Reason Revelation and Law in Islamic and Western Theory and History 9789811562440 9789811562457 Compress

ISLAM AND GLOBAL STUDIES
Reason, Revelation
and Law in Islamic and
Western Theory and
History
Edited by R. Charles Weller · Anver Emon
Islam and Global Studies
Series Editors
Deina Abdelkader
University of Massachusetts Lowell
Lowell, MA, USA
Nassef Manabilang Adiong
Co-IRIS (International Relations and Islamic Studies
Research Cohort)
University of the Philippines Diliman
Quezon City, Philippines
Raffaele Mauriello
Allameh Tabataba’i University
Tehran, Islamic Republic of Iran
Islam and Global Studies series provides a platform for the progression of
knowledge through academic exchanges based on multidisciplinary socio-
political theory that studies the human condition and human interaction
from a global perspective. It publishes monographs and edited volumes
that are multidisciplinary and theoretically grounded and that address, in
particular, non-state actors, Islamic polity, social and international justice,
democracy, geopolitics and global diplomacy. The focus is on the human
condition and human interaction at large. Thus cross-national, cross-
cultural, minority and identity studies compose the building block of this
series; sub-areas of study to which Islamic theory and socio-political praxis
can provide an alternative and critical lens of inquiry. It explores Islam in
history and in the contemporary world through studies that:
a) provide comprehensive insights of the intellectual developments

that have defined Islam and Muslim societies both in history and in
the contemporary world;
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responses, adaptations and transformations toward modernity;
c) evaluate old paradigms and emerging trends that affect Muslims’
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R. Charles Weller • Anver M. Emon
Editors
Reason, Revelation
and Law in Islamic
and Western Theory
and History
Editors
R. Charles Weller Anver M. Emon
Al-Farabi Kazakh National University Institute of Islamic Studies, University
Almaty, Kazakhstan of Toronto
Toronto, ON, Canada
Washington State University
Pullman, WA, USA
ISSN 2524-7328 ISSN 2524-7336 (electronic)

Islam and Global Studies
ISBN 978-981-15-6244-0 ISBN 978-981-15-6245-7 (eBook)
https://doi.org/10.1007/978-981-15-6245-7
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Foreword
As Aristotle says in Politics, “humans are, by nature, social animals”. They

live in and interact with other members of their societies. As citizens, their
interactions are governed by both ‘natural law’ and other legal norms as
well as by spiritual, moral, religious, and cultural criteria. In such contexts,
it is important to examine current systems of states based on secular and
religious features by examining the parallel ideas of reason and faith, phi-
losophy and religion, ‘natural law’ and religious law’. In many cases, the
religiously related problems are due to a lack of understanding of the rela-
tion between the principles of religious law and secular state laws and, as
such, they reflect misunderstandings born out of cross-cultural communi-
cation. While state-adopted legislation regulates the sphere of religion,
demands to execute legislation in the modern world in full accordance
with religious laws and principles leads to encouragement of extremist and
terrorist actions. These issues arise from the misunderstanding of the
interconnection between reason and faith and their related counterparts of
‘natural law’ and ‘divine law.’
What the compilation of scholarly articles within this volume can offer
is analysis of some of the sources of philosophical and religious worldviews
within Islamic and Western societies. This analysis can provide effective
ways to evaluate the peculiarities of the legal traditions based on those
worldviews as well as a scholarly lens through which to view the integra-
tion of cultures in the modern globalized world. One can see in the example
of medieval Islamic philosophy that it was considered quite viable and
effective to govern based not only on religious convictions (cf. laws), but
v
vi FOREWORD
on philosophy grounded in human reason. It was typical for medieval

Islamic philosophy to regard reason and revelation, not as contradictory
sources of knowledge, but rather as tools which help reveal the truth by
complementing one another.
In spite of the long centuries which have intervened between the clas-
sical Islamic period and our own day, the importance of religion in the
regulation of human relationships has not lost its relevance. This can,
among other places, be readily seen within the post-Soviet independent
Central Asian states, where certain Muslims remain unsatisfied with the
strictly secular nature of the state, and leave their states with the aim of
building an Islamic state. If one looks at the history of Islam, it can be
observed that various Muslim peoples started to eliminate Islamic legisla-
tive boundaries from their social and political lives based on pragmatic
requirements, and gradually shifted to secular laws based on social con-
tract. Numerous historical examples show that the medieval model based
on the Qur’an alone cannot serve as the basis for the modern state’s full-
fledged political and social development. The appropriation of religion for
political purposes has been recognized recently as a global concern. This
appears to be due to a lack of training in or acceptance of rational thinking
and critical reasoning skills as a basis for assessing and determining social
and political law. Religion, as a moral internal regulator of human beings,
should not be harmful to others. ‘Religious law’ can help regulate the
inner essence of an individual, whereas the relationship between peoples of
various faiths and life philosophies must be regulated by the law of a state.
In this context, the chapters compiled in this volume are important for
learning about traditions of natural and religious law within various social
and political contexts in Western and Islamic history. They provide an
important historical background for understanding and reflecting upon
the nature of today’s state-mosque and state-church relations in connec-
tion to ideas of ‘natural’ and ‘religious’ law. The volume thus makes an
important contribution to the rapprochement of cultures through shared
scholarly approaches to common global issues.
Department of Religious and Cultural Studies Ainur D. Kurmanaliyeva

