Sunni Islam and the Natural Law: Natural Law Thought in Abu al-Husayn al-Basri, Part 1: The World's Like a Wall

ABU AL-HUSAYN AL-BASRI, a Mutazilite jurist of the 11th century A.D. is the next and final Muslim jurist that Professor Emon points to as an advocate of a "Hard Natural Law" theory. Born in Basra, but spending the majority of his life in Baghdad, Abu Al-Husayn studied under ʿAbd al-Jabbar. Though frequently identified with the Basran Mutazilite school, Abu al-Husayn does not fit comfortably into it, as he is frequently considered a heterodox and controversial member of it. Nevertheless, Professor Emon focuses on Abu al-Husayn's Muʿtamad fi Usul al-Fiqh (herein referred to as al-Muʿtamad). Though much of al-Husayn's al-Muʿtamad relates to the proper interpretation and application of divine positive law (i.e., the Qur'an and the Sunnah), there is a portion at the end of this work that discusses the foundational presumptions of Abu al-Husayn's jurisprudence. With respect to our specific inquiry, the presence of natural law in Islam, it is this portion that is important. See generally Emon, 73-75.

Abu al-Husayn al-Basri, like al-Jassas and ʿAbd al-Jabbar whom we have discussed in prior postings, combined both fact and value, that is, linked descriptive nature with a prescriptive nature. This was done through the notion of permissibility. Allah the Creator of all things, made all things for a purpose, and not through mere caprice or whim. Since Allah is self-sufficient, and has no need for Creation, one may safely assume that Allah intended to benefit someone other than himself through that creation. That other someone that God intended to benefit must needs be that creature endowed with reason and free will, man. Emon, 78-80.

Al-Basri participated in the debates on the meaning of good [husn (حسن)] and bad [qubh (قبح)], and he viewed these categories broadly, specifically as encompassing both those matters where there had been revealed guidance as well as those areas in which revelation was silent, and only reason was available to provide normative guidance as to that good and bad. Thus matters could be categorized broadly as good (husn) and bad (qubh) through both reason [ʿaql (عقل‎)] and through revealed authority [samʿ (ســمـع)].

One was obliged to do good acts and avoid bad acts; however, to be so obliged one needed both knowledge of the act and what it entails as well as the ability or freedom to either perform or avoid that act. Al-Basri divided bad acts (qabih or قــبيح) into a number of categories, but generally into major bad acts which deserved divine sanction (kabir, كبــيـــر) and those that were less bad (saghir, صــغــيــر). Similar to bad acts, al-Basri divided good acts into two general categories, those whose performance received praise, but whose failure to perform (omission) resulted in divine sanction (nadb, نــدب or wajib, واجـب) and those which are permissible or mubah (مـبــاح). What is significant about al-Basri's categorization is that he applied categories that related to the Shariʿa to the good and bad that was outside of the Shariʿa, or that lay in its interstices. Acts were good and bad, irrespective of revelation and reason, depending upon whether they were of a quality that went against the divine will.

Following generally the line of reasoning of the Basri Mutazilites, al-Basri started with the principle that all created good is permissible, "except where God and His Messenger instruct against performing the act." Emon, 78 (quoting al-Muʿtamad, 1:342) This gave reason a significant role, at least where revelation had not taken the field:

Reason is authoritative because the presumption of permissibility offers the necessary foundation for its authority to determine the good and the bad (hasan, qabih). Just as the case of al-Jassas and ʿAbd al-Jabbar, al-Basri's discussion on permissibility is a theoretical technique used to fuse fact and value. To render all things presumptively permissible is to invest nature with a normative value that allows one to move from empirical assessments of the good to normative evaluations as an initial starting point in any legal analysis.

Emon, 78-79.

