Muhammad and the Natural Law: Safiya and the Law of Booty

THE SHEER NUMBER OF MARRIAGES, CONCUBINES, and other kinds of relationships with women that might or might not be classified strictly as marriage in which Muhammad engaged offers sufficient evidence of a man who did not conform himself to the natural moral law in regard to marriage and family life. Apologists for Muhammad's life find themselves in losing battles trying to justify this aspect of their alleged prophet's life.

To deflect from any criticism that Muhammad's penchant for women was not driven by simple undisciplined lust, they suggest, for example, that Muhammad's marriages were driven by noble reasons, such as providing for women who otherwise would have no support, or for political reasons such as binding tribes in alliances. Be all that as it may, the ends do not justify the means. Moreover, other methods of financial support or political union could have been easily gained by an institution or relationship that did not give Muhammad sexual access to the women. Muhammad was a genuine reformer: he established religious and political institutions, modified many other existing religious and political institutions, and banned existing religious and political institutions. In some ways, in fact, he appears to have modified relationships between men and women to correspond with his own changing proclivities. He lived a life of clear monogamy with his first wife Khadija, but subsequently engaged in relationships with other women of a variety of categorizations, but all of which appear to have given Muhammad the rights of sexual access to these women. Thus, according to Montgomery Watt, Qur'an 33:50 suggests various levels of relationships with women which Muhammad had, all of which appear to have allowed for sexual access. Watt distinguishes between: (i) wives to whom he paid ujur (أُجُورَ) [dowry or hire] (ii) those "whom your right hand possesses--whom Allah has given to you," meaning captives of war or slaves, (iii) the daughters of paternal and maternal uncles and aunts (i.e., cousins), (iv) those who emigrated with Muhammad, (v) believing women who gave themselves to the prophet, provided the prophet wanted to marry them, and (vi) a privilege special for Muhammad apart from the other believers, the khalisatan la-ka min dun al-mu'minin ( خَالِصَة ً لَكَ مِنْ دُونِ الْمُؤْمِنِينَ ).

To suggest that Muhammad was only motivated by reasons other than sexual desire would appear disingenuous in light of the evidence to the contrary. Muhammad seems to have been afflicted with a voracious sexual appetite or perhaps merely delusions associated with it. For example, we might cite to the hadith evidenced in Sahih Bukhari and related by Muhammad's wife Aisha: 07.71.660: "Magic was worked on Allah's Apostle so that he used to think that he had sexual relations with his wives while he actually had not . . . ." There is evidence, however, that there was something that mere magic here and mere delusions. In Sahih Bukhari (01.05.268) we read (as narrated by Qatada) that Anas bin Malik said with regard to Muhammad: "'The Prophet used to visit all his wives in a round, during the day and night and they were eleven in number.' I asked Anas, 'Had the Prophet the strength for it?' Anas replied, 'We used to say that the Prophet was given the strength of thirty (men).' And Sa'id said on the authority of Qatada that Anas had told him about nine wives only (not eleven)." Something similar is attested to in 01.05.282 as narrated by the same Anas bin Malik: "The Prophet used to visit all his wives in one night and he had nine wives at that time." Of course, his view of Paradise appears to have been infected by his sexual cravings.

Muhammad's Name in Arabic Calligraphy

There is evidence that Muhammad lacked control in the area of the sexual urges. Three hadith found in Sahih Muslim suggest impulsivity. As reported by Jabir, Muhammad once saw a woman who sexually fascinated him and captivated his heart, "retiring in the shape of a devil." So he went home to his wife Zainab as she was tanning leather and had sexual intercourse with her. His instructions to his Companions were that when any of them were to have such an urge he "should come to his wife, for that will repel what he feels in his heart." 08.3240, 08.3241, 08.3242. Muhammad is said to have loved women, perfume, and food, and, once he assumed the power and wealth to satisfy his penchant for these he seemed to have had little self-discipline to curb his desires for them, given the number of women in his life, the number of ahadith dealing with perfume and toiletry, and some ahadith that suggest that Muhammad became rather corpulent.

Muhammad's sexual behavior and his multiple marriages are unedifying to say the least, but some of his sexual behavior and treatment of women were clearly abhorrent under any standard of civility and morality, modern or ancient. The story of Muhammad's relationship with his wife Safiya bint Huyayy ibn Akhtab is one such story. Safiya was a seventeen-year-old Jewess who lived in the town of Khaibar with her recently-wedded husband Kinana bin al-Rabi' bin Abu'l-Huqayq. After Muhammad's troops captured the city of Khaibar, Muhammad ordered Kinana to be tortured to death* to make him reveal where the treasure of the town was kept. According to the Muslim biographer of Muhammad Ibn Ishaq, Safiya would have been led past the bodies of her Jewish tribesmen, which would have included the mutilated and decapitated body of her husband, Kinana.* She displayed tremendous control and behaved stoically, unlike her cousin whose sorrow so consumed her that she was inconsolable, and Muhammad, irritated by her crying, called her a she-devil and asked her to be taken away from him.*

