Fahmi

Fahmi

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Rational Ethics and Natural Law

Abū Bakr al-Jassās (d. 370/980) was one of the most important early Hanafi scholars who was one of the first to write extensively on the trends in Usūl al-Fiqh (Fundamental methodology of Jurisprudence) and the first systematic exegese on the rulings in the Qur’an (Ahkām al-Qur’ān). In his work on Usūl al-Fiqh he has a chapter on “The Rulings on things prior to the arrival of Revelation in prohibition and permissibility (Ahkām al-Ashayā’ qabla majī’ al-Sama‘ fī al-Hazhru wa al-ibāha)”, wherein the status of things apart from revelation is discussed. For example: Is stealing or murder prohibited through reason or only through revelation?

It were these questions that were discussed to assess the authority of reason, the role of revelation, and if ethics were grounded and rationally recognisable in the way creation is constructed or only through linguistic commands in revelation. The majority position present in early Islam is that ethics are rationally known which are confirmed and extended by the Qur’an whereby revelation is seen as assisting human reason, a clear form of Islamic Natural Law. In post-1100 Islam due to the rise of Ash‘arism and Atharism this majority position shifted towards a scepticism and even a pessimism towards reason and was distrusted as a dominant source of knowledge. But Islamic Natural Law was retained among the Hanafi school following Mu‘tazilah-Maturidi theology.

 

Good and Bad

Both al-Jassās and al-Māturīdī (d. 333/944) represent a rationalist trend which was part of the Hanafi school from its beginning and remained part of it till today. al-Māturīdī discusses his rational epistemology in his exegesis of Qur’an verse 3:108 wherein he equates rational ethics with revealed command:

“al-Ma‘rūf: is everything declared good (mustahsan) by reason (fī al-‘Aql) and is thus a known good (ma‘ruf), and everything declared evil (mustaqbih) by reason is thus detested (munkar). And the obligating command (al-’Amr) is obtained through al-Ma‘ruf: it is the command in faith, and the prohibited (al-Nahī)  through al-Munkar: it is the prohibited through unbelief (al-Kufr). […] And His (God’s) statement: {“You command with the naturally known good and forbid the naturally known evil”}: it turns towards three aspects: al-Ma‘rūf is the commonly known through the rational intellect (al-‘Aqūl), namely: that which is declared good/approved through reason, and al-Munkar is which is ugly and evil through reason and is detested by it. And we obtain by it that al-Ma‘rūf is: that which is known through the natural/revelatory signs (al-Āyāt) and proof that which is beautiful and good (husn), and al-Munkar is what is known through argumented evidence; namely that it is ugly and evil (qabīh). And we obtain that al-Ma‘rūf is that which arrives on the tongues of the Messengers (ālsun al-Rusul) [i.e. revelations] that which is beautiful and good, and al-Munkar is that which its detests and forbids.” [Abū Mansūr al-Māturīdī, Ta’wīlat Ahl al-Sunnah, (Beirut: Dār al-Kutub al-‘ilmiyyah, 2005), 2:451/455]

 

Human Reason in Islamic Thought

During the 19th century a return to Islamic Natural Law slowly arose due to the influence of modern science and Enlightenment thought wherein both nature and human reason became central epistemological sources again, and by thus a vindication of early Islamic thought. Muhammad ‘Abduh (d. 1905), the famous reformist mufti of Egypt, clearly relied on Maturidi theology and ethics to apply Enlightenment thought in his modernist Islam. Also in the contemporary engagement of the Maqāsid al-Sharī‘ah (the objectives of the Sharī‘a) a clear rationalist and Natural Law stance towards ethics and human rights is taken. Because of this, the Natural Law approaches of universally respected scholars as al-Māturīdī and al-Jassās are vital for the renewal of Islamic thought and the engagement of Islam with post-Enlightenment ethics and politics. Natural Law ethics provides a religious basis for two major subjects:

1.) It provides a common source through which both Muslims and non-Muslims can come to common agreed upon ethics and politics whereby non-revelatory laws, political rule and (human rights) declarations can be accepted as permissible and even binding. It thus provides an important foundation for global ethics, international law, and religious pluralistic societies with secular politics.

2.) As our understanding (hermeneutics) of Natural Law changes, so does our interpretation of revelation and ethics. It thus provides a framework wherein religion and society can stay dynamic without the fear that they move apart from another. It has an optimistic view of both the world and human nature whereby every sane human is able to rationally interpret or understand what benefits or harms mankind, and thus also elements of what is deemed permissible and prohibited.