Al-Farabi Kazakh National University
Almaty, Kazakhstan

Acknowledgments
Special thanks to Tugrul Keskin, editor-in-chief of the Sociology of Islam

list serve and Sociology of Islam journal, for his support and assistance in
helping bring this publication to light, particularly in its initial stages;
Deina Abdelkader and Charles E. Butterworth for offering critical feed-
back on various editorial decisions along the way; the editors of the ‘Islam
and Global Studies’ series as well as Palgrave Macmillan for their support
of and partnership in this project; Laura Shelley for her meticulous work
in proof-reading the final manuscript and producing a thorough index
which, along with the introductory chapter, helps tie together the volume
as a unified whole; Washington State University Department of History
and the University of Toronto Faculty of Law and Institute of Islamic
Studies for providing funding for the specialized index; Richard
E. Rubenstein and Ziba Mir-Hosseini for their endorsement of the vol-
ume; and, last but not least, all those we do not have time or space to
name but who have contributed to and supported this project in a variety
of ways.
vii
Praise for Reason, Revelation and Law in Islamic
and Western Theory and History
“The traditions associated with ‘Islam’ and ‘the West’ have long engaged
in philosophical and religious debates on relations between human reason
and divine revelation. The essays in this volume engage with the sources
of these debates from different disciplinary perspectives—sociology, phi-
losophy, political science and history. They shed light on how the debates
have left their mark on the histories and identities of various Muslim and
Western cultures, and how they have shaped the course of their past and
present encounters with one another. Reason, Revelation and Law in
Islamic and Western Theory and History is an important and challenging
contribution to overcoming current ‘othering’, and to developing the
possibilities of mutual respect and co-existence amid difference.”
—Ziba Mir-Hosseini, SOAS, University of London
“Reason, Revelation and Law in Islamic and Western Theory and History
makes an important contribution to ongoing efforts to understand the
profound intellectual and spiritual connections that long made relations
between Islam and the West seem more like a family quarrel than a “clash
of civilizations.” The well documented, vividly argued essays edited by
R. Charles Weller and Anver Emon should be of considerable interest to
lawyers, diplomats, and conflict resolution specialists as well as to sociolo-
gists, historians of religion and related fields. By demonstrating how great
Muslim and Christian scholars jointly discovered and developed essential
concepts like natural law, this book revives one’s faith in the possibility of
future cooperative relations.”
—Richard E. Rubenstein, University Professor, School for Conflict
Analysis and Resolution, George Mason University
Contents
1 Introduction: Reason, Revelation, and Law in Global

Historical Perspective 1
R. Charles Weller
2 The Historical Relation of Islamic and Western Law 25

R. Charles Weller
3 Through the Lens of the Qur’anic Covenant: Theories of

Natural Law and Social Contract in al-Ṭabarı̄’s Exegesis
and History 45
Ulrika Mårtensson
4 Al-Ghazali’s Ethics and Natural Law Theory 83

Edward Moad
5 Elitist Democracy and Epistemic Equality: Aristotle and

Ibn Rushd on the Role of Common Beliefs101
Karen Taliaferro
xi
xii Contents
6 “A Comparative Study of Reason and Revelation in

Relation to Natural and Divine Law in al-Farabi and Ibn
Rushd”123
Ainur D. Kurmanaliyeva
7 Epilogue: Critical Reflections in Retrospect and Prospect135

Anver M. Emon
Index157
Notes on Contributors
Anver M. Emon is Professor of Law and History; Canada Research

Chair in Islamic Legal History; and Director, Institute of Islamic Studies,
University of Toronto. Emon has published widely in Islamic legal history,
including authoring Islamic Natural Law Theories (2010) and co-
authoring The Natural Law: A Jewish, Christian and Islamic
Trialogue (2014).
Ainur D. Kurmanaliyeva (PhD) is professor and Chair of the Department
of Religious and Cultural Studies at Al-Farabi Kazakh National University,
Almaty, Kazakhstan. Kurmanaliyeva’s research interests include the phi-
losophy of Al-Farabi within the context of broader Arab-Muslim
Philosophy, relevant issues of religious education in modern
Kazakhstan, and the contemporary religious situation in Kazakhstan.
Her publications include a co-authored article with A. Kulsaryieva
and D. Sikhimbaeva, “The Religious Situation in Kazakhstan: The
Main Trends and Challenges,” World Applied Sciences Journal (Vol 25,
No 11, 2013: 1612–1618) and “Educating for Tolerance in
Kazakhstan.” CLCWeb: Comparative Literature and Culture (Vol 20, No
2, 2018: https://doi.org/10.7771/1481-4374.3237) co-authored with
S. Rysbekova and K. Borbassova. She has served as principle investigator
of the following research projects for the Ministry of Education and
Science of Kazakhstan: The role of religion in modern Kazakhstan
(2012–2014), the contours of missionary activity in modern Kazakhstan
(2015–2017).
xiii
xiv NOTES ON CONTRIBUTORS
Ulrika Mårtensson is professor at the Department of Philosophy and