It might be noted that this was not the first time Muhammad had ruined Safiya's peace. Safiya's father, Huyayy ibn Akhtab had been one of the chiefs of the Jewish Banu al-Nadir tribe, and was, moreover, an implacable foe of Muhammad who suffered death at Muhammad's bloody hand. Similarly, her uncle Abu Yasir suffered death at Muhammad's sanguinary hand. Huyayy and Yasir and their tribe, which would have included Safiya, had been forced to emigrate from Medina and settled at Khaibar. Eventually, Huyayy was captured, taken to Medina, and, bound hand and neck by rope and in a tattered flowered robe, put to death (by decapitation) along with between 600 to 800 of his fellow tribesmen, including her uncle and other of Safiya's male kinsmen.** Safiya's relationship with her father and her uncle had been close, as based upon her testimony, she was the favorite of both her father and her uncle:

'Abdulla b. Abu Bakr b. Muhammad b. 'Amr b. Hazm told me that he was told that Safiya d. Huyayy b. Akhtab said "I was the favourite child of my father and my uncle Abu Yasir. When I was present they took no notice of their other children. When the apostle [Muhammad] was staying at Quba with the B. 'Amr b. 'Auf, the two went to see him before daybreak and did not return until after nightfall, weary, worn out drooping and feeble. I went up to them in childish pleasure as I always did, and they were so sunk in gloom that they too no notice of me.

I heard my uncle say to my father, 'Is he, he? Do you recognize him, and can you be sure?'
'Yes!'
'And what do you feel about him?'
'By God I shall be his enemy as long as I live!'

Life,* 241-42.

The enmity between the Jewish leaders and Muhammad, the cause of so much suffering for Safiya, was thus intimately brought home to her from a young age by those whom she loved and who loved her. According to Sahih Bukhari 2.14.68, Safiya was captured at the battle of Khaibar and alloted to Dihya al-Kalbi, but the nearly sixty-year-old Muhammad made arrangements to have this young seventeen-year-old to be given to him, apparently being struck with her great beauty. See Sahih Muslim 8.3329, Sahi Bukhari 3.34.437. Safiya is an example of how Muhammad had different categories of relationships with women. Originally, his sexual rights over her were as a result of her being a captive. She was one of those whom his right hand possessed. Qur'an 33:50. Subsequently, she became one of Muhammad's wife, apparently his ninth, her freedom or manumission being considered the dowry or mahr (مهر‎) since all her family was slewn. Sahih Bukhar 5.59.524, 1.8.367. Although it is not clear when Muhammad married her, it was shortly after his conquest of Khaibar. This means that he would have had sexual relations with Safiya by right of capture prior to that marriage, and while the death of her husband and his beheaded and burnt corpse was fresh on her mind. It is impossible to believe that the seventeen-year-old captive Safiya engaged in sexual relations with the nearly sixty-year-old Muhammad, murderer of her father, her uncle, and husband, of her own free will and happily. It is not likely that her marriage (and her conversion to Islam) was much of a choice either. Muhammad's behavior toward Safiya is nothing less that exploitative and arguably a form of rape. Indeed, Ibn Ishaq relates how there was initially some fear for Muhammad's life from this relationship, though Muhammad seemed oblivious to it. On the night of her marriage to Muhammad, the faithful Abu Ayyub stood guard outside the tent of Muhammad, and when Muhammad saw him and inquired why Abu Ayyub did so, the latter replied: "'I was afraid for you with this woman for you have killed her father, her husband, and her people, and till recently she was in unbelief, so I was afraid for you on her account.'"*

Particularly abhorrent is Muhammad's self-justification, nay, self-adulation regarding his treatment of Safiya. Apparently, the nearly sixty-year-old Muhammad believed that in emancipating the seventeen-year-old Safiya (a woman whose father, uncle, and husband he had caused to be killed, who his men had captured, and whom he then traded for and treated as a captive over whom he had sexual rights) and in marrying her he was building himself two rewards in Paradise. Abu Musa reported according to Sahih Muslim 8.3327, that Muhammad maintained that he who freed a slave woman and then married her would obtain two rewards.

Lucky Safiya who was to have the moon fall into her lap,** and whose secret longing to be wed to Muhammad--the slaughterer of her father, uncle, husband, male kinsmen and tribesmen, and the capturer and trader of her female cousins and friends, as if chattel, among the ravenous Muslim warriors hungry for human booty--was so wonderfully fulfilled. But when it comes to booty Allah knows best, اللهُ أعلم, the natural law notwithstanding.

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*A. Guillaume, The Life of Muhammad: A Translation of Ibn Ishaq's Sirat Rasul Allah (Karachi: Oxford University Press, 2006), 515-17. He was tortured by having a fire lit on his chest and then killed by decapitation.
**The reference is to an alleged dream of Safiya who had such a dream which her husband Kinana interpreted as a secret longing for Muhammad, and so struck her.