 

Natural Law Theology

By providing some examples of Natural Law theology and ethics within the Hanafi school, I hope to show the immense potential that is within this classical Islamic approach for contemporary Islam. Anver Emon has written a central work on this topic wherein he also discusses how al-Jassās’ ontological theology provides a foundation for rational ethics that can both make things permissible and binding, his discussion is worth citing in full:

“Al-Jassās, though, was principally interested in how to evaluate the legal significance of acts not addressed by scripture. On this matter he reported that some jurists held such acts to be presumptively permissible unless otherwise specified by reason as either bad (qubh) or obligatory (wujūb). Others argued that all acts are presumptively prohibited unless specified otherwise by reason. Al-Jassās analyzed the issue by distinguishing between universal values and others that are subject to change. He said that prior to the existence of revelation, an act may be obligatory (wājib) as long as the value of the act never changes. Wājib, in this case, applies to acts that, on the basis of reason, are understood as obligatory in all circumstances, such as having faith in God (imān), thanking the benefactor (shukr al-mun‘im) [i.e. thanking the Creator through worship], and pursuing fairness (insāf). Likewise, matters may rationally be deemed to be prohibited, as long as they are universally and unalterably evil, such as oppression and disbelief in God. Specifically he said: ‘[Among the acts known before revelation] is what is bad in itself (qabīh li nafsihi) and prohibited, and does not change and alter from its state (hālihi). Al-Jassās had in mind universal Shari‘a values that do not change and are not subject to a case by case analysis. Whether obligatory or prohibited, these are acts whose universal normative standing made possible on the basis of reason. Reason can also contribute to more context-senstive determinations of obligation. According to al-Jassās, there are acts that change their Shari‘a value with regard to their circumstances. On purely reasoned basis, we may determine these acts to be permissible, prohibited, or obligatory pursuant to the benefits and harms arising from the acts in question. Importantly, whatever is not addressed by scripture and is not among the universal values is presumptively permissible if the act poses a greater benefit than harm. Al-Jassās justified this presumption of permissibility on the basis of his theology of God and its implication on the fusion of fact and value in creation. He wrote that God could have created nature for four possible reasons.

 

  • God may have created it to benefit no one in particular. But this is foolhardy and a waste, according to al-Jassās (‘abath wa safah).
  • God may have created nature to cause injury and not to bestow benefit (khalaqahā li yadurra biha min ghayri naf‘). According to al-Jassās, such a proposition would be abominable and detestable (ashna‘ wa aqbah).
  • God may have created nature and all of creation to benefit God. But that is theologically impossible since God is not affected by benefits (manāfi‘) or harms (mudārr).
  • The last possibility, and the one endorsed by al-Jassās, is that God created nature to benefit people (annahu khalaqahā li manāfi‘ al-mukallafīn).

 

Because creation exists for the advantage of humanity, then all acts (which are a part of creation) are presumptively beneficial for people (makhlūqatun li manāfi‘ al-mukallafīn). The terms for ‘benefit’ and ‘harm’ (manāfi‘, naf‘, madarr, darr) are technical terms of art that fuse fact and value. The benefit and harm here, though, are not purely empirical qualities; they embody the normativity of the divine will. In other words, the idea of a nature purposefully created by God reflects both the objective existence of the world, and the normative content embedded in the world, given the divine imprint on creation. The idea that God would create nature for human benefit speaks to how al-Jassās united both fact and value, thereby making nature a basis for his philosophy of law.

To suggest that God’s creation of nature implies a presumption contrary to permissibility would be demeaning to God, according to al-Jassās. By fusing fact and value in nature, al-Jassās argued against those who held that nature is not objective, determinate, or necessarily beneficial. Al-Jassās’ view of nature involves a set of theological assumptions about God and nature as expressed in the notion of benefit (manāfi‘, intifā‘). Al-Jassās was adamant that embedded in nature is an unflinching affirmative benefit for people. He said: ‘it is necessary that there be benefit (intifā‘) in such an act in any way [such benefit] may come.’ By so holding, al-Jassās preserved nature as an empirical base while also infusing into nature a normative foundation to justify and legitimate reasoned determmations of obligations and prohibitions. In some cases, al-Jassās recognized the existence of universal obligations and prohibitions. At a minimum, though, acts are permissible in that all of creation is normatively created for human fulfillment, even though the act presents no additional quality of obligadon or prohibition, punishment or reward.

