet’s Companions and Successors. In his view, it was differences in understanding and applying these terms, which defined boundaries between the emerging Sunni madhāhib in the second half of the 800s (Bin Sattam 2015: 49–51; cf. Abdelkader 2003: 170–72). Felicitas Opwis, however, argues that neither maṣlaḥa nor istiṣlāḥ have Qur’anic foundation, and that related concepts in ḥadı̄th do not refer to them in the technical sense of a principle that legislators apply systematically in deriving new laws. The earliest example of anyone referring to ṣalāḥ as a guide for legislation, Opwis finds, is the Abbasid scribe Ibn al-Muqaffaʿ (d. c. 139/757) in his epistle al-Risāla fı̄ ’l-ṣaḥāba, addressed to the Caliph al-Manṣūr (r. 136/754–158/775). Ibn al-Muqaffaʿ argued that since there are different laws in different parts of the empire, the Caliph should create a uniform law, including new laws for cases without foundation in the Qur’an and sunna through the principle of the people’s welfare (ṣalāḥ). Jurists could then proceed to the regions and judge according to what they consider the welfare of the people (istiṣlāḥ). Yet

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Opwis sees Ibn al-Muqaffaʿ as an early exception. Maṣlaḥa acquired its technical sense only in the late 900s, when it was put to use in a systematic and generally accepted manner (Opwis 2010: 9–15). Despite disagreement over dating maṣlaḥa in the technical sense, Bin Sattam and Opwis agree that al-Ghazzālı̄ (d. 505/1111) represents a new identification of maṣlaḥa with defined ‘objectives’ of the law (maqāsị d): preservation of religion, life, intellect, lineage, and property (Bin Sattam 2015: 11–12; Opwis 2010: 4; cf. Emon 2004–2005: 367). With al-Ghazzālı̄, then, maṣlaḥa has become a formal procedure for deriving laws within Sunnı̄ legal theory, assisting jurists in their quests for universally recognized methods. As such, maṣlaḥa embodied in the maqāsị d aims to ensure consistency, transparency, and predictability in legislation, that is, the principles Waldron identify with modern constitutional rule of law.20 To some extent, the maqāsị d—to protect religion, life, intellect, lineage, and property—align with Waldron’s point that ‘[o]n some accounts, the Rule of Law also comprises certain substantive ideals like a presumption of liberty and respect for private property rights’ (Waldron 2016; cf. Introduction above). Yet here, rule of law and rights refer to separation of powers between the ruler and the jurists as lawmakers, in a non-democratic context. Given that al-Ṭ abarı̄ produced his Qur’an commentary between 883 and 903 (HTI: 106, n. 363), his concept of maṣlaḥa pertains to the period preceding the generally accepted technical use of the term. Yet he may have drawn on Ibn al-Muqaffaʿ’s early technical approach. As we shall see, al-Ṭ abarı̄ used Ibn al-Muqaffaʿ’s historical material about pre-Islamic Persian dynasties, including information about the land tax (kharāj) and the best principles and practices concerning tax rates, collection, and redistribution. However, Ibn al-Muqaffaʿ represented the first social contract model of the ruler as legislator (Heck 2004; Lowry 2008). He conceptualized ṣalāḥ in terms of the land tax, arguing that the common good required the Caliph be in charge of the land tax, from which he must pay the military, for if the military is in charge of taxation they will extort the people (Ibn al-Muqaffaʿ 1989: 314). For this purpose, the Caliph must develop a documented, transparent administration, staffed with men educated to implement the law (Ibn al-Muqaffaʿ 1989: 321–322). Al-Ṭ abarı̄ appears to have made a case for the same centralized policy on the land tax, although within the frame of the second social contract model. Thus, al-Ṭ abarı̄ may well have understood maṣlaḥa in the same technical sense as Ibn al-Muqaffaʿ, as referring to the land tax, even though

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he operated with the second social contract model, which identified the jurists as defenders of the common good, in their capacity as lawmakers. Put in Emon’s terms, al-Ṭ abarı̄’s hermeneutics seems to fall under Emon’s category Soft Naturalism/Positivism, according to which ‘X is good because God wants it’; for example, upholding each other’s rights as brothers is good because God wants it, as al-Ṭ abarı̄ argued in the exegesis of Q. 4: 1. However, this comes with the reservation that he may have defined the land tax as the chief common good topic, through which he read the Qur’an (‘God wants X because X is good’). Still, I have not (yet) found anywhere that he explicitly develops a method for deducing his moral standard through this Hard Naturalist/Rationalist approach. I therefore conclude that more research is necessary to determine his hermeneutics, with reference to natural law theory and common good-­ oriented methods, and his legal works, as well.21 Creation in al-Ṭ abarı̄’s History I will now develop the topic of social contract and land tax with reference to al-Ṭ abarı̄’s Taʾrı̄kh al-rusul wa’l-mulūk (History of the Messengers and the Kings), focusing on his use of Creation. Al-Ṭ abarı̄ worked on the History in parallel with his other writings, and continued doing so after completing the Qur’an exegesis, until the year 915. For historiographical analysis of the History, al-Ṭ abarı̄’s relations with the Abbasid administration are important.22 As mentioned, his father Jarı̄r may have been the Abbasid vassal of Ā mūl. In Baghdad, al-Ṭ abarı̄ was close to the wazı̄rs of the scribal families Khāqān and al-Jarrāḥ, including ̄ b. al-Jarrāḥ. I have argued that al-Ṭ abarı̄ was the famous ʿAlı̄ b. ʿIsā engaged in an ongoing tug of war between scribal factions over what was the best administrative policy for the land tax (Mårtensson 2005, 2011, 2015 [2001], 2016).23 The social contract included the ruler’s grant to his regional vassals the right to own land and to tax the peasants farming that land, keeping some of the revenue for himself, in exchange for contributing to the defense of the imperial realm, and submitting tax revenue to the state treasury (Vali 1993). The administrative challenge concerned how to manage these rights and obligations. If a vassal became too powerful, he would secede and become an autonomous ruler, which happened frequently in the 800s. If the vassal overtaxed the peasants, they would flee the lands or rebel. It was therefore crucial to find a system, which enabled the state to extract tax revenue from the vassals, without overtaxing the

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peasants. At this time, the administrators could choose between two principal models. One model (miṣāḥa, ‘measured area’) centralized tax collection under the authority of the state administration’s judges, in cooperation with regional judges, and based it on written records (kitāb) of cadastral surveys with fixed tax rates per crop, type of land, and land areal. The logic of miṣāḥa was formality, clarity of procedure, and predictability for the state, with modifications made in cases of unforeseen disasters. The alternative system muqāsama, ‘division (of responsibility)’, put the vassals in charge of collecting the tax and making adjustments depending on circumstances such as the size of the crop, which gave them authority over the peasants and autonomy in relation to the state and the treasury. Its logic was decentralization, adaptability, and flexibility for the landlords (Mårtensson 2011; Campopiano 2011). From the outset, al-Ṭ abarı̄’s History concerns itself with the land tax and related issues. After a methodological introduction, he started history with divine Creation, introducing the two main institutions ‘messengers’ (including prophets) and ‘kings’ (including caliphs). In this way, as ʿAbd al-ʿAzı̄z al-Dūrı̄ (1983 [1960]: 150, 159) has pointed out, al-Ṭ abarı̄’s History expands the Qur’anic concept of history, which locates the Arabic divine writing (kitāb) within God’s history of messages to all the previous messengers and prophets. Thus, al-Ṭ abarı̄ placed the Qur’anic narrations about prophets and messengers within narrations about royal dynasties, especially Persian ones, but also Israelites and Arabs, and to a lesser extent the Byzantines, leading up to the Prophet Muḥammad (570–10/632), and continuing with the Caliphate until the Abbasid dynasty in the year 302/915.24 The section on Creation starts with a discussion about God’s eternal being, that everything except God is created, and about what was the first thing that God created. Al-Ṭ abarı̄ sided with reports from the Prophet’s cousin and Companion Ibn ʿAbbās (d. 68/687), that the first thing God created was the Pen (cf. Q. 96: 4), which wrote down everything that would be (HT I: 199). The significance of the Pen is that it writes the contractual terms that constitute the human condition. In the same Creation context, al-Ṭ abarı̄ placed reports referring to Q. 7:172, the Covenant between God and Adam’s descendants. In the History, the Covenant took place after God had forced Adam out of the Garden and the company of Himself and the angels, down to earth. Landing initially in India, Adam longed for God and the angels, complaining. Hearing his plight, God sent the archangel Gabriel to help Adam find his way to the

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(later) pilgrimage station ʿArafāt outside Mecca, where he could reestablish contact with God (HT I: 290–307). At this point, the Covenant was established: According to Ibn Wakı̄ʿ -- ʿImrān b. ʿUyayna -- ʿAtạ ̄ʾ [b. al-Sāʾib] -- Saʿı̄d b. Jubayr -- Ibn ʿAbbās: When Adam was cast down [from the Garden to earth], God rubbed his back and brought forth from it every living being to be created by Him until the Day of Standing to trial. Then He said: “Am I not your Lord?” They said: “Yes!” Then He recited: “When your Lord took from the backs of the sons of Adam their descendants” (Q. 7:172). Thus, the Pen was dry from that day by what is going to become until the Day of Standing to trial. (HT I: 305; mod./TT I: 86)

As al-Ṭ abarı̄ proceeded from Creation to narrate the history of ruling dynasties, he provided the Pen and the Covenant with historical referents: the establishment of kingship and social contract, first by the Persians. One of his most important sources on Persian kingship was the above-­ mentioned Ibn al-Muqaffaʿ’s Arabic translation of the lost Pahlavi royal history Khudāynāma (‘The Book of the Lords’) (Rubin 2008: 57; Zakeri 2008: 27–30). Al-Ṭ abarı̄’s first report about Persian kingship is about the king who institutionalized justice and written terms for a social contract: The Persians say that this Oshahanj was born a king. His way of life and the way he administered his subjects were outstandingly praiseworthy, [and they mention that he was the first to lay down legal rulings and defined boundaries (al-ʾaḥkām wa’l-ḥudūd)].25 That gave rise to his surname Fāshdādh, which in Persian means ‘the first to judge in justice’, for fāsh (Persian pesh) means ‘first’, and dādh (dād) means ‘justice and legal decision’. They further mention that he went down to India and moved about in many places. When his situation was straightened out and his rule firmly established, he placed a crown upon his head and gave an address in which he said that he had inherited the realm from his grandfather Jayūmart and that he meant [to inflict] punishment and revenge upon rebellious human beings and Satans. Again, they mention that he subdued Iblı̄s and his armies and forbade them to mix with the people. Writing for them a binding contract (wakataba ʿalayhim kitāban) on a white sheet, he imposed upon them covenants (ʾakhadha ʿalayhim fı̄hi ’l-mawāthı̄q) enjoining them not to confront any human being, and threatening them if they did. (…) (HT I: 342; mod./TT I: 106).

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Here, the Covenantal term, that people are bound by the contracts they enter, is transferred to a written contract (kitāb) between the ruler and the ruled, which imposes non-confrontation upon ‘the rebels’, represented by the Satans. In the historical outline, the next institution attributed to the Persian kings is the feudal system and the land tax. At this point, al-Ṭ abarı̄ referred the Creation-related value, that the strong shall protect the rights of the weak, to the land tax. I quote at length a speech attributed to the Persian King Manūshihr, addressed to his tax administrators. It opens with a reference to Creation, in which the power imbalance between ‘the strong Creator’ and ‘the weak created’ is emphasized. The speech then moves on to define the relationship between ‘the strong ruler’ and ‘the weak ruled’ in terms of their rights and obligations, with the land tax as the issue at stake. Toward the end, it is emphasized that the concerned parties should enter a mutually agreed contract, protecting the rights and interests of both parties: O People! Just as Creation belongs to the Creator, thanks is due to the Provider of blessings, submission belongs to the All-powerful, and what is is inevitable, there is none weaker than a created being, whether he seeks or is sought, none stronger than a Creator, none more powerful than the one who holds in his hand what he seeks, and none more powerless than he who is in the hand of the one who seeks him! Indeed, reflection is light, carelessness is darkness, and ignorance is error! Because the first is followed by the last, by the inevitable attachment of the last to the first, and thus there have passed before us principles (ʾuṣūl) of which we are the derivatives (furūʿ), since what derivative could be without its principle? Since God Almighty and Splendid gave us the kingdom the praise belongs to Him, and we ask Him to inspire us with the divine guidance, trustworthiness and certainty. For the king has rights in relation to the people of the kingdom and the people of his kingdom have rights in relation to him (waʾinna li’l-­ malik ʿalā ʾahl mamlakatihi ḥaqqan waliʾahl mamlakatihi ʿalayhi ḥaqqan). The right of the king in relation to the people of his kingdom is that they obey him, counsel him, and fight his enemy, while their right in relation to the king is that he provide them with their sustenance when it is due, for they have recourse to nothing else since that is their trade. The ruled (raʿiyya) have the right in relation to the king that he see to them, treat them in a friendly manner, and not burden them with more (tax) than they can bear, so that if a disaster befalls them from the heavens or the land that diminishes its returns he reduces the land tax in proportion with the loss. If a calamity ruins them, he should give them what they need to rebuild

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themselves, and then for a year or two only take from them a proportion that does not harm them. Command of the army is for the king like the wings of a bird: it is the wings of the king, and when a feather is lost from the wings, it is a loss to him; likewise with the king: he depends on his wings and his feathers. Moreover, the king must possess three qualities: first, he must be trustworthy and never lie; he must be munificent and not miserly; and he must control himself when angered, for he is empowered when his hand is stretched out and the land tax is coming to him. He must not appropriate for himself what the army and the ruled are entitled to, and he must be generous with pardoning for there is none more long-lasting king than he who pardons or one more quick to perish than one who punishes. Moreover, a man who errs in pardoning and pardons is better than one who errs in punishing. (…) Know that this kingship stands only through uprightness in speech and action (al-istiqāma; cf. Q.1: 6),26 obedience in good, suppression of the enemy, fortification of the frontiers, justice towards the ruled, and fairness towards the wronged! Your treatment is within yourselves, for the remedy in which there is no ailment is uprightness in speech and action (al-istiqāma; Q.1: 6) and commanding the good (al-khayr) and prohibiting the bad (al-sharr), and there is no strength except through God. Look after the ruled, for they are your source of food and drink, and when you act justly towards them they desire cultivation, which will increase your land tax and manifest itself in the increase of your sustenance. But if you wrong the ruled they will abandon cultivation and leave most of the land idle, which will reduce your land tax and manifest itself as a reduction of your sustenance. Enter into a reciprocal contract (taʿāhadū) of just treatment with the ruled. (HT III: 25–27; TT I: 229–230; bold added)

The topic of the land tax reappears in al-Ṭ abarı̄’s accounts of subsequent Persian kings, including his famous report on the Sassanid Shāh Khusrāw Anūshirwān (r. 531–579), whose rule coincides with the birth of the Prophet (570). Due to rebellions in the provinces, Anūshirwān’s father Kāvād I (r. 488-497 and 499-531) initiated a tax reform, which Anūshirwān completed. The new tax system was based on the principles of miṣāḥa and was intended to centralize under the state and the judges the setting of rates, the collection, and the redistribution of the land tax, in order to strengthen the state and create a just order that also ensured control over the provinces (HT V:157, 255–267).27 According to al-Ṭ abarı̄’s verdict, this tax policy, made transparent through written records (kitāb) and applied justly with consideration of the needs of all parties, granted Anūshirwān God’s approval, and a resilient empire. He added that the

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second Caliph ʿUmar b. al-Khaṭṭāb (r. 12/634–23/644), conqueror of both the Persian and Byzantine territories and establisher of the Caliphate on imperial scale, implemented the same tax model as Anūshirwān had done (HT V: 260–261). The tax system thus plays an important part in al-Ṭ abarı̄’s depiction of ʿUmar as a just and upright ruler, who set up fair contracts and upheld his part of them, treated the conquered peoples according to the same ethical and legal standard as the Muslims, and gave his subjects scope to complain about their governors (Mårtensson 2011: 224–227). In this way, ʿUmar appears in al-Ṭ abarı̄’s History as a model ruler, in contrast with some other rulers and governors of both the Umayyad and the Abbasid dynasties, who overrode rights and thereby caused rebellions, including by the ʿAlids (Mårtensson 2009: 134–137, 140–144, 2011: 227–231). This shows that al-Ṭ abarı̄, similarly to Ibn al-Muqaffaʿ, did not distinguish between pre-Islamic and Islamic rulers in his conceptualization of the common good and the social contract. By locating the Qur’anic terms related to Covenant and contract in Creation, and then developing them with reference to first Persian kingship and then Islamic Caliphate, he conveyed the theory that the Islamic social contract was ‘universally valid’, based on ‘facts’ pertaining to imperial administration and the land tax. The question then is, how he could have considered ʿUmar b. al-Khat ̣t ̣āb’s conquests of Sassanid territories legitimate, given that he perceived the Sassanid social contract valid, in principle? I address this question in detail elsewhere.28 Briefly put, al-Ṭ abarı̄ argued that Shah Khusrāw Parvı̄z (r. 590–628) had violated the terms of his contract with his Arab vassal, the King of the Lakhm dynasty in al-Ḥ ı̄ra (close to the later Iraqi garrison city of Kufa), and he had disrupted the just balance that characterized Khusrāw Anūshirwān’s tax system, favoring some groups over others. Consequently, God took the imperial power away from the Persians and gave it to the Arabs, and the Shah enacted God’s decision through his politics. The first sign was the Battle of Dhū Qār (ca. 610), which al-Ṭ abarı̄ correlated with the beginning of the Prophet’s mission, and in which the Arabs won their first victory over the Sassanids, avenging the King of Lakhm. Here, al-Ṭ abarı̄ reported frequently from the Kufan genealogist and historian, Hishām b. Muḥammad b. al-Kalbı̄ (d. 214/819) (HTV: 331–381). Al-Ṭ abarı̄ concluded his account of Khusrāw Parvı̄z’s reign with the comment that Khusrāw Parvı̄z was killed at the hands of the Persians and that the Prophet’s hijra from Mecca to Medina took place toward the end of his reign (HTV: 381).

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In this way, al-Ṭ abarı̄ legitimized the beginning of the Arab conquests in terms of the Sassanid rulers’ failure to uphold the social contract with its rights and obligations, and the common good, and he plotted both the start of the Prophet’s mission and the hijra within this process. Thus, the conquests appear not as ‘rebellion’ but as consequences of Sassanid mismanagement, equaling God’s wish to restore the common good and re-direct the material blessings that enable empire from the Sassanids to the Arabs.

Conclusions Initially, I framed the question whether there is Islamic natural law theory with reference to general definitions of natural law theory and its relationship with social contract and rule of law; to studies of Covenant as a constitutional and political concept in Biblical-Jewish and American Puritan and republican contexts; and to Crone’s and Emon’s approaches to Islamic natural law theory. I have found that the Qur’anic concepts of Creation and ḥaqq combine to construct divine Covenant as a ‘true and right’ moral standard for the law. Though God’s standard is absolute, it depends for societal implementation on prophets persuading the people of its good. Consequently, even though Qur’anic prophetic authority derives from God, it is deliberative: those who remain unpersuaded cannot be forced to change their minds, and their punishment is deferred to divine Judgment. Moreover, the Qur’an defines a prophetic social contract, which has the Torah (Jews) and the Gospel (Christians) as precursors and present partners, and ultimately derives from the universal Covenant with Adam’s offspring. Al-Ṭ abarı̄ developed Qur’anic Covenant into a social contract theory, which he expanded to include also Persian, Israelite, Arab, and Byzantine kingship, alongside the Qur’anic prophetic history. His social contract encompasses the three constitutional dimensions (moral, socioeconomic, and political) of Elazar’s Covenant model. The moral dimension corresponds with his exegesis of Q. 4: 1, as the standard that God created humans as a universal brotherhood with rights, and the strong must protect the rights of the weak. The political dimension corresponds with his exegesis of Q. 3: 79, which reflects a division of power where the jurists are the lawmakers who uphold the common good and surveil the

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administration, as protectors of the common good and the people’s welfare. The socioeconomic dimension is expressed in his History, as the land tax and the principles for its rates, collection, and redistribution, within the feudal system of vassalage. Consequently, I conclude that both the Qur’an and al-Ṭ abarı̄’s works reflect the paradigm of natural law theory of law, and its reference to social contract and the rule of law. As for political context, al-Ṭ abarı̄’s social contract refers to the Abbasid Caliphate. This is not a democratic constitutional monarchy with popular representation, but a rule of law-model where the ruler and the administration is subject to the law developed by the jurists. However, Green’s argument for the early modern American context, that references to Covenant and to divine ‘higher law’ served to restrict rights and liberties, is only tangentially applicable to al-Ṭ abarı̄’s context. Following al-Ṭ abarı̄’s account of the rise of the Arab Prophet and his polity in a conflict between some Arabs and the Sassanid Empire, Covenant appears to signify enhanced rights for the new Arab-ruled polity, and enables it to enter treaties with external parties on new, sovereign conditions. This aligns with Elazar’s model of Covenant as constituting a polity, applied to Biblical-Israelite and medieval Jewish contexts. Although I have not been able to go into the matter here, it should be mentioned that Baber Johansen (1988) and Ziaul Haque (1977) have argued that some early Ḥ anafı̄ interpretations of the Qur’an for land tax policy conferred property rights to peasants. If so, this would further strengthen the case, that Covenant confers contract-based rights on all members of the polity, including the weak.29 Finally, I hope that this preliminary study can contribute some new material and perspectives to Anver Emon’s work to include Islamic law in the general history of natural law theory, recalling the theoretical and political roles that concepts of God and divine Creation can play. Acknowledgements  Several colleagues have contributed to this article. Charles Weller’s suggestions regarding the ‘constitutional’ frame of my study of al-Ṭ abarı̄’s concepts have been decisive for any contribution that my article makes to the field. In addition to the two anonymous reviewers’ helpful criticism, I have benefited greatly from discussions with Deina Abdelkader and from her works. At an early stage in the writing process, I also received valuable comments from Zeshan Qureshi.

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Appendix: Ṭ abarı and UDHR Al-Ṭ abarı̄, late 800s

UDHR, 1948

Exegesis of al-Nisāʾ, (4) 1 God means by His speech “O people, fulfil your obligations towards your Lord Who created you by dividing one person”: (…) He (…) described Himself as the One Who has created humankind as a whole from one individual, and He lets His servants know how the beginning was when He issued that forth from one person, making them aware by that, that all of them are descendants of one man and one mother, so that they are from one another, and that the right of some of them over others is the obligation that one brother has to the right of his brother, because of their common descent from one father and one mother. What obligates them to guard over each others’ right after the coming together of the descent from the father who is common to them, is like what obligates them of that concerning the closest descent. By that they feel affection for each other so that they seek justice for each other, and do not oppress each other, and so that the strong exerts himself to protect the right of the weak, according to what God has obligated him to do.

Preamble: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world; (…) Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law (…). Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Notes 1. Felicitas Opwis has questioned Emon’s thesis (2004–2005) as applied specifically to the Muʿtazilı̄-Ḥ anafı̄ jurist al-Jaṣsạ ̄s (d. 370/980). Opwis focuses on whether al-Jaṣsạ ̄s assumes that the divine moral intention behind legal reasons can be known and argues that because he does not claim to fully know the divine intention, that is, the moral standard for the law, he does not meet the criterion for natural law theory (Opwis 2010: 17–26). 2. On Qur’anic argumentation and syllogistic proof of Covenant, though without the natural law and social contract aspect, see Gwynne (2004). 3. Here the verb ʾāmana, usually translated as ‘to believe’ or ‘to have faith’, means ‘to secure s.o.’, in accordance with one of the senses of ʾāmana listed in Ibn Manẓūr’s (d. c. 711/1312) dictionary, Lisān al-ʿarab, under the root ʾ-m-n; cf. Mårtensson (2008: 379); Eggen (2011). Given that ʾāmana, and the active participle muʾmin, pl. muʾminūna, has this transi-

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tive sense of ‘enacting security’ for others, I have chosen to translate it accordingly in all citations, since it conveys important connotations related to social contract. Consequently, kafara, which serves as the opposite to ʾāmana, is translated here as ‘to reject security’. 4. Interestingly, the late Mecca period is when the Prophet started entering voluntary compacts (First and Second ʿAqaba) with some of the Arab tribes from Medina, preparing for his migration; Guillaume (1995: 198–213). 5. In Medina, the Prophet entered a voluntary compact with some of the city’s Jewish and Arab tribes, that is, the ‘Medina Constitution’; Guillaume (1995: 231–233); see Arjomand (2009), for research survey and analysis of the compact. 6. Q. 7: 172 may thus serve as the Covenant model for the compacts that the Prophet entered at ʿAqaba and in Medina. 7. Cf. Gramlich (1983: 229): “Because of the recognition of a Lord that is immersed in this Creation of original Nature, it is a kind of Natural Compact (Naturvertrag), in which a natural law-related obligation to acknowledge and honour the One God is justified”. 8. See entry ḥ-q-q, Lisān al-ʿarab; on polysemy as applied to Qur’anic terms, Eggen (2011). 9. Note that the ‘Medina Constitution’ is also referred to as a kitāb, ‘written contract’; Guillaume (1995: 231); cf. note 5 above. 10. See Rosenthal (1989)/HTI for a full compilation of biographical and bibliographical references; also Gilliot (1990). 11. For a definition of ‘systemic’ thinkers, see Vishanoff (2011: 268); on al-Ṭ abarı̄ as system-builder, see Mårtensson (2016). 12. For this translation of bayān, see Lisān al-ʿarab, entry b-y-n: the root signifies separating (farq) and bringing together (waṣl), in the Qur’an applied to distinguishing between divine guidance (hudā) and erring (ḍalāl). 13. In this translation, in addition to al-Ṭ abarı̄’s exegesis, I have used Ibn Manẓūr’s Lisān al-ʿarab in order to bring out the ‘contractual ethics’ that al-Ṭ abarı̄ associated with Qur’anic concepts; see below, and also Mårtensson 2011, 2016. Thus, I translate the verb ittaqā not as is common ‘to fear’, but as ‘to fulfil one’s obligations towards someone’. In the Qur’an ittaqā occurs in contexts of fulfilling contractual and legal obligations, toward fellow human and toward God, and God obliges men to fulfill their contractual obligations in general. By doing so, humans protect themselves from God’s punishment on the Day of Judgment, when they are held to account. I translate nafs as ‘person’, rather than ‘soul’, since the point in Q. 4 is that the men and women who God created are legal persons, that is, bearers of rights and obligations. Finally, in my translation of the verb khalaqa, ‘to create’, I have emphasized the aspect that the creative act involves separating and distinguishing things from one another, which fits

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the general meaning of God creating legally responsible and accountable individual persons. 14. Several other exegetes after al-Ṭ abarı̄ followed his rights-oriented interpretation of 4:1, including the sunnı̄s al-Zamakhsharı̄ (d. 539/1144), al-Rāzı̄ (d. 606/1209), and the twelver shı̄ʿı̄ al-Ṭ ūsı̄ (d. 460/1067). See also my forthcoming book, Divine Covenant: Science and Natural Law in the Qur’an and Islamic Disciplines (Sheffield: Equinox, 2021). 15. For this rendering of ‘close or distant neighbour’ (jār dhū al-qurbā and jār dhū al-junub) in the sense of any neighbour regardless of kinship or religion, see al-Ṭ abarı̄’s argumentation, Jāmiʿ al-bayān, 5:5, pp. 109–113; here al-Ṭ abarı̄ refutes those who understand qurbā as closeness in terms of kinship or religion. 16. See Gilliot (2014) for a recent survey of the origins of Mujāhid’s exegesis, its sources, and transmissions. 17. Jāmiʿ al-bayān, 5:5, p. 117. 18. In the exegesis of Q. 2:177 (cf. Q. 90:13; 5:89), al-Ṭ abarı̄ comments that ‘for the slaves’ means freeing them by paying ransom in accordance with the written deed that binds them in servitude to their lords; Jāmiʿ al-bayān, 2:2, p. 133. 19. For the view that there was a temporal legal development from the first model to the second over the course of the late 700s and early 900s, see Heck (2004). However, Lowry (2008) argues that both the first and the second models coexist because they are theoretical and that the second one was the one that was implemented in practice from the 700s onward. I am here following Lowry’s approach, which implies that several competing theories can coexist in time, rather than succeed one another; for such an approach applied in detail to al-Ṭ abarı̄’s legal methodology, see Mårtensson (2016); and applied to competing social contract theories in early medieval Maghrib, see Bennison (2014). 20. Deina Abdelkader (2003, 2011) argues that maṣlaḥa and maqāsị d were used both by early and medieval legal theorists, and by modern ‘Islamist’ political thinkers, as tools for rationalizing, systematizing, and continuously reforming the law. Her analysis also points in the direction that maṣlaḥa and maqāsị d served the procedural purposes of consistency, predictability, and transparency. In particular, Abdelkader criticizes analysts who apply the Weberian ideal-type of ‘charismatic authority’ to modern ‘Islamists’; rather, Abdelkader argues, the authority they seek conforms to Weber’s type ‘rational authority’, because they apply the methodology pertaining to maṣlaḥa and maqāsị d. 21. I am pursuing this topic and these genres further in the forthcoming monograph entitled Al-Ṭ abarı̄ and the madhhab jarı̄rı̄: A Paradigm of

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Natural Law and Natural Rights for the ʿAbbasid Caliphate, forthcoming with Gorgias Press (2020). 22. See Franz Rosenthal’s General Introduction to HTI, for the History’s place in al-Ṭ abarı̄’s oeuvre, and the remark by the biographer Ibn al-Nadı̄m, that it was so exceptionally reliable and useful because of the author’s connections with the state; pp. 133–134. 23. On the scribal policies on the land tax, see Sourdel (1960). 24. Cf. Khalidi (1994: 79), for the point that al-Ṭ abarı̄ in his History defined the Islamic ʾumma (community) as ‘the prophetic heir of Biblical tradition and the temporal heir of Persian dominion’. 25. The sentence within square brackets is missing from Rosenthal’s translation HT I: 342; cf. TT I: 106. 26. This translation of istiqāma follows al-Ṭ abarı̄’s translation of mustaqı̄m in Q. 1:6 (ṣirāt ̣ al-mustaqı̄m) as ‘upright in speech and action’ (qawl wa ʿamal); Jāmiʿ al-bayān, 1:1, p. 110. 27. On Anūshirwān’s tax reform, see also Frye (1984: 326), and Rubin (1995). 28. ‘Ibn Isḥāq’s and al-Ṭ abarı̄’s Historical Contexts for the Quran: Implications for Contemporary Research’, in Sebastian Günther (ed.), Knowledge and Education in Classical Islam, Vol. 1, pp. 315–353; the article is based on a paper presented at the conference ‘Knowledge and Education in Classical Islam: Historical Foundations and Contemporary Impact’, October 1–5, 2011, University of Göttingen. Cf. Mårtensson (2005: 327–329). 29. I am exploring this issue further in my monograph on al-Ṭ abarı̄’s natural law and social contract theory; see note 21 (above).

