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