At all times, though, he started from a view of God and nature that allowed him to fuse fact and value in the created world to render reason an authoritative source of law. For al-Jassās, whether we rationally assert universal or contingent legal values, we will rely on a naturalistic foundation to justify our Shari‘a determinations. Al-Jassās’ 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.” [Anver M. Emon, Islamic Natural Law Theories (Oxford: Oxford University Press, 2010), pp. 47-50] (For a complete translation of al-Jassās’ text, see bottom article)

This Hanafī Natural law approach is also linked to human nature and experience by al-Dabbūsī al-Hanafī (d. 430/1039) which shows the hermeneutical element in their ethics:

“God places in [human] nature dispositions from among the desires such that rational animals engage in certain acts by reason of the law of nature. When we notice this fact from those things we do by nature, which constitute the substance of life experiences, then it is not permitted to say that [what we are] disposed to is prohibited, except by counter evidence that changes the rule of the situation. So permissiveness is the fundamental presumption [of obligation] and prohibition is a rebuttal [of that presumption] except when what is considered a right of ours conflicts with an obligation upon us. It is in this sense that we described permissibility.” [Abū Zayd ‘Ubayd Allah al-Dabbūsī al-Hanafī, Taqwīm al-’Adilla fī Usūl al-Fiqh (Khalīl Muhyī al-Dīn al-Misr, 2001), p. 449]

Centuries later this ontological Natural Law theology is explained in detail by Mullājiyūn al-Hanafī (d. 1130/1718) in his exegesis on Qur’ān verse 2:29 which the Islamic Natural Law adherents used as proof that creation is in its ontological essence good and beneficial for humanity. What is interesting is that Mullājiyūn mentions ethical and religious pluralism as being part of that Divinely intended beneficiality:

هُوَ الَّذى خَلَقَ لَكُم ما فِى الأَرضِ جَميعًا ثُمَّ استَوىٰ إِلَى السَّماءِ فَسَوّىٰهُنَّ سَبعَ سَمٰوٰتٍ ۚ وَهُوَ بِكُلِّ شَيءٍ عَليمٌ

Qur’ān 2:29 “He created for you all that lies within the earth, then turning to the firmament He proportioned several skies: He has knowledge of everything.”

“This declaration of benefaction (bayān ni’mah) addresses through it [i.e. benefaction] the Unbelievers (al-Kufār) or the Believers (al-Mū’minūn) or both of them, and He put it [creation] in order for our benefit (li-lintifā’). And the meaning is: He created all of what is in the Earth for your benefit in your world through the ability to attain your benefit through the beneficial proportions of your bodies (masālihi ābdānakum), and in your religions through interference and expression and common knowledge (al-Ta’rruf), for what is adequate from the (world’s) pleasures and pains. Such they say: and so He enables that a person can conclude through it (the benefaction) on that the primary condition (al-‘Asl) in the permitted things (al-‘Ashiyā’ al-‘ibāhah) – as the sectarian schools (madhab tā’ifah) – because of the plurality of the people (bi-khilāf al-Majhūr), so with them (the schools of thought) is the primary of the forbidden (al-‘Āsl fī al-Hurmah), and it (the forbidden) does not manifest its result except in what the Prophet said: “They shall not sell food except in equal quantities”, so that with us the primary condition is the permission of interest (ibāhah al-Ribā) until he exempts with absence of the measure and kinds (hatā ya’fū ‘inda ‘adam al-Qadr wa-lJins) [i.e. usury/interest is allowed when dealing with different types of merchandise that are not basic necessities as food].

And that what is established of the forbidden when there exists all the required conditions. And with the Shāf‘ī school: The primary is forbidden in all forms [with the Shāf’ī everything is forbidden until conditions make it permitted]. And from it [the benefaction] comes a liberating equality (al-Musāwwāh mukhallas) – as the mentioned guidance on the subject of interest – So that it is based upon the primary position of plurality (mukhtilaf) in common knowledge (ma’rūf). And in this way is the verse proof of the created existence of permittance (al-ibāhah) that is primary in all things. And conclude through it the possession of the unveiling [of the meaning of the verse] whereby is said: certainly I infer through the words of the Highest: “He created for you” on that the things whom are proportioned (in such a way, yusallah) that they benefit through it (yuntafi’ bihā) and not take a course of the prohibited (al-Mahthzūrāt) in the reasonable mind (al-‘Aql) it was created in the primary condition of absolute permittance (mubāhah mutalaqān) of every single person that obtains it or benefits through it. And for certain conclude through it possession of the human faculties [of sense and reason]  also whereby is said: And that is the inferring of al-Karachī and Abū Bakr al-Rāzī (al-Jassās) and the Mu‘tazilah, through the saying of the Highest: “He created for you” on that all things whom He proportioned that benefit is gained through it [and] He created as permitted in its primary condition (mubāhah fī al-Asl).” [Mullājiyūn al-Hanafī (d. 1130/1718), al-Tafsīrāt al-Ahmadiyyah fī Bayān al-Ayāt al-Shar’iyyah (Beirut: Dār al-Kutub al-‘ilmiyyah, 2010), pp. 21-22]