Bibliography I. Primary Sources

A. al-Ṭ abarı’̄ s Works The History of al-Tabari. n.d. English translation, 40 vols. Ed. Ehsan Yar-Shater. New York: State University of New York Press: HT I: Volume I. General Introduction and From Creation to the Flood. Translated by Franz Rosenthal (1989). HT III: Volume III. The Children of Israel. Translated by William M. Brinner (1991). HT V: Volume V. The Sāsānids, the Byzantines, the Lakhmids, and Yemen. Translated by C. E. Bosworth (1999).

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TT: Arabic edition of the History. Taʾrı̄kh al-Ṭ abarı̄: Taʾrı̄kh al-ʾumam wa’l-­mulūk li-Abı̄ Jaʿfar Muḥammad b. Jarı̄r al-Ṭ abarı̄ 224–310 H. Vol. 1-6. Beirut: Dār al-Kutub al-ʿIlmiyya, 1997. Jāmiʿ al-bayān ʿan taʾwı̄l ʾāy al-Qurʾān, ed. Sidqi al-Attar. Vol. 1–15. Beirut: Dār al-Fikr, 1995. Ikhtilāf al-fuqahāʾ, Beirut: Dār al-Kutub al-ʿIlmiyya (no year), copy of [ed. Friedrich Kern. Vol. 1–2. Cairo: Mat ̣baʿatay al-Mawsūʿāt wa’l-Taraqqı̄, 1902.]

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C. English Translation Guillaume, Alfred. 1995. The Life of Muhammad: A Translation of Ibn Ishaq’s Sirat Rasul Allah. Karachi: Oxford University Press.

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Stewart, Devin J. 2004. Muḥammad b. Jarı̄r al-Ṭ abarı̄’s al-Bayān ʿan uṣūl al-aḥkām and the Genre of Uṣūl al-fiqh in Ninth Century Baghdād. In ʿAbbasid Studies: Occasional Papers of the School of ʿAbbasid Studies, Cambridge 6–10 July 2002, ed. James E. Montgomery, vol. 135, 321–349. Leuven: Orientalia Lovaniensia Analecta. Vali, Abbas. 1993. Pre-capitalist Iran: A Theoretical History. London: I.B. Tauris. Vishanoff, David. 2011. The Formation of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a Revealed Law. New Haven, CT: American Oriental Society. Waldron, Jeremy. 2016, June 22. The Rule of Law, Stanford Encyclopaedia of Philosophy. https://plato.stanford.edu/entries/rule-of-law/. Accessed 3 Dec 2016. Zakeri, Muhsin. 2008. Al-Ṭ abarı̄ on Sasanian History: A Study in Sources. In Al-Ṭ abarı̄: A Medieval Muslim Historian and His Work, ed. Hugh Kennedy, 27–40. Princeton, NJ: The Darwin Press, Inc.

CHAPTER 4

Al-Ghazali’s Ethics and Natural Law Theory Edward Moad

‘Natural Law Theory’ can refer to either a theory of law or a theory of morality. The two are at least logically independent. For instance, one might adopt a natural law theory of law, asserting a special relationship between legal authority and moral principles, while also opposing natural law as a moral theory by holding that moral principles are rooted ultimately in cultural convention. Conversely, one might hold a natural law theory of morality, while denying any special relationship between that and positive law or legal authority. While it is questionable whether the distinction has any practical relevance here, this chapter will focus on the compatibility between the thought of Abu Hamid al-Ghazali (1058–1111), and the dimension of natural law pertaining to morality and moral epistemology. Specifically, we will examine to what extent we can accurately describe his moral theory as a natural law theory. In his extensive study on Islamic natural law theories, Anver Emon (2010) has identified a ‘soft natural law’ operative in Ghazali’s theory of

E. Moad (*) Department of Humanities, Qatar University, Doha, Qatar e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 R. C. Weller, A. M. Emon (eds.), Reason, Revelation and Law in Islamic and Western Theory and History, Islam and Global Studies, https://doi.org/10.1007/978-981-15-6245-7_4

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maṣlaḥa and maqāsị d, as methods of Islamic jurisprudence. According to Emon, however, the essential distinction between this and ‘hard natural law’ appears to be theological. ‘Hard’ natural law entails a natural and moral order that is not contingent on God’s will. The ‘soft’ natural law which Emon discovers in Ghazali’s legal methodology, however, is compatible with the position that the natural and moral order is contingent on God’s will, and therefore underwritten by Divine grace, rather than on any natural or moral order independent of God’s will (Emon 2010: 124). George Hourani, on the other hand, had earlier argued that Ghazali’s moral theory is incompatible with the natural law theory, in virtue of its ‘theistic subjectivism’. That is, “the belief that ‘good’, ‘right’, and similar terms have no other meaning than ‘that which God wills” (Hourani 1985: 59). Part of his argument is that moral subjectivism follows from the very contingency on Divine will, with which Emon understands ‘soft’ natural law to be compatible. Emon bases his study on sections of Ghazali’s Shifā’ al-Ghalı̄l and al-Mustaṣfā min ‘Ilm al-Usūl, where Ghazali deals with the topic of maṣlaḥa. Hourani, meanwhile, bases his opposing case on an examination of a different section of the latter work, and a parallel section of al-Iqtiṣād fi al-i’tiqād, where Ghazali discusses meta-ethical issues involved in defining terms like ‘good,’ ‘bad,’ and ‘obligation,’ in the course of critiquing the Mu’tazila position on the matter. In this chapter, I will make the case that we can accurately describe Ghazali’s position as a natural law theory, based on a reading of the same texts Hourani focused on in his study. Kevin Reinhart (1995), on whose translation of al-Mustaṣfā I will be depending in what follows, has also treated this topic. Though he did not specifically compare Ghazali’s position there with natural law theory, like Hourani (though for somewhat different reasons) he interprets Ghazali’s position as subjectivist on key points rendering it incompatible with natural law theory. Thus, I will begin with a prima facie case for this incompatibility roughly along the lines one finds in Reinhart, and argue that a closer examination of the relevant text of al-Mustaṣfā along with the parallel section of al-Iqtiṣād, also cited by Hourani, shows that Ghazali’s position is not conclusively subjectivist, but instead is compatible with a natural law theory. I will examine key sections of Ghazali’s Kimiya al-Sa’dāt that quite clearly express a natural law theory of morality. Along the way, I will consider and answer some key objections.

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What, then, counts as a natural law theory of morality? In what follows, I will take it to include any theory according to which (1) there are objective moral norms, (2) which follow from human nature, and (3) are discoverable by independent reason. Secondly, I will take the moral theory of Saint Thomas Aquinas as paradigmatic in this regard. This, of course, bears on our understanding of what counts as ‘independent reason.’ It means we cannot take this to require absolute independence, for according to Saint Thomas nothing is independent of Divine Providence. What we mean then is that reason is capable of discovering moral norms independent of revealed scripture or law. As for the first requirement, of objectivism, I will understand that to include, as Hourani puts it “any theory which affirms that value has a real existence in particular things or acts, regardless of the wishes or opinions of any judge or observer as such” (Hourani 1985: 58).

The Prima Facie Opposing Case Based on these requirements, we can make a prima facie case, against the suggestion that Ghazali held a natural law theory of morality based straightforwardly on statements he makes in the beginning of the first qutb of al-Mustaṣfā. Here, he defines the moral/legal status of an act (ḥukm) and makes three assertions directed against the Mu’tazila. The ḥukm is the dictum (khiṭāb) of the divine law (shar’) in relation to the act of those under obligation. The obligatory (wājib) is the command to perform the act and not to refrain from it. The forbidden (ḥarām) is the command to refrain from it. If there is no such command, he writes, there is no ḥukm. Thereafter, he makes the following three assertions. First, the intellect (‘aql) neither commends nor detests. Second, the intellect does not obligate thanking the benefactor. Third, there is no ḥukm for acts before the arrival of the divine law (Reinhart 1995: 87). Ghazali makes these three assertions in opposition to the Mu’tazila position, according to which the intellect can perceive the good (ḥusn) or bad (qabḥ) of some deeds (specifically excluding rites of worship), either immediately in virtue of its self-evidence, or through rational inquiry. Thanking the benefactor is one of the acts that, according to the Mu’tazila, are obligatory by way of reason alone. On the face of it, these assertions contradict all three of what we identified here as essential elements of a natural law theory of morality. For, if the moral status of an act is simply God’s declaration about it, and it has no moral status before that

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declaration, its moral status is not a fact about the act independent of the declaration. Therefore, there are no objective moral norms. Furthermore, Ghazali specifically states that the intellect does not perceive things as good or bad, and (by extension from not obliging gratefulness to the benefactor) neither obliges nor forbids any act. This seems to entail that moral norms are not discoverable by reason. Later in the same section, Ghazali deals specifically and in more detail with the Mu’tazila position on thanking the benefactor. The first premise of his argument against them identifies the obligatory even more thoroughly with the divine command. “An indication of this,” he writes, “is that there is no meaning to Obligatory (wājib) except ‘what God makes Obligatory and commands and threatens punishment for neglecting’” (Reinhart 1995: 97). It is natural to interpret this as asserting that any use of the term obligatory for other than what God commands is strictly meaningless. In that case, we have an expression of a divine command theory of a most positivist sort.

Objectivity of Obligation Yet, a second look reveals that it would be a self-defeating one, for as a definition it is circular: ‘obligatory means what God makes obligatory.’ If we bracket the term itself from the definiens, we get ‘what God commands and threatens punishment for neglecting.’ If we say the obligatory is what God commands, it is equally circular, since to command is just to obligate. Thus, when Ghazali says the obligatory is ‘what God makes obligatory and commands,’ he is giving an extensional, not intensional, definition of the term. That is, he is not telling us the meaning of obligatory per se, but specifying what is to be included in the set of things that are ‘obligatory’ as a category of fiqh. When he says, ‘the obligatory is what God makes obligatory,’ it is not strictly circular, since the term ‘obligatory,’ that he is defining here, is a secondary, technical sense of the term, which appears in the definition in its primary, general sense. The latter appears in the last part of the definition: ‘and threatens punishment for neglecting.’ Ghazali confirms this later in the course of the argument, when he defines the obligatory per se. “For there is no meaning to obligatory other than ‘that the doing of which is preferable to being shunned, so as to prevent a known harm or one [merely] fancied’,” he insists, “For the meaning of the obligatory is [only] the preference of doing over shunning” (Reinhart 1995: 99). Thus, the obligatory is not, by definition, ‘what God

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makes obligatory.’ The obligatory is that which one must do, on pain of some real or imagined harm. Therefore, it is not the case that the obligatory has no meaning, independently of the command of God. Nor is it the case that nothing is obligatory in the primary general sense, without God commanding it. Nothing is obligatory in the fiqhi sense without a command from God, but this is in virtue of the fact that ‘obligatory’ in the primary sense means that which must be done on pain of a harm, combined with information fiqh discovers, about acts for which God has threatened harm or promised reward in the Hereafter. There is a ‘natural’ meaning for obligatory here, independent of divine command, of which the technical meaning is a specification. In the al-Mustaṣfā, Ghazali introduces the discussion of the obligatory by concentrating on this specific technical sense, appropriately for a manual on uṣūl al-fiqh. His definition of the term in its primary sense only appears in the course of his argument against the Mu’tazila, about thanking the benefactor. The argument is that, if the intellect alone obliges thanking the benefactor, then it either does so for an advantage or not. It is impossible that it does not do so for an advantage, he argues, because “that is futility and foolishness” (Reinhart 1995: 97). This is because an act’s being obligatory, in its primary sense, just means that there is some advantage in doing it, that is, the avoidance of a harm. That this only appears later in the text is, perhaps, the reason Reinhart makes the mistake of interpreting Ghazali as holding that the ḥukm is imperative rather than descriptive (Reinhart 1995: 72). For to say that an act, if neglected, will lead to harm, is descriptive, even if the harm it describes is in the hereafter. For the purposes of uṣūl al-fiqh proper, the technical sense of ‘obligatory’ is the primary concern. When Ghazali launches his rebuttal of the Mu’tazila, and deploys his definition of the term in its general sense, he is digressing to a connected issue that belongs primarily to the field of ‘ilm al-kalām. Hence, while the treatment of the same question in his text on that field, al-Iqtiṣād fi al-i’tiqād is substantially similar to that in the al-Mustaṣfā, its order is different. Here, he starts with term ‘obligatory’ (rather than the ‘good’ and ‘bad’ as he does in al-Mustaṣfā), and focuses on defining it in the general sense. “Indeed, what is specifically called ‘obligatory’ is that act the refraining from which leads to definite harm,” he writes, “If this harm obtains in the next life and is known through the revelation, we call the act ‘obligatory,’ and if the harm obtains in this worldly life and is known through reason, in this case too the act might be called ‘obligatory’” (Yaqub 2013: 159). The term, therefore, describes a

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relation between the act and a value (harm or benefit), and not simply a relation between the act and a decree. For as he argues, such a decree has no meaning outside of such a description. Here, Ghazali treats the distinction, between ‘obligatory’ as a term of fiqh and the primary sense of the term, in a manner appropriate to the context of kalām. “We have arrived at two meanings for ‘obligatory’, both of which are based on encountering harm,” he writes, “One of them, however, is more general, because it is not specific to the hereafter; the second is more specific and is our usage” (Yaqub 2013: 160). The difference, then, is not that in ‘our usage’ the term ‘obligatory’ means nothing more than ‘commanded by God.’ It lies, rather, in what sort of harm we have in mind. This does not entail that use of the term ‘obligatory’ outside of the fiqh sense is mistaken. “We do not forbid this convention according to the law,” he writes, “The terms are open to all and there are no restrictions on them either due to the revelation or due to reason” (Yaqub 2013: 159–160). The argument here is not that ‘obligation’ is by definition a divine command. Rather, it is that acts are obligatory in virtue of their relation to a consequence rather than (as the Mu’tazila maintain, according to Ghazali) their intrinsic nature. Does this notion of the obligatory preclude the possibility of objective moral norms, of the sort required by a natural law theory? Not if it is a matter of objective fact, whether refraining from an act will bring harm. For, if there is an objective fact that a specific act will bring about a grave harm, then that could underwrite an objective moral norm forbidding the act. The only objection to this (coming from, e.g., a strict deontological position) would be that consideration of an act’s consequences can only underwrite a prudential evaluation, and not a properly moral one. Yet this would also be an objection against natural law theory itself. Aside from that, whether the relation between an act and a consequence can underwrite an objective moral obligation depends on two separate questions: (1) whether it is an objective fact that refraining from the act will bring about the consequence in question, and (2) whether it is an objective fact that the consequence in question is a harm. The first question is answered simply enough. Obviously, for Ghazali there are objective facts that refraining from certain acts will lead to harm, namely in the hereafter. Yet this is also the case in the worldly context. “The one who does not affirm the revelation might say that it is obligatory for a hungry person who is dying of hunger to eat if he finds bread,” he writes, “He means by ‘eating is obligatory’ that performing it is

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preponderant over refraining from it because of the harm that is caused by refraining from it” (Yaqub 2013: 159). It is an objective fact that someone who does not eat will die. A foreseeable objection here is that, according to Ghazali, it is God’s decision that links the act to a punishment in the hereafter. Therefore, the fact that the act will lead to that harm is not objective, since it is contingent on God’s will. It is not clear how this follows. If it follows on a general assertion that anything contingent on God’s will is subjective, then one would have to conclude that for Ghazali, as well as for Aquinas (the paradigmatic natural law theorist), the existence of the universe is subjective. Perhaps the reasoning is that in order to be objective, the link between the act and the consequence has to be mediated by nature (as a ‘secondary cause’) rather than directly by God. Yet imagine someone puts a gun to my head and threatens to shoot unless I deny that it is an objective fact that if he does I will die. Even though this is contingent on his decision, it is certainly an objective fact that, if I refrain from acting as he demands, at least my chances of dying are higher. Then, if contingency on the decision of a human being does not render this subjective, why should contingency on the decision of God? This leads to a second potential objection. For Ghazali, there are no objective facts about human acts leading to consequences, because human acts do not lead to consequences at all, since everything that happens, according to Ghazali, is a consequence of God’s act. This is the crux of Hourani’s argument that Ghazali could not have been a natural law theorist. (Hourani 1985: 152–153) This objection, however, depends on a strictly ‘occasionalist’ interpretation of Ghazali’s metaphysics of nature that is controversial. Even if this interpretation is correct, it just may be that Ghazali’s moral theory is inconsistent with his metaphysics of nature. That would be the case, if the position that human acts do not cause their consequences entails that they do not have consequences. Yet in the scenario imagined above, where someone shoots me for not complying with a demand, it seems right to say my death would be a consequence of my failure to comply, as an objective fact, even though the shooting (not my non-compliance) is the cause. Therefore, even on the most strictly ‘occasionalist’ interpretation of Ghazali’s metaphysics of nature, where only God is the cause of anything, it does not follow that human acts do not have consequences, as a matter of objective fact.

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Objectivity of Value The second question is whether it is an objective fact that the consequence in question is a harm, and by extension, whether there are any objective values. For if it is an objective fact that an act will lead to a consequence described as a harm, but it is a merely subjective matter whether the consequence is a harm (i.e., if its status as ‘harm’ depends on the evaluation of the one affected by it), then the moral principle based on that will be subjective. If the moral principle is to be one that follows from human nature, as natural law theory holds, then the value in question must follow from human nature, as an objective fact. Likewise, if the moral principle is to be discoverable by reason, then both the relation between the act and the consequence, and the fact that its harmfulness follows objectively from human nature, must be discoverable by reason. Hence, we must examine Ghazali’s discussion of the terms ‘good’ (ḥasn) and ‘bad’ (qabḥ). “The act that is in accordance with the agent is called ‘good’ for him; there is no meaning to its being good other than its accord with his purpose,” he writes, “The act that is contrary to his purpose is called “bad”; there is no meaning to its being bad other than its contrariety to his purpose” (Yaqub 2013: 160). ‘Good’ and ‘bad’ are, therefore, not intrinsic to an act or its consequence, but in every case signify a relation of accord or contrariety to an objective. They are in an important sense relative. If it is in accordance with one person’s purpose but not another’s it is called ‘good’ for the first and ‘bad’ for the other. For the terms ‘good’ and ‘bad’ are relational matters that vary with people. They even vary with the states of a single person, and they vary with the purposes attached to a single state. An act might be in accordance with a person in one way and contrary to him in another way; hence it would be good for him in one way and bad for him in another way. (Yaqub 2013: 161)

Again, this seems at first to mitigate against the objectivity of a moral norm based on these values, but that would be a hasty conclusion. For the relativity of ‘good’ and ‘bad’ in this sense does not entail their subjectivity. That is, even though the meaning of a thing being ‘good’ is only that it is in accord with one’s purpose, it does not follow that you can never be mistaken about whether something is good. That a dosage of medication, for example, is good for you means only that it is in accord with your

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purpose in taking it (presumably, health). Yet this depends on objective facts that differ from person to person (such as your specific condition, age, weight, etc.), and not simply on your evaluation. Whether a moral norm based on this conception of value is objective, depends on (1) whether there is an objective fact as to whether the relation (of accordance/ contrariety) obtains between the act (or its consequence) and the purpose, and (2) whether there is an objective fact as to what the purpose is. Are there objective facts about the relations between acts and purposes? In Ghazali’s view there are. “One speaker uses it [‘good’] for whatever serves a purpose, whether the purpose is near at hand or far in the future,” he writes. “Another speaker uses it specifically for what serves a purpose in the hereafter, and this is what the revelation deems good; that is, exhorts its performance and promises a reward for it; and it is the usage of our peers” (Yaqub 2013: 161–2). In relation to this reward in the hereafter, according to Ghazali’s position, obviously, there are objective facts about which acts accord with it. These are the facts disclosed by revelation. Yet even with respect to worldly purposes, there are objective facts about which acts are in accord with them and which not, for one is often mistaken on the matter. We can find a vivid illustration of this in Ghazali’s psychological explanation of why people falsely conceive goodness and badness as intrinsic properties of things. Reinhart headed his translation of this section of al-Mustaṣfā with the title ‘Evaluations are subjective.’ Yet from Ghazali’s position that goodness and badness are not intrinsic properties, it does not follow that they are subjective. On the contrary, his explanation of the faulty habit of thinking of them as intrinsic entails that they are objective. The ‘first error’ is that we apply the word ‘bad’ to what is contrary to our objectives, while failing to notice that it is in accord with someone else’s objectives. This leads us to ‘determine detestability unrestrictedly’ (Reinhart 1995: 93). That is, we wrongly conclude that it is bad for all, when it is really just bad for us. This is a mistake precisely because it is an objective fact that the same thing is in accord with someone else’s objectives; that is, that it is good for them. If the matter of how the thing relates to the others interests were subjective, then whether it is bad for them would just depend on whether I think it is. There would be no fact about how it relates to the others interest, and thus nothing for me to be mistaken about. Yet, Ghazali’s argument starts with the observation that there is an objective fact, which I fail to acknowledge, that the thing is in

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accord with someone else’s interests, both to prove that the badness of the thing is not intrinsic to it, and explain why we tend to think it is. The ‘second error’ is that, when something is contrary to our objective in most cases, we fail to notice the few cases in which it is otherwise, leading us to conclude that the thing is bad in itself. The ‘third error’ is the fallacy of association. When one thing resembles another, which we know to be contrary to our interests, we falsely conclude that the first is also contrary to our interests. Ghazali gives the example of a snakebite victim who feels aversion to colored rope. This is an error precisely because he thinks the rope poses a threat when it does not; that is, he thinks it is bad when it is not. If evaluations of good and bad were subjective, then this would not be possible, for in that case there would be nothing to whether the rope is bad, aside from whether one thinks it is. That is not the case. One thinks the thing threatens his interests when in fact it does not. Therefore, the relation between the thing and his interests is an objective matter, and the fact that ‘good’ and ‘bad’ is such a relation does not render these evaluations subjective. This brings us to the question, whether there is any objective fact as to what one’s purpose is. For if one’s purpose is a purely subjective matter (i.e., if it is whatever one thinks it is), then any evaluation consisting of a relation to that will also be subjective, as will any moral norm based on such an evaluation. On the other hand, if there is an objective fact about what your purpose is, for example, if you have a purpose that follows from your nature, as natural law theory holds, then an evaluation of something based on how it relates to that purpose, as well as a moral norm following from that, may be objective. If these facts about your purpose and the relation of an act thereto are discoverable by reason, then the resulting moral norm may be discoverable by reason. Then does Ghazali hold that the question of one’s purpose is merely subjective? Clearly not. For again, if your purpose is a subjective matter, then it is whatever you think it is, and therefore logically impossible for you to be wrong about. For, as Ghazali would certainly agree, punishment in the hereafter is bad for you and reward is good. Then assume it is a subjective matter what your purpose is. Since a thing being ‘good’ means only that it is in accord with your purpose, then if you resolve to go to Hell, that destination will be good for you. As I will argue in what follows, Ghazali would say you were simply mistaken about what your purpose actually is. Therefore, there is an objective fact about it, independent of your subjective choice or assessment.

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Another possible response to this hypothesis is that the notion of resolving to go to Hell is absurd. Since Hell is essentially bad, and ‘bad’ just means that which is contrary to one’s purpose, then Hell is that which is contrary to one’s purpose, whatever it may be. To resolve to go to Hell, then, would be just to make it your purpose to defeat your purpose, which is absurd. As a matter of objective fact, therefore, your purpose is fulfillment. One may object that this is not a meaningful fact about the nature of your purpose, since it does not distinguish anything specific that would constitute fulfillment from its opposite. Fulfillment must be fulfillment of something. Though it is of the nature of a purposive being that it aims for fulfillment, and though this is an objective fact discoverable by reason, in order for any objective moral norm to follow from this we must be able to say something more specific about what it is, fulfillment of which constitutes the purpose of the human being.

Reason and Human Nature Ghazali places this question at the center of his Kimiya al-Sa’ādat, the Persian synopsis of Ihyā Ulūm al-Din. Therefore, you must seek out the truth about yourself: What sort of a thing are you? Where did you come from? Where are you going? Why have you come to this stopping place? What is your happiness and in what does it lie? Where is your misery and in what does it lie? (Cook 2005: 11)

The premise here is that human purpose is an objective matter that is subject to discovery rather than simply an individual’s decision. Hence, it determines what is good and bad for you, that is, in what your ‘happiness’ and ‘misery’ lie. This purpose is the objective referent of the terms ‘good’ and ‘bad,’ as Ghazali defines them above. The good is that which is in accord with it, while the bad is that which is contrary to it. Moreover, Ghazali does not present the question here exclusively in terms of Divine will as known through scripture, but as involving an examination of human nature. He describes the human as exhibiting the attributes of cattle, predatory beasts, demons, and angels. Which of these is you? Which is the truth of your essential nature, while the others are foreign and borrowed? If you do not know this, you cannot seek

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your happiness, because for each of these there is a different nutriment and a different happiness. (Cook 2005: 21)

For Ghazali, of course, our essential nature is that corresponding to the ‘attributes of the angels,’ by which he means the intellect. “How do we know that his origin lies in the essence of the angels,” he asks, “and that the others are foreign and accidental?” (Cook 2005: 21) That he considers this discoverable by reason is evident by the fact that he offers a reasoned argument for it, as follows. “Know that you recognize this because you know that a human being is nobler and more perfect than animals and predatory beasts,” he argues, “Everything to which perfection has been given, which is his final stage, is the reason for his having been created” (Cook 2005: 21). The perfection of a thing is a feature unique to it in relation to others whose features it shares. Ghazali compares horses to donkeys, as an example. Whereas the function of the donkey is to carry burdens, the horse can do all that the donkey can as well as run at speed, which the donkey cannot. All those attributes of cattle and predatory beasts that we find in the human being are not unique to the human being but shared by (you guessed it) cattle and predatory beasts. Therefore, a human being has that which has been given to the animals and wild beasts, but in addition he has been given a perfection and that is intellect. With it he comes to know God Most High and His handiwork. With it, he delivers himself from the grasp of lust and anger. This is the attribute of the angels. With it, he dominates animals and beasts of prey. All are subservient to him: everything that is upon the ace of the Earth, as God Most High said: He has made all of what is on Earth subservient to you. [45: 13] (Cook 2005: 22)

The position that human nature is discoverable by reason, however, is not alone sufficient for a natural law theory. The latter holds that objective moral norms rooted in human nature are discoverable by reason. And, notwithstanding the apparent implications of what Ghazali says here about discovering where your happiness lies, in al-Mustaṣfā he explicitly states that the intellect neither commends nor detests, nor does it obligate thanking the benefactor (or anything else, presumably). This would seem to preclude the discoverability of moral norms by reason. There appears, at least, to be a contradiction between his position there and here.