On the question of whether a Muslim could eat mangoes or melons, the question with which we started this series of postings [see Sunni Islam and the Natural Law: Did Muhammad Eat Melon or Mangoes?], then, al-Basri would clearly have believed that the answer was yes, as there was no prohibition in the sources of revelation (the Qur'an and the Sunnah) that prohibited these foods, and, therefore, they were presumptively permissible. Reason, moreover, did not perceive any evidence of these foods being harmful. Accordingly, there were no indications of any prohibitions, either revealed or rational, that prevented the devout Muslim for indulging in his tastes for mangoes and melons.

Should One Stand Against a Wall?

Using an interesting image, al-Basri analogizes the moral assessment to someone standing next the a wall in order to enjoy some shade from the hot sun. So long as the wall was not leaning and thereby giving any indication or evidence of probable danger, a man could not be criticized for standing by it to enjoy the shade based on the mere speculative possibility of it collapsing on him. A leaning wall, on the other hand, provided evidence of probability of collapse, and so one could criticize that man who stood by it to enjoy the shade. Emon, 82.

Al-Basri rejected the view of those that advanced the opposite presumption, namely, those that advanced a presumption of prohibition where the revealed sources were silent. This was the view advanced by the Baghdadian Mutazilites. The Basran Mutazilites, on the other hand, advanced the view that where the revelation was silent, the presumption of permissibility governed.

The Baghdad Mutazilites argued on the basis of an analogy regarding property. All creation, the Baghdad Mutazilites argued, was the property of God. One was not allowed to use another's property without his permission. Extending that principle to the entirety of creation, it followed that we were not at liberty to take and use God's property without his express consent. Emon, 83.

Al-Basri viewed the reasoning of the Baghdad Mutazilites as founded upon error. The property analogy was erroneous because it was predicated upon an improper assumption as to God.

The raison d'être of property law is to ensure that one most entitled to enjoy the benefits arising from a property claim can do so against all others absolutely. That is not the case with God. The significance of God being an 'owner' of things has to do with the fact that He has the power to bring things into being and to remove them from existence. Furthermore, the prohibition against using someone else's property without his permission has less to do with the fact that someone else owns the property, and more to do with the fact that he may be injured by our use of his items. But God cannot be harmed by us: 'Do you not notice that it is good for us to seek shade under someone else's wall, or to look into his mirror . . . without his permission where that does not harm him?' Likewise, since God suffers nothing from our use of the created world, we cannot consider all things to be presumptively prohibited. Instead, we look for evidence of prohibition. In the absence of such evidence, we rely on the presumption of permissibility to justify and legitimate our reasoned conclusions about the good to be pursued.

Emon, 83-84 (quoting al-Muʿtamad, 2:320).

In our next posting on al-Basri, we will explore further the paradigm of his natural law reasoning.

Sunni Islam and the Natural Law: Natural Law Thought in Abu Bakr al-Jassas

CAN NATURE PROVIDE STANDARDS that are binding upon men, that are part of the Sharīʿa? Can reason [ʿaql (عقل‎)] be the basis for knowing the good [husn (حسن)] and the bad [qubh (قبح)] in a moral sense? These are the questions that were tackled by those whom Anver Emon in his Islamic Natural Law Theories identifies as advocates of a "Hard Natural Law." Emon identifies three of these Islamic jurists: Abu Bakr al Jassas, ʿAbd al-Jabbar, and Abu al-Husayn al Basri. We shall focus on the first of these, Abu Bakr al-Jassas al Razi. We shall review al-Jassas in this posting.

The Imam Abu Bakr Ahmad bin ʿAli al-Razi al-Jassas [أبو بكر أحمد بن علي الرازي الجصاص ](d. 981 A.D. / 380 A.H.) ("al-Jassas") was a highly reputed Hanafi jurist from Baghdad, ultimately becoming the leader of the legal school or madh'hab there. As was common among the early jurists, who were often at odds with the 'Abbāsid caliphate, then resident in Baghdad, and who desired to avoid the political and temporal compromises that were part of that office, al-Jassas refused the offer to become the chief judge or qāḍī‎ (قاضي) of that city. Al-Jassas lived in Baghdad while it was controlled by the Buwayhids, who were "Twelver-Shiʿites," and Mutazilite in theological viewpoint. Though it is not certain whether al-Jassas was a full-fledged Mutazilite, and scholars have differing opinions on that issue, it would appear that al-Jassas had at least Mutazilite leanings. Emon, 46.