 

Conclusion

In these classical texts a worldview is provided with huge potentials for the modern engagement of Islam. It provides a democratic relationship with the divine sources wherein reason and revelation can interact with one another on almost equal terms and where both are focused on human wellbeing. It also provides an optimistic view of the natural world in its inherent beneficiality which can be researched through it being consistent in its makeup. Also human nature, in all its diversity in cultures and religions, is viewed as having inherent beneficiality. In this Islamic worldview, Muslims can work with all cultures and religions in a common search for human wellbeing. It thus provides a unique potential for both a dynamic understanding of Islam and a global cooperation.

 

Rough translation of Jassas text to show his arguments for linking creational intent with rational ethics:

 

قال أبو بكر: ونقول: إن حكم الأشياء في العقل قبل مجيء السمع: ثلاثة أنحاء. منها: واجب لا يجوز فيه التغيير (والتبديل) نحو: الإيمان بالله، وشكر المنعم، ووجوب الإنصاف. ومنها: ما هو قبيح لنفسه، محظور، لا يتبدل، ولا يتغير عن حاله، نحو: الكفر، والظلم، فلا يختلف حكمه على المكلفين. ومنها ما هو ذو جواز في العقل: يجوز إباحته تارة، وحظره أخرى، وإيجابه أخرى، على حسب ما يتعلق بفعله من منافع المكلفين ومضارهم. فما لم يكن من القسمين الأولين فهو قبل مجيء السمع على الإباحة، ما لم يكن فيه ضرر أكثر مما يجتلب بفعله من النفع، ويجوز مجيء السمع تارة بحظره، وتارة بإباحته، وأخرى بإيجابه، على حسب المصالح. والدليل على إباحة ما وصفنا لفاعلها من المكلفين: أنه معلوم أنها مخلوقة لمنافع المكلفين، وذلك لأن خلقها لا يخلو من أحد أربعة معان.

إما: أن يكون الله تعالى خلقها لا لينفع أحدا، وهذا عبث وسفه، والله تعالى منزه عنه، أو يكون خلقها ليضر بها من غير نفع، وهذا أشنع وأقبح، ولا يجوز فعله على الله تعالى، أو أن يكون خلقها لمنافع نفسه، وذلك محال، لأنه لا يلحقه المنافع، و (لا) المضار. فثبت أنه خلقها لمنافع المكلفين، فوجب أن يكون لهم الانتفاع بها على أي وجه يأتي لهم ذلك منها، ما لم يؤد إلى ضرر أعظم مما يجتلب به من النفع. والدليل على ذلك: أنه لما خلقها ليستدل بها المكلفون كان لهم الاستدلال بها، وهي ضرب من الانتفاع، كذلك سائر ما يتأتى لهم فيها من وجوه الانتفاع، ينبغي أن يجوز لهم إتيانها. دليل آخر، وهو: أنا لما وجدنا السماوات والأرض وأنفسنا دلائل على الله تعالى، ولا دلالة فيها على تحريم الانتفاع بهذه الأشياء، لأنها لو كانت دالة على حظرها لما جاز ورود الشرع بإباحتها، لأن موجب دلائل الله تعالى لا ينقلب، فعلمنا: أنه لا دلالة فيها على حظرها. ولو كانت محظورة لما أخلاها من دليل يوجب حظرها، وقبح مواقعتها، فدل ذلك على أنها مباحة، وأنه لا تبعة على فاعليها، لأن ما كان على الإنسان من فعله تبعة – فغير جائز أن يخليه الله تعالى من إقامة الدليل على أن عليه فيه تبعة، لينتهي عنه، هذا حكم العقل، و (قد) أكد السمع هذا المعنى (بقوله تعالى) : {وما كان الله ليضل قوما بعد إذ هداهم} [التوبة: ١١٥] الآية. فأخبر أن ما لم يدل على تحريمه فلا تبعة على فاعله.