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The resolution of this apparent contradiction is that, from Ghazali’s assertion that reason does not commend and detest, or impose obligations, it does not follow that it cannot discover them. To clarify what he means by the former, we need to pay close attention to the course of his argument against the Mu’tazila. Ghazali argues that the obligation of thanking the benefactor is only sustainable in relation to a benefit (reward and the avoidance of punishment) in the hereafter. This is because there is no obligation without a consequence, and no benefit in this life for gratefulness. But “there is no advantage to him in the Next World [either as far as he knows], for the reward is gratuitous preferment from God and is known [only] by His promise and His informing,” he argues, “If one is not informed of it, whence does he know that he is rewarded for it?” (Reinhart 1995: 97). The substance of the argument, however, lies in Ghazali’s response to the Mu’tazilite objection he considers directly afterward. “It may occur to [the bondsman] that if he is ungrateful and disclaims [the benefaction], perhaps he will be punished,” he has them say, “The ‘aql summons one to travel the more secure path” (Reinhart 1995: 97). Ghazali’s reply here is independent of what the intellect can know about the hereafter. No. Rather, the ‘aql makes known the more secure path, and thereupon a natural characteristic (al-tab’) impels him to travel it. For every person is created with a disposition to love himself and dislike unpleasantness. You have erred in saying that the ‘aql is a summoner; rather the ‘aql is a guide; inducements and motivations proceed from the lower soul consequent to the assessment (hukm) by the ‘aql. (Reinhart 1995: 97–98)

The intellect has a function here, which Ghazali explicitly describes as a hukm; ‘making known the more secure path,’ indeed, in this case that gratefulness is more likely to save one from punishment in the hereafter. What he denies is that the intellect imposes the obligation. That is to say, the obligation is imposed by one’s nature, in relation to which the consequence of the act constitutes a harm. The function of reason is not to impose, but to recognize this. This division of labor between one’s nature and one’s intellect in the moral schema matches that of Saint Thomas Aquinas, as explained by Father Copleston, in his History of Philosophy, from the chapter on Aquinas’ moral theory. “Thus man, in common with all other substances, has a natural inclination to the preservation of his being,” he writes, “and reason, reflecting on this

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inclination, orders that the means necessary to the preservation of life are to be taken” (Copleston 1946: 407). Ghazali refers to the seat of the intellect as the heart (qalb). He tells us that the nobility of the human heart has two dimensions: one pertaining to power and another to knowledge. That pertaining to knowledge has a degree that is accessible to the generality of humanity, and another that is rare. The former involves ‘the ability to learn all sciences and arts, so as to know all arts, and to read and learn all that is in books, such as geometry, mathematics, medicine, astrology, and religious sciences.’ All of this, according to Ghazali, is learned through the senses and pertains to the physical, while the second degree of nobility is ‘a window inside the heart open to the kingdom of the heavens,’ and pertains to the spiritual (Cook 2005: 22–23). Though this is the faculty, by means of which prophets receive divine revelation, it is not strictly limited to them. Do not suppose that this is restricted to the prophets. Rather, the essence of all persons in its original nature is fit for this, just as there is no iron, in its original nature, unsuited for the making of a mirror that may relate the form of the world—unless it has been spoilt by some corrosive thrown into its substance. In the same way, every heart that has been overcome by the worldly greed and appetite for sins which have become firmly established in it—to the point of being possessed by them and assuming their nature— nullifies this (potential) suitability. All who are born are born with an innate nature; their parents make them Jews, Christians, or Magians. (Cook 2005: 25–26)

On the one hand, this capacity is innate and universal. “It is as basic as answering to every sane person who asks ‘Is two not greater than one?” (Cook 2005: 26). It is natural reason, but as applied to moral questions, one must contend with the effect of the ‘rust’ of sin that obstructs its proper function, of reflecting the reality of one’s nature and the relation of various deeds to that. Consequently, only very few people actualize this ability to various degrees. It is not, as Ghazali depicted the Mu’tazila as presuming, something developed in the same degree to everyone. “However, not everyone who sows reaps, not everyone who travels arrives, and not everyone who seeks finds,” he writes, “for the more precious a thing is, the more numerous the conditions and the rarer its attainment” (Cook 2005: 26). Like Ghazali, Saint Thomas according to Copleston holds only that the potential (not actual) apprehension of moral norms by

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the intellect is common to all. Citing Summa Theologica II Question 91, Article 4, Copleston writes: The natural law is the totality of the universal dictates of right reason concerning that good of nature which is to be pursued and that evil of nature which is to be shunned, and man’s reason could, at least in theory, arrive by its own light at a knowledge of these dictates or precepts. Nevertheless, since, as we have seen, the influence of passion and of inclinations which are not in accordance with right reason may lead men astray and since not all men have the time or ability or patience to discover the whole natural law for themselves, it was morally necessary that the natural law should be positively expressed by God, as was done by the revelation of the Decalogue to Moses. (Copleston 1946: 409)

For Ghazali, for one to arrive at this knowledge by means of reason alone requires a cleansing of the heart, not only from passions and inclinations that lead one astray, but also from the deceptive influence of the senses and imagination. For this reason, it is a rare circumstance. The moral knowledge that is accessible to the vast majority is limited to that which is passed down on the basis of authority, and is merely the ‘husk’ of truth, in relation to the ‘kernel’ that is possible for the intellect purified from distorting elements. Yet, the former is indispensable for the scarcity of the latter, and Ghazali is scornful of the ‘freethinkers’ and ‘useless ringdoves’ of his era who dismissed positive religious law and legal learning in the pretense of possessing or favoring the ‘kernel’ of true knowledge. He compares common religious knowledge to gold, and the purified intellect to the fabled ‘philosopher’s stone.’ They are like that person who has heard that the philosopher’s stone is better than gold, because limitless gold can be made from it. If someone places a treasure of gold before him, he will refuse it, saying: “What good is gold and what value does it have? I want the philosopher’s stone, which is its source!” He will never possess the philosopher’s stone. He will remain a penniless, hungry wretch, relishing and bragging about his words: “I said that the philosopher’s stone is better than gold.” (Cook 2005: 31)

Thus, while there is an elitism here that may effectively limit public moral authority to the purview of positive religious law, it does not entail that moral norms are not, in principle, discoverable by independent reason. Indeed, Ghazali’s aim here is to explain how they are, and what

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one needs to do in order to actualize that capability. Since his position on this is similar to that of Saint Thomas, who we are in good company in taking as the paradigmatic natural law theorist, then there is no reason to take Ghazali’s spiritual and moral elitism in this regard as reason to preclude describing his position as a natural law theory. We might make another instructive comparison to utilitarianism, which though not a natural law theory nevertheless holds that moral norms are discoverable by independent reason. The utilitarian Henry Sidgwick (1874) argued that, though the principle of utility is true, the principle itself demands that the public at large believe otherwise. Since most people are incapable of accurately calculating which acts will maximize the general utility, it would be a utilitarian disaster if everyone were to act on it. Therefore, he argued, it would maximize the utility if most people simply followed a set of moral rules formulated by those who are capable of making accurate calculations. This may be objectionable for other reasons, but we would not take it to imply that moral norms are obscure to reason. We have given a plausible reading of the relevant sections of Ghazali’s al-Mustaṣfā min ‘Ilm al-Usūl and al-Iqtiṣād fi al-i’tiqād that is consistent with the overall approach to ethics we find in Kimiya al-Sa’ādat. Together, they form a largely coherent theory that exhibits all the main features of a natural law theory and is comparable in its essential components to that of Saint Thomas Aquinas. A reader of Islamic philosophy will notice the basic similarity between this theory and that of his contemporaries among the Muslim falāsifa. The remaining objection to this comparison is that which Hourani raised on the basis of Ghazali’s metaphysics of nature. Hourani mentions that Ghazali never rejects the ethical theory of falāsifa, yet he insists that it is certain that Ghazali opposed them, because he must have opposed them, given his metaphysics of nature (Hourani 1985: 152). The argument is that, while the teleological ethics of the falāsifa is centered on the causality operative between human nature, human action, and the condition of one’s soul, Ghazali ‘denies causality,’ and therefore cannot have accepted this sort of moral theory. As mentioned earlier, this depends on an oversimplification of Ghazali’s metaphysics of nature; and specifically, a hasty conclusion that it precludes the possibility of any natural order whatsoever. This discussion, however, is beyond the scope of the present chapter, and has been discussed extensively by others, including Frank Giffel (2009). At least one piece of prima facie evidence, that Ghazali’s metaphysics of nature does not preclude a teleological ethics involving human nature and

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the effects of acts on the soul, is the simple fact that, as we have shown, Ghazali does in fact advocate an ethics of precisely that sort. Then either Ghazali believed (rightly or wrongly) that such a theory is compatible with his metaphysics of nature, or he simply contradicted himself out of negligence. Charity demands that we assume the former. Yet, even if his ethical theory is incompatible with his metaphysics of nature, it remains the case that the ethics he does expound is a natural law theory in all essential respects.

References Cook, Jay. 2005. Al-Ghazali’s Alchemy of Happiness. Chicago: Kazi Publications. Copleston, Frederick. 1946. A History of Philosophy Book One. New  York: Doubleday. Emon, Anver. 2010. Islamic Natural Law Theories. Oxford: Oxford University Press. Giffel, Frank. 2009. Al-Ghazali’s Philosophical Theology. Oxford: Oxford University Press. Hourani, George. 1985. Reason and Tradition in Islamic Ethics. Cambridge: Cambridge University Press. Reinhart, Kevin. 1995. Before Revelation. Albany: SUNY Press. Sidgwick, Henry. 1874. The Methods of Ethics. Indianapolis: Hackett. Yaqub, Alladin. 2013. Al-Ghazali’s Moderation in Belief. Chicago: University of Chicago Press.

CHAPTER 5

Elitist Democracy and Epistemic Equality: Aristotle and Ibn Rushd on the Role of Common Beliefs Karen Taliaferro

It is a fundamental tenet of modern democratic thought that all people are equal—equal before the law, equal in human dignity, and equally eligible to participate in self-governance. While hardly an ancient or medieval feature, equality pervades political thought from at least the Enlightenment onward, such that Tocqueville could aver that democratic peoples prefer equality over all other “advantages society offers”; indeed, equality “forms the distinctive characteristic of the age in which they live,” that is, the democratic age.1 But this equality often proves aspirational rather than factual; in practice, certain voices rise to the fore in the public sphere while others are suppressed, contributing to a decay in confidence in institutions and even faith in democracy itself. The resultant divide between elites and, for lack of a better term, ordinary citizens, has been on display across the

K. Taliaferro (*) School of Civic and Economic Thought, Arizona State University, Tempe, AZ, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 R. C. Weller, A. M. Emon (eds.), Reason, Revelation and Law in Islamic and Western Theory and History, Islam and Global Studies, https://doi.org/10.1007/978-981-15-6245-7_5

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globe in recent years, from the Arab Spring uprisings to Brexit to the surprising election of Donald Trump. On the whole, however, these populist surges have not, at least yet, resulted in gains in democratic equality; instead, recent global trends have taken authoritarian directions. As students of the history of political thought will observe, however, classical political philosophy seemed to see this coming. Plato’s caution against democracy in Book VIII of the Republic, to take perhaps the most famous example, suggests that it is the very egalitarian nature of a democracy that will cause its downfall: without social recognition of the superior wisdom of the guardians, the democratic city, “dispensing a certain equality to equals and unequals alike,” (558c) will devolve into disorder, leading to “faction and counterfaction” (560a) until the chaos and disdain for the rule of the wise paves the way for a tyrant to take over, offering himself as a friend of “the people.” Nor was Plato alone in his suspicions of democratic equality; most of ancient and medieval political thought relied on an elite-masses distinction in one form or another, from Aristotle’s preference for aristocracy in the Politics or his elite-raised phronimos in the Nicomachean Ethics, to al-Fārābı̄’s notion of “men’s ranks of order” in The Political Regime (al-Sı̄yāsat al-Madaniyya). What I am interested in here, however, is a particular form of elitism, what I term “epistemic elitism.” Epistemic elitism, which is almost taken for granted in classical political thought, insists that only the wise and well-­ bred are qualified for political leadership; it eschews the mere “iron souls,” or ordinary citizens who are not selected for elite training and education. This idea is obvious throughout both Western and Islamic sources,2 and there is indeed a common-sense basis for it: surely s/he who has demonstrated superior wisdom, who has had a good education, and who has cultivated intellectual virtues should be put in a position of leadership rather than one who, whether for lack of opportunity or interest, has not received an adequate education or demonstrated the ability to think strategically and act prudently. Still, rightly or wrongly, elitism of any form is often seen as an obstacle to modernity’s aspirations of democracy, equality, and self-rule; if democracy is government by the people, then surely the common man should be given as fair a chance as the Ivy League or al-­ Azhar trained elite at participating in decisions concerning the public. At the same time, though, in an era in which the notion of “alternative facts” can gain traction, few deny the urgent need for educated political leaders, not to mention an educated citizenry in general, in order to sort truth from opinion or outright fiction in the public sphere.

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Modern democracies, then, whether advanced or aspiring, seem stuck between the Scylla of elitism and the Charybdis of acephalous populism, the former of which can undermine equality by restricting access to full participation in self-governance, and the latter of which can undermine knowledge and education among both leaders and citizens. Put another way, democracy suffers from the inherent problem that rule by majority can produce terrible results, yet restricting those results requires the intervention of elites. So how can a society pursue the modern goal of democratic equality among all citizens, elite or not, while preserving the ancient and medieval insistence on the superiority of wisdom and truth over opinion? Answering this question in whole far exceeds the limits of this chapter, but I suggest that at least one means of addressing the problem of epistemic inequality exists within the classical sources themselves. This chapter analyzes Aristotle’s “endoxic method” approach to political and moral inquiry and what I argue is a related approach, known as bādı̄ al-rāʾı̄, of Aristotle’s medieval Muslim commentator Ibn Rushd (Averroes). These methods, which begin deliberation from common beliefs about political and moral questions rather than from elite knowledge, model an epistemological humility that is very appealing to the late-modern political thinker without giving up on the rigors of philosophical investigation. In other words, they provide a mean between the extremes of elitist arrogance and populist relativism that is especially well-suited to the contemporary political moment. This chapter discusses both methods in their similarities and divergences, showing how they mitigate the epistemic elitism problem in ancient political thought and open space for both expert political philosophy and the common citizen’s role in democratic deliberation.

Aristotle’s Endoxic Method Aristotle’s discussion of what can rightly be claimed as knowledge3 in the political sphere seems at first to be a study in contradiction. He begins his inquiry into political science in the Nicomachean Ethics with common beliefs, asking about what “the many think” about such matters and asserting that philosophizing ought “certainly begin from things known,” as opposed to deducing knowledge from abstract principles (NE 1095a15–1095b4). This seems to uphold the view of the many as relevant, even essential, to political inquiry. Yet in nearly the same breath he

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insists that politics is for those who “have been brought up in fine habits,” suggesting that it is they alone who can become “adequate students of fine and just things, and of political questions generally” (NE 1095b5–10).4 Which, then, is it? Is knowledge of political and moral matters available to all, or only to elites? Aristotle’s methodological reliance on endoxa, or opinions, is instructive here. This method appears in both the Politics, discussed below, as well as in the Nicomachean Ethics, where we begin with the puzzles Aristotle lays out surrounding incontinence. There, in Book VII, Aristotle asks whether someone who acts incontinently acts with knowledge that they are acting against the good. Plato had famously suggested in the Protagoras that incontinence essentially did not exist; no one would choose deliberately to act against what he believes to be good. Aristotle rejects this position, but importantly he does so not through logical refutation but by examining common beliefs or opinions. This method, often referred to as the “endoxic method,” can be summed up as follows: first, Aristotle considers the puzzle at hand (do people knowingly act against the good?), states the common beliefs or opinions (endoxa) about the puzzle, dispenses with objectionable ones, and finally arrives at “adequate proof” to establish the correct belief. For example, in NE VII.2, in asking “what sort of correct supposition someone has when he acts incontinently,” Aristotle first considers Plato’s position: “some say” that the incontinent person “cannot have knowledge [at the time he acts].” He then proceeds to the objections that “some people” raise and considers these dialectically until reaching his conclusion that the knowledge that an incontinent person has and acts upon is “not the sort that seems to be fully knowledge, but it is only perceptual knowledge” (1147b15). The discussion concludes with the declaration of “so much, then, for knowing and not knowing, and for how it is possible to know and still to act incontinently” (ibid.). While Aristotle’s exploration of this “perceptual knowledge” is itself an interesting exercise in epistemology, it is his method of arriving at the substance of that knowledge that interests us here. His most succinct description of this endoxic method appears just before the discussion quoted above: As in the other cases, we must set out the appearances, and first of all go through the puzzles. In this way we must prove the common beliefs about these ways of being affected—ideally, all the common beliefs, but if not all,

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then most of them, and the most important. For if the objections are solved, and the common beliefs are left, it will be an adequate proof. (1145b5)

This description is striking, for at first glance it seems to imply a rather airtight method for discerning correct beliefs. Indeed, Martha Nussbaum sees Aristotle here as “promising to rehabilitate the discredited measure or standard of…anthropocentrism” in philosophical inquiry, meaning that we might locate “truth inside what we say, see, and believe.”5 To Nussbaum, this Aristotelian method should be understood as opposed to Socrates’ (and others’) sharp distinction between truth and appearances, according to which truth is discovered “far from the beaten path of human beings,” by those who have left the cave—a juxtaposition that favors the philosopher’s vantage point over a more common-sense approach of trusting common beliefs and measuring philosophical conclusions against appearances. If this is so, Aristotle’s method may serve as a corrective to philosophical elitism and provide not only a means of saving Aristotle’s appearances, as Nussbaum entitles her chapter on the endoxic method,6 but also a discursive approach to knowledge that is more amenable to a democratic age than is a top-down elite philosophical training. Whose Endoxa? Which Method? The brief description of the endoxic method quoted above seems at first glance somewhat simplistic—surely, one may respond, Aristotle is not attempting to reduce philosophy to mere observation and pondering. Considering common beliefs and responding to objections is hardly a method in itself, and it leaves little room for questions in which so much disagreement persists that a truly “common belief” doesn’t exist. Nor does Aristotle elaborate on what to do if the objections cannot be solved, or if the puzzle can only be solved in such a way as to disprove common beliefs without offering an alternative explanation. It is important to note, however, that Aristotle does provide guidance on which endoxa are to be given weight; it is not simple commonness that gives endoxa their force. In his discussion of the methods of investigating happiness in Nicomachean Ethics Book 1, Aristotle writes that “it is rather futile to examine all these beliefs,” and we should instead “examine those that are most current or seem to have some argument for them” (1095a30).7 But what sort of argument are we looking for? Aristotle digresses slightly into a discussion of two types of knowledge used to

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support or justify arguments for or against given endoxa: “some are known to us, some known without qualification,” and “we,” Aristotle stresses, “ought to begin from things known to us” (1095b). But this raises the critical issue of who this “we” refers to—just anyone, as in, “we [human beings] should get eight hours of sleep per night,” or “we” as in “we philosophers/elite thinkers”? Nussbaum considers the “we” who are setting down appearances and considering beliefs to be a loosely affiliated group: members of the human race to be sure, but probably also particular civilizational groups of whom Aristotle was aware and who shared “recognizably similar general conditions of life.”8 The context, however, suggests a narrower category of “we.” Aristotle follows the above-quoted line with, “That is why we need to have been brought up in fine habits if we are to be adequate students of fine and just things, and of political questions generally” (1095b5). If we are going to begin with appearances and common beliefs, it is important to begin with the right common beliefs, that is, true common beliefs, and of these Aristotle says, “someone who is well brought up has the beginnings, or can easily acquire them” (1095b10). Nussbaum herself acknowledges the need for some measure of paideia, or moral education, for serious discourse; without it, one may be left confronting the ignoramus who, for instance, denies the principle of non-contradiction.9 That this turn does not mean disregarding common beliefs in favor of elite knowledge, though, is evident both from the immediate context, in which Aristotle has indeed considered what “the many” think happiness is, but also from his later uses of the endoxic method. Returning to Book VII’s discussion of incontinence, for instance, he again considers common-sense approaches to such questions as “which bodily pleasures are choiceworthy?”, adding that “We must, however, not only state the true view, but also explain the false view; for an explanation of that promotes confidence. For when we have an apparently reasonable explanation of why a false view appears true, that makes us more confident of the true view” (1154a22–26). So far, then, we have whittled down the commonness of common beliefs (and the meaning of “we” referred to above); it is the opinions of those who have received proper paideia that should be considered. But as Owen McLeod points out, even this is not enough; much later in the Nicomachean Ethics Aristotle returns to the topic of “the beliefs of the wise,” suggesting—as we might expect—that accordance with such opinions is insufficient evidence of the truth of a particular position:10

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Hence the beliefs of the wise would seem to accord with our arguments. These considerations, then, produce some confidence. But the truth in questions about action is judged from what we do and how we live…Hence we ought to examine what has been said by applying it to what we do and how we live; and if it harmonizes with what we do, we should accept it, but if it conflicts we should count it [mere] words. (NE 1179a17–23)

In other words, the set of endoxa from which we begin our inquiries should not only not conflict with the opinions of the wise or well-formed but also, crucially, not contradict actual experience. In a sense, this latter criterion serves to protect the endoxic method from the charge that it is nothing but a defense of the elite status quo; in fact, as we see in the above quotation, Aristotle seems to give more credence to experience, that is, “what we do and how we live,” than to “the beliefs of the wise.” Whichever endoxa we include in our inquiries, then, our final conclusions need to correspond to lived experience—even, presumably, if this would conflict with elite consensus. Aristotle’s endoxic method thus at once elevates human rationality but also acknowledges our tendency to err or mislead ourselves (and others) into beliefs that are at best only apparently true. He is deeply concerned with distinguishing true endoxa from the mere appearances of them, yet he is aware of the epistemic demands this places on the philosopher. By employing common beliefs as the fundamental data of a system of ethics, Aristotle is attempting, in Nussbaum’s words, “at once to be seriously respectful of human language and ordinary ways of believing and to do justice to the fact that these very practices reveal an ongoing demand for scientific understanding.”11 Limitations I hasten to qualify this  discussion with the observation, noted by both McLeod and Jonathan Barnes,12 that Aristotle hardly relies on the endoxic method as an exclusive means of inquiry. As Barnes points out, endoxa seem to be absent from the Organon, at least in the sense in which we have discussed them.13 Yet it is not our project here to delineate Aristotle’s overall methods but rather to draw out the potential of one he does at least sometimes employ. We are not all of us Aristotle, nor is our discursive setting that of fifth-century Athens, so it can hardly discredit the endoxic method wholly to show that Aristotle himself sometimes disregarded

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common beliefs. Still, given the above evidence, it seems that Aristotle did at least sometimes think it appropriate to delimit the conclusions of our philosophical inquiries to the reality in which we find ourselves. Furthermore, we are looking for a philosophical method to deal with questions of public import, which may be at least partly distinguished from the more technical philosophical and scientific inquiries found in the Organon. Moving, then, to Aristotle’s deployment of this method in the Politics, we see that a topic hotly contested in  a contemporary setting might be discussed and debated through this endoxic method. Endoxic Method in Aristotle’s Politics What does this method look like in addressing political questions rather that the more abstract ethical ones of the Nicomachean Ethics? Crucially, can the endoxa ever actually serve to reveal general normative principles, or do they only get us a few steps past aporia without actually solving the puzzle? Aristotle’s inquiry into the nature of citizenship in chapters 1–2 of Politics III can be illuminating here. This case presents a wide variety of views and is explicit on the project to employ endoxa in seeking a general principle: “We are seeking the citizen in an unqualified sense, one who has no defect of this sort requiring correction” (1275a18). Aristotle begins by stating the obvious puzzle, namely, “there is often much dispute about the citizen, for not everyone agrees that the same person is a citizen” (1275a2). He observes that the type of regime matters: “Someone who is a citizen in a democracy is often not one in an oligarchy” (1275a5), then proceeds to pare away the particular cases (honorary citizens, slaves, aliens, etc.), making it clear that he is seeking a general principle from the many and varied endoxa to determine what constitutes citizenship. Interestingly, Aristotle then takes a turn away from endoxa, simply asserting, “the citizen in an unqualified sense is defined by no other thing so much as by sharing in decision and office” (1175a22). But this move permits him to explore the meaning of “office,” introducing a debate in which some hold assemblymen to share in office whereas others do not. “But it should make no difference: the argument is over a term, for what is common to juror and assemblyman lacks a name that could apply to both” (1175a25–30). In taking this direction, Aristotle is able to raise the important point that some endoxa may be as of yet unarticulated. “Perhaps someone might

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say that [assemblymen] are not rulers…yet it would be ridiculous to deprive those with greatest authority of [the title of] office” (emphasis added). This discussion strikes the reader as at once hypothetical and yet grounded in at least similar experience; Aristotle seems to want to settle a disagreement among actual debaters and provide an alternative to competing opinions: “For the sake of definition, then, let it be ‘indefinite office.’ We set it down, then, that citizens are those who share in this way” (1275a30). But this apparently finalized definition returns to the microscope at the beginning of chapter 2: “As a matter of usage, however, a citizen is defined as a person from parents who are both citizens” (1275b1). Even more controversial is the question of “those who came to share in the regime after a revolution” (1275b35), in which case the question must necessarily be raised concerning whether a given citizen is such justly or unjustly (1275b35–38). This question marks the transition to chapter 3 as well as a return to endoxa, from which Aristotle had strayed in chapter 2. We see Aristotle’s method taking him not to a final consensus on the matter of citizenship, but rather into an even richer field of inquiry, that of the city’s identity vis-à-vis regime changes: “The question of [whether some are citizens] justly or unjustly touches on…the question of when the city performed an action [of regime change] and when it did not” (1267a6–8). In these first three chapters of Book III of the Politics, then, there emerges a familiar pattern as Aristotle deploys the endoxic method. He lays out the various endoxa, considers each, articulates some definitive understanding of the matter at hand (in this case, citizenship), then complicates that understanding by introducing questions that are necessarily related, even prior to, the original question, and which permit him to delve more deeply into his political philosophy. For instance, after his definitive statement “We set it down, then, that citizens are those who share in this way” (1275a30), Aristotle notes that “the citizen must necessarily differ in the case of each sort of regime” (1275b2–3), which leads him to discuss citizens-in-regime as part of his inquiry into citizenship. This requires a deeper understanding of regimes and their relationships with cities, which takes the discussion away from citizenship qua citizenship, and the question at hand (of the definition of citizenship), though explored, is left without a clear answer. Is this failure to reach clarity an indictment against the endoxic method? Does it indicate the method’s relative uselessness in gleaning hard principles? Or is this lack of definitive, final answer actually integral to Aristotle’s