In his discussion of the good or husn (حسن) and the bad or qubh (قبح), al-Jassas was interested in exploring the legal significance attached to such acts, especially in areas that were not addressed by the Qur'ān and the Sunnah. In his analysis, al-Jassas began by classifying moral acts into three categories which were based upon whether or not divine sanction was attached to them: permissible (mubāh or مباح), obligatory (wājib or واجب, and prohibited (mahzur or محظور). No divine sanction, positive or negative, was attached to permissible acts. Failure to comply with an obligatory requirement, brought with it divine punishment, as did acting in a manner that was prohibited. Al-Jassas surveyed the field, and noted that some jurists held that those matters that were unaddressed by the Qur'ān and the Sunnah were presumptively permissible, unless reason showed otherwise. Others held that their absence in the Qur'ān and the Sunnah meant those acts were presumptively prohibited, unless reason specified otherwise. Al-Jassas looked at the matter differently. He distinguished between matters that had universal or absolute value, and those that were relative and therefore changeable or contingent on circumstances. Prior to the revelation to Muhammad, and act could be obligatory (wājib) if the value of the act was universal and unchanging, i.e., was absolutely or intrinsically wrong or absolutely or intrinsically right. Thus, acts that are absolutely good would be obligatory even prior to revelation. Such acts would include belief in God (imān or (ايمان), thanking one's benefactor (shukr al-munʿim or شكرالمنعم), or pursuing fairness (insāf or انصاف). The same was true mutatis mutandis for acts that were universally or absolutely evil under reason's light, such as disbelief in God or oppression. These matters were prohibited even before revelation was received. Emon, 47. These absolutely or intrinsically good or evil acts, if they are found in the interstices where revelation has not covered, still bind.

Thus, for al-Jassas, man was bound, either obligatorily or by prohibition, by the Sharīʿa and by the absolute or intrinsic good or husn (حسن) and bad or qubh (قبح). The remainder of things were permissible if the benefits outweighed the harm. "[W]hatever is not addressed by scripture and is not among the universal values is presumptively permissible if the act poses a greater benefit than harm." Emon, 48. This area of permissibility was founded upon al-Jassas's theology, specifically, his theology of creation. God, he insisted, could have created nature for four reasons:

1. God could have created the world to benefit no one. But this is foolish and wasteful.
2. God could have created the world to cause harm, and not for reasons of benevolence. But this view would be abominable and detestable.
3. God may have created the world to suit himself. Theologically, however, this is impossible since God is impassible, and therefore unaffected by the world.
4. God created the world for the benefit of persons.

The only possibility is the last option. If the last option is true, then those acts which are consonant with creation, that is, that conform to nature, are presumptively good, or, in other words, are beneficial. According to Emons, the words for harm and benefit, منافعه or نفع (manāfiʿ or nafʿ) and the words for harm مضرر or ضرر (madarr or darr) are words that are technical and that "fuse fact and value." Emon, 49.

The idea that God would create nature for human benefit speaks to how al-Jassas united both fact and value, thereby making nature a basis for his philosophy of law.

Emon, 49. By fusing fact and value, the "is" of creation into an "ought," al-Jassas necessarily viewed nature as "objective, determinate, [and] necessarily beneficial." Emon, 49. Nature was something both empirically knowable and something which provided a normative foundation that allowed justification for and legitimation of both obligations and prohibitions. In some cases, there obligations or prohibitions were absolute; in other cases, where no prohibition or obligation was absolute, one entered into the area of permissibility and, where benefits outweighed harm, the act as informed by nature was permissible. The area of permissibility was one where there was not notion of punishment or reward; the permissible act, though it may be good, was not one that involved divine judgment or assessment.