Muhammad and Natural Law: Simultaneous and Serial Polygamy

ADULTERY, DIVORCE, POLYGAMY, concubinage, pedophilia, incest, AND rape are all offenses against the dignity of marriage and the natural institution of the family, and the right and orderly use of the sexual faculties, and are by common consent violations of natural law. Although some of these areas involve prudential determinations of natural law and even to some extent may be defined by human law or custom (e.g., with respect to incest, within what level of consanguinity or affinity such incestuous prohibitions extend by natural law), some of the boundaries are decidedly less vague and more precise (e.g., whether a woman may be violated against her will, whether concubinage is consonant with fidelity in marriage, whether sexual relations of an adult male with prepubescent girls is morally lawful) and provide with more definite conclusions. Certainly, reason can make the case that marriage ought to be monogamous and relatively permanent, that concubinage is a morally abhorrent institution, that sex with prepubescent females, incestuous relations, and rape are morally vicious. In the areas of marriage, family, and the exercise of sexual faculties, reason's verdict would seem to be overwhelmingly against Muhammad. Muhammad's actions violated against the natural law in some fundamental principles and in its more distant determinations. All put together, the violations of Muhammad to natural law principles of marriage and human sexuality place it beyond reasonable doubt that Muhammad's life was hardly virtuous. Indeed, we must concur with St. Thomas Aquinas's judgment in his Summa Contra Gentiles: Muhammad did not restrain his sexual urges, but rather he "gave free rein to carnal pleasure," voluptati carnali habenas relaxans.*

Muhammud's Name in Arabic Script

We may first look at the area of Muhammad's marriages and his polygamy. We may start be observing that in his life, Muhammad shows a marked shift between his life in Mecca, when he had no political power, and his life in Medina once he gain political power. Just like there was an Alexander drunk and an Alexander sober, so there is one Muhammad ante Hegiram and another Muhammad post Hegiram. In Mecca, Muhammad lived an unobtrusive, monogamous married life with his first wife Khadijah bint Khuwaylid** until her death shortly before Muhammad's famous Hegira (Hijra or هِجْرَة) from Mecca to Medina (also known as Yathrib). Khadijah was an elder widow of rather affluent means, and Muhammad worked for her for a time until she proposed marriage to him, which he accepted. Trustworthily, Sahih Muslim (31:5975) states upon the report of Muhammad's later wife Aisha that Muhammad "did not marry any other woman till her [Khadijah's] death." Indeed, other that his son Ibrahim borne by Muhammad's concubine and possible wife (sources are unclear) Maria al-Qibtiyya and who died young, Khadijah was the mother of all of Muhammad's children, his two sons 'Abdullah (also known as at-Tahir or at-Tayyib) and al-Qasim (Abu'l-Qasim), both of whom also died young, and his daughters, Zaynab, Ruqayah, Umm Kulthum, and Fatima (the latter being the only child to survive Muhammad). Life, 82-83.*** There is no evidence of any improprieties in Muhammad's behavior while married to Khadijah, and his marital and sexual behavior would seem to have been commendable, indeed unimpeachable, up until Khadijah's death.

The same cannot be said regarding Muhammad's Medinan phase. Without doubt, Muhammad, once released from his marital relationship with Khadijah and once having his hands on political power, wealth, and the spoils of war, not only taught but practiced a rather extreme form of polygamy. He made polygamy forever part of the alleged revelations of Allah. In Surah 4:3 (a Medinan Surah), Muhammad limited simultaneously polygamy to four women:

وَإِنْ خِفْتُمْ أَلاَّ تُقْسِطُوا فِي الْيَتَامَى فَانكِحُوا مَا طَابَ لَكُمْ مِنَ النِسَاء مَثْنَى وَثُلاَثَ وَرُبَاعَ فَإِنْ خِفْتُمْ أَلاَّ تَعْدِلُوا فَوَاحِدَةً أَوْ مَا مَلَكَتْ أَيْمَانُكُمْ ذَلِكَ أَدْنَى أَلاَّ تَعُولُوا

And if you fear that you shall not be able to deal justly with the orphan ­girls, then marry (other) women of your choice, two or three, or four but if you fear that you shall not be able to deal justly (with them), then only one or (the captives and the slaves) that your right hands possess. That is nearer to prevent you from doing injustice.

Two things may be noted regarding Muhammad's teaching in the Qur'an. First, it is a form of polygamy that is strictly polygynous, since only men could have multiple women spouses. Typical with most of Muhammad's view, women were not accorded equal treatment with men. The second thing that ought to be noted is that the four-woman limitation applied to Muslims generally; it did not apply to Muhammad, who excluded himself from the Qur'anic revelation by another convenient Qur'anic revelation.

Muhammad apparently excluded himself from the four-wife-only Qur'anic revelation. He operated under a unique dispensation (found in the Qur'an 33:50):

يَا أَيُّهَا النَّبِيُّ إِنَّا أَحْلَلْنَا لَكَ أَزْوَاجَكَ اللاَّتِي آتَيْتَ أُجُورَهُنَّ وَمَا مَلَكَتْ يَمِينُكَ مِمَّا أَفَاءَ اللَّهُ عَلَيْكَ وَبَنَاتِ عَمِّكَ وَبَنَاتِ عَمَّاتِكَ وَبَنَاتِ خَالِكَ وَبَنَاتِ خَالاَتِكَ اللاَّتِي هَاجَرْنَ مَعَكَ وَامْرَأَة ً مُؤْمِنَة ً إِنْ وَهَبَتْ نَفْسَهَا لِلنَّبِيِّ إِنْ أَرَادَ النَّبِيُّ أَنْ يَسْتَنكِحَهَا خَالِصَة ً لَكَ مِنْ دُونِ الْمُؤْمِنِينَ قَدْ عَلِمْنَا مَا فَرَضْنَا عَلَيْهِمْ فِي أَزْوَاجِهِمْ وَمَا مَلَكَتْ أَيْمَانُهُمْ لِكَيْلاَ يَكُونَ عَلَيْكَ حَرَج ٌ وَكَانَ اللَّهُ غَفُورا ً رَحِيما