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moral and political philosophy? Returning to Book I of the Ethics, we recall Aristotle’s moral qualification for participation in his method: “That is why we need to have been brought up in fine habits if we are to be adequate students of fine and just things, and of political questions general. For we begin from the [belief] that [something is true]”—that is, we are not here seeking first principles but working from pre-established principles, of which “someone who is well brought up has the beginnings, or can easily acquire them” (1095b5–10). In other words, if we are to employ endoxa in our inquiry, we actually need some prior moral formation in order to begin to discern which are worthy of consideration.14 This does not mean that one cannot thereby glean real principles using the endoxic method; rather, it is an indication of Aristotle’s recognition of the limits of dialectical reasoning in attaining hard and fast answers to such nebulous questions as what does, or should, constitute citizenship. The above view is not wholly consonant with Nussbaum’s analysis of Aristotle’s method, which sees in Aristotle’s method the advancement of “an internality that is deeply rooted in Greek tradition.”15 Given the heavy reliance of the endoxic method on moral education—and, by extension, on political community—I cannot see that Nussbaum’s overall interpretation is quite accurate. Nor would I fully endorse Jonathan Barnes’ rather strict interpretation of some of the same texts of Aristotle we have relied on here, according to which, once the “difficulties have been solved— once the original endoxa are purified or emended, and the appropriate consistent subset of them is determined—the truth is to be found, exclusively and exhaustively, in the subset that remain.”16 Exclusively and exhaustively? Aristotle all but directly contradicts this by his insistence that “the truth in questions about action is judged from what we do and how we live” (NE 1179a20), that is, not only from the endoxa of the wise. However, more plausible—and more damming if true—is McLeod’s characterization of Aristotle’s method: When planning to theorize about some subject, find out what other people have said about it. Reject what seems false and accept what seems true. If past opinions are all false, or if what is true is not the whole truth, or if there simply are no preexisting views on the topic, then suggest something new or advance a novel theory…There is nothing controversial about this method…Indeed, the “method” just described is so bland and so pervasive that the only real point in attributing it to Aristotle is to distinguish it from the methods credited to him.17

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There is a sense in which McLeod is perhaps right; it is difficult to deny that the endoxic method can look a lot like common sense and thus apparently lacking the theoretical richness that one looks for and expects in philosophy. But is this entirely fair? After all, method is not substance. The dialectic, for instance, is quite simple as a method: thesis, antithesis, synthesis; a child could grasp this. But few children could grapple with the substantive matters of ethics, morality, or politics that require the philosopher’s, or at least the adult’s, more powerful intellect. Beyond this defensive move, though, it is worth considering whether the simplicity of the endoxic method might not mask a more ingenious approach to our concern in this book, that of reason, revelation, and law. If Aristotle can demonstrate, through such exercises as his discussion of citizenship, not only the utility but the necessity of common beliefs in addressing practical moral and political questions, our public discourse, law, and policy can be circumscribed by a very humane set of considerations. Elitism and populism will always stand in tension, of course, but a trump card for either rarely bodes well for the common good. Employing the endoxic method favors neither ab initio, but rather clears cognitive— and social—space for both, affirming what holds up to lived experience as well as clear thought on either side. Rather than the “bland” non-method McLeod sees in Aristotle’s approach, then, we might see what Confucius advocated: “Collect much information, put aside what is doubtful, repeat cautiously the rest; then you will seldom say something wrong. Make many observations, leave aside what is suspect, apply cautiously the rest; then you will seldom have cause for regret.”18

Ibn Rushd on Common Opinions: Bādı ̄ al-rāʾı ̄ and the Unwritten Law The divide between elites and ordinary citizens that finds such perennial occurrence in the political arena is further complicated in a religious society, where the tension between priestly classes or religious elites and common believers compounds the tension between political elites and ordinary citizens. To what extent are the common practices and beliefs of the ordinary faithful considered legitimate, even authoritative, precisely because of their commonness? What, if anything, can be known about justice and injustice outside of revelation? These questions require that we move beyond the political elites-masses cleavage to the division between the

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religiously elite, that is, those considered to have esoteric religious knowledge or interpretive/magisterial authority, and the body of the faithful or ordinary believers. We turn, then, to a setting in which such questions were much more hotly contested than ancient Athens. Ibn Rushd’s thirteenth-century Cordoba was one of great debate—and high stakes—concerning the respective roles of reason, revelation, and authority. Religious schisms were dividing society and the Muslim community, and, in Charles Butterworth’s description, “the more zealous sought to gain acceptance of their ideas by force…Philosophical thought, as well as religious speculation, were threatened.”19 Such clashes, whether religious, political, or philosophical, bring into relief the need for a common language of inquiry to bridge the elites-masses divide, whether religiously or politically. Barring such language or modes or inquiry, as history reminds us, it may indeed be left to force to decide which ideas gain acceptance. I suggest that Ibn Rushd’s use of the bādı̄ al-rāʾı̄, usually translated as “immediate point of view” or “unexamined opinion,”20 gives us a glimpse into a rhetorical device that relies on similar suppositions about common beliefs as I have argued for the endoxic method above. This concept, which appears in the Qurʾan (11:2721), appears also in the commentaries of both Al-Fārābı̄ and Ibn Rushd in their commentaries on the Rhetoric, as well as in the works of Ibn Sinna and Ibn Bajja. Interestingly, however, it was not a term or concept adopted directly from Aristotle himself, who had no Greek analogue.22 While a complete survey of the use of bādı̄ al-rāʾı̄ in medieval Islamic sources would be desirable, for space considerations I focus on Ibn Rushd’s development of the term, partly because his own work may well have built on the other philosophers’ use of bādı̄ al-rā’ı̄, but principally because of Ibn Rushd’s close relationship with Aristotle’s works was unmatched; indeed, he was known as “The Commentator” for having commented on all of Aristotle’s works except for the Politics. Ibn Rushd’s clearest mention of bādı̄ al-rāʾı̄ appears in a rather technical portion of his Middle Commentary on Aristotle’s Rhetoric (Talkhis Kitāb al-Khaṭāba li Arist ̣ū, hereafter MCR23), but in its essence, the immediate point of view describes those premises either a) of which the listener is more or less immediately convinced by himself upon hearing, or b) which the listener accepts because of its notoriety (li shuhratahi), that is, because the premise either is in fact or is thought to be widely accepted. In Ibn Rushd’s description of bādı̄ al-rāʾı̄,

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The premises used here should come from presumed things admitted according to apparent opinion (bādı̄ al-rāʾı̄), not from things which are not believed, unless they can be accepted and can convince [the hearer] easily and closely [i.e., soon after mention]. The things about which one is convinced here are of two sorts: the first is that which people believe and accept by itself when they hear it and the other is that which [they] accept when they hear it on account of its reputation and because it is praised by all people. (MCR 2.23.19)

Again, setting aside the rather technical context of the above quotation—the discovery of the implicit premise in an enthymeme24—what I would highlight here are the communal underpinnings of this unexamined opinion or immediate point of view. To Ibn Rushd, acceptance of a given premise according to bādı̄ al-rāʾı̄ relies on communal knowledge— not knowledge relative to an individual alone, nor the philosopher’s elite knowledge, but what we might call “common knowledge.” Ibn Rushd writes explicitly that the bādı̄ al-rāʾı̄ relies on the shared approbation of “all people.” Just as common endoxa, not esoteric or technical philosophical knowledge, serve as a starting point for inquiry for Aristotle, it is those concepts that are acceptable according to bādı̄ al-rāʾı̄ that should be used in rhetoric rather than those requiring philosophical demonstration or religious authority. One may here object that it is only the second criterion given above— that concerning reputation and approbation by others—that is communal; the first, those things that can be accepted immediately, may be nothing more than one’s own reaction without the influence of common opinion. If this is true, then acceptance according to bādı̄ al-rāʾı̄ may serve to reinforce prejudice, only deepening the divide between elites and non-elites. However, Ibn Rushd immediately qualifies his two-part definition of the bādı̄ al-rāʾı̄ by effectively collapsing the two criteria, such that one’s immediate reaction is always already communal: “Now, man does not let himself be convinced of the first sort [of premises, viz., those of which one is convinced immediately upon hearing] unless he is of the opinion that they are a part of the second [category, viz., those premises which are known and praised by all]” (2.23.19). I am therefore inclined to agree with Aouad, who sees in this passage an “argument from authority” inherent in speech that employs the bādı̄ al-rāʾı̄, that authority being common opinion.25 Of course, this reliance on the authority of common opinion does not preclude the possibility that common opinion is shared by the elites, nor does

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it exclude cultural particularities among such opinions; there need not be only one version of “common opinion.” Still, the point remains that this bādı̄ al-rāʾı̄ which Ibn Rushd and other medieval Islamic thinkers stressed tends toward a communal basis of knowledge. This is quite an anti-elitist position, apparently ruling out specialist or esoteric knowledge. Is this, though, the full story? To answer this, and to grasp more fully the use of bādı̄ al-rāʾı̄ in Ibn Rushd’s thought, we turn to his writings on the unwritten laws (sunan ghaı̄r al-maktūba), which occur earlier in the MCR. These laws might be thought of as the substance of common knowledge, and bādı̄ al-rāʾı̄ would be the means of knowing it. These sunan ghaı̄r al-maktūba are “those [laws] that are in the nature (t ̣abı̄ʿa) of everyone,” of which “everyone, by their nature, is of the opinion that they are just or unjust”26—an eminently democratic form of knowledge, or so it would appear. For Ibn Rushd writes two contradictory statements about these laws: 1.15.6 As for following the unwritten laws and for determining [what they are], this belongs to those who possess deliberative reflection and to the elites among the people.27 1.15.18 Those who are named as judges in the cities are but those who know the written laws, not the unwritten laws, for, concerning the apprehension of the latter, there is equality among all people.28

It is difficult not to see contradiction in Ibn Rushd’s words here, for if, as in the latter statement, these unwritten laws of nature are in fact available to all, they might serve as an antidote to elitism and a foundation for commonly accessible knowledge. But if, as according to the first statement, they require interpretation from elites, then we are still stuck in our fundamental quandary; even that knowledge that is inscribed in the nature of the world itself requires the authority that comes from elite interpretation. I suggest that the concept of bādı̄ al-rāʾı̄ provides the key to this puzzle. To Ibn Rushd, we know the unwritten law largely through acceptance on the immediate point of view (bādı̄ al-rā’ı̄) of others: “For the good according to the unwritten law is [comprised of] the acts which, whenever a person increases them without end, his praise and acclaim or dignity and status increase, [including] such [acts] as helping friends and paying back

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benefactors” (1.13.8). In other words, if I act according to the unwritten law, my acts ought to increase my respectability among other people. But this does not resolve questions of the finer points of ethics and morality, which will take the philosopher’s (or qādı̄’s) “deliberative reflection.”29 Nor, I submit, would even the most ardent egalitarians wish it otherwise. For what Ibn Rushd is here providing is a way out of the elite-mass agon, the continual struggle for power that so often marks the political sphere. I noted above that acceptance according to bādı̄ al-rāʾı̄ can appear to resemble a person’s knee-jerk reaction but argued that in fact, it is always a communal and not merely personal form of acceptance. What we did not address was the fact that such communal unexamined opinion can be at least as reactionary—not to mention grounded in bias or emotion—as can personal unexamined opinion; history is replete with instances in which people thought they “knew by their nature” that something unjust was justified. This problem, however, can occur in both the masses as well as in the elites, and the alternatives to the use of bādı̄ al-rāʾı̄ as I have discussed it—namely, disregarding common opinion in favor of either elite opinion or religious authority—are perhaps just as likely to fall prey to blind spots or outright injustice. Rather, it seems that this problem is one of moral formation, and Aristotle’s requirement of paideia—his insistence on being “brought up in fine habits”—may be the necessary accompaniment to the use of common opinions in politics, or, indeed to democracy itself. Ibn Rushd acknowledged the same problem concerning a reliance on common opinion: “People are by nature inclined against just excellences (al-faḍāʾil al-ʿādala)” (MCR 1.1.14). His answer was to assign to elites the indispensable task of using rhetoric to “incite citizens to excellent works” (MCR 1.1.14). Ibn Rushd’s epistemic method, then, accesses the timeless truths of the unwritten laws of nature through something of a balancing act: he reserves the ability to determine its complex theoretical truths for elites with the capacity for deliberative reflection (1.15.6, quoted above30) and charges them with the task of using this capacity for the good of the citizenry. At the same time, however, the unwritten law is known to all people “naturally” (1.15.1031), and it is through bādı̄ al-rāʾı̄ that they prove receptive to—and, indeed, can test—the rhetoric of political and religious elites for the ends of virtue and excellence. The immediate point of view, then, holds promise as an aid in addressing the epistemic inequality between the elites and the masses by rendering operable the unwritten law in moral matters; that is, it provides a

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common-sense method of knowing basic moral truths—a task that is necessary because theoretical demonstration is not accessible to all citizens.32 On the elite side of the coin, the city’s leaders can nevertheless “incit[e] citizens to excellent works” by tapping into the immediate point of view without giving a full philosophical explanation. Even if the immediate point of view yields only the thinnest of moral insights, it is an invaluable starting point in moral argumentation, especially considering the alternatives of religious fideism, inflammatory populism, or appeals to mere self-­ interest. As Aristotle wrote, “We must therefore possess some sort of capacity [to gain understanding] but not one which will be more valuable than these states [by which one gets to know principles] in respect of exactness.”33 This capacity, I submit, is what Ibn Rushd refers to as bādı̄ al-rāʾı̄.

Conclusion We have seen two separate ways of arriving at truth: through deliberate reflection, for the elites and others who have this capacity, but also through the immediate point of view, if we consider it in light of the endoxic method as discussed above, for ordinary citizens. These divergent epistemological paths, it must be acknowledged, deflate hopes for a wholly universally known, universally recognized, path to knowledge. At the same time, however, they are tied together by the faculty of reason and are bound to “what is,” in Aristotle’s words—that is, to the real nature of things. That is, neither the bādı̄ al-rāʾı̄ understood as discussed above, nor the deliberative reflection of elites is meant to invent one’s own truth or cling to mere opinion. Rather, both Ibn Rushd and Aristotle manage to elevate human reason by placing a high value on the common beliefs of the wise while remaining epistemologically humble in seeking a plurality of voices and opinions, not just one’s own or those of like-minded thinkers. What this means, then—and this is the takeaway for the role of religion in the public sphere—is that to both Aristotle and Ibn Rushd, there is some basic level of shared moral knowledge possible for all people. It may have a more complex theoretical or even revealed facet behind it, but whether through bādı̄ al-rāʾı̄ or through deliberative reflection, genuinely democratic political discourse is possible. This helps us not only to move beyond the elite/common divide but also to move past the equally unhelpful revelation-versus-reason and religion-versus-politics antinomies. For if,

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as Aristotle and Ibn Rushd suggest, true knowledge is possible for all, then public deliberation can in theory transcend factions, whether based in religion or class.

Notes 1. Alexis de Tocqueville, Democracy in America, ed. JP Mayer and trans. George Lawrence (New York: Harper Perennial Modern Classics, 2006), p. 504. Throughout this chapter I intend the term “democratic equality” in the sense that I take Alexis de Tocqueville to have meant it—an ever-­ increasing social drive for what he termed “equality of conditions.” There is a robust discussion omitted from this chapter, which would deal with the competing roles for such equality in a democracy versus a republic. Still, I believe that Tocqueville was right about the “march toward democracy” as a march toward equality of conditions. Whether this is the ideal form of government “for the people” or even “by the people” is a question for another work. 2. It must be acknowledged that these terms are quite flawed, particularly as they juxtapose a geographical term against a religious one—and then, in use, encompass more than either their geographic or religious denotations suggest. Ibn Rushd, for instance, lived quite decidedly in what we refer to today as “the West,” yet he is not called “Western,” and very often, thinkers we label “Islamic,” such as al-Fārābı̄, produced texts primarily philosophical, not religious, in nature (whereas Christian authors who wrote not expressly religious texts are not given religious qualifiers; one usually refers to Roger Bacon, for instance, simply as a “philosopher,” though he was a Franciscan friar). Still, the monikers persist, and I beg the reader’s understanding for my adopting them. 3. This chapter does not discuss Arisotle’s conception of knowledge in an exhaustive sense, of course, and I do not suggest that the endoxic method discussed here is his exclusive means of pursuing knowledge or even moral knowledge. His more technical epistemological work, especially in the Posterior Analytics, would of course provide the philosopher with a much richer account of what constitutes knowledge in the Aristotelian sense; I am here only interested in what can count as knowledge for public and political purposes. In several respects the “knowledge” I am after resembles what Aristotle calls “opinion” (doxa) in the Posterior Analytics, which differs from “knowledge” (epistēmē) in that it is contingent rather than necessary (see PA Book 1 chapter 33). However, current usage tends to distinguish knowledge from opinion on the basis of (true) fact versus inherently subjective belief, which is neither what Aristotle (who held that “the object of opinion is still the true or the false”) nor I intend, so I opt for “knowledge” in order to keep to contemporary terminology.

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4. All references to the Nicomachean Ethics are Terence Irwin’s translation, 2nd ed. (Indianapolis: Hackett), 1999. 5. Martha Nussbaum, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy (Cambridge, UK: Cambridge University Press, 1986), 242–243. Nussbaum is here quoting Parmenides in Plato’s dialogue of the same name. 6. Nussbaum agrees with G.E.L. Owen in rendering phainomena as “appearances” rather than as the more Baconian “observed facts” that W.D. Ross favors; into this category of appearances, then, she includes “our beliefs and interpretations,” whereas the Baconian interpretation would exclude anything but empirically verifiable data, free of interpretation. See Fragility pp. 243–244. 7. As a note, this concerns Aristotle’s discussion of happiness or the good life in NE 1095a, which also proceeds via the endoxic method. 8. Nussbaum, Fragility, 245. 9. Nussbaum, Fragility, 252. For Aristotle, as well, education is a prerequisite of political engagement (Pol. Book VIII) as is age—the latter because the youth are prone to act on emotions rather than reason (see NE 1095a). 10. See Owen McLeod, “Aristotle’s Method,” in History of Philosophy Quarterly, Vol. 12, No. 1 (Jan., 1995), 8. 11. Nussbaum, Fragility, 250. 12. See Jonathan Barnes, “Aristotle and the Method of Ethics,” Revue Internationale de Philosophie 34, pp. 494–5. 13. McLeod, “Aristotle’s Method,” 5. 14. It is for another paper to take up the question of whether this is ultimately a circular line of reasoning—one needs to be brought up well in order to use the endoxic method, presumably by moral teachers who deploy the endoxic method. 15. Nussbaum, Fragility, 242, footnote, emphasis in original. Nussbaum does not here expand on what that tradition of internality is, though she does add in the same footnote that it is perhaps “at odds with one specifically philosophical tradition.” 16. Barnes, “Method of Ethics,” 493. 17. McLeod, “Aristotle’s Method,” 14. 18. Confucius, The Analects, trans. Simon Leys, ed. Michael Nylan (New York: Norton, 2014), 2.18. 19. Charles Butterworth, “Averroes: Politics and Opinion” American Political Science Review 66, no. 3 (Sept. 1972): 896–897. 20. The translation of bādı̄ al-rāʾı̄ is a matter of some contention; see, for example, Charles Butterworth’s “De l’Opinion, le Point de Vue, la Croyance, et la Supposition” in Perspectives Arabes et Médiévales sur la Tradition Scientifique et Philosophique, ed. Ahmad Hasnawi, Abdelali Elamrani-Jamal, and Maroun Aouad (Paris/Leuven: Institut du Monde

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Arabe/Peeters, 1997): 453–464. Aouad adopts “immediate point of view” (“point de vue immédiat”) in his translation of the Middle Commentary of Aristotle’s Rhetoric, whereas the Butterworth prefers “unexamined opinion.” (The most literal rendering may be “apparent view.”) The difference is not without consequence; as an anonymous reviewer helpfully pointed out, among Arab philosophers, bādı̄ al-rāʾı̄ had a logical nature, or at least connotation, to it, allowing it be philosophically considered in a way that points of view are not thought to be. This would seem to support Butterworth’s translation; as he remarks, “points of view are not the object of dialectical debate. One holds a point of view, but one does not examine it.” See Butterworth, “De l’Opinion,” p. 463. 21. It should be acknowledged that the context is a denigration of the Prophet’s followers as only those who do not give proper consideration to his message, i.e., those who accept his message immediately and without consideration.  22. Maroun Aouad, “Les Fondements de la Rhétorique d’Aristote Reconsidérés par Farabi, ou le Concept de Point de Vue Immédiat et Commun,” Arabic Sciences and Philosophy 2 (1992): 133. 23. All references to MCR come from Averroes, Commentaire Moyen à la Rhétorique d’Aristote, trans. with commentary by Maroun Aouad, 3 Volumes (Paris: Vrin, 2007). All translations from the Arabic are mine, with gratitude to Nadia Oweidat for her assistance. Aouad’s skillful French translation of the Arabic has also been of particular use as a basis of comparison. 24. The context (MCR 2.22.9-2.23.20) is a discussion of how one can discover the missing premises of ethymemes (i.e., logical arguments that suppress a premise). Doing so requires, according to Ibn Rushd, knowledge of mawāḍiʿ, positions, which are the “elements of enthymemes” (ustạ qisāt al-ḍamāʾir; 2.22.9). It is in his lengthy discussion of these mawāḍiʿ, then, that Ibn Rushd gives the apparently summary comments about the types of premises that ought to be used in such rhetoric, that is, in rhetoric employing enthymemes at 2.23.19. The Arabic reads as follows: ‫وينبغي أن تكون المقدّمات الّتي تُسبع َمل ههنا من األشياء المظنونة في بادي الرأي ال من األشياء الّتي ال يُصَّدق بها إِ ّل أن تكون مما يُمكن ويقع باه‬ ‫اإلنسان صدّق به وفبله من ذاته و اآلخر ما إِذا‬ ِ ‫ أحدهما ما إِذا سمعه‬:‫ وذلك أنّ األشياء الّتي يقع باه التصديق ههنا صنفان‬.‫اإلقناع من فرب وبسهرلة‬ ِ . ‫الجمثع‬ ‫لشهرته وألنّه محمود عندعند‬. ‫سمعه قبله‬ ٜٜ

25. “Même quand celui-ci admet immédiatement quelque chose de lui-­même, il le fait parce qu’il a l’opinion que cette chose est notoirement admise. Par conséquent, les points de vue immédiats on toujours rapport au notoire— ce qui a été effectivement appréhendé comme tel ou ce dont on a l’opinion seulement qu’il est tel. En ce sens, les discours demeurent soumis à l’argument d’autorité.” Maroun Aouad, “Définition par Averroès du Concept de ‘Point de Vue Immédiat’ dans le ‘Commentaire Moyen de la Rhétorique,” Bulletin d’Etudes Orientales 48 (1996): 119. Aouad also

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writes, concerning Al-Fārābı̄’s use of bādı̄ al-rā’ı̄, “at the fundamental level of oratory persuasion, there is thus an argument from authority,” the authority being “the generality of men.” Aoud, “Fondements,” 145. 26. MCR 1.13.2. The full quotation reads, “I mean by unwritten, those that are in the nature of all. They are the ones everyone, by his natural disposition, is of the opinion that they are just or unjust even if there is no agreement or contact between each of them.”. ‫ و يه اليت يرى اللكّ فهيا بطبعته �أهنا عدل �أو حور وإ�ن مل يكون بني واحد واحد مهنم يف ذكل‬.‫و �أعين بغري املكتوبة تكل اليت يه يف طبيعة امجليع‬ .‫اتفاق و ال تعاقد‬ 27. .‫ف�أما الاقتداء ابلسنن الغري مكتوبة و تقديرها فهو ذلوي الرويّة و اخلو ّاص من الناس‬ 28. .‫حكّم ًا يف املدن �إمنا مه ّالين علموا السنن املكتوبة ال السنن الغري املكتوبة ف�إن ّلك امجلهور ي�ستوون يف �إدراكها‬ ‫ينصبون‬ َ ‫وهو �أن ّالين‬ 29. My treatment of unwritten law neglects an important discussion of its relationship to written law; for Ibn Rushd, that relationship could be described as symbiotic. See especially MCR 1.13.9: The “determined [written] law…is not sufficient in that it determines relative to good and evil in the behavior of each individual human, in such a way that one needs to add to it or subtract from it something according to the unwritten law.” ‫لرش يف معامةل خشص خشص من �أشخاص الناس فاحتيج �ىل الزايدة و النقصان فهيا حبست‬ ّ ‫مل تكن اكفية تُق ِدّر من اخلري وا‬...‫ال�سنّة املقدرة‬ ‫إ‬ .‫ما تقتضيه ال�سنّة الغري مكتوبة‬ See also  Feriel Bouhafa’s excellent work on this concept in “Natural Justice Under the Scope of Rhetoric: The Written and the Unwritten Laws in Ibn Rushd’s Political and Legal Philosophy,” Ph.D. Diss., Georgetown University (2016), pp. 146–150. 30. “As for following the unwritten laws and for determining [what they are], this belongs to those who possess deliberative reflection and to the elites among the people.” 31. “[T]he written law is of the order of opinion, given that it is received from others, whereas the unwritten law is not received from others and is known only by nature (bil tạ bʿ).” 32. See Erwin Rosenthal, “The Place of Politics in the Philosophy of Ibn Rushd,” Bulletin of the School of Oriental and African Studies, University of London, 15 (1953), 275. 33. It is worth adding here that others have worked out fuller theories of moral reasoning based on such basic goods as might be perceived through the immediate point of view. Beyond new natural law theory (John Finnis, Germain Grisez, Robert P.  George, Christopher Tollefson and others), ethicists from Henry Sidgwick to Robert Audi have defended forms of philosophical intuitionism that are not unrelated, in my view, to the bādı̄ al-rāʾı̄ discussed here. Posterior Analytics quotation from Aristotle and Jonathan Barnes, Aristotle Posterior Analytics. Oxford: Clarendon Press, 1994. eBook, Academic Collection (EBSCOhost), EBSCOhost (accessed 11/22/14).

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References Aouad, Maroun. 1992. Les Fondements de la Rhétorique d’Aristote Reconsidérés par Fārābı̄, ou le Concept du Point de Vue Immédiat et Commun. Arabic Sciences and Philosophy 2: 133–180. ———. 1996. Définition par Averroès du Concept de “Point de Vue Immédiat” dans le “Commentaire Moyen de la Rhétorique”. Bulletin d’Études Orientales 48: 115–130. Aristotle. 1984. Politics. Trans. Carnes Lord. Chicago and London: University of Chicago Press. ———. 1994. Posterior Analytics. Trans. Jonathan Barnes. Oxford: Clarendon Press. eBook, Academic Collection (EBSCOhost). ———. 1999. Nicomachean Ethics. Trans. Terence Irwin. 2nd ed. Indianapolis: Hackett. Averroes. 2007. Commentaire Moyen à la Rhétorique d’Aristote. Translated with commentary by Maroun Aouad. 3 vols. Paris: Vrin. Barnes, Jonathan. 1980. Aristotle and the Method of Ethics. Revue Internationale de Philosophie. 34 (133/134): 490–511. Bouhafa, Feriel. 2016. Natural Justice Under the Scope of Rhetoric: The Written and the Unwritten Laws in Ibn Rushd’s Political and Legal Philosophy. Ph.D. Dissertation. Georgetown University. https://repository.library.georgetown.edu/handle/10822/1042795. Butterworth, Charles. 1972. Averroës: Politics and Opinion. American Political Science Review 66 (3): 894–901. ———. 1997. De l’Opinion, le Point de Vue, la Croyance, et la Supposition. In Perspectives Arabes et Médiévales sur la Tradition Scientifique et Philosophique, ed. Ahmad Hasnawi, Abdelali Elamrani-Jamal, and Maroun Aouad, 453–464. Paris; Leuven: Institut du Monde Arabe; Peeters. Confucius. 2014. The Analects. Trans. Simon Leys and Ed. Michael Nylan. New York: Norton. McLeod, Owen. 1995. Aristotle’s Method. History of Philosophy Quarterly 12 (1): 1–18. Nussbaum, Martha. 1986. The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy. Cambridge, UK: Cambridge University Press. Plato. 1968. The Republic. Translated with Notes, an Interpretive Essay and Introduction by Allan Bloom. New York: Basic Books. Rosenthal, Erwin. 1953. The Place of Politics in the Philosophy of Ibn Rushd. Bulletin of the School of Oriental and African Studies, University of London 15: 246–278. de Tocqueville, Alexis. 2006. Democracy in America. Trans. George Lawrence and Ed. J. P. Mayer. New York: Harper Collins Perennial Modern Classics.