For al-Jassas, whether we rationally assert universal or contingent legal values, we will rely on a naturalistic foundation to justify our Shariʿa determinations. Al-Jassas' natural law jurisprudence is built on his presumption of permissibility, which (1) relies on the empiricism of nature for an objective basis for reasoned deliberation, and (2) provides a normative foundation for obligation by fusing the facts of nature with a divinely inspired normativity.

Emon, 49-50.

While all this may be true, one should also keep in mind that, in al-Jassas, the role of reason in obtaining empirical knowledge of nature and in distilling from it binding norms did not supplant the Sharīʿa derived from the revealed sources of the Qur'ān and Sunnah. There was no overlap or tension possible between the Sharīʿa and al-Jassas' notion of natural law since whatever norms nature and reason supplied al-Jassas, they were in areas which existed prior to such revelation and were supplanted by it, or in areas where the revelation was silent. Al-Jassas' view may have been more theoretical, than practical, more theological or philosophical than legal. In short, natural law played a minimal role in his actual jurisprudence. In the face of Sharīʿa, the Natural Law cowers.

Sunni Islam and the Natural Law: Did Muhammad Eat Melons or Mangoes?

THE QUESTION WITH WHICH WE BEGIN this series of postings is not intended to be flippant or disrespectful (indeed the question was asked by pious Muslims); rather, it is intended to focus on the role, if any, of the natural moral law in Islam, specifically, that version of Islam known as Sunni Islam. Fundamentally, Islam is submission to the Sharīʿa [ash-sharīʿa (الشريعة), literally "the way"], the law of Islam that is based upon the revealed will of Allah as believed to be found in two fundamental sources, the Qur'ān [al-qur'ān (القرآن‎), literally the "recitation"] and the Sunnah [as-sunnah (السنة), literally "the customs"]. Essentially, the sources of the Sunnah are the sayings and life of Muhammad, evidenced by the Ahadīth‎ (generally referred to by the singular, hadīth‎) [al-ahadīth (الأحاديث), literally "the reports" or "narrative"] and the Sirah, the life of Muhammad as evidenced in early biographies [as-sīrat rasūl Allāh (السيرة رسول الله‎‎), literally "lives of the messenger of God"].

Arabesque Design

Islam is full of reasoning in law. Indeed, Islamic law is so chock full of legal reasoning that its intricacy is arabesque. Law follows art, or art follows law; it is hard to tell. The Muslim horror vacui is seemingly transposed into the Muslim's law. Nothing seems untouched, left blank by the Sharīʿa. We ought never underestimate the Muslim intellect; the complexity of Islamic law is truly daunting. Over the centuries of its development, Islam has amassed an intricate, often impressive construct body of law or Fiqh [al-fiqh (الفقه‎), literally "understanding"] based upon equally impressive principles of jurisprudence, or Usūl al-fiqh [(أصول الفقه‎), literally "origins of fiqh" or "sources of fiqh")]. One of the sources of usūl al-fiqh, or Islamic jurisprudence, in the Sunni legal schools is the notion of analogical reasoning [qiyas (قياس)] which has been well-developed over the centuries. Similarly, the application of thought in fashioning the distinctions used in ferreting out authentic ahadīth (which is a source of Sharīʿa) from inauthentic ahadīth (which is not a source of Sharīʿa), in evaluating the authentic ahadīth, and in ranking their authenticity, reliability, and authority [the ʿulūm al-hadīth (‎علم الحديث), literally "science of hadith"] is intricate and extensive. Confronting some serious discrepancies in the revealed source material, Islam was forced to adopt a complex and subtle doctrine associated with abrogation [naskh (نسخ)] to determine whether and when one verse or tradition has abrogated another verse or tradition. There is no dearth of thinking among Muslims. But the reasoning is methodological or epistemic because it relates to method to be applied to the revealed law or knowledge of what the sources of that revealed law is. This type of methodological or epistemic reasoning should be distinguished from the Shiʿah (Shiite), particularly Ismāʿīli, view of reason as ʿaql (عقل‎), who recognize reason as a source of Sharīʿa that provides substantive value, beyond the mere procedural or methodological analogical role that is given to reason by the Sunni.