O Prophet! Verily, We have made lawful to you your wives, to whom you have paid their Mahr [bridal money given by the husband to his wife at the time of marriage], and those (captives or slaves) whom your right hand possesses - whom Allāh has given to you, and the daughters of your 'Amm [paternal uncles] and the daughters of your 'Ammah [paternal aunts] and the daughters of your Khāl [maternal uncles] and the daughters of your Khālah [maternal aunts] who migrated [from Mecca] with you, and a believing woman if she offers herself to the Prophet, and the Prophet wishes to marry her; a privilege for you only, not for the (rest of) the believers. Indeed We know what We have enjoined upon them about their wives and those (captives or slaves) whom their right hands possess, - in order that there should be no difficulty on you. And Allāh is Ever Oft­Forgiving, Most Merciful.

It is both unseemly and unfitting that the Muhammad should exclude himself from the already loose strictures that bound the rest of his Muslim followers and which limited their polygynous practices to four wives (with easy divorce) and as many captives and concubines as desired. Essentially, he allowed himself no bounds in his appetite for women. So unseemly and unfitting that one can literally still taste the dripping sarcasm behind Aisha's comment related in Sahih Muslim 8:3453 to the Qur'anic revelation in 33:51 which essentially allowed Muhammad free reign to any believer who offered herself to him:

Aisha (Allah be pleased with her) reported: I felt jealous of the women who offered themselves to Allah's Messenger (may peace be upon him) and said: Then when Allah, the Exalted and Glorious, revealed this:" You may defer any one of them you wish, and take to yourself any you wish; and if you desire any you have set aside (no sin is chargeable to you)" (33:51), I (Aisha.) said: It seems to me that your Lord hastens to satisfy your desire.

Not only did Muhammad allow himself (by special, if suspicious, dispensation from Allah) nine (perhaps even ten, eleven, or twelve) simultaneous wives, he also permitted rather easy divorce (as well as other forms of sexual congress), so that Muhammad stands condemned of both serial and simultaneous polygamy in addition to a broader polygyny and sexual libertinism.

The lists of Muhammad's wives vary, and a complete resolution of the problem probably impossible. For our purposes, we shall simply cite two of many opinions on the matter. First, we shall turn to Clinton Bennett's In Search of Muhammad,† a tendentious text which bends over backwards to minimize Muhammad's larger enormities, and which relies upon a reconstruction and synthesis based on a number of sources.

Name	date married	date marriage ended	cause of marriage ending	comments
Khadijah	595	619	death	Muhammad's monogamous marriage.
Sauda	620	n/a	n/a	Muhammad wanted to divorce her when she was old and fat and unattractive, but she ceded her sexual rights to the younger bride, Aisha, thereby preserving her good graces.
Aisha	620	n/a	n/a	This is a controversial marriage because Muhammad betrothed Aisha at age 6 or 8, consummated a few years later. She was a favorite of Muhammad.
Hafsa	625	n/a	n/a	Muhammad married Hafsa when she was 18 years of age.
Zainab	625	625-30	death of wife
Salama	626	n/a	n/a
Zainab	626	n/a	n/a	Second wife of that name. Another controversial marriage because she was married to Muhammad's adopted son, Said, but Muhammad had an intense longing (lust) for her, and had already his allotment of four wives. Revelations which abolished adoption Qur'an 33:4-5, and which allowed Muhammad to marry her following Zainab's divorce from Said, Qur'an 33:37, and allowed more than four wives for Muhammad, Qur'an 33:50, seem altogether too convenient.
Juwairiya	626/27	n/a	n/a	Captive of war of great beauty
Umm Habiba	627/28	n/a	n/a
Safiyah	628	n/a	n/a	17-year-old widow of defeated Jewish chief known for her beauty.
Maimunah	629/30	n/a	n/a	Married following the death of her first husband.

The problem may be more complicated than Bennett suggests in his Appendix.

As Montgomery Watt views it (from his analysis of Qur'an 33:50 quoted above), there may be various levels of marriage or relationships with women in which Muhammad engaged. Watt distinguishes between: (i) wives to whom he paid ujur (أُجُورَ) [dowry or hire] (ii) those "whom your right hand possesses--whom Allah has given to you," (iii) the daughters of paternal and maternal uncles and aunts, (iv) those who emigrated with Muhammad, (v) believing women who gave themselves to the prophet, provided the prophet wanted to marry them, and (vi) a privilege special for Muhammad apart from the other believers, the khalisatan la-ka min dun al-mu'minin ( خَالِصَة ً لَكَ مِنْ دُونِ الْمُؤْمِنِينَ ).

The first two groups are wives in the strict sense and concubines. Of these, Watt notes that Muhammad is regarded generally have had fourteen of these, of whom nine survived Muhammad. There is some dispute as to the identity of the fourteen, however. Watt includes the concubines Maria the Copt and Rihana the Jewess in this number, and seems generally to agree with Bennett as to the others. As to the other categories, Watt observes:

About a score of other women are mentioned as having been at least thought of as wives for Muhammad. There is much obscurity and dubiety about some of them; many tribes were doubtless eager to claim a matrimonial relationship with Muhammad, and to make the most of vague reminiscences. . . . The one thing that seems certain about this supplementary list is that none of the women in it formed a lasting union with Muhammad.

