Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Wednesday, June 16, 2010

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.

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