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?
[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.
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.
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.
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.