Watt, 397.†† Watt identifies sixteen as part of this "score of other women." He also identifies seven more women "between whom and Muhammad there was some talk of marriage without the plans ever being carried out." Watt, 399.

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*St. Thomas, SCG, lib. 1 cap. 6 n. 7.
**I have struggled with the issue of transliteration of the Arabic. There are numerous systems for transliterating Arabic into Roman text. Many of the characters are not readily available or require changing fonts. I have decided, therefore, for the most part to ignore them.
***"Life" is a reference to A. Guillaume, The Life of Muhammad: A Translation of Ibn Ishaq's Sirat Rasul Allah (Karachi: Oxford University Press, 1967).
†See Clinton Bennett, In Search of Muhammad(London: Wellington, 1998), Appendix 2, 249 ff. The list does not include other women and concubines or slaves, such as Mary the Copt and Rihana the Jewess, with whom we know Muhammad had sexual relations. Sometimes Mary is regarded as Muhammad's twelfth wife. Some Muslims authorities put Muhammad's wives as twenty-one, and suggest that Muhammad practiced a form of temporary marriage (نكاح المتعة‎, or nikah al-mut'ah) or marriage for a "fixed term," a deplorable practice, which is nothing less than a form of divinely sanctioned prostitution, which they further base upon Qur'an 4:24, and is particularly practiced among the Shi'a muslims.
††W. Montgomery Watt, Muhammad at Medina (Oxford: Clarendon Press, 1956), Excursus L, pp. 393-99.

Muhammad and the Natural Law: Introduction

THE NATURAL LAW PROVIDES US sure guidance in both our personal life and our life in common. The natural moral law, a law resident in our hearts, is a law placed there by God the creator of men and women. It reflects his ordered reason, his ratio ordinis, and it informs us, through self-evident principles, through inclinations (intellectual feltness), and finally, through the application of practical reason in further determinations to know the good and the discover legitimate means to that good. Writ large, it is what ought to inform our political institutions and our laws, for our laws are directed to the common good of all men and women, and any person keen on promoting the common good of all humans will recognize that, above all, humans are embodied rational creatures, called to do the good and avoid evil, to grow in virtue, and, ultimately, to find their natural end in the contemplation of God, the First Cause of all things. And all this ordering exists before the question of God revealing Himself through supernatural means, through Revelation. Accordingly, the natural law ought to be the common language, the lingua franca, by which and through which all men of good will can speak. It is the law universal and shared by all men, superior to, and precedent of, all positive revelation and all moral convention.

It serves yet another purpose. Since the natural law, albeit natural, is God's own law, that is, of his design, it follows that God's revealed law cannot contradict the natural law: by definition God, being perfect, cannot contradict himself. It necessarily follows that the law which God has writ in man and his nature, and which is discoverable (albeit with some difficulty) by and through reason ought not to conflict or contradict, though it may be supplemented with and supported by, revealed law. Similarly, the message of one who claims to be a purveyor of God's revelation, whether it be Moses, or Jesus, or Muhammad, or anyone else, can be tested through the compatibility of that claimed revelation with natural law. Equally, someone who claims to be a prophet, or one whose moral teachings (or revealed laws, such as that of Moses, of Jesus, or of Muhammad) are claimed to have divine warrant, ought to be measured by conformity with the natural law. The natural law, then, serves as a litmus test to any claimed revelation and any man who claims to be a messenger of God. A man who claims to be a prophet but lives a life that contradicts the natural law may be confidently rejected as an authentic prophet. We may accept here the admonitory words of Jesus which are eminently reasonable:

Beware of false prophets, who come to you in the clothing of sheep, but inwardly they are ravening wolves. By their fruits you shall know them. Do men gather grapes of thorns, or figs of thistles? Even so every good tree bringeth forth good fruit, and the evil tree bringeth forth evil fruit. A good tree cannot bring forth evil fruit, neither can an evil tree bring forth good fruit. Every tree that bringeth not forth good fruit, shall be cut down, and shall be cast into the fire. Wherefore by their fruits you shall know them.

Matt. 7:15-20. The fruit of which Our Lord speaks in this part of Matthew's Gospel is the conformity of a man with moral reality, moral truth, with the good. This moral truth, this moral reality and moral good, is one based upon the natural moral law and it is common and universal among all men, all men being creatures of the one God.

The next various postings will tackle what is perhaps a controversial subject, but one that needs to be approached honestly and forthrightly. How does Muhammad fare when his life is judged against the natural moral law? What are his fruits?

Muhammad in Arabic Calligraphy

While we are unable with certainty to judge the subjective sincerity of Muhammad, we are able to make an assessment of his external actions, at least as those are reported to us by Muslim sources. The question is particularly important because moral perfection is a quality that Muslims generally ascribe to Muhammad. Muhammad is described by the Muslims as al-Insān al-Kāmil (الإنسان الكامل), a man who had reached moral perfection. Indeed, the Qur’an itself attests to the supposed moral excellence of Muhammad:

لَقَدْ كَانَ لَكُمْ فِي رَسُولِ اللَّهِ أُسْوَةٌ حَسَنَة ٌ لِمَنْ كَانَ
يَرْجُو اللَّهَ وَالْيَوْمَ الآخِرَ وَذَكَرَ اللَّهَ كَثِيرا

Indeed in the Messenger of Allāh you have a good example to follow for him who hopes in (the Meeting with) Allāh and the Last Day and remembers Allāh much.