In our investigation of the natural law and Sunni Islam, we are not going to focus on the use of reason in this methodological or epistemic way in Islamic jurisprudence. Ultimately, the use of reason in this context is not ontological or normative. That is, this methodological or epistemic human reason is applied to revelation, and is entirely servile to the revealed sources. It does not purport to have any ontological or normative validity prior to, independent of, or outside of, or even concurrent with, revelation. Thus, any legal reasoning in this context is purely positivistic, and it retains that character even though the law that is posited is claimed to be from a divine source as a result of divine revelation. It is post-revelational applied reasoning. In traditional Sunni Islam, there is no room for a natural moral law based either on reason or nature where the Sharīʿa has spoken and therefore elbowed out, taken over, or preempted the moral field. Manifestly, where the Sharīʿa governs, a natural moral law is out of question. Nature and reason are irrelevant. In a sense, they are abrogated. All law is positive. The legislator is Allah. The law is found in the Qur'ān and the Sunnah. There is no appeal from Allah and his Sharīʿa to a principle or authority above, or equal to, Allah and his Sharīʿa. Human reason is asked to submit, no questions asked, before the revealed will of Allah. There is no notion, at least in traditional Sunni Islam, that would suggest a binding natural law based upon nature or reason that existed prior to, and would be concurrent with, independent of, or parallel to, the Sharīʿa. Sharīʿa is the exclusive law of the Muslim wherever it is found. It is, as it were, a legal Juggernaut. Before the time of Muhammad's revelation was a time of confusion, the al-Jahiliyah (الخاحلية). For Sunni Islam, where Sharīʿa exists, by definition there cannot be a conflict, or even an apparent conflict, between natural law and revealed law because all there is is revealed law. Islam avoids the question of conflict between ontological or normative nature or reason and revelation altogether.

This, at least, appears to be the traditional, orthodox Sunni position. It is accepted by the four major legal schools or guilds [madh'āhib (مذاهب), singular, madh'hab (مذهب)] of Sunni Islam, namely, the Hanafi, Hanbali, Maliki, and Shafii schools or madh'āhib.

Orthodox Sunni, who are theologically of the Asharite philosophical/theological view, reject the philosophical/theological views of the Al-muʿtazilah or Mutazilites (المعتزلة). The Muʿtazili accepted a relatively larger role for reason in the formulation of knowledge and of legal norms than did the competing school, the Al-Asha'irah or Asharite school (الأشاعرة), which distrusted the role of reason in speculative and moral theology. The Asharites were fideistic in their faith. voluntaristic in their moral theology, and nominalistic in their view of reality, and in all areas distrustful of reason as a substantive guide. This theological/philosophical school prevailed in Sunni Islam, and the Mutazilite view is generally regarded as heterodox and unreliable. "The Muʿtazilites are considered the early rationalists in Islam." Emon, infra, 13. To be a "rationalist" is not a good thing in traditional Sunni Islam. Because of this distrust of reason in playing an ontological or normative role in moral law, most scholars take the view that there is no natural law in Sunni Islam. This, for example, is the position of Patricia Crone in her book God's Rule: Government and Islam.

At its most basic, the battle between the Asharites and the Mutazilites is an Islamic version of the Euthyphro dilemma. That dilemma obtains its name from Plato's Dialogue Euthyphro, in which Socrates asks Euthyphro (10a):

Is the pious [or holy] loved by the gods because it is pious [or holy], or is it pious [or holy] because it is loved by the gods?

ἆρα τὸ ὅσιον ὅτι ὅσιόν ἐστιν φιλεῖται ὑπὸ τῶν θεῶν, ἢ ὅτι φιλεῖται ὅσιόν ἐστιν?