CHAPTER 6

“A Comparative Study of Reason and Revelation in Relation to Natural and Divine Law in al-Farabi and Ibn Rushd” Ainur D. Kurmanaliyeva

The worldviews of al-Farabi and Ibn Rushd were closely connected with the tenets of Islam (cf. Tadzhikova 2013). Though there are no direct quotes from the Quran or the hadiths in their philosophy, it is obvious that each treatise is commenced with words devoted to God, and to the ambassador of God—the prophet Muhammad. This shows us the respect which these scholars displayed toward Islam. Whatever questions they consider, therefore, they are understood from the point of view of reason as well as revelation. While one of the first Eastern ‘Peripatetics’ (i.e., Aristotelians), al-Kindi, defended the priority of religious revelation over human reason, al-Farabi Translated by Zhuldyz Zhumashova, edited by R. Charles Weller. This chapter represents a significantly revised and expanded version of Kurmanaliyeva’s original article: “Al-Farabi and Ibn Rushd on the Correlation Between Philosophy and Religion,” Comparative Islamic Studies, Vol 3, No 2 (2007):247–253. DOI: 10.1558/cis.v3i2.247. Courtesy of Equinox Publishing. A. D. Kurmanaliyeva (*) Department of Religious and Cultural Studies, Al-Farabi Kazakh National University, Almaty, Kazakhstan © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 R. C. Weller, A. M. Emon (eds.), Reason, Revelation and Law in Islamic and Western Theory and History, Islam and Global Studies, https://doi.org/10.1007/978-981-15-6245-7_6

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extolled the reliable nature of knowledge grounded in that selfsame reason. From al-Farabi’s works it is clear that, along with Plato’s Republic and Laws, Aristotle’s Nichomachean Ethics, and Indian and Persian worldviews (as interpreted in the works of Ibn al-Muqaffa), works of Islamic scholars of fiqh (i.e., law or jurisprudence) also had an impact on the thinker’s social opinion.1 More explicitly, however, the philosophy of al-Farabi directly appealed to the ancient heritage of Plato, Aristotle, and the foundational ideas of Neoplatonism. He adapted characteristics of the Greek philosophical worldview to Islamic thought, forming the original character of Eastern ‘Peripateticism.’ The rational position peculiar to the treatises of al-Farabi is proof of the advanced character of medieval Islamic philosophy. A number of conclusions based on al-Farabi’s Principles of the Opinions of the Citizens of the Virtuous City had a prominent impact on the works of Ibn Sina (Avicenna), Ibn Bajja (Avempace), Ibn Tufail, Ibn Rushd (Averroes), and Ibn Khaldun.2 Among these, Ibn Rushd embraced the ideas of al-Farabi on social philosophy and agreed that an individual’s existence in complete solitude, outside of society, is impossible. Self-­ development depends on one’s direct relationship with other members of society, and the process of self-development is accomplished by the perfection of intellectual knowledge. Ibn Rushd and the philosophers he mentioned gave heed to knowledge acquired by way of revelation. All religions are based upon revelation with human reason then added in. According to Ibn Rushd and other classical Islamic philosophers, religion constructed solely on the basis of human reasoning is weak. Although philosophers acknowledged the authority of reason, they also knew that they could influence people only through religious authority, so they were convinced that the laws governing everyday life had to be provided by the prophets and religious leaders. From al-Farabi’s point of view, religion, stemming from divine revelation, is a set of thoughts and actions that have a defined boundary. Based in this uniqueness, religion is a symbol of practical thought. The practical application of divine revelation, including religious law, brings many benefits to society and individuals. Al-Farabi and Ibn Rushd interpreted divine revelation and human reason as two forms of knowledge which complete rather than nullify each other. This point of view was unique and novel. In this regard, both of them emphasized that, if philosophy were an instrument of a select few people for the comprehension of the meaning of existence, then religion

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is what gives the general populace a way to express their understanding of life. “The Second Teacher’s” (i.e., al-Farabi’s) theory of human intellect is the main method of philosophy for reaching the truth. If the aim of philosophy is to reach the horizon of real truth, the latter is realized only when ‘the splendid perfection’ has taken place. Human perfection in all its forms is achieved in the course of mastering philosophical knowledge. The purpose of al-Farabi’s philosophy is to understand that the Creator is the Almighty, the first cause of all things, and that He has established the order of the universe through His justice and wisdom. In the philosophical system of Ibn Rushd, God is acknowledged as the beginning of both divine revelation and human wisdom, suggesting the unity and harmony of the two, with the Qur’an, in all affairs, never misleading humankind. Al-Farabi finds the unique existence of the world in the unity of God, nature, and humankind. Natural law arises from the continuity of the natural and ‘post-natural,’ that is, the physical and metaphysical worlds. It is an interpretation that comes from the attempt to associate the ‘natural law of nature’ with the laws of a religious worldview. Substances that exist take their start from the ‘First Cause’ or ‘First Reason,’ moving in causal order from above to below in the spheres of heaven. Among heavenly, immaterial bodies there is the active intellect [aqlfa ‘al] which stands at a higher level and is the main power transforming a potential intellect to an actual intellect. It is actualized only with respect to humankind. Al-Farabi believes wholeheartedly in the idea that nearly all matters in this world can be apprehended through human intellect.3 The philosophical bases of al-Farabi, which study the importance of the essence of material things, were developed afterward in the Andalusian philosophy by Ibn Rushd, and it is clear that these bases directly affected Ibn Rushd’s philosophical worldview. His words, “a thing which is born at first and then dies cannot be eternal in itself, in its essence” is proof of this opinion (Ibn Rushd in Sagadeev 1973; Esim 2005). Al-Farabi is the chief authority in the East; he is a child of his time, a genuine Muslim philosopher. The scholar’s acceptance of (the idea of) divine revelation did not create any barrier for him in his pursuit of science. In fact, through his attempt to reconcile divine revelation and human reason al-Farabi advanced the scientific interpretation of the bases of religion and raised medieval philosophy to a new level.4 According to al-Farabi’s philosophy of the First Reason, God is the peak of world harmony, the absolute source, and the material world develops freely and independently from the First Reason. The nature of

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creation can be explained from the point of view of both natural and divine laws. In this case, natural law was interpreted in terms of the word ‘tabi’ah’ (‘nature’), while explaining creation from the perspective of ‘religious law’ found expression within the scholarship of ‘metaphysics’ (‘ma ba’âd al-­ tabi’ah’). Al-Farabi thus clarifies the border between metaphysics and theology. In metaphysics, the ability for substances to develop is self-contained and self-determined, whereas in (occasionalist) theology the movement of every piece of matter is decided beforehand. Metaphysics is called ma ba ‘da at-tabi’a—“something beyond nature”—in the philosophy of al-­ Farabi,5 explained by the concentration of metaphysics on more abstract matters than on natural matters. The delineation of metaphysics by al-­ Farabi as a “divine knowledge” (cf. divine revelation) points out the peculiarities of the ontological foundations of the scholar: he holds that the being which takes its start from the First Cause finds its continuation in the existence of natural substances, and directs the integration of the whole world toward achieving unity with the master of the living, the conscious creature—human beings. The cognition of objects in metaphysics begins from determination of the existence of natural matter. Related to this, the close connection between material and immaterial, concrete and abstract matters is studied first. Consideration of the substance of the world which is beyond nature or parallel with nature is reduced to the inseparable unity of the physical and metaphysical worlds. Al-Farabi values the physical (cf., natural, material) world more highly than the metaphysical, since the objects of study for material science and ‘natural law’ are of natural matter, whereas the objects of metaphysics are unseen and immaterial, with their nature and existence abstract. The main discipline of metaphysics is to study absolute existence. The dividing line between the two fields of science is shown through the method of study of the two adjacent subjects. Both material science and metaphysics start their study with a definition of the first prerequisite of matter; metaphysics may therefore use proven concepts of material science in this regard. As the Kazakh scholar A. Mashanov (1994: 60) concluded, al-Farabi maintains that “nature is the source of knowledge, and the way of understanding creation and its Creator is through observing, studying, mastering, and examining nature, in order to find the laws of the universe and discover its secrets.” Through studying the structure of the creation of the world, al-Farabi indicated the consequence of existence and thought, and thus considered in parallel both ontology and epistemology. His teachings about existence

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and the theory of knowledge start from the premise of the First Essence. When approaching the problem of the First Cause, al-Farabi is not restricted to the terrestrial and material world, but studies the direct connection between the First Cause and the celestial world and broader cosmos. According to Farabi’s scientific theories, the spheres of heaven and earth are material.6 Although all things take their origination from the First Essence, this is not considered the reason or the purpose for the First Essence. The First Essence is independent, the first origin. He is God, who cannot be compared to any object; He has no defect, and He is not dependent upon any other thing. Al-Farabi says, “The hierarchical principle in the spheres of heaven moves from the First Reason to final ‘Eleventh Being’ (or ‘Essence’), from above to below; but in the terrestrial world it moves from the elements to the human intellect, from below to above”’ (Kasimzhanov 1998: 95). There is nothing in existence which is accidental or exists in vain; the forms, the type and the origin, the time and the conditions of phenomena are all closely interrelated, as is explained by the hierarchical and causal principles of existence. In interpreting the system of the universe (cf. cosmos) and the (natural) laws of the creation, there are two possible hypotheses for the existence of God within Muslim philosophy. One holds that God’s nature and eternal matter have clarifying attributes, the other that God’s nature has no attributes. The philosophical outlook of Ibn Rushd is closely related to the idea of the Almighty as an indefinable attribute of eternal nature. Apart from the existence of God, one of the central issues is the emergence of matter. The theory of Aristotle is examined from the point of view of the three theories that are familiar to the scientific circles of that time. According to those who believe in the theory of evolution, the creation takes place when the matter is multiplied by the division of matter from the substance in nature (cf. emanation). The second opinion is that of the Mutakallim, or Scholars of classical Kalam theology. According to the view of the Mutakallim, the divine process of creation has no need for pre-­ existing matter. This theological perspective is broadly rooted in the views of Ghazali. The third group understands the issue according to Aristotle’s theory, the shaping force (cf. first cause) brings together form and matter, moving all matter to a state of actuality. Consequently, the force acting does not create anything, it rather merges matter and form from out its state of possibility to actuality. It is clear from the works of Ibn Rushd that

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in dispute with the Mutakallim over this important matter, he held to Aristotle’s view. According to the explanation of Ibn Rushd, the acceptance of the view that the world was created out of nothing (cf. the Lat. phrase ‘ex nihilo’) is tied to habit of mind and skills of perception and critical analysis. Human beings do not typically notice distinctions among the everyday phenomena they encounter. Common conceptions are accepted as normative; most people do not concern themselves with the meaning of these phenomena, they do not pay attention to why it is precisely so, considering it appropriate to accept things according to what is presumed to be common knowledge. Daily repetition of public opinion strengthens their belief in such viewpoints while at the same time they do not encounter any viewpoints contrary to what is habitually affirmed. The mental acumen of philosophers differs from the popular majority. Since they begin to place doubt in the information commonly accepted by the popular majority and express opposing viewpoints, they abandon what they had believed in prior to their time of doubt and seek the truth through education and scholarship.7 A special doctrine of philosophers, according to Rushd, is the knowledge of researching that which exists in the world (cf. Aristotelian empiricism). The main purpose is to learn about the Creator, His works, and His nature. While the path to proving the existence of a Creator is, according the representatives of divine revelation, to be found in the praiseworthy methods of God, in the opinion of the philosophers, the path is in discovering truth through human reason. If the representatives of divine revelation make faith their foundation for understanding the mystery of the universe, the philosophers rely on the help of human wisdom. These viewpoints reveal al-Farabi’s and Ibn Rushd’s special places in interpreting ‘natural law’ and ‘religious law.’ The peak of al-Farabi’s achievements is the concept of the human being, which was continued and developed by the thinkers of the Near and Middle East such as the Banu Musa (Jaʿfar, al-Qāsim and al-Ḥ asan), Ibn Sina, al-Maari, Ibn Bajja, Ibn Tufayl, and Ibn Rushd (cf. Altayev 2013). Thus the question of humanity acquired a special characteristic, which corresponded to the teaching of Ibn Rushd. Humanity is a miracle of nature in which the eternal and perishable worlds are joined. According to the intellectual abilities of people, Ibn Rushd divided them into three categories: orators, apodeictics, and dialectics, that is, those who preach religious truths and religious laws; philosophers, who spread the truth by

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means of reasoning and rationalizing; and theologians, who pose religious answers to questions about God and the world. Ibn Rushd preferred to elucidate to the simple masses [amma] by influencing their feelings. The enlightened group [hassa], or the elite, is, of course, able to master philosophical knowledge. Those who use the dialectical method occupy the middle ground between the amma and the hassa. Questions regarding human beings that were brought up by Islamic philosophers have an intellectual and ethical character. The increase of innate human knowledge, as well as of acquired knowledge, is always regarded as something that is obligatory, to be carried out with the primary aim of satisfying ethical demands. If power of intellect is the reason that humans are elevated to a higher level than that of animals, then the range of this power of intellect is completed by the virtue of character. The person who stands out due to their intellectual erudition, but shows a weakness of character in their habits, cannot join the ranks of the truly noble in heart and mind. A number of the philosophical questions raised in the works of al-­Farabi were reflected in the teaching of Ibn Rushd. The most complex matter among them is that of the interrelation between religion and philosophy. Up to this point I have emphasized the peculiarities of Arabo-Islamic philosophers which are closer to the Greek school of human rationality, and attempted to consider them apart from their historical environment. Yet every thinker is a child of their time. In this regard al-Farabi and Ibn Rushd lived in an Islamic milieu and created their system of philosophical thought in that context. Ibn Rushd argues that if divine revelation provides true knowledge and calls for the pursuit of truth, then scholarly inquiry which requires proof— in this case attestation through evidence from the natural world and human reason—is not contradictory to divine revelation. He says that once divine revelation and human reason are both considered means of attaining truth, then truth and truth cannot contradict each other; on the contrary, they develop in correlation with each other. In some cases, when a point of controversy emerges, religion leaves these philosophical questions unanswered, is silent on the subject, or speaks to them indirectly. If religion and philosophy converge, that is to say, could understand each other, this is appropriate for the achievement of the common purpose— reaching the truth. If divine revelation has principle contradictions toward the question considered as a target of the study, then Ibn Rushd recommended the allegorical interpretation of the Qur’anic words. In situations

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where there emerges a threat of an obvious contradiction between religion and science, Ibn Rushd expressed his thoughts clearly. He said, “in the course of argument, if the achieved conclusions come opposite to the literal meaning of the religious teaching, according to the interpreting principles in Arabic language, allegorical interpretations are permitted” (Ibn Rushd, cited in Sagadeev 1973: 177–78). Thus, he took directly from the Qur’an and accepted its tenets as his basis. Ibn Rushd, in comparison with his predecessors, such as al-Kindi, al-Farabi, and Ibn Sina, tried to harmonize the relationship between religion and philosophy. He strove to draw the attention of representatives of religious teaching to philosophy, and aimed, together with them, to understand the world which surrounds humanity. While al-Farabi tried by means of logical arguments to establish the priority of philosophy with reference to religion, Ibn Rushd did not restrict himself to the harmonizing of religion and philosophy, but attempted to use religion for the popularization of philosophy, as well as the raising of its prestige. If we take into account the fact that this was during the period when the Almoravid and Almohadic leaders were reasserting the prevalence of Islam within the North African and Andalusian context(s), we could say that this was a clever method of solving the philosopher’s dilemma. Ibn Rushd clearly realized that it was not necessary for science to contend with religious orthodoxy. If al-Farabi says that rationalism is the superior basis for solving the problem of the relationship between religion and philosophy, Ibn Rushd went even further. Among his works, writings such as A Decisive Discourse on the Delineation of the Relation Between Religion and Philosophy and Tahafut at-Tahafut (The Incoherence of the Incoherence) stand out as specific examples of scientific dialogue in the history of science which support the model of agreement. The latter was written as an answer to the Tahafut al-Falasifa (The Incoherence of the Philosophers) of al-Ghazali—a representative of religious philosophy—and it begins with these arguments: “the world is not created, it is eternal.” In order to prove this philosophical theory, Ibn Rushd “brings up evidence using three types of methods. First, he uses the arguments of Aristotle, that is to say, his concept of the First Reason. Secondly, he proves it by using an allegorical interpretation of the Quran. Thirdly, he expresses his opinion by stating arguments which support the opposite view of the arguments of religious scholars such as al-Ghazali and al-Ash’ari” (Esim 2005: 442). The ability of al-Ghazali to promote his own opinion in reaction to the questions raised by al-Farabi, Ibn Sina, and other Islamic philosophers,

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followed by Ibn Rushd’s reaffirmation of the harmony between human reason and divine revelation, and the unique dialogue that ensued—this is the cultural heritage of the classical Islamic era. In this regard, I agree with the thoughts of Garifolla Esim, who says: “al-Ghazali does not deny philosophy as a whole; according to his understanding, the matter is in the neutrality of the philosophers’ principal questions” (Esim 2003). Ibn Rushd offered an appropriate way of explaining the relationship between divine revelation and human reason (cf. religion and philosophy) which, in his time, was being called into question. He removed the discrepancy between religion and philosophy, and established that in the end they both have one aim—the pursuit of truth.

Notes 1. According to Islamic legal scholars, Islamic law offered not only interpretations of religious preaching, but also formed a code of conduct for Muslims as individuals within society. This included their relations with other members of their society. Muslims live as citizens, members of society, residents of the community. A Muslim’s public life must therefore be subject to law. Since Islamic law is, in the eyes of Islamic scholars of fiqh, revealed by God, it is the most perfect and flawless. The state should, therefore, be established and further developed on the basis of this law. The superiority of religious law places religion higher than philosophy. The Shari’ah is, in their view, superior to the law of the philosophers, because the Shari’ah brings happiness to a developed society not only in this world, but also in the other world. And this was considered to be much more important than the Greeks’ ‘nomos,’ which leads to happiness only in this world. 2. Reflecting the influence of Farabi, Ibn Sina held that the state stems from the necessity of human co-existence. Human communities need legitimacy and justice. They thus need to establish laws for themselves. A good leader, according to Ibn Sina, leads citizens to benevolent deeds, and, as such, the number of kind people increases. In his social science, Ibn Sina is thus influenced by Farabi, but focuses more on prophetic governing. Although Ibn Bajja’s social attitudes are akin to al-Farabi’s doctrine, he is distinguished by the concept of self-management. In his opinion, the philosopher who lives in the “imperfect” city lives in solitude. He must strive for real truth—which may not be embraced by other city members—by improving himself. He remains a true philosopher even if he is not supported by other urban residents. Among the heirs of al-Farabi, the place of Ibn Khaldun is significant. The philosopher states that the unification of people originated from the simplest causes (necessity of food and need for protection). However, a

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c­ ertain authority must govern the basic needs of human beings. This unites people in allegiance and obedience to one ruler. The city, which emerged by natural demand, has to be dependent on the laws of the city’s ruler. 3. Along these lines, al-Farabi reveals three unique aspects of his view of the First Cause: (1) along with the doctrine of the creation of the universe, he posits its eternality; (2) he interprets reason (or wisdom) as preeminent; and (3) from a scholarly (i.e., reason-based) perspective, he presents God as the abstract origin, the first cause of all things. Al-Farabi’s ‘First Cause’ is, in fact, part of the cosmos, it/he co-exists in time with the world. The First Person “does not live for anything else, and nothing lives outside of him” (al-Farabi 1973: 243). 4. Although some researchers, such as Naji Ma’ruf, Ishak ben Adb el-Aluji, and Adb es-Selam, have different points of view on this matter, they do not doubt the faith of al-Farabi.’ Naji Ma’ruf, for example, thoroughly demonstrates that “al-Farabi believed in the eternity of the world, the immortality of the soul, the eternal bliss and the painful suffering of the hereafter.” We can see these points of view of al-Farabi in his treatises like “Attainment of Happiness,” “Opinions of People of the Perfect State,” and “Words of a Statesman” (Nadji 1975; Sadiq 1975; Aludzhi 1975; IFPR 2014-a, 2014-b; cf. al-Farabi 1975, 2013, 2014). 5. Note that “ma ba’âd al-tabi’ah” was how the title of Aristotle’s work on “Metaphysics” was typically translated into Arabic. 6. Material objects are divided into six categories in “The Civil Policy” of al-­ Farabi. The first category consists of the four main elements: fire, air, earth, and water. The other categories of the material world are the bodies comprised of those elements. They are: minerals, plants, unconscious animals, conscious creatures, and heavenly bodies (al-Farabi 1975: 49–50). The world is built upon the combination of different amounts of the initial elements or natural bodies. Al-Farabi describes the different levels of perfection of structures as a hierarchical stairway of existing objects, beginning with the first four sources and continuing to the level of humans: “the lowest in its perfection is common first matter; after that, according to their degree of perfection, and in consequent order come elements, minerals, plants, unconscious animals and, finally, unsurpassed conscious creatures” (Gafurov and Kasimzhanov 1975: 257). If it were not for the last being, it would not be possible for any being to exist. Thus, the beings are situated according to a certain order, and transformed into one entire system. 7. Cf. chapter four in this volume: Karen Taliaferro, “El, Democracy and Epistemic Equality.”

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References (al-Farabi) Әл-Фараби. 1973. Қайырымды қала тұрғындарының көзқарастары жайындағы трактат. In Философиялық трактаттар. Алматы: Ғылым. ———. 1975. Әлеуметтік-этикалық трактаттар. Алматы: Ғылым. ———. 2013. Книга букв. пер. Таджиковой К.Х. Алматы: Қазақ университеті. ———. 2014. Книга об аль-Фараби. Алматы: Международный клуб Абая. (Aludzhi) ‘Абд әл-Халид әл-‘Алуджи. 1975. Әл-Фараби фи Ирақ. Бағдад. (Altayev) Алтаев, Ж. 2013. Әл-Фараби өркениеттер сұхбатында. Алматы: Қазақ университеті. (Esim) Есім, Ғарифолла. 2003. Фалсафа тарихы. Алматы: Раритет. ———. 2005. Ибн Рушд. In Ортағасырлық діни философия, 439–496. Алматы: Жазушы. (Gafurov) Гафуров Б.Г., Касымжанов А.Х. Ал-Фараби в истории мировой культуры. - М: Наука. 1975. - 181 с. (IFPR 2014-a) Идеалы аль-Фараби и социогуманитарное развитие современного Казахстана. Алматы: Институт Философии, Политологии и Религиоведения, 2014. – 232 с. (IFPR 2014-b) Наследие аль-Фараби и формирование нового интегрального мировоззрения. Алматы: Институт Философии, Политологии и Религиоведения. (Kasimzhanov) Касымжанова, А. А. 1998. Обоснование политической философии в наследии Абу Насра аль-Фараби. Алматы: ТОО Компания PS. (Mashanov) Машанов, А. 1994. Әл-Фараби және Абай. Алматы: Казақстан. (Nadji) Ма’руф Наджи. 1975. Әл-Фараби араби әл-маутин уа әс-сақафа. Бейрут. (Sadiq) Сабих Садиқ. 1975. Әл-Фараби уа асруху фи әл-фалсафа әл-уруби. Маурид 3: 109–138. (Sagadeev) Сагадеев, А. В. 1973. Ибн Рушд (Аверроэс). Москва: Мысль. (Tadzhikova) Таджикова, К. Х. 2013. Отношение к религии. In Аль-Фараби и современность. Алматы: Қазақ университеті.

CHAPTER 7

Epilogue: Critical Reflections in Retrospect and Prospect Anver M. Emon

A volume like this does not come about in a vacuum. The essays herein were not written in a historical void. They all speak with a certain urgency, given our particular time of fierce, raucous, and even violent, debate (if not polemic) about the possibility of tolerance1 amid difference. The contributors adopt different disciplinary approaches to address the overall theme of the book—sociology, philosophy, political science, and history. But their disciplinary differences attest to how the questions animating this volume (and the original discussion that instigated it) speak to a shared, historical experience. A book in English on reason and ethics in Islam cannot help but be read in the shadow of the so-called West, especially in these curious days of Brexit turmoil in Britain, Muslim bans in the United States, and an increasing national security regime surveilling Muslims the world over. A book like this serves an ongoing hope for peace in a time of conflict in which we cannot help but worry that the twentieth

A. M. Emon (*) Institute of Islamic Studies, University of Toronto, Toronto, ON, Canada e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 R. C. Weller, A. M. Emon (eds.), Reason, Revelation and Law in Islamic and Western Theory and History, Islam and Global Studies, https://doi.org/10.1007/978-981-15-6245-7_7

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century’s twilight promise of ‘Never Again’ was only just so many pious words. It is a privilege to write this final, concluding set of reflections as a way both to bring together what has been addressed in this volume, and to gesture to future questions on reason and identity amid difference. Reflecting on an interdisciplinary volume such as this is no easy feat. This is simply to say that the following set of reflections are limited by its writer’s positionality, both in our historical moment and in relation to the subject of Islamic studies and the study of natural law theory. It would seem appropriate, therefore, that this epilogue first begin by positioning my own work in this area as a prelude to reflecting on the essays and their contribution to a set of questions we pursue together. The essays of this volume, explicitly and implicitly, uncover a fundamental irony that besets any attempt to posit shared values in a context of difference, namely that universal ideals are universal presumably because they transcend history, despite the fact that all of us live in history. In each essay, we find strategies for overcoming this irony. For some the answer lies in abstracting from the particular; for others the answer lies in tracing genealogies of transfer, translation, and sharing; for yet others, the answer lies in sustaining and tolerating contradiction across different and seemingly discreet fields of intellectual inquiry. In the years that have passed since I first published on Islamic natural law theories, my own approach has been informed by a historical appreciation of an ironic disjunction: oppression and discrimination and hatred do not distinguish between one tradition or another, but rather are equally operative despite pious ideals to the contrary. This irony prompts considerations about prospects for ongoing deliberation about a shared ethics, and the imperative of provincializing our own epistemologies (whether disciplinary or otherwise) through increased collaboration, despite the incentive structures in the humanities and social sciences to pursue the siloed mode of academic production. Collaboration, however, is not offered here as if it will identify in positivist fashion the appropriate ethical content for living together with difference. Rather collaboration operationalizes an interminable, utterly agonistic, quest for the universal. Rather than suggesting that natural law theory of any tradition offers a substantive repository, I suggest it serves the rhetorical function of making questions about shared virtue and ethics intelligible across difference. In short, collaborations like this volume enact a necessary discursive agonism that ‘clears ground’ as a prelude to articulating the ever elusive ‘common ground’. The challenge posed by this volume is to articulate a

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greater degree of humility within one’s discipline and value tradition, recognizing all the while that the irony noted above is perhaps the one thing we can identify as both shared and universal.

Distinguishing Disciplines, Positioning Scholarship In 2010, I published Islamic Natural Law Theories (Emon 2010). A first book, it was a topic that quite frankly fell into my lap. I recall driving on Sunset Boulevard in autumn 2000  in my well-loved and reliable Jeep Wrangler, just north of UCLA, talking with my then doctoral advisor about the topic I should choose for my dissertation. He blithely suggested ‘natural law’ and pointed me in the direction of usul al-fiqh debates on husn and qubh, which I will explain below. I had yet to take my general exams; research on the dissertation did not begin in earnest till summer of 2001. It was during this early period of dissertation research on a premodern debate that I woke up to the news of airplanes flying into the World Trade Centre. Shortly thereafter, I recall awkward moments with librarians, fellow students, faculty, and just about anyone else when I’d talk excitedly about my chosen focus on Islamic natural law theories. For some, the topic was exactly the indulgence of the ivory tower that neo-cons had increasingly begun attacking. What national security interest could such a project serve in a context of horrific violence, wars in Afghanistan and Iraq, and the proliferation of terrorist attacks around the world, they would retort.2 For some, a project on Islamic natural law theories was just what the world (read ‘Muslim world’) needed to overcome the spiraling descent into violence. For others, the idea of an Islamic natural law was an oxymoron, given that same spiraling descent. For me, I was simply a curious, budding legal historian, and was convinced (and still am) that the pursuit of intellectual curiosity is a good in itself. I begin with this anecdote to acknowledge the politics (disciplinary and otherwise) that encircle any talk of ‘natural law’ in Islam. It was not a politics I appreciated back in 2000 on Sunset Boulevard. Only over time and after examining the responses to the study have I come to appreciate the political stakes involved in the project, stakes that remain with us in the academy and beyond. This essay will introduce the basic, theoretical architecture of Islamic natural law theories from the premodern period (ninth to fourteenth centuries) (Emon 2010). Specifically, it will outline juristic debates in the usul al-fiqh genre on reason as a source of law, where revelation is silent (min

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qablu wurud al-sharʿ). Thereafter it will relate a range of doctrinal debates in which many of those same premodern jurists came to legal conclusions without reference to scriptural (or any other) text. Drawing on a curious heuristic they labelled huquq Allah and huquq al-‘ibad (the claims of God and the claims of individuals), jurists developed law based on a mode of rationality that could be called anything from ‘rational’ to ‘commonsense’ to ‘pragmatic’. Whether or not the huquq Allah/huquq al-‘ibad heuristic is proof positive of natural law in Islam is less important than recognizing the scope of questions that have yet to be examined across disciplinary divides. But as I will suggest in the third and concluding part, there are political reasons (some of which enjoy disciplinary cover) that help explain why some questions are not asked, and why some answers (such those that proffer an Islamic account of natural law) are deemed naïve if not impolitic.

