Sunni Islam and the Natural Law: Natural Law Thought in Abu al-Husayn al-Basri, Part 2: Conclusion

AL-BASRI SEEKS TO DEVELOP A THEORY OF LEGAL KNOWLEDGE that gives proper emphasis on both revelation and reason. Reason alone, he acknowledges, is insufficient guidance for man; he must consider the divine revelation in assessing whether those things that the presumption of permissibility would allow him to otherwise enjoy may be enjoined. Man must also access revelation to know certain obligations of which reason is unable to inform him. How, for example, would reason inform the Muslim of the need to fast at Ramadan? How else except through revelation would the Muslim know of which prayers to pray, and in which direction to face in prayer, and that he needed to abstain from wine or from the flesh of swine? Emon, 85. There are things, furthermore, that reason simply cannot answer; its light is too weak, and so revelation supplements.

Yet in some circumstances reason speaks, and speaks authoritatively. Where the Sharīʿa does not does not speak, where it is silent, reason, based upon its presumption of permissibility, can direct as to what is good and bad, what is husn (حسن) and what is qubh (قبح). Moreover, reason is also important as a sort of preamble to the faith, a Muslim praeambula fidei. For Al-Basri, reason provides the basis for recognizing the authenticity of scripture (sihhat al-sharʿ, صحّــت الشرع), the knowledge of God and his characteristics, most importantly that he does not perform evil acts (la yafʿalu al-qabih, لا يفعل القبيــح). Emon, 84. Finally, for al-Basri, there are areas where both the Islamic scriptures and reason overlap or establish concurrently the same truth. That there is one God, that one has an obligation to return a deposit, and that one may enjoy the benefits of things so long as they do not harm another. These are the sorts of things to which both revelation and reason jointly testify. Emon, 85. In summary, al-Basri's thought is as follows:

For al-Basri, natural reasoning about the good and the bad involves a series of principles and premises that contribute to a method of inquiry into the various indicators at one's disposal. At times, these indicators may be reason, where its authority is based on al-Basri's fusion of fact and value in his presumption of permissibility. At other times, the indicators are source-texts [the Qur'an and the Sunnah], whose authority is built upon a series of principled presumptions.

Emon, 85-86.

Al-Basri addresses in a notable way the fundamental role of reason in the establishment of law, and relates it to will. Clearly, as one would expect from one with Mutazilite leanings, he finds himself in the rationalistic camp, and not the voluntaristic camp. He asks, speculatively, whether Allah could say to Muhammad or to legal scholars (the ʿUlamā'), "rule and whatever you decide is correct." Emon, 86. Could Allah make right conditioned on radical choice alone, on raw will alone, whether that was the will of a prophet or a group of scholars? While some, al-Basri acknowledged, believed such authority resided in Muhammad or the ʿUlamā', most jurists did not believe such authority was given even to them. Indeed, al-Basri believed that such authority could not be given. Men do not always choose rightly, and they can be corrupt. So, were God even to mandate that such a man be followed as if he were right regardless of the right, that would not change the essential wrongness in following him. God cannot change a wrong to a right, and he cannot make the legislation that an evil man wills into one that is right. "To establish an obligation," al-Basri maintained, "one must first know the good before acting upon it." Emon, 87. Importantly:

This knowledge of the good can only be known prior to any choice that the individual makes, thus rendering the method of knowing to be of paramount importance. The goodness of an act is not a consequence of choice, but rather is a maslaha [مــصــلح] or perceived good that is given effect through choice [هو مصلح في نفسه ب الإكهتيار ].

Emon, 87.


One should note, however, that al-Basri's use of reason as normative is limited to the interstices of the Sharīʿa, inasmuch as where the Sharīʿa reveals an injunction different from that which reason would demand, reason is abrogated. This would suggest that reason has a clearly subordinate role to revelation, and that where the two conflict, reason is preempted. This is implicit in his rule:

To make a determination of the rule of obligation, the jurist utilizes his naturalistic reasoning to determine what the proper rule is for the given situation. This is possible as a first step because of al-Basri's naturalistic presumption: nature embodies the fusion of fact and value, given God's desire to benefit humanity through His creation. Subsequently, one inquires into whether the rationally based rule might change on the basis of scriptural [Qur'anic and Sunnaic] proofs. "If he does not find [therein] anything that changes [the rule] from the rationally based rule, then he decides in accordance with [the latter]. But if he finds a source-text [in the Qur'an or Sunnah] that rebuts or alters the rationally based rule, he must rule according to the source-text. "Reason decides those rules on condition that a scriptural proof does not alter [our decision] on [them].

Emon, 87-88 (quoting al-Muʿtamad, 2:343). So here, once again, even the Mutazilites disappoint. The reason they advocate, even if nominally normative, is shunted, thwarted, made to sit in a corner, when the Sharīʿa is in the room. The Sharīʿa is not to be judged by human reason; it is not to be judged even by that law of God in the heart of man. If St. Paul is correct that God has written his law in the heart of man, then the Muslim insists that the law of God in man's heart be squelched if the Sharīʿa holds otherwise. Can God preempt his own law? Does that not place God in a contradiction? Can God have put one law in man's heart and another in the Sharīʿa? Would God put us in such a quandary?

Though the Catholic view shares some companionship with the Mutazilite view, it insists that there is no contradiction, and never can be, between the natural law and the law of God. There is no possibility of preeminence of one law over the other, of appeal from human reason to God, for the very simple reason that the Divine Law and the Natural Law have the same Divine Legislator and both are founded on the one Eternal Law. "We know in effect that truth cannot contradict truth," John Paul II said to the Pontifical Academy of Sciences in 1996. We also know in effect that Natural Law, based upon reason, cannot contradict the Divine Law, based upon revelation. When it comes to the Divine Legislator, Law cannot contradict Law.

This truth, that Law cannot contradict Law, seems to have been altogether lost in the Dar-al Islam, the House of Islam.

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.