Qur’an, 33:21.*

Obviously, a man who has reached a moral perfection must live a life in perfect conformity with the natural moral law in addition to one in conformity with any revealed law. The moral perfection ascribed to Muhammad by the Muslims necessarily means that Muhammad could not have been trapped by convention. Though he could live within convention and custom to the extent that these were not in contradiction with natural moral law, as a prophet whose ear was in tune with the voice of God, one would expect him to be able to overcome or criticize conventions to the extent that these contravened natural moral law.**

In making this assessment, we are fortunate to have Islamic sources upon which we can rely to form a fairly accurate description of Muhammad's life. Although the Qur’an is not particularly biographical, there is quite a wealth of narrations concerning the words and the deeds of Muhammad [called in Arabic (s.) al-ḥadīth (الحديث) or (pl.) aḥādīth;(أحاديث)], and these have been gathered in a number of authentic collections such as the Sahih al-Bukhari, the Sahih Muslim, the Sunan as-Sughra, the Sunan Abu Dawud, the Jāmi at-Tirmidhi, and the Sunan ibn Majah. Moreover, there are some fairly old and traditional biographies of Muhammad (sīrat rasūl allāh or al-sīra al-nabawiyya), such as that by Ibn Ishāq, and stories of his military expeditions (maghāzī), such as that by al-Waqidi. The biography of Ibn Ishāq is considered the earliest of the traditional biographies that survives in some form. Earlier works allegedly written by Urwah ibn al-Zubayr ibn al-Awwam [who died in 92 AH/710 AD and whom Ibn Ishāq, al-Waqidi, and at-Tabari are all said to have used as a source], Abban ibn Uthman ibn Affan (d. 105 AH/723 AD), and Wahb ibn Munabbih al-Yamani (d. 110 AH/728 AD) have not survived. Indeed, the original work by Ibn Ishāq does not survive, but it does survive in later renditions or editions the writers Ibn Hisham and at-Tabari.***

Given what we are asked to believe of Muhammad by his followers (and indeed by Muhammad's own claim to be the final and definite prophet of God), we must demand more of him than we would from an ordinary mortal; and his suffering from human foibles and peccadilloes (or worse), while forgivable or at least understandable in a mere man among men, are not forgivable and are anomalous in a man who has set himself up as a divine standard against which there is no appeal, the normative canon by which human virtue is to be measured. This is particularly true since his messages were buttressed by no miracle, and his flesh has not yet risen from the dead, but lies smoldering, like that of all men, in his mausoleum, the Rauda, at Medina, waiting the Resurrection both he and Jesus preached.

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*Muslims regard Muhammad as the model of the perfect man—the al-insān al-kāmil—a model to be imitated. The Qur’an is full of verses to that effect, and either explicitly or implicitly enjoin the faithful to imitate, follow, and/or obey Muhammad. See also Qur’an 3:32, 3:132, 4:13, 4:59, 4:69, 4:80, 5:92, 8:1, 8:20, 8:46, 9:71, 24:47, 24:51, 24:52, 24:54, 24:56, 33:33, 47:33, 49:14, 64:12, 68:4. (cited in Robert Spencer, The Truth About Muhammad (Washington, D.C.: Regnery Publishing, 2006), 8. He is referred to by some Muslims as the "living Qur’an" and so is considered "the witness whose behavior and words reveal God’s will." John L. Esposito, Islam: The Straight Path (Oxford: Oxford University Press, 1998) (3d ed.), 11. Muhammad’s personality is so perfect, that any visual depiction of him is imperfect, and therefore blasphemous. For some of the Muslim faithful, the imitatio Muhammedi (imitation of Muhammad) is taken to legalistic extremes, and includes even the particulars of the toilette, such as the proper use of antimony in the eyes, the dying of the hair, and the use of toothpicks (miswak). The requirements of istinja (cleansing of private orifices) and istibra (cleansing of the urethra after urination) and the use of only the left hand, preserving the right for eating and for ritual cleansing or wudu prior to a Muslim’s prayer are well-known. Following the principle of inclusio inius exclusio alterius, one of Muhammad’s early followers, Bayezid Biestami, refused to eat watermelon because there was no recorded instance that Muhammad ate that fruit. In the 19th century, Sayyid Ahmad Khan suggested it was meritorious not to eat mangoes if his motive was to imitate the Prophet who is not recorded to have eaten them. Annemarie Schimmel, And Muhammad is his Messenger: The Veneration of the Prophet in Islamic Piety (Chapel Hill: University of North Carolina Press, 1985), 45. The great medieval Muslim theologian Ghazzali states in his Ilhya ‘ulum ad-din: “Know that the key to happiness is . . . to imitate the Messenger of God in all his coming and going . . . . That means, you have to sit while putting on trousers, and to stand when winding a turban, and to begin with the right foot when putting on shoes. . . .” Schimmel, 31.
**And in some commendable ways Muhammad did. For example, he fought against the customary exposure (or live burial) of infant girls, and there is a Qur’anic revelation that is generally held to have prohibited such barbaric custom among the Arabs. See Qur’an 81:8-9:

وَإِذَا الْمَوْءُودَةُ سُئِلَتْ
بِأَيِّ ذَنْب ٍ قُتِلَتْ
And when the female [infant] buried alive [as the pagan Arabs used to do] shall be questioned.
For what sin she was killed?