Disciplinary Calibrations Theology. If the study of an Islamic natural law is framed in theological terms, the entire inquiry will be cast in light of the academic study of Islamic theology (kalām), with implications on the appropriate genre within the Islamic literary tradition most ideal for such an analysis (e.g., kalām sources) However, to use theology to frame the inquiry happens to coincide with the institutional organization of Islamic studies in the European university context. As Suzanne Marchand recounts, the German university structured the study of Islam in theological terms, in large part because of the support this field of inquiry provided to biblical historicism (Marchand 2009). Moreover, to frame Islamic natural law theory in theological terms coincides with the secular imperative to cast the study of religion in Christian—if not distinctively Protestant—terms. Among the various implications of that approach is to put law outside the realm of religion, and reduce the study of Islam (including Islamic law) to the study of theology. In the shadow of the Gelasian Doctrine, the Investiture Controversy, the Wars of Religion, and the Treaty of Westphalia it is unsurprising that the study of Islam (and Islamic law) would be structured in theological terms. Frank Griffel, a German-trained scholar of Islamic theology and philosophy,3 adopts a theological approach to the study of Islam. Consequently, any natural law theory in Islam would naturally involve (for Griffel) a focus on theological writings from the Islamic literary tradition. As Griffel

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writes, ‘[t]he terminology used by Muslim theologians when discussing these issues is, however, quite different. In the West the language comes from Greek philosophy and Roman law, but in Islam the issue of natural law is discussed in notions that stem from the Qur’an’ (Griffel 2007, 42 emphasis added). Addressing the Qur’an and Qur’anic use of terms such as fitra (natural dispositions) and hanif (faithful monotheist), Griffel approaches natural law theologically: ‘Although the Qur’an is not explicit about what exactly the original constitution of humans is, Muslim theologians understood … that being a hanif is the original religion of humans and that polytheists, as well as Jews and Christians, have distorted this natural religion’ (Griffel 2007, 43 underlining added). Where he writes about the jurisprudence of natural law (as elaborated below), he never ventures far from a narrow theological frame of reference. Indeed, he even gives special attention to the voluntarist ideals that have assumed the mantle of Sunni theological orthodoxy (Griffel 2007, 44–45). In a curiously dismissive manner, Griffel questions the possibility of natural law by adopting the vantage point of a presumed Sunni theological orthodoxy, stating that ‘most Sunni theologians and jurists denied the existence of natural law’ (Griffel 2007, 45). This tendency to frame natural law in theological terms is expressly why Edward Moad’s corrective contribution to this volume is so important. By taking aim at Albert Hourani’s characterization of Abū Ḥ āmid al-Ghazālı̄ (d. 1111), Moad suggests that too strict disciplinary frames can blind us to the natural law implications that might otherwise follow. Moad’s close reading suggests that Ghazālı̄’s endorsement of natural law took shape in the interstitial chasm between Hourani’s narrow disciplinary limitations. In his examination of al-Ghazali’s writings, but across different premodern disciplinary fields, Moad shows that the extent to which any analysis of al-Ghazali’s natural law ethic fundamentally depends on the genre of and disciplinary approach to any given set of readings. Sunni Orthodoxy. Curiously, Griffel’s theological vantage point correlates with (if not corroborates) a Sunni confessional conservativism. Premodern debates on natural law (among Sunni jurists at least) began from competing first principles of theology, namely about the justice of God (‘adl Allah). While all agreed that God is just, the theological debate centered on how best to characterize God’s justice. For the Ashʿarites— presumed to represent Sunni orthodoxy—God’s justice is voluntaristic: whatever God wills is by definition just. In other words, if God commands us to do X, then X is necessarily good just; if God prohibits us from doing

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Y, then Y is necessarily unjust. Whether we can appreciate why X and Y are just or unjust is irrelevant. In contrast, Mu‘tazilites—theologically cast as heterodox—argued that God wills only what is just; in a sense, God’s will is constrained by the demands of a rationally determinable sense of justice (Makdisi 1985; Hourani 1985). Muʿtazilites argued that God commands X only because X is already understood as just; God prohibits Y because Y is already understood as unjust. The evaluation of justice and injustice, they argued, is something that humans can reason about and presume of God. A natural law account that would be framed in these theological terms would become a site of considerable policing. Theology was the discursive space within which orthodoxy, heterodoxy, and heresy were determined. The material stakes of falling on one side of that line or the other could be substantial, if not dire. The history of Islamic theology is fraught with the political implications of adopting one position or the other (Nagel 2010; Watt 1998). Theology, in other words, was not a safe or playful space to reflect on the possibilities of reason. Intellectually, to start from Sunnı̄ orthodoxy to argue about natural law is to create a path dependency that results in the absence of natural law entirely. The more we frame a natural law inquiry with an uncritical account of Sunni theological orthodoxy, the more we necessarily will find a disjunction between reason and authority as somehow fundamental and intrinsic to Islam, which in turn negates the very possibility of natural law in the first place. In short, starting from a presumed Sunnı̄ theological orthodoxy predetermines the outcome in a manner that preserves an intellectual and theological status quo. Jurisprudentially, the natural law theories gesture to a conjunction of reason and authority that extends beyond the realm of theology into the field of law. As premodern Muslim jurists shifted their writing from the genre of theology to legal theory (usul al-fiqh) we find them grappling with the implications of this conjunction on the content of law. As will be shown below, different Muslim jurists created competing natural law theories that performed end-runs around the theological divisions of orthodoxy and heterodoxy. Of course, to make this argument is to invite theological disapprobation: merely suggesting that orthodox and heterodox theological camps came to a shared approach to the authority of reason undermines the very premise upon which claims to Sunni Islamic orthodoxy are based. If the genre of jurisprudence can work around the exclusionary force of theological orthodoxy, then the claim to orthodox belief loses its political force and effect. Indeed, we cannot help but

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appreciate that inherent to the study of Islamic natural law theories is a politics of constructing orthodoxy in Sunni Islam. Philology and Philosophy. A more lexical approach to ‘Islamic’ natural law might focus on the Arabic terminological equivalent of ‘nature’, which is tabi‘a. Across the Islamic literary tradition, tabiʿa is philologically linked to Islamic natural philosophy, and thereby the academic discipline of philosophy (Emon 2014a). To claim that natural law in Islam is best explored through the concept of tabi‘a gives priority to philology as a starting point for the study of Islam (Emon 2014a). Since the nineteenth century, the academic study of Islam generally, and Islamic law specifically, has revolved around philology. Philology is textually and lexically oriented, thereby emphasizing analytic methods that are more linguistic than jurisprudential. If an ‘Islamic’ natural law demands a more jurisprudential analysis, philology must yield its centrality in the study of Islamic law, lest it generate a false negative given its gesture to Islamic natural philosophy. Analytically, the field of natural philosophy (al-tabi‘iyyat) is not the same as legal philosophy. The debates between Ibn Sina (d. 1037), al-­ Ghazali (d. 1111), and Ibn Rushd (d. 1198) in philosophy (falsafa) reflected different questions from those that might animate legal theory. For example, in al-Ghazali’s natural philosophy, causation and miracles were centrally relevant. But their implications extended to truth and veracity, rather than reason, authority, and legal judgment. Moreover, the academic study of Islamic philosophy cannot fully be appreciated without also accounting for Leo Strauss’ catalyzing influence on the renaissance of mediaeval philosophy generally, and mediaeval political philosophy in particular (Gutas 2002). But in recognizing Strauss’ support for the academic study of mediaeval philosophy, we cannot ignore his doubt about the possibility of natural law. His Natural Right and History doubts whether natural law can overcome the unrepentant moral relativism that he bemoaned in the human sciences. But Strauss offered only critique as a mode of engaging the natural law question (Strauss 1965; Batnitzky 2016). Correlatively, one also cannot ignore the influence of Strauss in the construction of Islamic philosophy as a sub-specialty within the academy. Certainly, Strauss’ students, such as Charles Butterworth, Muhsin Mahdi, and Ralph Lerner, have made important contributions through their translations of significant Arabic texts within the Islamic philosophical tradition. But at the same time, and perhaps unsurprisingly, Straussian scholars of Islamic philosophy channel Strauss’ dubiousness about the possibility of natural law (Gutas 2002, 22). For instance, in his introduction to his

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translation of Ibn Rushd’s Fasl al-maqal, a treatise on the harmony of law and philosophy, Charles Butterworth emphasizes that philosophy and law share the same intention toward governance or politics: both seek to provide for the well-being of all to the extent possible … [T]he agreement between the two depends in no way upon determining to what extent individual philosophers privately assent to the Law, nor in probing the sincerity of their various efforts to buttress its claims. The reasoning leading to this interpretation looks, rather, to what is required for sound political life. (Butterworth 2001, xxxviii)4

And following Strauss’ Natural Right and History, Butterworth ends his introduction by reference to Ibn Rushd’s political intention, despite other texts by Ibn Rushd (such as his Bidyat al-Mujtahid wa Nihayat al-­ Muqtasid) that one might ‘plumb [for] the content of that intention’, beyond the merely political (Butterworth 2001, xxxviii). In this Straussian context of Islamic philosophy, the contributions of Ainur Kurmanalieva and Karen Taliaferro provide an important check against what might otherwise be an unaccounted for Straussianism in the critique of Islamic natural law and/or ethics.

Framing the Question, Selecting the Genre: Islamic Natural Law Between Theology and Law A study of Islamic natural law, as understood within the broader disciplinary field of jurisprudence, requires moving between the fields of theology and law. Bridging both fields is an important genre of legal literature called usul al-fiqh. This genre has been variously translated as ‘legal theory’ or ‘jurisprudence’; in short, it is a genre of Islamic legal literature in which mediaeval scholars trained in both theology and law would debate ontological first principles and develop an epistemological framework that moved from those first principles to derivations of law. While some consider this genre committed to delineating a ‘legal method’ of deducing the law, I suggest instead that this genre was designed to discipline the jurist to ‘think like a lawyer’, while also providing sufficient space for ‘play’ at the boundaries of orthodoxy. It disciplined the subject-jurist into a compliant participant in the field of law, trained as he (and exceptionally, she) was in a legal grammar used to articulate conclusions of law. Importantly, that genre created a wide-enough space in which jurists could explore,

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contemplate, and elaborate ideas that might be too dangerous to consider in the genre of theology (Ahmed 2012). In other words, if theology was a policed site of compliant belief, usul al-fiqh offered a space for intellectual play.5 In this space of play, jurists articulated competing theories of natural law that, despite distinct theological first principles, shared important jurisprudential resemblances concerning the relationship between reason, nature, and legal judgment. Importantly, jurists did not illustrate how their theoretical approach might result in specific legal outcomes. Ulrike Martensson’s contribution to this volume illustrates how a jurist such as Muhammad b. Jarir al-Tabari leveraged the tafsir genre to become a space of play to reflect on reason, nature, governance, and judgment. My own interest, though, remains in the genres of fiqh and ikhtilaf. Ranging from single-volume handbooks to multi-volume encyclopedias, fiqh sources detail the doctrine of one legal school of thought (i.e., madhhab) or another, while the khilaf genre examines the differences between the schools and why they exist. I say ‘possible’ because jurists did not mechanically insert the lexicon of natural law jurisprudence into their more particularized doctrinal debates. This admission precludes, of course, any definitive determination of natural law operating in the interstices of Islamic doctrinal analysis. Rather, as a thought experiment, this essay gestures to the possible existence of natural law reasoning in doctrinal debates by reference to the legal heuristic of huquq Allah (claims of God) and huquq al-‘ibad (claims of individuals). Jurists utilized this heuristic to determine legal doctrines in circumstances where there was no express, divine will. This turn to fiqh debates, as a site of natural law reasoning, is speculative and exploratory. It is offered as a gesture toward future research on reason, law, and authority in Islamic legal history.

Islamic Natural Law as Legal Theory Importantly, Muslim jurists were not only theologians. The scale and scope of their intellectual corpus spanned a range of fields that they considered distinct and different. As George Makdisi and others have shown, the mediaeval disciplinary boundaries between law and theology were policed through a curriculum that offered many ‘off-ramps’ based on the particular talents or competencies of the mediaeval student (Makdisi 1984). Moreover, not all these off-ramps were as consequential as the realm of theology. For Muslim jurists, disputes about law did not invite

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the policing power of theological orthodoxy. Whereas differences in theology could put someone outside the ambit of orthodoxy, differences in law were to be expected. This is an important disciplinary distinction for purposes of our inquiry into natural law in Islam. Vis-à-vis the Latin West, we all too often take for granted what the Gelasian doctrine propounded as compromise: a jurisdictional division of human practice into the world of the sacred and the profane. This jurisdictional division may have allowed two legal worlds to flourish, the ecclesiastical or canonical on the one hand, and what we might call the ‘secular’ (for purposes of governance) on the other. But this division between what we call the religious and the secular helped create the conditions for a secularism that both animates how we understand the political project of the state, and structures debates about the extent to which the state’s legal arm can and should reach into our private or intimate lives. Islamic law, however, does not operate in the shadow of such a Gelasian contrast. The scope of Islamic legal reasoning operates at a scale that we consider outside the competence of the modern state and its legal system. For instance, Islamic legal debates include matters of ritual worship, formation of contract, and admissible evidence in trial, all addressed in fiqh texts across time and space. Importantly, theology and fiqh constitute different subject matters along a spectrum of intellectual history that is reflected tangibly in the literary genres they helped inspire. In neither subject area do we find the jurisprudential debate on natural law: neither on the battlefield of theology (kalam) nor in the doctrinal technicality of fiqh. The genre of usul al-fiqh (legal theory) is where we find jurists thinking theoretically about reason and its contribution to the law. Specifically, we find a curious debate that bears the hallmarks of natural law thinking, allowing us to identify two versions of natural law among premodern Muslim jurists, which we will call hard natural law and soft natural law. Hard Natural Law Hard Natural Law was mostly, though not exclusively, proffered by Muʿtazilite jurists such as al-Qadi ‘Abd al-Jabbar (d. 1025) and Abu al-­ Husayn al-Basri (d. 1044). It is important to emphasize that not all hard natural law jurists were necessarily Muʿtazilite. Sources are unclear or ambiguous about the theological affiliation of the Hanafi al-Jassas, for instance. Whereas al-Jassas offered a hard natural law account, it would be historically inaccurate to call him a Muʿtazilite, despite playing with

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Muʿtazilite first principles in his usul al-fiqh. Hard Natural Law advocates rooted their natural law jurisprudence in a particular understanding of God, or a theology of first principles. They began by asking whether humans can know the good and the bad (husn, qubh), and whether they can subjunctively attribute that knowledge of good and bad to God, as if God made it clear to humanity. They argued that when God created the world, He did so to create a benefit. Indeed, the world could not have been created to cause harm, as that would have been either futile or unjust of God, which for them was contrary to their understanding of God’s justice (‘adl). Moreover, as God was perfect, the benefit could not have been for Him. For them, since God is just, created the world as a bounty for others and not for Himself, he must have created the world to benefit humanity. These first principles about God were the bases on which Hard Natural Law jurists imagined the world itself to provide a foundation for the normative implications of their reasoned deliberation about the world. If the world is for the benefit of humanity, they argued, then one can reason about the world and human experience to reflect on norms for ordering human welfare. God’s creative act both creates the physical reality of the world, and gives positive normative content to that reality. Put differently, God’s creative act made nature a scriptural-text-analogue subject to reasoned analysis and deliberation. In this manner, Hard Natural Law jurists fused fact and value in the natural order, enabling them to reason from an ‘is’ to an ‘ought’. Many modern philosophers will retort that this form of reasoning indulges the ‘naturalistic fallacy’. The ‘is’ is not always something that is good or right; sometimes what exists may be quite bad, if not evil. Moreover, sometimes what we might think is good or right is contradicted by revelatory texts. For a Hard Natural Law jurist such as Abu al-Husayn al-Basri, though, Hard Natural Law offered a method of analysis that created a rebuttable presumption. That presumption could be rebutted by findings from revelation or elsewhere. The point for him, though, was that as a presumption, it is sufficiently justified theoretically to inform the law, unless sufficient countervailing evidence or considerations existed. Soft Natural Law Soft Natural Law theory was proffered by Ash‘ari theologians, such as Abu Hamid al-Ghazali (d. 1111), al-Tufi (d. 1316), al-Shatibi (d. 1388) and

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others. They did not believe that God created the world for human benefit. On the contrary, to assert such a position would be theologically unacceptable, as it would limit God’s omnipotence by reference to human presuppositions about justice (‘adl). But neither was the world created to humans’ detriment. To maintain their orthodox theological position, they simply insisted that God creates the world as He sees fit. However, they argued that because of God’s grace (rahma, tafaddul), it just so happened that God created the world to benefit humanity. In other words, rather than rendering the natural order into a scriptural-text-analogue by reference to God’s justice (‘adl), which was a fraught theological issue, they rendered it a scriptural-text-analogue by reference to God’s rahma and fadl. This turn to grace is important because it allowed Soft Natural Law jurists to fuse fact and value in nature without also giving up their theological voluntarism. Because their theory of grace implied God can change His mind, it allowed Soft Natural Law jurists to retain their commitment to God’s willful omnipotence. From this theological point, Soft Natural Law jurists could get to the same jurisprudential point as the Hard Natural Law theorists, while preserving their commitment to a voluntarist theology. They sustained their natural theory by arguing, at the interstices of theology and jurisprudence, that since there is no evidence that God has changed His mind, the natural world must therefore be for the benefit of humanity. Consequently, Soft Natural Law jurists claimed they too could reason from the natural world to a normative conclusion, or, in other words, reason from an ‘is’ to an ‘ought’. Their shared teleological approach with the Hard Natural Law theorists reflects the historical Islamic contribution to debates on natural law. Maqasid al-shari‘a: Controlling for the Slippery Slope As much as this broadly shared jurisprudential position technically circumvented the confines of voluntarist theological orthodoxy, Soft Natural Law jurists were anxious that their natural law jurisprudence did not do enough to avoid theological heterodox. Though the genre of usul al-fiqh is located between the disciplines of theology and legal doctrine (fiqh), its in-­ between-­ness led Soft Natural Law jurists to anticipate and control for mistaken perceptions from the more theologically inclined. They worried that merely distinguishing their position on grounds of God’s grace was not sufficiently robust enough to distinguish their theory from the

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theologically suspect Hard Natural Law approach. Out of an abundance of theological caution, Soft Natural Law jurists articulated a method of legal reasoning that maximally preserved their voluntarist theological first principles. Soft Natural Law jurists such as al-Ghazali articulated a circumscribed mode of legal reasoning that revolved around two terms of art, namely maqasid and maṣlaḥa. Importantly, he expressly designed his method of reasoning to limit the scope of reason’s authority in law, out of deference to his voluntarist theology. Maqasid (s. maqsad) is the Arabic term for aim, object, or purpose; maṣlaḥa is often defined as welfare or public interest. In al-Ghazali’s model, a maslaha was a local, specific, and particular issue that invoked a core aim or purpose of the law, and for which a maqasid-­ based analysis was appropriate. On his account, al-Ghazali argued that there are five basic purposes of the law, namely the preservation of life (nafs), lineage (nasl), mind (‘aql), property (mal), and religion (din). In the absence of scriptural authority, al-Ghazali argued that particularized public interests (maslaha) may very well uphold those aims. In some cases, the maslaha upholds an aim that is deemed a necessity (darura), whereas in other cases the interest is merely a ‘need’ (haja) or purely edificatory (tahsin). For al-Ghazali, any maslaha that is not addressed by scripture (i.e., is based on reason), upholds the maqasid, and poses a necessary interest (maslaha darura) has the authority of law. Framed in subjunctive fashion, the proposed judgment or rule derived from a necessary maṣlaḥa is treated as if God had legislated it. Anything less than a necessary maslaha falls short of offering the necessary foundation for law; indeed, to impute such a maṣlaḥa-based rule to God would so empower reason as to vitiate the primacy of voluntarist first principles about God’s willful divinity. By hierarchizing maslaha for legal purposes, al-Ghazali restricted the scope of reason’s authority, out of deference to voluntarist theological first principles.

Islamic Natural Law as Legal Practice? Recalibrating our disciplinary starting point from theology or philosophy or philology to jurisprudence, the scope of plausible inquiry shifts and opens up new possibilities. This recalibration offers different standpoints from which to appreciate what might be otherwise taken for granted as merely ordinary, mundane, even uninteresting modes of legal discourse. In other words, a jurisprudential approach to Islamic natural law theory

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offers a new appreciation of the rationality inherent in particular sites of doctrinal debate (fiqh) (Emon 2018). While there is no direct, express, or deductively reassuring application of usul al-fiqh theory on specific fiqh doctrines, there are various modes of reasoning in fiqh debates that are worth examining, from the standpoint of natural law jurisprudence. One example is the premodern legal heuristic of huquq Allah and huquq al-‘ibad (respectively, claims of God and claims of individuals). It is important to specify that by claims of God, we are not suggesting some legal theology in which God appears as claimant or litigant. The tendency to read huquq Allah in theological terms reflects the secular tendency of too quickly characterizing Islamic law as ‘religious’. Likewise, the tendency to read huquq al-‘ibad (or huquq al-nas) as human rights assumes too readily that this phrase resonates in the echo chamber of the distinctively post-­ seventeenth-­century European state and the Enlightenment’s liberal rights tradition. In the context of the historical fiqh tradition, huquq Allah serves metaphorically to refer to the well-being of society and public policy interests. The phrase huquq al-ʿibad refers to the kinds of claims and interests and expectations we have as individuals living in a society with others, for example, property, privacy, contract, and so on (Hohfeld 1913). In the aggregate, the two terms of this heuristic highlight the fact that any given wrong will have both a public and private dimension. Importantly for the purpose of this chapter, it was up to jurists to determine in many cases what those dimensions were, the values at stake, and how best to resolve possible conflicts or contradictions, whether scriptural sources were on point or not (Emon 2006). For instance, most readers will be familiar with the Qur’anic injunction against theft, namely amputation of the hand. In the event A steals B’s property, A may be subject to the punishment of hand amputation, so the argument goes. But even if A loses his hand, that does not make B whole. B suffers an ongoing loss that the corporal punishment does not redress. Does this seem fair, right, or good? A natural law theorist might ask, ‘Is it just?’ These kinds of questions animated juristic debate about legal doctrine; the vehicle by which they posed these questions was the legal heuristic of huquq Allah and huquq al-‘ibad. For jurists of the Hanafi legal tradition, the answer to the question of compensatory liability for theft came in the form of a source-text, specifically a prophetic tradition or ḥadı̄th. In this textual tradition, a victim of theft was allowed to choose compensatory damages in lieu of the corporal punishment against the theft. Whereas the ruling regime would impose

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the corporal sanction to serve the public interest, the victim could prevail against that public interest to be made whole once again. For the Hanafis, the victim enjoyed a superior claim against the public interest, the latter being served by the deterrent function of corporal sanctions. On the one hand, the Hanafi position was justified by recourse to a text, thus taking it outside the scope of natural law reasoning. On the other hand, the position can be explained (rather than justified) by reference to comparative loss-spreading competencies: whereas society could distribute the loss occasioned by the theft (e.g., social costs about reliable possession), the individual was not always in a position to distribute his loss. The Ḥ anafı̄s relied on a textual tradition to introduce a degree of choice and variance in the outcome of theft, based on the victim’s capacity to sustain the loss or not. But other Sunni schools of law considered the Hanafi’s source-text inauthentic and of no legal consequence. These other jurists had to resolve the issue without reference to a source-text. For them, the question remained: must B suffer his loss in silence, or can B somehow claim compensatory damages when the thief/defendant also suffers the corporal sanction? These other jurists turned to the huquq Allah–huquq al-‘ibad heuristic to reason to their preferred legal outcome. They held that the Qurʾanic injunction on amputation upheld a haqq Allah, or claim of God, which served as a proxy for the public interest in securing private property possession. Indeed, they fully recognized that without such security of possession, one could not have a reliable market for trade and exchange (Al-Ayni 2000, 7: 216–217). But security of possession was not merely a public matter that scaled outward in macroeconomic terms. At the micro-, individual level, theft meant that the victim suffers a direct and specific harm, which is not easily distributed to others. This harm, which is both real and sustained, could not go unaddressed by the law. According to the Shafi‘is and Hanbalis, to redress one sort of harm (e.g., the public harm via amputation) did not mean the other went away or could simply be ignored (e.g., the private harm of lost property). Both the private and public harms existed at the same time; resolving one did not render the other irrelevant or resolved. Consequently—and without reference to scriptural sources—Shafi‘i and Hanbali jurists argued that the victim in theft has a claim against the thief for compensatory liability, even though the thief may also be subject to the corporal Qurʾānic sanction. Malikis recognized that both claims coexist, but they also introduced a third claim, namely of the defendant. Malikis worried that to impose on a

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defendant both forms of liability (i.e., punitive and compensatory) might appear as a double punishment for the single underlying offence. Certainly, the victim of theft has a claim against the defendant. But the Malikis worried that if the defendant-thief loses his hand through amputation, and must financially compensate the victim of his theft, the defendant-thief may end up in a form of involuntary servitude, having to pay off a debt that he cannot reasonably afford. To impose this dual form of liability may transform an impoverished defendant-thief into a ward of the regime, posing an extra cost to the public weal. Given these countervailing concerns, Maliki jurists came up with a compromise position. Whether the defendant was liable to pay compensation—in addition to suffering the corporal sanction—depended on his financial capacity between the moment he stole and the judgment of guilt. If he was sufficiently wealthy to compensate the victim without suffering unduly, he had to compensate the victim. If he was too poor to compensate the victim, then no compensatory liability was imposed. How did jurists develop these rules? Their fiqh texts suggest that they simply reasoned to a range of values about property, possession, the public weal, and the interests of both victim and defendant. Without invoking the usul al-fiqh or theology discussed above, jurists nonetheless reasoned toward the good, the right, and the just using the huquq Allah and huquq al-‘ibad heuristic. Whether we agree with their assessments is beside the point. Rather, these doctrinal debates illustrate that reason operated in the absence of source-texts to determine specific legal outcomes. Indeed, these doctrinal debates implicitly posit the de facto use of reason to do so.