How one answers that question is a watershed in the area of jurisprudence, as it is in philosophy and theology. The Asharites believed that something was good or evil, just or unjust, simply because God willed it. Reason, or some sort of intrinsic ordering or good, had nothing to do with the matter of the good. The Mutazilites, on the other hand, believed that God willed the good and the just because it was good and just, and did not will the bad or unjust because it was bad or unjust. In his book on Islamic natural law, Professor Emon puts it this way

[A]s we will see in the case of the different Islamic natural law theories below, the authority of reason depends upon a philosophy of law in which fact and value are fused in nature, thus making nature centrally important to our analysis. Having a Creator in the background required our [Islamic] jurists to reflect upon the theological implications of any natural law theory. For instance, a Creator can be principally view as a legislator whose legislative acts define the good and the bad: X is good because God does X. Or the Creator can be viewed as legislating only in pursuit of the good: God does X because X is good. These two views of God as legislator offer distinct approaches to understanding the good, and have competing implications for a philosophy of law and the role of human reason in it. If all good is a function of God's will [alone], then a resulting legal philosophy may limit the scope to which human beings can know the good independent of indicators from God. But if God does X because X is good, that assumes the notion 'good' is separate and distinct from God's will on the matter. It also suggests that human beings can know the good, even if God has not provided express guidance to us about what the good is. . . . The Muʿtazilites . . . upheld the view that God does the good and just and avoids the evil. In other words God does X because X is good . . . . For various reasons, Muʿtazilite theology lost favor in the course of Islamic intellectual history, and Voluntaristic [i.e., Asharite] concepts have become significant theological frames for understanding God and His omnipotence [among the Sunni]. . . . [A] suggestion that reason offers an important source of guidance for the modern Muslim raises suspicions of heterodoxy framed in pre-modern terms.

Emon, infra, 11, 13, 14. An analogous debate occurred in Christian circles, perhaps even informed by the earlier Islamic debate. The position of the great proponent of the natural law, the Dominican St. Thomas Aquinas, and the traditional teaching of the natural law by the Roman Catholic Church, are much closer to a Mutazilite view of things, whereas a Christian voluntarist such as the Franciscan William of Ockham or the Protestants Martin Luther and John Calvin or Karl Barth would have an Asharite view of things.

Though for the Muslims of the Sunni schools of jurisprudence the existence of a natural moral law based upon human nature and reason that is equal in dignity to the revealed Sharīʿa is simply an outrageous proposition, there may be some areas where nature or reason may play a role, albeit attenuated or relatively marginal. In traditional Asharite Sunni Islam, the issue of a possible natural law arises in the interstices of the Sharīʿa, where the revealed sources are silent, in that interstitial region that is referred to as min qabla wurūd ash-sharʿ [(من قبل ورود ألشرع), meaning "before revelation"]. If it is to be found at all, a natural law philosophy may be found in the min qabla wurūd ash-sharʿ where Sharīʿa does not occupy the field. [Note: Not all Muslims accept this view, some refuse to entertain the notion that the revealed texts, that is the Qur'ān and the Sunnah, do not cover every eventuality. For these, there simply is no gap or interstice. Every question is potentially answered by the Qur'ān and the Sunnah.] This is the issue that is tackled by Anver Emon's Islamic Natural Law Theories (Oxford: Oxford University Press, 2010). The answer to this question falls back upon questions of philosophy and theology.

Emon appears to concede that even here, in the min qabla wurūd ash-sharʿ , the majority of Sunni legal scholars despair of finding any evidence of God's revealed will.

The prevailing Sunni position, as expressed in pre-modern treatises on legal theory (uṣūl al-fiqh), holds that where there is no scripture on a matter, one is left in a state of suspended judgment (tawaqquf); there is no epistemically coherent way to determine the divine law on that matter, and consequently no one is in a sufficient epistemic position to attribute to God a ruling of any normative force. Reasons does not assume any ontological authority akin to that of scripture to justify using it as a basis for determining and constructing obligations that emanate from the divine.