But as will be seen in these series of postings, Muhammad's ability to overcome all Arabic convention, including those clearly contrary to the natural law was extremely limited. In some ways, additionally, Muhammad exhorted his followers to behavior against convention that was retrograde. An example of this would have been his violation of the conventional truce (the "Sacred Month") between the tribes in the matter of raids.
***Some of the summary of ahadith are conveniently available at University of Southern California's website sponsored by the Center for Muslim-Jewish Engagement, http://www.usc.edu/schools/college/crcc/engagement/resources/texts/muslim/hadith/. Two of the classical biographies of Muhammad are readily available in English. The rendition of Ibn Ishāq's by Ibn Hisham is available through the translation of A. Guillaume, The Life of Muhammad (Karachi, Pakistan: Oxford University Press, 1967). Al-Waqidi's biography has recently become available by a translation by Rizwi Faizer, Amal Ismail, and AbdulKader Tayob, The Life of Muhammad (Al-Waidi's Kitab al-Maghazi) (New York: Routledge, 2011).

Pursuit of Happiness: Sir Edward Coke and the Declaration of Independence

THE LAST SOURCE FOR JEFFERSON'S DECLARATION OF INDEPENDENCE we will review is Sir Edward Coke. Educated as a lawyer, Jefferson would have been exposed to Edward Coke's magisterial Institutes of the Laws of England. Indeed, Jefferson himself, in a letter to James Madison dated February 17, 1826, stated that the first volume of Coke's Institutes "was the universal elementary book of law students," and, moreover, "a sounder Whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called English liberties."*

Sir Edward Coke

Jefferson, of course, was not the only Founding Father raised on Coke. Patrick Henry, James Madison, John Adams, John Quincy Adams, John Jay, Daniel Webster, George Mason, and a whole host of others would have been familiar with Coke. The American Founders learned constitutional principles from Coke. Joseph Story, appointed by Jefferson to be Supreme Court Justice, wrote: "When I had completed the reading of the most formidable work, I felt that I breathed a purer air and that I had acquired a new power." As Bernard Schwartz, the American constitutional historian, summarized it: "The influence of Coke may be seen at all of the key stages in the development of the conflict between the Colonies and the mother country."***

We shall focus in particular upon Coke's Calvin's Case. Jefferson would have been familiar with this opinion of Coke's. Indeed, he referenced it in his Reports of Cases Determined in the General Court of Virgina, From 1730-1740 and from 1768-1772, citing to it as being part of an argument by George Mason in the case of Robin et al. v. Hardway et al. to support the following notion:

Now all acts of legislature apparently contrary to natural right and justice, are, in our laws, and must be in the nature of things, considered as void. The laws of nature are the laws of God; whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutes which contradict his laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of justice.†

The summary of the natural law, its participation in the eternal law of God, and its role in justifying and limiting human law is particularly well-summarized in the language of Sir Edward Coke:

The Law of Nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is lex aeterna, the Moral Law, called also the Law of Nature.
. . . .

And by this Law, written with the finger of God in the heart of man, were the people of God a long time governed, before that Law was written by Moses, who was the first Reporter or Writer of Law in the world. . . . .

The Apostle in the second Chapter to the Romans saith, Cum enim gentes quae legem non habent naturaliter ea quae legis sunt faciunt. . . . . [As the Gentiles who do not have the law, natural do those things which are of the law, a citation to St. Paul's letter to the Romans, 2:14-15]

. . . . And Aristotle, Nature’s Secretary, Lib. 5. Aethic. saith, That jus naturale est, quod apud omnes homines eandem habet potentiam. [The law of nature is that which has the same power among all men.] . . . .

And herewith doth agree Bracton, lib. 1. cap. 5. and Fortescue, cap. 8, 12, 13, and 16. Doctor and Student, cap. 2. and 4. And the reason hereof is, for that God and Nature is one to all, and therefore the Law of God and Nature is one to all.

. . . . This Law of Nature, which indeed is the eternal Law of the Creator, infused into the heart of the creature at the time of his creation, was two thousand years before any Laws written, and before any Judicial or Municipal Laws.

Calvin’s Case 7 Coke Reports 1a 77 ER 377 (1608).

One would be hard pressed to find any such thought coming from our modern advocates before the Supreme Court or from the opinions issued by that Court. That is a testament about how far we have strayed from the philosophical foundations in the Declaration of Independence.

Summarizing, then, our prior postings, it is undeniable that the "common sense" of the subject in the Declaration of Independence, informed by the likes of Aristotle, Cicero, Locke, Sidney, St. Germain, and Coke, is that the Declaration of Independence's notion of "pursuit of happiness" is one that is firmly established with the traditions of natural law. It was based upon an Aristotelian eudaimonistic ethic, one that required man to act in accordance with virtue, and one that referenced an objective moral law outside of man, one which governed both his individual acts and this political acts, his governance of his fellows, and the passing of his laws. It was, ultimately, a law that was found within man, based upon reason, a reason not autonomous from God, but one given to him, and therefore under and not opposed to, the God who was its author. Indeed, this natural law, informed by God's reason and discovered by man's reason, was nothing other than a participation into the reason of the cosmos, the eternal law, the rational order of existence and of being, itself a gift of the God who created the world and who saw to its governance in his continuing Providence.