The Politics of Islamic Natural Law Theory The significance of reason resonates differently depending on the disciplinary field within which it is examined. If we view the question about reason and authority only through the lens of theology or philosophy, we miss something important about the disciplinary plurality embedded within Islamic law, and within Islamic intellectual history more broadly. Our challenge in the academy, whether in research universities or seminary contexts, is to scale our disciplinary approaches so as not to mistake a part for the whole. Nevertheless, the politics of naming, let alone proffering, a jurisprudence of ‘natural law’ in Islamic legal studies has been and will remain subject to varying political critiques and forms of

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instrumentalization, ranging from the contests over discipline, the polemics around Orientalism, and even the rhetoric of security and anti-terrorism. For instance, some argue that natural law embodies the inappropriate application of a phrase with origins in the Latin West, making it inapposite to the Islamic intellectual tradition. The thrust of this critique stems from the seminal work of Edward Said’s Orientalism, and the extensive subaltern tradition of post-colonial analysis that followed in Orientalism’s wake (Said 1979). For Said and his intellectual descendants, the study of the East generally, and Islam and Muslims specifically, is structured around Europe as both center and norm, rendering the ‘Islamic’ as a foil for re-­ instantiating the legacy of Europe (culturally, politically, and so on) as a measure against which to evaluate non-Europe, or in this case, the ‘Islamic’ (Chakrabarty 2000). On this understanding, any study of ‘Islamic natural law theories’ must necessarily center the Latin Christian study of natural law as standard and norm, against which the success or failure of the ‘Islamic’ is measured. This post-colonial critique is not without merit. However, it also runs the risk of so insisting on the uniqueness and particularity of the ‘Islamic’ as to take it outside a globally connected history. Paradoxically, it runs the risk of rendering the ‘Islamic’ no less exceptional than the Orientalist scholars once did (and still do). R. Charles Weller’s essay in this volume is an important reminder that the implicit binary in the above critique assumes far too much of the history between traditions cast in distinctively ‘Islamic’ and ‘Western’ garb. Admittedly, post-colonial critics of Islamic natural law theories are correct that Muslim jurists did not have a specific or express term to denote ‘natural law’. But the absence of such a term does not mean that the fundamental questions underlying a broad range of natural law theories (e.g., questions of reason and authority) were unknown to Muslim jurists or irrelevant to them. Nor does this lexical absence suggest they did not think or reflect on creation and its implications for how they might reason to norms and law to govern the infinite variations of human experience and conflict. As scholars have extensively shown, these questions were at the forefront of their inquiries in legal theory manuals (usul al-fiqh). Whether one could or should put these questions under the rubric of ‘natural law’ depends in part on the institutional stakes involved in producing different kinds of Islamic research. The more one is located within departments narrowly focused on Islamic law or religious studies (e.g., area studies programs, or religious studies programs), the more likely it is one will

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adopt an approach to Islam that emphasizes its uniqueness and particularity. The institutional force of those disciplines—the incentives to produce, the professional associations within which one rotates—will contribute to this narrowing of the inquiry (Bourdieu 1987, 1988). This does not mean the post-colonial critics can simply be ignored. Indeed, there is an important aspect to their concern. Around the world, the study of Islam stands alongside national security projects of combatting Muslim extremism. This politics of, on, and around Islam and Muslims is no less relevant for the study of Islamic natural law theory. Indeed, for some, if there were a natural law in Islam, it might offer a recipe for a more harmonious global order. For example, in 2009, the Catholic Church’s International Theological Commission (ITC) issued a report on natural law, implicitly suggesting that religious and value-based traditions the world over could locate functional equivalents in their own tradition (ITC 2009). The ITC cast the natural law tradition in Islam in terms of the theological debates between the voluntarist and ethical rationalists of Islam (i.e., the Ashʿarites and Muʿtazilites), suggesting that Muslims would do well to adopt a more rationalist, Muʿtazilite orientation. In the report, the Commission distinguished the voluntarist theology of the Ash’arites from the rationalist one of the Mu’tazilites, creating an intellectual dichotomy that reduced the ‘Islamic’ to terms that were familiar to the Commission (i.e., theological terms), but ones not particularly enlightening about the complex Islamic tradition. By representing Islamic natural law in Islamic theological terms, the Commission did not fully appreciate the disciplinary logics, not to mention the material implications, that distinguish between Islamic theology, jurisprudence, and law (Emon 2014b). Such material implications include, for instance, the apostasy-related trials of the Egyptian intellectual Nasr Hamid Abu Zayd (O’Sullivan 2004; Johansen 2003). Moreover, their endorsement of one side over the other is exactly what post-colonial critics identify as the centering, if not empowering, of Europe and the bearers of its legacy to define the ‘Islamic’ for Muslims themselves. In an entirely different vein, Sunni Muslims committed both to a voluntarist theological orthodoxy and to modernist legal reform may find the restrictive casting of the historical maqasid model unacceptable. Some modern liberal or progressive Islamists look to maqasid and maslaha as ways to reform Islamic law and allow for greater reasoned deliberation (Auda 2016). The irony, though, is that the maqasid-maslaha model was designed to limit the scope of reason’s authority in the law. This is not to

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suggest that modern reformers cannot draw upon the maqasid tradition. Rather, the inefficacy of maqasid-based reform efforts to date is due to the inability or unwillingness of reformers to reflect on the original design of maqasid as a narrowing, limiting device on reason’s scope and sway (Nassery et al. 2018).

Conclusion The debate on Islamic natural law in the academy and among Sunni theologians reflects a broader conundrum that lies at the heart of natural law’s very promise. The promise of natural law lies in the ethereal universal ideal of common ground, whereby such values presumably transcend human difference, despite differences in tradition and value systems. There is a paradox involved in  locating the universal in particular traditions. Universals tend by their very nature to be ahistorical, yet the traditions from which these universals are sought are nothing if not historical, rooted in time, space, and the practices of communities. In some sense, universals are not unlike the claim of something to be ‘common sense’, which itself has a history (Rosenfeld 2014). The seemingly interminable, hope-laden inquiry into natural law across traditions is meant to create a new cultural product—one that people of all traditions can contribute to and participate in. While this remains a highly laudable goal, it might be better understood in terms of an eternal, yet agonistic struggle, rather than a formal process of discovery. We can see this agonistic tendency in the history of human rights in the latter half of the twentieth century and into the twenty-first century. The Universal Declaration of Human Rights, and the various subsequent instruments thereafter, articulate in the aggregate a universal set of values for all of humanity. But as scholars have already illustrated, these instruments do not promise the same freedom for everybody. The European Court of Human Rights has shown repeatedly in its religious freedom cases (e.g., Sahin v Turkey, Dahlab v Switzerland, Lautsi v Italy) that it cannot help but articulate the scope of freedom by reference to the particular, historically situated demands of the European state (Bhuta 2012; Shany 2005; Spielmann 2014). If there is a universal at all, it is the agonistic character of debates about universals. Rather than trying to identify the content of a universal (which is little more than a claim of truth), the challenge is to create maximal space for claims about what the universal might be. But to do so will

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require, in addition, a humility that has thus far evaded conversations about value, since no one can meaningfully claim, in this imagined, expansive dialogical space, to have an exhaustive grasp of the truth.

Notes 1. Tolerance as used herein is not meant to reflect an aspirational goal, as it is deeply embedded in a politics of domination and regulation. See, Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton: Princeton University Press, 2008). 2. As it turns out, this attitude has become official US government policy given its recent refusal to continuing funding the University of North Carolina and Duke University Middle East Studies Program, on grounds that it does not sufficiently support the national security interests under Title VI. Erica L.  Green, “U.S.  Orders Duke and U.N.C. to Recast Tone in Mideast Studies,” The New  York Times, September 19, 2019, online at: https:// www.nytimes.com/2019/09/19/us/politics/anti-israel-bias-higher-education.html (accessed September 20, 2019). 3. See, for instance, Griffel’s academic website listing his training in Germany. https://religiousstudies.yale.edu/people/frank-griffel (accessed September 18, 2018). 4. Butterworth completed his PhD in political science at the University of Chicago in 1966, three years before Strauss left the University of Chicago’s Political Science Department. 5. This curious function of usul al-fiqh would arguably require Straussian advocates to recognize the limits of Strauss’ argument about exoteric and esoteric readings of mediaeval texts.

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Traditions. In Islamic Law and International Human Rights Law: Searching for Common Ground? ed. Anver M. Emon, Mark Ellis, and Benjamin Glahn, 123–143. Oxford: Oxford University Press. Bourdieu, Pierre. 1987. The Force of Law’: Toward a Sociology of the Juridical Field. Trans. Richard Terdiman. Hastings Law Journal 38: 814–853. ———. 1988. Homo Academicus. Trans. Peter Collier. Stanford: Stanford University Press. Butterworth, Charles. 2001. Translator’s Introduction to the Decisive Treatise. In Decisive Treatise & Epistle Dedicatory. Averroes. Trans. Charles E. Butterworth, pp. Xvii–xxxviii. Provo, UT: Brigham Young University. Chakrabarty, Dipesh. 2000. Provincializing Europe: Postcolonial Thought and Historical Difference. Princeton, NJ: Princeton University Press. Emon, Anver M. 2006. Ḥ uqūq Allāh and Ḥ uqūq al-ʿIbād: A Legal Heuristic for a Natural Rights Regime. Islamic Law and Society 13 (3): 325–391. ———. 2010. Islamic Natural Law Theories. Oxford: Oxford University Press. ———. 2014a. Islamic Natural Law Theories. In Natural Law: A Jewish, Christian and Islamic Trialogue, ed. Anver M.  Emon, Matthew Levering, and David Novak, 144–187. Oxford: Oxford University Press. ———. 2014b. On Islam and Islamic Natural Law: A Response to the International Theological Commission’s “Look at Natural Law”. In Searching for a Universal Ethic, ed. John Berkman and William C. Mattison, 125–135. Grand Rapids, MI: Eerdmans. ———. 2018. On Reading Fiqh. In The Oxford Handbook of Islamic Law, ed. Anver M. Emon and Rumee Ahmed, 45–75. Oxford: Oxford University Press. Griffel, Frank. 2007. The Harmony of Natural Law and Shari’a in Islamist Theology. In Sharia: Islamic Law in the Contemporary Context, ed. Abbas Amanat and Frank Griffel, 38–61. Stanford: Stanford University Press. Gutas, Dmitri. 2002. The Study of Arabic Philosophy in the Twentieth Century: An Essay on the Historiography of Arabic Philosophy. British Journal of Middle East Studies 29 (1): 5–25. Hohfeld, Wesley. 1913. Some Fundamental Legal Conceptions as Applied in Legal Reasoning. Yale Law Journal 23: 16–59. Hourani, George F. 1985. Divine Justice and Human Reason in Mu’tazilite Ethical Theology. In Ethics in Islam, ed. Richard G.  Hovannisian, 73–84. Malibu, CA: Undena Publications. International Theological Commission. 2009. In Search of a Universal Ethic: A New Look at the Natural Law. http://www.vatican.va/roman_curia/congregations/cfaith/cti_documents/rc_con_cfaith_doc_20090520_legge-naturale_en.html. Accessed March 20, 2018. Johansen, Baber. 2003. Apostasy as Objective and Depersonalized Fact: Two Recent Egyptian Court Judgments. Social Research 70 (3): 687–710.

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Makdisi, George. 1984. The Rise of Colleges: Institutions of Learning in Islam and the West. Edinburgh: Edinburgh University Press. ———. 1985. Ethics in Islamic Traditionalist Doctrine. In Ethics in Islam, ed. Richard G. Hovannisian, 47–63. Malibu, CA: Undena Publications. Marchand, Suzanne L. 2009. German Orientalism in the Age of Empire: Religion, Race and Scholarship. Cambridge: Cambridge University Press. Nagel, Tilman. 2010. The History of Islamic Theology: From Muhammad to the Present. Princeton: Markus Weiner Publishers. Nassery, Idris, Rumee Ahmed, and Muna Tatari, eds. 2018. The Objectives of Islamic Law: The Promises and Challenges of Maqasid al-Sharia. London: Lexington Books. O’Sullivan, Declan. 2004. Hisba Law and Freedom of Expression in Islam: Two Case Studies of Prosecution in Contemporary Egypt. Journal of Mediterranean Studies 14 (1): 213–235. Rosenfeld, Sophia. 2014. Common Sense: A Political History. Cambridge, MA: Harvard University Press. Said, Edward. 1979. Orientalism. New York: Vintage. Shany, Y. 2005. Toward a General Margin of Appreciation Doctrine in International Law? European Journal of International Law 16 (5): 907–940. Spielmann, Dean. 2014. Whither the Margin of Appreciation? Current Legal Problems 67 (1): 49–65. Strauss, Leo. 1965. Natural Right and History. Rev. ed. Chicago: University of Chicago Press. Watt, W. Montgomery. 1998. The Formative Period of Islamic Thought. Rev. ed. Oxford: Oneworld Publications.

Index1

A Abbasid Caliphate, 16, 57, 67, 71 Al-Ṭ abarı̄’s relationship with, 66, 73 ‘Abd al-Jabbar, al-Qadi, 144 Abdallah the Saracen, 36 Abdelkader, Deina, 76n20 Abraham negotiating with God, 49, 52, 53 Abū Bakr b. Kāmil (Ibn Kāmil, Abū Bakr), 57 Abu-Husayn al-Basri, Abu, 144, 145 Abu Zayd, Nasr Hamid, 152 Acton Institute, 8 Adelard of Bath, 34 ‘Adl (God’s justice), 139, 145, 146 See also Jurisprudence and justice Afghanistan, 14–16 Ahl al-kitāb, 55 See also Kitāb Ā l ʿImrān, Exegesis of Al-Ṭ abarı̄,19, 52, 62–66, 72–73, 76n14

al-ʾAnʿām (Q. 6:149–152), 55 al-ʾAʿrāf (Q. 7:172), 54, 56, 67, 68, 75n6 Al Baqara Q. 2:125–126, 53–54 Q. 2:176–177, 54 al-Fatḥ, 55, 58 Al-Iqtiṣād fi al-i’tiqād (Al-Ghazzālı̄ ), 84, 87, 98 Al-Manṣūr (caliph), 64 Al-Mustaṣfā min ‘Ilm al-Usūl (Al-Ghazzālı̄ ), 84, 85, 91, 94, 98 Al-Nisāʾ, Exegesis of Al-Ṭ abarı̄, 59–63, 66, 72, 74 on al-Nisāʾ, 52 Alphonse IX (Spanish king), 35 Al-Qaeda, 15 al-Shāfiʿı̄, 57 and Shafi’i jurists, 149 Altamira, Rafael, 29

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 R. C. Weller, A. M. Emon (eds.), Reason, Revelation and Law in Islamic and Western Theory and History, Islam and Global Studies, https://doi.org/10.1007/978-981-15-6245-7

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INDEX

Aluji, Ishak ben Adb el-, 132n4 ̄ ʾAmana, interpretation of, 74n3 Ambrosiaster, 5 Amma (simple masses), 129 Andalusian Islamic law, 35 Anglo-American jurisprudence (English Common Law), 33–34, 38n1 Anglo-Mohammedan law, 30 Anti-Americanism/anti-Westernism, 2 Antiterrorism, 151 Aouad, Maroun, 113, 118–119n20, 119–120n25 ʿAqaba, First and Second), 75n4, 75n6 ‘aql, see Intellect (‘aql) Aquinas, Thomas, see Thomas Aquinas, Saint “Argument from authority”, 113, 119–120n25 Aristotle and Aristotelianism, 112, 115, 116, 118n7, 118n9, 119n20, 123 Aristotelian Christianity, 18, 46 Aristotelian empiricism, 128 Aristotelian rationalism, 17–18 concept of the First Reason or First Cause, 127, 130 endoxic method of Aristotle, 12, 103–111, 113, 117n3, 118n7, 118n9,14 and Ibn Rushd, 12, 13, 101–117, 127–128, 130 medieval thinkers on, 17–18, 102, 103 and natural law theory via St. Thomas Aquinas, 5, 46, 47 works of Aristotle, v, 102–112, 117n3, 118n9, 124, 132n5 Aristotle’s Children: How Christians, Muslims, and Jews Rediscovered Ancient Wisdom and Illuminated the Dark Ages (Rubenstein), 17

Al-Ash’ari and Ash’arites, 14, 16, 51, 130, 139, 145 Ancient Greece, impact on philosophical rationalism, 3 Assize of novel disseisin, 34 Assizes (or Constitutions) of King Roger II, 32, 33 Audi, Robert, 120n33 Augustine, Saint, 5 Authority, 13 arguments from authority, 113, 119–120n25 and Aristotle, 109, 113 divine authority, 17, 31, 52, 72 and Al-Fārābı̄, 125 al-Ghazālı̄ on, 97, 141, 147 Ibn Khaldun on, 131–132n3 Ibn Rushd on, 112, 114, 115, 124 moral authority, 48, 49, 51, 83, 97 and natural law theory of law, 46, 48, 49, 51, 52, 83 rational authority vs. charismatic authority, 76n20 and reason, 112, 124, 140–141, 143, 147, 150–153 religious authority, 28, 46, 113, 115, 124 and social contracts, 48, 52, 63, 72 Avempace, 36, 124 See also Ibn Bājja Averroes, 36, 103, 124 See also Ibn Rushd Avicenna, 36, 124 See also Ibn Sina B Bacon, Roger, 117n2 “Bad” al-Ghazālı̄ on the “good” (ḥusn) and the “bad” (qubh), 84, 85, 87, 90–93

 INDEX 

and Hard Natural Law, 145 the Qur’an on, 64, 70 usul al-fiqh debates on good and bad, 137 Bādı̄ al-rāʾı̄, 12, 111–116, 118–119n20, 119–120n25, 120n33 Banu Musa, 128 Barnes, Jonathan, 107, 110 Bayān (clarifying distinction), 57, 58 The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (Salaymeh), 29 Beliefs common beliefs, role of, 12, 101–117 experience vs. beliefs, 107 freedom of, 4 orthodox beliefs, 140–141 subjective belief, 117n3 of the wise, 106–107, 116 Benedict XVI (pope), 9 Benefactor, thanking the, 85–87, 94, 95, 114–115 Biblical Covenant, 10, 46, 49–50, 52, 55, 72 Bidyat al-Mujtahid wa Nihayat al-Muqtasid (Ibn Rushd), 142 Bin Laden, Osama, 14 Bin Sattam, Abdul Aziz, 64, 65 Blackstone, William, 33 Bulutai, Murtaza, 7 Butterworth, Charles, 112, 118–119n20, 141–142, 154n4 C Cairo Declaration on Human Rights in Islam, 7 Casas, Bartolomé de las, 35 Cassin, René, 9 Central Asia Islamic Golden Age in, 15, 16 and Soviet Union, 14–17

159

Charismatic authority, 76n20 Christianity, 17, 34, 117n2 Aristotelian Christianity, 18 Christians as People of the Book, 27 and common law, 33, 38n1 and covenant or social contract, 49, 56, 72 defining Western Christian traditions, 19n1 and divine revelation, 18 Eastern/Orthodox/Byzantine Christianity, 5, 19n1, 34 influence on Islamic law, 26–31 Islams influence on, 32–37 Judeo-Christian syntheses, 3, 5, 6, 31 medieval Christianity, 5, 8 and “natural law,” 5, 138, 139, 151 role in human rights, 5–8 (see also Universal Declaration of Human Rights (UN)) sources of Western Christian traditions and philosophies, 3, 5, 10, 17, 26, 35, 117n2 Citizenship Aristotle on, 108–111 denial of in Switzerland, 4–5, 10, 45 “The Civil Policy” (al-Fārābı̄), 132n6 Claims of God and claims of individuals, see Huquq Allah (claims of God) and huquq al-’ibad (claims of individuals) Commentaries on the Laws of England (Blackstone), 33 “The Commentator,” see Ibn Rushd Common beliefs (opinions), 12–13, 101–120 Aristotle looking at, 12–13, 103–111, 116–117 Ibn Rushd looking at, 12–13, 111–117

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Common good, 48, 65–66, 111 Emon’s approach to, 52, 66 Maṣlaḥa as common good or public welfare, 11, 51, 63–64, 72–73, 147 (see also Maṣlaḥa) Qur’an on, 52, 61, 72–73 and the social contract, 66, 71, 72 Common law, 33–34, 38n1 Communal (public) knowledge, 12–13, 113, 117n3 Compacts Covenant model for, 49–50, 55, 75n6 entered into by the Prophet, 75n4–5 Natural Compact (Naturvertrag), 75n7 See also Contracts; Covenants Compensatory liability, 148–150 Confucius and Confucianism, 6, 111 Congress of the Leaders of World and Traditional Religions, 9–10 Constitutions of Medina, 27, 75n5, 75n9 Consuls of the Sea (Spanish law), 35 Contracts, 10, 71, 73, 75n3, 75n13, 144 caravan contracts, 32 contract law, 34 contractual ethics, 75n8 contractual terms or obligations, 55 God’s contract partner, 49–50, 52–54, 58 reciprocal contracts, 70 between ruler and the ruled, 52 written contracts (kitāb), 69, 75n9 See also Compacts; Covenants; Social contract theory Copleston, Frederick, 95–97 “Covenant of Umar”, 26–27, 29 Covenants in America (Puritan Covenant), 49–50, 72 Biblical Covenant, 10, 46, 49–50, 52, 55, 72

components of Covenant-based constitutions, 49 Covenant model, 49, 52, 72, 73 (see also Compacts) Creation Covenant, 11, 52, 54, 56, 75n7 divine Covenant, 50, 55, 72 ḥaqq as Qur’anic term for, 54 Jewish concept of, 10 and mı̄thāq, 11, 58 Qur’anic Covenant, 10, 11, 45–73, 75n6 on relationship between God and humans as a social contract, 52–56 between the ruler and the ruled, 52, 69 signifying enhanced rights, 50, 73 al-Ṭ abarı̄ on, 58, 67, 68, 71–73 See also Contracts Creation, 57, 75n7, 151 Creation Covenant, 11, 52, 54, 56, 75n7 divine creation (God’s creation), 46, 51, 58, 67, 73, 75n7, 127, 145, 146 (see also “First Cause,” “First Reason” or “First Esence”) al-Fārābı̄ on, 126–127, 132n3 laws and theories of, 126–128 Al-Ṭ abarı̄’ on, 11, 52, 59, 62, 66–72 Crone, Patricia, 50–51, 72 Cross-cultural contacts, v, 3–5, 18, 45–46 cross-religious traditions and UDHR, 6–7, 10 historical relation of Islamic and Western law, 2–3, 10, 25–38 impact of Swiss denial of citizenship to Syrian Muslim family, 4–5, 10, 45 sharing of vocabulary and terms, 32 Crusades, 35 Cultural rights, 10, 45–46

 INDEX 

D Dahlab v Switzerland, 153 Dante Aligheri, 36 A Decisive Discourse on the Delineation of the Relation Between Religion and Philosophy (Ibn Rushd), 130 “Declaration of Human Rights” (United Nations), see Universal Declaration of Human Rights (UN) Democracy, 13, 15, 18, 36, 50 democratic ideals, 10 elistist democracy and epistemic equality, 10, 12, 101–117 and equality, 13, 102, 103, 117n1 and human rights, 7, 9, 10, 48 Plato on, 102 and separation of powers, 48 Dhū Qār, Battle of, 71 Divine creation (God’s creation), 46, 51, 58, 67, 73, 75n7, 127, 145, 146 See also “First Cause,” “First Reason” or “First Esence” Divine law, v, 5, 7, 9, 32 comparative study of Al-Fārābı̄ and Ibn Rushd, 13, 123–131 and ḥukm, 85, 87, 95 Prophet as giver of, 50 role the divine plays in moral law, 46 Divine Providence, 85 Divine revelation, 9, 28, 44, 46, 128 al-Fārābı̄ on, 124–126 al-Ghazālı̄ on, 96 and human reason, 5, 10, 14, 18, 124–125, 129, 131 Ibn Rushd on, 13–14, 124–125, 129, 131 and Islamic law, 27, 31 in Judaism, 18 and moral norms, 11 and the Qur’an, 27, 50, 58, 75n12

161

Soviet Union rejection of, 17–18 in theories of natural law, 5, 10, 46, 50, 123–132 Divine will, 84, 93, 143 E Elazar, Daniel, 49–52, 55, 72 Elitism elitist democracy and epistemic equality, 12, 101–117 epistemic elitism, 102, 103 al-Ghazālı̄ on moral and spiritual elitism, 98 Hassa (enlightened elite), 129 Emon, Anver M., 51–52, 55, 65, 72, 73, 74n1 “Epilogue” of, 15, 17, 135–154 on soft natural law, 51, 66, 83–84 Encyclopedia Britannica, 48 Endoxic method of Aristotle, 12, 103–111, 117n3, 118n7, 118n9,14 English Common Law, 33–34, 38n1 Enthymeme, 113, 119n24 Epistemic equality and elitist democracy, 10, 101–117 Epistemology and Aristotle, 104 moral epistemology, 83 and ontology, 126 Equality, 13, 48 elistist democracy and epistemic equality, 10, 101–117 and gender, 4 Esim, Garifolla, 131 Ethical rationalists, 152 Ethics, 111, 115, 135, 136, 142 Aristotle on, 12, 107 contractual ethics, 75n13 al-Ghazālı̄ on, 11, 12, 83–99 teleological ethics, 98–99 See also Morality

162 

INDEX

Euripides, 5 European Court of Human Rights, 153 European law, see Western law Exegesis of Al-Ṭ abarı̄, 76n14 on Ā l ʿImrān, 52, 62–66, 72–73, 76n14, 76n19 on al-Nisāʾ, 52, 59–63, 66, 72, 74 on Q. 2:177, 76n18 Experience vs. beliefs, 107 F Al-Fārābı̄, 13, 14, 36, 102, 117n2, 131 on bādı̄ al-rāʾı̄, 119–120n25 comparative study of Al-Fārābı̄ and Ibn Rushd, 13–14, 16, 112, 123–131 and concept of the human being, 128 on creation, 126 on divine revelation, 124–125 faith of, 132n4 on “First Cause, 125–127, 132n4 influence of, 131n2 on interrelation between religion and philosophy, 129–131 on levels of perfection, 132n6 and the material world, 125–127, 132n6 on metaphysics, 126 works of, 102, 124, 125, 132n3, 132n6 Fāshdādh (Persian king), 68 Fasl al-maqal (Ibn Rushd), 142 Federation of Islamic Organizations, 4 Finnis, John, 5, 46–49, 51, 120n33 Fiqh, 63, 86–88, 124, 131n33, 143, 144, 146, 148, 150 See also Usul al-fiqh

“First Cause,” “First Reason,” or “First Essence,” 125–127, 130, 132n3 See also Creation Florence, Republic of, 35 Frederick II (German king), 33 Freedom, 7, 8 of belief, 4 religious freedom, 153 of speech, 36 suppression of in Soviet Union, 14 in the Universal Declaration of Human Rights, 47–48, 74, 153 French Catholic traditions, 19n1 French legal history, 29 G Gateway (publisher), 8 Geertz, Clifford, 29 Gelasian Doctrine, 138, 144 George, Robert P., 120n33 Al-Ghazālı̄, Abu Hamid, 14, 127, 130–131 on ethics, 11–12, 83–99 on God’s will, 89 on the “good” (ḥusn) and the “bad” (qubh), 84, 85, 87, 90–93 on intellect (‘aql), 11, 51, 65, 85–87, 94–97 on maṣlaḥa, 51, 65, 147 on Mu’tazila, 84–87, 95, 96 on natural law theory, 11–12, 34, 51, 83–99 on natural philosophy, 141 on the obligatory, 86–88, 95 on one’s purpose, 90, 92–93 on reason, 16, 93–99 and Soft Natural Law, 51, 84, 145–147 works of, 11, 15, 84, 85, 87, 91, 93, 94, 98, 130

 INDEX 

Global Conference on the World’s Religions, 9 “Good,” 84 Aristotle on, 104, 118n7 al-Ghazālı̄ on the “good” (ḥusn) and the “bad” (qubh), 84, 85, 87, 90–93 and Hard Natural Law, 145 Ibn Rushd on, 114–115, 120n29 and just, 139, 150 usul al-fiqh debates on good and bad, 137 See also Common good Greek Orthodox, 5, 9, 19n1 Green, Steven, 50, 73 Gregg, Samuel, 8, 9 Griffel, Frank, 138, 139 Grisez, Germain, 120n33 H Ḥ adith, 57–58, 62, 64, 123, 148 as divine revelation, 27 Ḥ anafı̄ (Islamic school of jurisprudence), 30, 73, 74n1, 144, 148, 149 Hanbali jurists, 149 Haqq, concept of, 11, 62 haqq Allah (claim of God), 149 (see also Huquq Allah (claims of God) and huquq al-’ibad (claims of individuals)) as a Qur’anic concept, 52, 54, 72 Al-Ṭ abarı̄ on, 59, 61 See also Covenants Haque, Ziaul, 73 Hard Naturalism, 51, 66 Hard Natural Law theory, 84, 144–147 Al-Ḥ asan, 128 Hassa (enlightened elite), 129 Hayy Ibn Yaqzan (Ibn Tufayl), 37

163

Heart (qalb), 96 Henry II (English king), 34 Ḥ ikma (just justice), 63 Himma, Kenneth Einar, 46, 49–51 Hishām b. Muḥammad b. al-Kalbı̄, 71 History, Al-Ṭ abarı̄’s, 66–72, 77n24 History of Philosophy (Copleston), 95 Hourani, George, 84, 85, 89, 98, 139 Ḥ ukm, 85, 87, 95 See also Divine law Human nature, 46 and moral norms, 11, 85, 90 and reason, 11, 85, 93–99 Human reason, see Reason Human rights, 7–11 Cairo Declaration on Human Rights, 7 Independent Permanent Human Rights Commission, 7 international human rights, 30, 35 Multicultural rights, 45–46 and religious freedom cases, 153 and rule of law, 47–48 of the ruler and the ruled, 52, 69 Al-Ṭ abarı̄ on, 59, 62 UN High Commissioner for Human Rights, 8 See also Huquq Allah (claims of God) and huquq al-’ibad (claims of individuals); Universal Declaration of Human Rights (UN) Huquq Allah (claims of God) and huquq al-’ibad (claims of individuals), 51, 143, 148–150 Ḥ usn, see “Good” I Ibn ʿAbbās, 67, 68 Ibn al-Muqaffaʿ, 64–65, 68, 71, 124 Ibn Asakir of Damascus, 27