“Abū Bakr [al-Jassās] said: “And we [i.e. the Hanafis] say: That the Ruling of things by Reason before the advent of Revelation has three subjectfields.

 

  • From it: Obligation (wājib) has no authority (lā jawāz) if it has change (al-Taghyīr) and modification/replacement (al-Tabdīl) [and it] encompasses: Faith in God (al-’imān bi Allah), and thanking the benefactor, and the obligation of impartial fairness (wujūb al-’insāf).
  • From it: What is aesthetically evil to itself (qabīh li nafsihi), prohibited (mahtzūr), without modification, and does not change in its condition/state, [and it] encompasses: ingratitude (al-Kufr), and oppression (al-TZulm), thus having no difference in its ruling (lā yakhtalifu hukmahu) on the ethically obligated (al-Mukallafīn) [i.e. sane mature humans].
  • And from it what is with authority by Reason (al-‘Aql): it being possible [that it is] permissible (’ibāhatahu) sometimes, and prohibited (hatzarahu) other times, and an obligation another time, on it being valued what partaining through its act (bi-fa‘lahu) from benefits of the ethically obligated (manāf‘ al-Mukallafīn) and their harming (madārrahum). Thus what is not from the first two divisions and is [from] before the advent of Revelation on permissibility (al-’ibāha), what has no major harm (darr ’akthar) in it which brings through its act from the benefits (al-Manafa‘), and authorises the advent of Revelation sometimes through its prohibition, and sometimes through its permissibility, and another time its obligated, on it being valued as Beneficials (al-Masālih).

 

And the proof on permissibility what we attribute to its doer from the ethically obligated: That it is known (ma‘lūm) that it is created for the benefit of the ethically obligated (makhlūqa li-Manāfa‘ al-Mukallafīn), and that is because its creation is not devoid from one of four concepts:

 

  • Concerning: That being God most high created it [earth] to benefit not anyone, and this would be frivolity and foolishness (‘abath wa safah), and God most high is too infallible (munazzah) for this.
  • Or He created it to harm someone through it without any benefit (khalaqahā li yadurra biha min ghayri naf‘), and this is repulsive/hideous and evil (ashna‘ wa aqbah), and it is not possible (lā yajūz) for God the most high His acts.
  • Or He created it to benefit Himself, and that is impossible (muhāl), because He is not affected by benefits (manāfi‘) or harms (mudārr).
  • And it be thus established that He created it for the benefit of the ethically obligated (annahu khalaqahā li manāfi‘ al-mukallafīn), thus it be necessary that it is for them beneficial through it meaning this aspect [benefit] comes for them that from it, what He doesn’t afflict/burden great harm (dharar ā‘tzam) which brings through it the benefit. And the proof for that is: That He created it for interferring through it for the ethically obligated the argumentation itself in it, and is tending towards benefit, such as that which is widely available what is present for them in it [earth] from the aspects of benefit, [and] it be incumbent that it is possible for them to attain it [the benefit must be able to be reachable for humans, thus proving reason can attain what is beneficial]. Another proof is: For what do we exist as the heavens and earth and ourselves as indicators of God the most high, and it does not prove the forbiddeness of benefit in these things.

 

Because it if the proof is on the prohibited why  is it possible that the appearance of the Shar‘a [revealed law] is with its permissibility, because the required proof of God most high is not reversible, thus we know: That it doesn’t prove its prohibitness. And if a prohibited when it is allowed from an interference, it obligates its prohibition, and its evil is signified, thus proving that on that it is permissible, and that it does not have an effect on its two actors, Because what is on mankind from its doing an consequential responsibility – so it is not possible that God most high allows from the established of the proof on that on it and in it a consequential responsibility. For it to be concluded on it, this is the judgment of reason (hukm al‘Aql), and it certainly affirms Revelation is this meaning through the saying of the most high: {And what } [al-Tauba 9:110]. Thus expressing that is not proven on its forbiddeness (tahrīmahi) so has not a consequential responsibility on its doing (fa‘alahu).”

 

[’Abu Bakr al-Jassās al-Rāzī,’Usūl al-Jassās almasammā al-Fusūl fī al’Usūl (Beirut: Dār al-Kutub al‘ilmiyyah, 2010), 2:100-101]

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