Emon, 20. It is this suspension of judgment [tawaqquf (توققف) in the interstices--where the Sharīʿa is silent--that brings to fore the question: Did Muhammad eat melons or mangoes? The sources are silent on whether Muhammad ate either melons or mangoes. What then does the Sharīʿa say about this matter? Faced with this lacunae in the revealed sources--that is the Qur'ān and the Sunnah--some pious Muslims did more that suspend judgment; they inferred prohibition. Some Muslims, therefore, such as the Imam Muhammad ibn Aslam at-Tusi and the Sufi mystic Bayazid Bastami, did not eat melons, nor some Indian Muslims, such as the 19th century Indian reformer Sayyid Ahmad Khan, eat mangoes, because there was nothing in the sources of revelation that indicated that the Prophet ate melons or mangoes. See Annemarie Schimmel, Islam: An Introduction (Albany: State University of New York, 1992), 54; Annemarie Schimmel, And Muhammad is his Messenger: The Veneration of the Prophet in Islamic Piety (Chapel Hill: University of North Carolina Press, 1985), 45. These perhaps extreme examples serve to show how reliant Islam is on revealed law, how its legal thought is narrowly positivistic, and, therefore, how poor it is in any notion of natural law with substantive or normative binding authority based on man's nature or reason. Clearly, there is nothing in the natural law, nothing in the state of man or nothing in reason, that would prevent a Christian, even the most scrupulous, from eating a melon or a mango.

The Mango Sayyid Ahmad Khan Wouldn't Eat

Nevertheless, Emon insists that there is a recognized role for reason to have ontological or normative authority for Sharīʿa purposes among the Sunni in these interstices, in the qabla wurūd ash-sharʿ . In the interstices, not all Sunni Muslims advocate suspension of judgment or tawaqquf. Relying on the work of Kevin Reinhart, who calls the qabla wurūd ash-sharʿ the "before revelation complex," Emon sees three possible presumptions that Islamic legal scholars took when confronting silence in the sources. When a question of whether certain activity is good is unaddressed in revelation, legal scholars ultimately presumed that the activity is prohibited, permitted, or that one must remain in a state of indecision. In the course of debating which presumption should be applied in the face of silence, Emon argues a sort of natural law reasoning was applied by the Muslim legal scholars in the pre-modern debates, one which used a form of normative or ontological reasoning [ʿaql (عقل‎)] as a basis for knowing the good [husn (حسن), meaning "beautiful" or "fitting" or "good"] and the bad [qubh (قبح), meaning "ugly" "unattractive" or "bad"].

At the heart of these pre-modern debates are the terms of art husn and qubh, which mean good and bad, respectively. . . . These two terms are antonyms of each other, as indicated by the pre-modern lexicographer Ibn Manzur (d. 711/1311). According to Ibn Manzur, the term qubh can be defined as an absence or diminution of husn (naqd al-husn), while husn is the opposite of qubh, as well as the diminution of qubh (al-husn diddu al qubh wa naqduhu). In Sunni legal theory these terms of art capture a debate about whether conceptions of the good and the bad (and thereby obligation and prohibition) are rationally determinable, or whether everything that is good or bad in the world ins the product of a divine legislative will.

Emon, 22.

In these next series of blog entries, with the background above, we shall review Emon's argument as set forth in his recent published book, Islamic Natural Law Theories.

As he frames the issue:

[T]his study . . . focuses on juristic debates about the ontological authority of reason in situations where there is no scriptural or revelatory text.* Jurists framed their debate on this question by reflecting upon whether their use of reason (ʿaql) alone could be the basis for knowing the good (husn) and the bad (qubh), and thereby legitimately justify correlating obligations and prohibitions under Sharīʿa law, where there is no scriptural source-text.

Emon, 21 (*revelatory text defined as the Qur'ān and Sunnah). In this very narrow area of silence, the qabla wurūd ash-sharʿ, Emon identifies two schools of thought depending upon how the legal scholars answered the Euthyphro dilemma. He labels them "Hard Natural Law" and "Soft Natural Law."