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*See Letter to Madison, Feb. 17, 1826
(http://www.constitution.org/tj/ltr/1826/ltr_18260217_madison.htm.)
**Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (Clark, N.J.: The Lawbook Exchange, 2008), 138-142, 140 (quoting from Story's letter to his son dated Feb. 9, 1841).
***Bernard Schwartz, A History of the Supreme Court (Oxford: Oxford University Press, 1993), 5.
†Thomas Jefferson, Reports of Cases Determined in the General Court of Virgina (Charlottesville: F. Carr & Co., 1829), 114.

Pursuit of Happiness: Christopher St. Germain and the Declaration of Independence

“ALL OF ITS AUTHORITY RESTS," Jefferson wrote about the Declaration of Independence to his fellow Virginian, Richard Henry Lee, "on harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays or the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc." We have in prior postings looked at the Aristotelian, Ciceronian, Lockean, and Sidneyan doctrines regarding happiness, its pursuit, and the role of happiness in the matter of political institutions, government, and law. Jefferson, however, left his explanation open-ended by suggesting that there were others whose influences may have been considered as formative of the doctrines contained within the Declaration. We shall focus on two likely influences that arise from Jefferson's education as a lawyer.

The first such likely influence is Christopher St. German (or St. Germain) (c. 1460-1540). St. Germain was a 16th century English common law barrister who spent much time writing legal and polemical texts. In 1528, St. Germain published his first book, a dialogue entitled Dialogus de fundamentis legum Anglie et de conscientia, or Dialogue of the Foundations of the Laws of England and Conscience, commonly known as Doctor and Student after the titles of the two characters in the dialogue, a doctor of divinity and a student of the laws of England, a barrister. The text proved to be particularly popular in the education of lawyers, and so it was used well into the 19th century as an introductory test to common law concepts, and was replaced by Blackstone's Commentaries. Jefferson had his copy of St. Germain (like he had his copy of Blackstone). While Jefferson did not particularly regard Blackstone highly, he seemed to have some affinity to St. Germain. As Charles Mullett tells us in his book Fundamental law and the American Revolution, "Jefferson felt the urge to annotate [his copy of St. Germain] thoroughly."*

Title Page (Detail) of St. Germain's Doctor and Student

The introduction of Doctor and Student distinguishes between four laws: eternal law, the natural law or law of reason, the law of God (being the positive law of God contained in revelation) and human law:

“[D]octors treat of four laws, the which (it seems to me) pertain most to this matter. The first is the law eternal. The second is the law of nature of reasonable creatures, the which, as I have heard say, is called by them that be learned in the law of England, the law of reason. The third is the law of God. The fourth is the law of man.

D&S, Intr.

St. Germain believes both in a creator God and a providential God whose guidance may be found in all things and in their relationships and history. And so all creation is governed by law, eternal law:

“[T]he reason of the wisdom of God, moving all things by wisdom made to a good end, obtaineth the name and reason of a law, and that is called the law eternal. And this law eternal is called the first law . . . and all other laws are derived of it.

D&S, I.1. Man participates in the eternal law in a unique way. This unique participation in the eternal law arises from man's reason. Man also has been given the grace of revelation, whence he may know parts of the eternal law by God's own communication of it through the Scriptures. Finally, man participates in the eternal law through human law, for the eternal law is itself from whence the laws of men find their ultimate source and binding authority:

[W]hen the law eternal . . . is known to his creatures reasonable by the light of natural understanding, or by the light of natural reason, that is called the law of reason: and when it is shewed by heavenly revelation . . . then it is called the law of God: and when it is shewed unto him by the order of a prince . . . Then it is called the law of man . . . .

D&S, I.1. St. Germain's view of the natural law is wholly traditional and classical. Here he participates in the Aristotelian/Scholastic tradition. There is no variance between St. Thomas Aquinas and Christopher St. Germain:

The law of nature . . . which is also called the law of reason, pertaineth only to . . . man . . . Which is created to the image of God. And this law ought to be kept as well among Jews and Gentiles, as among christian men, and this law is always good and righteous, stirring and inclining a man to good and abhorring evil. And as to the ordering of the deeds of man, it is preferred before the law of God, and it is written in the heart of every man, teaching him what is to be done, and what is to be fled, and because it is written in the heart, therefore it may not be put away, and ne it is never changeable by no diversity of place, ne time . . . . And all other laws, as well the laws of God as to the acts of men, as other, be grounded thereupon.

D&S, I.2.

One would be hard-pressed to find any difference between St. Thomas Aquinas's understanding of law and its source in God's eternal law and Christopher St. Germain's understanding of law. The natural law is the most foundational law in man, as it is the principal means by which man is told by God how man ought to live. It is what must be used to determine the good and the means toward that good. It is binding across all time, across all men, across all cultures and religions. It is therefore immutable and preeminent. It is written in man's heart, cannot be erased or ignored, and is unchangeable. All laws must conform to the natural law, for if they vary therefrom, then to that extent they are against the will and reason of God, against the very order of the cosmos, and against man's very good. It is obvious that man's individual and common happiness would depend upon compliance with this natural moral law.

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*Charles Mullett, Fundamental Law and the American Revolution (New York: Columbia University Press, 1933), 39.