164 

INDEX

Ibn Bājja, 112, 124, 128, 131n2 Ibn Jubayr, Abu ‘l-Husayn Muhammad ibn Ahmad al-Kinini, 32, 33 Ibn Kamil, Abū Bakr (Abū Bakr b. Kāmil), 57 Ibn Khaldun, 17, 27, 28, 124, 131n2 Ibn Manẓūr, 74n3, 75n13 Ibn Rushd, 117n2, 142 and Aristotle, 12, 13, 101–117, 127–128, 130 on bādı̄ al-rāʾı̄, 12, 111–116 comparative study of Al-Fārābı̄ and Ibn Rushd, 13–14, 16, 112, 123–131 and concept of the human being, 128 on divine revelation, 13–14, 124–125, 129, 131 on harmony of law and philosophy, 142 on interrelation of religion and philosophy, 129 on knowledge, 112–114, 116, 119n24, 124, 128, 129 on mawāḍiʿ, 119n24 on natural philosophy, 141 relationship with Averroes, 103, 124 on theories of creation, 128 use of the philosophical bases of al-Fārābı̄, 125 works of, 112–114, 118–119n20, 119n24, 120n26, 120n29, 130, 142 Ibn Sina, 14, 36, 112, 124, 128, 130, 131n2, 141 Ibn Tufayl, Muh‘ammad ibn ‘Abd al-Malik, 37, 124, 128 Ibrāhı̄m (Q. 14:35–37), 53 Ihyā Ulūm al-Din (Al-Ghazzālı̄), 93 Immediate point of view, see Bādı̄ al-rāʾı̄

Independent Permanent Human Rights Commission (IPHRC), 7 Inequality, 103, 115 Intellect (‘aql), 85, 129 active intellect (aqlfa ‘al), 125 al-Fārābı̄ on, 125, 127 al-Ghazālı̄ on, 11, 51, 65, 85–87, 94–97 Saint Thomas Aquinas on, 96–97 Internality in Aristotle’s endoxic method, 110, 118n15 International Theological Commission (ITC, Catholic Church), 152 Internet Encyclopaedia of Philosophy, 46 Intuitionism, 120n33 Investiture Controversy, 138 IPHRC, see Independent Permanent Human Rights Commission Islamic State of Iraq and Syria (ISIS), 15 “Islam and Global Studies” series, 19 Islamic Caliphates, 15, 35, 71 Islamic Golden Age, 9, 15, 16 Islamic law, 15, 17, 138, 144 as a code of conduct for Muslim citizens, 131n1 divinely revealed code of law (see Shari’a (sharia/sharia) law) influence of on Western law, 32–37 reform for, 152 sources and beginnings of, 27–29 Sunni legal theory, 65 and theology/religious studies, 131n1, 148, 151 Western and Non-Islamic relation to, 2–3, 10, 25–31, 151 See also Cross-cultural contacts; Fiqh; Islamic natural law theories; Juries and jurists; Jurisprudence and justice; Law, theory of; Objectives of the law (masqāsị d); Usul al-fiqh

 INDEX 

Islamic natural law theories, 10, 17 Emon’s studies of theoretical architecture of, 17, 51, 74n1, 83–84, 135–154 al-Ghazālı̄ on, 11–12, 34, 51, 83–99 mı̄thāq (Qur’anic Covenantal natural law and social contract theory), 11, 58 natural and divine law in Al-Fārābı̄ and Ibn Rushd, 13–14, 123–132 and politics, 141, 150–153 and social contracts, 10, 50–51 Sunni Islam on, 139–141 Al-Ṭ abarı̄ on, 11, 45–74 use of by juries and jurists, 51, 135–154 as a Western concept, 46–48 See also Islamic law; Law, theory of; “Natural law” theory; Objectives of the law (masqāsị d; Universal Declaration of Human Rights (UN); Usul al-fiqh Islamic Natural Law Theories (Emon), 137 Islamic natural philosophy, 141 Islamic philosophy, v, vi, 13, 98, 124, 141, 142 Islamic revivalism, 14 Islamic Ummah, 7, 8, 77n24 Islam Observed: Religious Development in Morocco and Indonesia (Geertz), 27 Istihqaq and assize of novel disseisin, 34 ITC, see International Theological Commission (Catholic Church) Ittaqā, 59, 75n13

165

J “Jadid” movement in Central Asia, 17 Ja‘far, 128 Jāmiʿ al-bayān ʿan taʾwı̄l ʾāy al-Qurʾān (Al-Ṭ abarı̄), 57, 58, 63, 76n15, 76n18, 77n26 Al-Jaṣsạ ̄s, 74n1, 144 Jayūmart (Persian king), 68 Jefferson, Thomas, 33 Johansen, Baber, 73 John Chrysostom, Saint, 5 Judaism and the Jews, 8, 18, 19n1, 56, 72, 96, 139 Jews as People of the Book, 27 Juries and jurists approach to legal outcomes, 143, 149, 150 guided by concept welfare of the people or common good, 52, 62, 64, 72–73 (see also Maṣlaḥa) guided by Qur’an, 57 jurist debates in the usul al-fiqh genre, 137–138, 140 (see also Usul al-fiqh) Lafif and English jury, 34 and law based on a mode of rationality, 138 al-madhhab al-jarır̄ ı, Al-Ṭ abarı̄ as, 57–58 and moral standards, 51 Muslim jurists not having term to denote “natural law,” 151 and rulers, 63, 73 Shafi’i, Hanbali, and Maliki jurists, 149 Al-Ṭ abarı̄ on, 63–64, 66 use of natural law theories, 51, 135–154

166 

INDEX

Jurisprudence and justice, 135–154 Anglo-American jurisprudence, 38n1 ḥikma (just justice), 63 and Islamic natural law, 135–154 justice (’adl), 139, 145, 146 (see also ‘Adl (God’s justice)) and natural law theories, 51 Al-Ṭ abarı̄ on, 63–64 See also English Common Law; Fiqh; Maqāsị d; Maṣlaḥa K Kalām (kalam), 88, 127, 138, 144 Kāvād I (Sassanid Shāh), 70 Kazakhstan, 10, 15 Khalaqa, interpretation of, 75n13 Khayyam, Omar, 16 Khilaf (legal disputes), 143 Khusrāw Anūshirwān (Sassanid Shāh), 70, 71 Khusrāw Parvı̄z (Sassanid Shāh), 71 Kimiya’e Saadat (Al-Ghazzālı̄), 84, 93, 98 Al-Kindi, 123, 130 Kitāb, 56, 58, 67, 69, 70, 75n9 Ahl al-kitāb, 55 Knowledge, 103, 145 Aristotle on, 12, 103–106, 116, 117n3 based on revelation, 124–125 and faith, 8 al-Fārābı̄ on, 124, 126, 127 al-Ghazālı̄ on, 96, 97 Ibn Rushd on, 13, 112–114, 116, 119n24, 124, 128, 129 moral knowledge, 97, 116, 117n3 vs. opinion, 117n3 perceptual knowledge, 104 public (communal) knowledge, 12–14, 113 religious knowledge, 112

Saint Thomas Aquinas on, 97 Al-Ṭ abarı̄ on, 63 Kurmanaliyeva, Ainur D., v–vi, 5, 13–16, 123–132, 142 L Lafif and English jury, 34 Land tax, 65–67, 69–71, 73 Lautsi v Italy, 153 Law, theory of, 83 English Common Law, 33, 34, 38n1 in a global historical perspective, 1–19 human need for law, 131n2 legal philosophy, 35, 142–143 legal theology, 144, 148, 150 legal theory or methodology (see Usul al-fiqh) moral standard for, 74n1 natural law theory of morality (see Morality) objectives of the law (see Maqāsị d) purposes of law, 144, 147 religious law, v, vi, 14, 97, 126, 128 (see also Shari’a (sharia/ sharia) law) secular law, vi unwritten laws, 12–13, 111–116, 120n26, 120n29–31 Usul al-fiqh as bridge between theology and law, 140, 142–143, 146, 150 See also Divine law; Islamic law; Islamic natural law theories; Juries and jurists; Jurisprudence; “Natural law” theory; Rule of law; Western law Laws (Plato), 124 Legal philosophy, 35, 142–143 vs. natural philosophy, 141 Legal theology, 144, 148, 150

 INDEX 

Lerner, Ralph, 141 Levering, Matthew, 5 Lisān al-ʿarab (Manẓūr), 74n3, 75n8, 75n12, 75n13 Locke, John, 50 Louis IX (French king), 32 Lowry, Joseph E., 76n19 M Al-Maʻarrı̄, Abū al-ʻAlāʼ, 36, 128 Madhhab [law school], 11, 13, 58 Magna Carta, 50 Mahdi, Muhsin, 141 Maimonides, Moses, 6 Makdisi, George, 140, 143 Malik, Charles, 5, 9, 19n1 Maliki jurists, 150 Mamluk (Ottoman domain), 35 al-Manṣūr (caliph), 64 Manūshihr (Persian king), 69 Maqāsị d (objectives of the law), 11, 152–153 defined objectives of, 51, 65 in Islamic jurisprudence, 84 Maqasid al-shari‘a:, 146–147 Maqāsị d and Maṣlaḥa, 51, 65, 76n20, 84, 147 Marchand, Suzanne, 138 Maronite traditions, 19n1 Mårtensson, Ulrika, 5, 10, 11, 45–77, 143 Ma‘ruf, Naji, 132n4 Mashanov, A., 126 Maṣlaḥa as common good or public welfare, 11, 51, 54, 62–64, 72–73, 147 al-Ghazālı̄ on, 51, 65, 83, 84, 147 Maqāsị d and Maṣlaḥa, 51, 65, 76n20, 84, 147 Al-Ṭ abarı̄ on, 62–65 “Masters of Covenant” (baʿalei berith), 49

167

Mawāḍiʿ, 119n24 McGill University, 9 McLeod, Owen, 106, 107, 110, 111 MCR, see Middle Commentary on Aristotle’s Rhetoric (Talkhis Kitāb al-Khaṭāba li Arist ̣ū) (Ibn Rushd) Medieval studies, 10, 50, 154n5 legal theorists, 76n20 medieval Christianity, 5, 8 medieval Islamic philosophy, v–vi, 13, 112, 114, 124, 125 medieval Jews, 73 medieval philosophers, 34 medieval thinkers on Aristotle, 17–18, 102, 103 Medina, 27, 53–59, 71, 855, 75n4–6 Metaphysics al-Fārābı̄ on, 125, 126 al-Ghazālı̄ on metaphysics of nature, 12, 15, 89, 98, 99 and theology, 126 Middle Commentary on Aristotle’s Rhetoric (Talkhis Kitāb al-Khaṭāba li Arisṭū) (Ibn Rushd), 112–115, 119n20, 119n23, 119n24, 120n26, 120n29 Mirandola, Pico della, 31, 36, 37, 56 Miṣāḥa and land tax, 67, 70 Mı̄thāq (Qur’anic Covenantal natural law and social contract theory), 11, 58 See also Qur’anic Covenant Moad, Edward, 5, 11–12, 34, 83–99, 139 Mongol devastation (conquest), 17, 27 Montgomery, John Warwick, 33, 38n1 Morality, 13, 28 Aristotle on, 12, 103, 104, 106, 110, 111, 115, 116, 117n3 and Covenants and constitutions, 49, 72

168 

INDEX

Morality (cont.) essential elements of, 85 al-Ghazālı̄ on, 11, 90–94, 96–98 and moral epistemology, 11, 83 moral knowledge, 97, 116, 117n3 moral norms and standards, 11, 46, 47, 51, 52, 60, 66, 72, 74n1, 85, 86, 88 moral reasoning, 120n33 moral relativism, 141 natural law theory of morality, 11–12, 46–48, 83–85 objective moral norms, 11, 85, 86, 88, 93, 94 Saint Thomas Aquinas on, 11–12, 46, 47, 95 Al-Ṭ abarı̄ on, 52, 60, 66, 72 UDHR preamble as example of moral standards, 47, 74 See also Ethics Muhammad, Prophet, 27–29, 67, 71, 75n4–6, 123 Prophet’s Companions and Successors, 58, 64, 67 Prophet’s sunna, 27, 50, 57, 58 and the Qur’an, 27, 50, 51, 55–56 Mujāhid ibn Jabr, 61, 63 Muqāsama and land tax, 67 Mutakallim, 127, 128 Mu’tazila, 51, 74n1, 140, 152 al-Ghazālı̄ on, 84–88, 95, 96 and Hard Natural Law, 51, 144–145 N NAM, see Non-Alignment Movement National security interests attitudes, 137, 154n2 Natural Compact, 75n7 Natural Law Institute at University of Notre Dame, 5 “Natural law” theory

applying to Qur’an and Qur’anic concepts, 52–57, 67, 72 authority and natural law theory of law, 46, 48, 49, 51, 52, 83 comparative study of Al-Fārābı̄ and Ibn Rushd, 13–14, 123–132 definition of, 46, 49, 50 and free use of reason, 46 al-Ghazālı̄ on, 11, 12, 34, 83–99 God as source of “highest law,” 50 hard natural law, 84, 144–146 history of, 5, 11, 34, 47 Latin Christian study of, 151 and natural law philosophy, 138, 141 natural law theory of morality, 11–12, 46–48, 83–85 new natural law theory, 120n33 reason and divine revelation in theories of natural law, 5, 10, 46, 50, 123–132 soft natural law, 83, 84, 144–146 Al-Ṭ abarı̄ on, 52, 66 UDHR preamble as example of, 10, 47, 48, 74 Western concepts of, 7, 8, 46–48 See also Islamic natural law theories Natural philosophy vs. legal philosophy, 141 Natural Right and History (Strauss), 141, 142 Neoplatonism, 124 Nicomachean Ethics (Aristotle), 102–106, 108–111, 118n9, 124 Non-Alignment Movement (NAM), 8 Nussbaum, Martha, 105–107, 110, 118n6, 118n15 O Objectives of the law (Maqāsị d ), 11, 152–153 defined objectives of, 51, 65

 INDEX 

in Islamic jurisprudence, 84 Maqasid al-shari‘a:, 146–147 Maqāsị d and Maṣlaḥa, 51, 65, 76n20, 84, 147 Objectivism, 85 Objectivity and human purpose, 93 objective moral norms, 11, 85, 86, 88, 93, 94 of obligation, 86–89 of value, 90–93 Obligation al-Ghazālı̄ on the obligatory, 86–88, 95 objectivity of, 86–89 Occidentalism/orientalism, 2 Office of the UN High Commissioner for Human Rights (OHCHR), 7 OIC, see Organization of Islamic Cooperation (or Conference) Opwis, Felicitas, 64, 65, 74n1 Oration on the Dignity of Man (Mirandola), 37 Organization of Islamic Cooperation (or Conference), 7, 8 Organon (Aristotle), 107, 108 Orientalism (Said), 2, 151 Orientalism/occidentalism, 2 Origen, 5 “The Origins of Sharia” (Vikor), 28 Owen, G. E. L., 118n6 P Palgrave Macmillan (publisher), 19 Parliament of the World’s Religions (PWR), 9, 10 Partidas (laws codified by Alphonse IX), 35 Paul, Apostle (Paul of Tarsus), 5, 38n1 Pelagius, 5 Perceptual knowledge, 104

169

Perfection, 94, 124, 125, 132n6 Peripateticism, 123, 124 See also Aristotle and Aristotelianism; Fārābı̄, Al-; Kindi, AlPhilology, 141–142, 147 “Philosopher’s stone,” 97 Philosophy, 132n2 legal philosophy, 35, 141–143 medieval Islamic philosophy, 124, 125 natural law philosophy, 138, 141 and philology, 141–142, 147 philosophical rationalism, 3 political philosophy, 102, 103, 109, 110, 141 and religion, v, 125, 129–131, 131n1 social philosophy, 124 See also Islamic philosophy Plato, 5, 47, 49, 102, 104, 118n5, 124 The Political Regime (al-Sı̄yāsat al-Madaniyya) (al-Fārābı̄), 102 Politics, 63, 71 endoxic method in Aristotle’s Politics, 108–113 Ibn Rushd’s political intentions, 142 and Islamic natural law theories, 141, 150–153 political philosophy, 102, 103, 109, 110, 141 vs. religion, 13, 116 Politics (Aristotle), v, 102, 104, 108, 109, 113 Populism, 13, 111, 116 acephalous populism, 103 Positivism/Soft Naturalism, 51, 66 Posterior Analytics (Aristotle), 117n3 Potz, Richard, 29 Preamble to the UDHR, see Universal Declaration of Human Rights (UN)

170 

INDEX

Principles of the Opinions of the Citizens of the Virtuous City (al-Fārābı̄), 124 Proceedings (Natural Law Institute), 6 Protagoras (Plato), 104 Puritans and Biblical Covenant, 49, 50, 72 Purpose, one’s, 90, 92, 93 PWR, see Parliament of the World’s Religions Q Al-Qāsim, 128 Qubh, see “Bad” Qur’an on “bad,” 70 as basis for formation of a state system, 7 on common good, 51, 63, 64, 66 on compensatory liability, 148–150 concepts of Creation and ḥaqq, 52, 72 Covenants in the Qur’an (see Qur’anic Covenant) as divine revelation and divine guidance, 27, 50, 58, 75n12 exegesis as legal traditions of Al-Ṭ abarı̄, 52, 59–66, 72–73, 76n14, 76n19 Ibn Rushd on allegorical interpretation of, 13, 129–130 and land tax, 66, 73 as moral basis, 51, 52 and Muhammad the Prophet, 67, 123 “natural law” theory applied to, 45–73, 139 and social contract, vi, 45–77, 75n13 as a source of rulings, doctrines and laws, 27, 30, 51, 55–58, 64, 73, 75n13, 139 use of ittaqā to mean fulfilling obligations, 75n13

Qur’anic citations 1, 58 1:6, 70, 77n26 2:125–126, 53 2:176–177, 54 2:177 (Al-Ṭ abarı̄’s Exegesis of), 76n18 3:79, 52, 72–73 3:79 (Al-Ṭ abarı̄’s Exegesis of), 62–66 4, 75n13 4:1, 52, 72 4:1 (Al-Ṭ abarı̄’s Exegesis of), 59–63 5:44–48, 55 6:149–152, 55 7:172, 54, 56, 67, 68, 75n6 9:29, 27 11:27, 112 14:4–5, 52 14:35–37, 53 48:10, 55 96:4, 67 106, 52 Qur’anic Covenant, 10–11, 45–73, 75n6 ḥaqq as Qur’anic term for, 54 Mı̄thāq (Qur’anic Covenantal natural law and social contract theory), 11, 58 on relationship between God and humans as a social contract, 52–57 Al-Ṭ abarı̄ on, 52, 72–73 (see also Al-Ṭ abarı̄, Muḥammad b. Jarı̄r, on Covenants) See also Creation Covenant Quraysh, 52, 53 Qurbā (close or distant neighbor), 76n15 R Rational authority, 76n20 Rationalism, 3, 17, 51, 130

 INDEX 

Al-Rāzı̄, Muḥammad Fakhr al-Dı̄n, 76n14 Reason and authority, 112, 124, 140, 141, 143, 147, 150–153 comparative study of Al-Fārābı̄ and Ibn Rushd on, 13–14, 123–131 and faith, v, 16–18 as first principle of human acts, 46 free use of reason, 46 al-Ghazālı̄ on reason, 16, 93–99 in a global historical perspective, 1–19 and human nature, 93–99 human reason and divine revelation, 5, 10, 14, 18, 124–125, 129, 131 and moral norms, 11, 86, 92–94, 98 natural law theories, 140, 150–151 natural reason, 96 relation of law and revelation to, 1–19 and revelation in relation to natural and divine law (Al-Fārābı̄ and Ibn Rushd on), 13–14, 123–131 role of, 112 Saint Thomas Aquinas on, 11, 46 theology of reason, 8 Reason, Faith, and the Struggle for Western Civilization (Gregg), 9 Regnery (publisher), 9 Reinhart, Kevin, 84–87, 91, 95 Religions and human rights, 8–10, 45–46 and philosophy, v, 125, 129–131, 131n1 vs. politics, 13, 116 religious authority, 28, 46, 113, 115, 124 religious knowledge, 97, 112 and religious law, v, vi, 14, 97, 126, 128 (see also Shari’a (sharia/ sharia) law)

171

See also specific religions, (i.e., Christianity, Judaism, Sunni, etc.,); Theology Republic (Plato), 102, 124 Revelation comparative study of Al-Fārābı̄ and Ibn Rushd on, 13–14, 123–131 al-Ghazālı̄ on, 16, 91 in a global historical perspective, 1–19 knowledge acquired by way of, 124–125 and obligations, 87 and reason in relation to natural and divine law, 123–132 relation of law and reason, 1, 7, 18 role of, 112 silence of (min qablu wurud al-shar), 138 See also Divine revelation Rights of God, 51 Rights of Humans, see Human rights Risalat al-ghufran (Epistle of Pardon) (al-Ma’arri), 36 Roger II (Sicilian king), 32–34 Ross, W. D., 118n6 Rubenstein, Richard E., 17–18 Rule of law, 65, 72, 73 in the Universal Declaration of Human Rights, 47–48, 74 Waldron on, 48, 65 S Sahin v. Turkey, 153 Said, Edward, 2, 151 Ṣalāḥ (people’s welfare), 64, 65 See also Common good Salaymeh, Lena, 26, 28, 30 Sassanid Empire, 27, 29, 70–73 “The Second Teacher” (al-Fārābı̄’s theory of human intellect), 125

172 

INDEX

Secular law, vi See also Law, theory of Secular state, vi, 7, 14 Selam, Adb es-, 132n4 Shafi’i jurists, 149 Shari’a (sharia/sharia) law, 8, 131n1 development of foundational sharia law schools, 26 as divinely revealed code of law, 15 historical sources for, 26–30, 32 Maqasid al-shari‘a, 146–147 non-Islamic influence on, 31, 35 See also Islamic law; Islamic natural law theories; religions, and religious law Al-Shatibi, 145 Shifā’ al-Ghalı̄l (Al-Ghazzālı̄ ), 54 Sidgwick, Henry, 98, 120n33 Slaves, 54, 76n18, 108 Smith, Anthony D., 2 Social contract theory, vi, 74–75n3 applying to Qur’an and Qur’anic Covenant, 45–77 and authority, 48, 52, 63, 72 contractual ethics, 75n13 covenant and constitution in, 49–50 Elazar on, 49, 50, 72, 73 and Islamic Natural Law, 50–57, 72, 73 and land tax in Al-Ṭ abarı̄’s History, 66–67, 73 and mı̄thāq, 11, 58 prophetic social contract, 72 Al-Ṭ abarı̄ on, 11, 45–77, 76n19, 77n29 theoretical models of, 62, 76n19 UDHR preamble as example of, 48, 49 See also Contracts Sociology of Islam (list serve), 1, 45 Socrates, 105 Soft Naturalism/Positivism, 51, 66

Soft natural law, 83, 84, 145–147 “Sons of Covenant” (benai berith), 49 Soviet Union and Central Asia, 14–17 Muslim peoples in, 15, 16 rejection of divine revelation, 17 Soviet Afghan War, 14 Spanish legal history, 29 Spengler, Oswald, 4 Stark, Rodney, 8 Starr, S. Frederick, 16 Stoics and Stoicism, 5 Strauss, Leo, 141, 142, 154n4–5 Suárez, Francisco, 35 Sunna (Sunnah), 27, 28, 50, 51, 57, 58, 64 Sunni Islam, 64, 153 Sunni legal theory, 65 Sunni orthodoxy, 139–141, 152 Sunni schools of law, 149 Sūras, 52, 53, 58, 61 See also specific Qur’anic chapter names Switzerland, impact of Swiss denial of citizenship to Syrian Muslim family, 4–5, 10, 45 T Al-Ṭ abarı̄, Muḥammad b. Jarı̄r on bayān, 57–58, 75n12 biographical information, 58, 65, 66, 73, 143 on contractual ethics, 75n13 on Covenants, 58, 67, 68, 71–73 on creation, 11, 52, 59, 62, 66–72 on land tax, 65–67, 69, 70, 73 on rights and ownership, 59, 60, 72–73, 76n14, 76n15, 76n18 theories of natural law and social contracts, 10–11, 45–77 on ‘umma, 77n24

 INDEX 

use of tafsir, 57, 143 works of, 57–59, 63, 75n12, 76n15, 76n18, 77n26 (see also Exegesis of Al-Ṭ abarı̄; History, Al-Ṭ abarı̄’s) Tafsir, 57, 143 Tahāfut al-Falāsifa (Incoherence of the Philosophers) (Al-Ghazzālı̄), 15, 130 Tahafut at-Tahafut (The Incoherence of the Incoherence) (Ibn Rushd), 130 Taliaferro, Karen, 5, 10, 12, 13, 101–120, 142 Taliban, 15 Talkhis Kitāb al-Khaṭāba li Arisṭū (Ibn Rushd), see Middle Commentary on Aristotle’s Rhetoric (Talkhis Kitāb al-Khaṭāba li Arisṭū) (Ibn Rushd) Taʾrı̄kh al-rusul wa’l-mulūk (History of the Messengers and the Kings) (Al-Ṭ abarı̄), see History, Al-Ṭ abarı̄’s Taxes and tax reform, 32, 33 community tax (al-zakāt), 54 head (poll) taxes, 27 land tax, 65–67, 69–71, 73 Teleological ethics, 98–99 Terrorism, v, 2 antiterrorism, 151 and national security interests, 137, 154n2 War on Terror, 14 Thanking the benefactor, 85–87, 94, 95, 114–115 Theology boundaries of law and theology, 143 of first principles, 139, 142, 143, 145, 147 framing Islamic natural law in theological terms, 142–143 and Islamic natural law theories, 138–142

173

Kalām (kalam) theology, 127, 138, 144 legal theology, 144, 148, 150 and metaphysics, 126 Puritan Covenant theology, 50 theology of reason, 8 and usul al-fiqh, 140, 142–143, 146, 150, 154n5 voluntarist theology, 146, 147, 152 See also Religions Thomas Aquinas, Saint, 6, 12, 31 and al-Ghazālı̄, 12, 34, 89, 96–97 moral theory of, 11–12, 85, 95 and natural law theory, 5, 12, 34, 46, 47, 49, 98 Tocqueville, Alexis de, 101, 117n1 Tokarczyk, Roman, 6 Tollefson, Christopher, 120n33 Toynbee, Arnold J., 4 Treaty of Westphalia, 138 Al-Tufi, Najm ad-Din, 145 Al-Ṭ ūsı̄, Muhammad ibn al-Hasan, 76n14 U UDHR, see Universal Declaration of Human Rights (UN) Ulugh Beg Mirza, 17 ʿUmar b. al-Khatṭ ạ ̄b (caliph), 27, 71 Covenant of Umar, 26–27, 29 Umayyad Caliphate, 71 ʾUmma (community), Islamic, 7–8, 77n24 United Nations, 7, 8, 10, 31, 47 Office of the UN High Commissioner for Human Rights, 8 UNESCO, 10, 38 See also Universal Declaration of Human Rights (UN)

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INDEX

Universal Declaration of Human Rights (UDHR), 5–8, 52, 153 comparing Exegesis of al-Nisāʾ (al-Al-Tabari) to preamble of, 74 Islamic contribution to, 31 preamble as example of natural law and social contract theories, 10, 47–48 University of Naples, 34 University of Notre Dame, 6 University of Salamanca, 35 Unwritten laws, 12–13, 111–116, 120n26, 120n29–31 Usul al-fiqh (legal theory or methodology), 137–138, 144, 145, 148, 151, 154n5 as bridge between theology and law, 140, 142–143, 146, 150 al-Ghazālı̄ on, 87 See also Fiqh Utilitarianism, 98 V Value, objectivity of, 90–93 The Victory of Reason: How Christianity Led to Freedom, Capitalism and Western Success (Stark), 8 Vikor, Knut, 28 Voluntarists and voluntarism, 139, 146, 147, 152

W Waldron, Jeremy, 48, 65 Wars of Religion, 138 Weber, Max, 76n20 Weller, R. Charles, 1–19, 25–38, 49, 151 Western law historical relation of Islamic and Western law, 10, 25–38 Islamic law’s influence on, 32–37 relation of reason and revelation, 1 terminologic definition of, 2 Western and non-Islamic influence on, 2–3, 10, 25–31, 151 See also Cross-cultural contacts; Law, theory of; “Natural law” theory Western societies, impact of Islamic thought on, v, 3, 5, 7, 37 Westphalia, Treaty of, 138 William II (Sicilian king), 32–33 Y Yāqūt, 57 Z al-Zamakhsharı̄, Maḥmūd b. ʿUmar, 76n14