Hard Natural Law theories relied on the theological presumption that God only does what is good: God wants X because X is good. From this theological presumption, they developed natural law theories by which they granted ontological authority to reason in Sharia by linking the divine will and human reason through the medium of nature. Soft Natural Law theories started from the contrary Voluntarist theological position: X is good because God wants X. They held that goodness and Sharīʿa norms were two different matters. Reason can certainly determine what is good or bad. But that rational conclusion cannot assume the authority of a Sharīʿanorm.

Emon, 24-25. Emon argues that the advocates of Hard Natural Law and Soft Natural Law both fused fact and value in nature; however, the Hard Natural Law advocates found this fusion as one of intrinsic necessity, whereas the Soft Natural Law advocates found this fusion in an act of grace that was subject to God's will, and not in any kind of intrinsic necessity that limited the absolute power of God. (Though Emon does not mention it, the dispute between the Islamic scholars appears to be similar to the debate among Christian theologians between the potentia Dei absoluta and potentia Dei ordinata.) More, the Soft Natural Law advocates appeared to take away with one hand what they gave with the other: "With one gesture, Soft Naturalists granted reason ontological authority, but with another they limited its scope of operation in the law." Emon, 35. Thus, the Soft Natural Law advocates appeared to fear, rather than welcome, the role of reason (ʿaql). The proponents of a Hard Natural Law whose thought Emon reviews--Abu Bakr al Jassas, ʿAbd al-Jabbar, and Abu al-Husayn al Basri--are Mutazilites or have Mutazilite leanings. We shall review them first.

It is the act of Creation that binds fact and value in nature and overcomes the supposed "is-ought" fallacy that Hume made so much out of. In his Treatise on Human Nature [III.I.1], the great, if misguided Hume stated:

In every system of morality, which I have hitherto met with, I have always remark'd, that the author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when all of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, 'tis necessary that it shou'd be observ'd and explain'd; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it

In Hume's view, there is a fallacy to argue from "ises" to "oughtses," from propositions of description to propositions of prescription. It is fallacious reasoning.

But it is fallacious only if the "is" of nature has absolutely no moral imperative or moral message. The Hard Natural Law advocates among the Islamic jurists would have dismissed Hume's argument because they believed that nature was created by God with a purpose of benefiting humanity. The Qur'ān gave scriptural warrant for this belief: "He it is Who created for you all that is in the earth . . ." [Qur'ān 2:29] To suggest that creation was without purpose was to posit that God's act was futile, which was incongruous with a just God. To suggest that creation was created to harm man was to suggest that God was unjust. Creation had, therefore, to have been created both for a purpose and for someone's benefit. Could the beneficiary be God? God is in need of nothing. It follows then that creation is for the benefit of mankind. Fact and value were therefore fused by Allah who created the world for the benefit of mankind.

The Muslim jurists that advocated a Hard Natural Law position were also not encumbered by Cartesian or Kantian scruples about knowledge. Man was able to grasp empirically the characteristics of created things, was able to assess them objectively and distinguish between them the good and bad. Those things that were judged to be good could be presumed to be part of God's will. For a Hard Naturalist:

Nature is not simply a body of facts that can coldly and objectively be observed and analyzed. Rather, implicit in nature is a divinely inspired presumptive positive value that animates a naturalistic jurisprudence.

Emon, 42. The Hard Naturalists began with the presumption that all acts were at least permissible, were mubāh (مباح), and in some cases actually a positive obligation, that is, wājib (واجب). This presumption of permissibility (ibāha or إباح) is what Emon calls the "heart of Hard Natural Law jurisprudence" among its Muslim advocates, Emons, 45, and is what allowed them to overcome any dichotomy between the facts of nature and their moral value. The purposefulness with which God created the world allowed them the further step of characterizing these goods as part of the revealed law, Sharīʿa, even before such revelation was expressly given man. So, for example, the Hard Naturalists frequently argued that one had a natural obligation of thanking a benefactor, in particular the benefactor of benefactors, God, and that this duty pre-existed the revelation of the Qur'ān. For the Hard Naturalists, "nature becomes both the objective and normative basis for assessing the good and bad, and thereby for creating Sharīʿa obligations." Emon, 45.