Religious Studies, the Norwegian University of Science and Technology,
where she teaches Islamic studies from a Comparative Religious studies
perspective, and with a focus on institutions and disciplines. She has a PhD
from Uppsala University (2001) on the dissertation ‘The True New
Testament: Sealing the Heart’s Covenant in al-Ṭ abarı̄’s History of the
Messengers and the Kings’. Since then, she has continued to work on
the various aspects of al-Ṭ abarı̄’s madhhab, alongside subjects such as
Qur’an exegesis and theories of Qur’anic Arabic language and rheto-
ric, historiography, and modern Islamic movements and thought. A
particular interest concerns relationships between religion and theory
and their implications for concepts of ‘religion’, in Islamic contexts
and more generally within the Comparative Religion-paradigm.
Edward Moad is Associate Professor of Philosophy in the Department of
Humanities, Qatar University. He received his PhD in Philosophy from
University of Missouri-Columbia (2004), and his research focuses on the
intersection between Metaphysics, Philosophy of Religion, Islamic
Philosophy, and Comparative Moral Epistemology. For more information:
https://philpeople.org/profiles/edward-moad.
Karen Taliaferro is an assistant professor in the School of Civic and
Economic Thought and Leadership, Arizona State University. She is the
author of The Possibility of Religious Freedom: Early Natural Law and the
Abrahamic Faiths (2019). Her research focuses on religion and the his-
tory of political thought with an emphasis on Islamic philosophy. Karen
was a 2015–2016 Thomas W. Smith Postdoctoral Fellow at the James
Madison Program, Princeton University, and has held fellowships at
Georgetown University’s School of Foreign Service in Qatar and in
Morocco through the Boren National Security Educational Program.
R. Charles Weller is Senior Research Fellow, Al-Farabi Kazakh National
University, and Associate Professor of History (Career), Washington State
University. Among works in English and Kazakh, Weller most recently
edited 21st-Century Narratives of World History: Global and
Multidisciplinary Perspectives (Palgrave Macmillan, 2017). He is work-
ing on two related monograph projects: Mosaic and Sharia Law in
American National History and Identity (Brill Academic) and ‘Pre-Islamic
Survivals’ in Tsarist and Soviet Ethnography of the Kazakh and Central
Asian Muslim Peoples.
CHAPTER 1
Introduction: Reason, Revelation, and Law

in Global Historical Perspective
R. Charles Weller
This volume originally emerged from exchanges on the Sociology of Islam list-
serve in June 2016. Since then it has taken new shape and direction, with
new contributors joining along the way. The final product is a collection of
essays by scholars from various geo-political and cultural backgrounds both
within and beyond the Western and Islamic worlds, representing distinct
disciplinary approaches and perspectives, who have come together to address
the proposed theme. The objective of the volume is to clarify the relation of
reason and revelation in connection to diverse meanings and interpretations
of Islamic and Western law which have affected entire peoples and societies
across the globe, past and present. The essays contribute to ongoing dia-
logues across cultural, civilizational, religious, and national borders as well as
to the myriad debates that have preceded such exchanges.
* * *
R. C. Weller (*)
Al-Farabi Kazakh National University, Almaty, Kazakhstan
Washington State University, Pullman, WA, USA
e-mail: rc.weller@wsu.edu
© The Author(s), under exclusive license to Springer Nature 1

Singapore Pte Ltd. 2021
R. C. Weller, A. M. Emon (eds.), Reason, Revelation and Law in
Islamic and Western Theory and History, Islam and Global Studies,
https://doi.org/10.1007/978-981-15-6245-7_1
2 R. C. WELLER
First, with respect to the much debated and problematic constructs

‘Islamic’ and ‘Western,’ we retain them only with some trepidation, due in
large measure to the way in which they have been used and abused to
promote reified boundaries between allegedly fixed and defined ‘civiliza-
tions’ which, so the narrative goes, are entirely at odds and incompatible
with one another, only destined to continue their historic clashes from
time immemorial. But such a description of the problem represents only
its most extreme form, variously articulated by or ascribed to those often
labeled ‘the far right,’ including most recently their farthest fringes, ‘the
alt-right.’ Depictions of “the far (neo-liberal) left” are meanwhile pre-
sented as blissfully, naively oblivious to any concerns whatsoever, deniers
of “Islamic terrorism” and other forms of “threat” from “the Islamic
world” (cf. Qureshi and Sells 2003; Herschinger 2011; Rose 2013). Both
of these more extreme narratives represent a ‘Western’ vantage. Or so at
first it seems. As Edward Said realized in the “Preface” to the 25th
Anniversary Edition of Orientalism: “This is [only] one side of the global
debate. In the Arab and Muslim countries the situation is scarcely bet-
ter. …the region has slipped into an easy anti-Americanism that shows
little understanding of what the United States is really like as a society”
(Said 2003: xxix). “Anti-Americanism” is, in this context, easily inter-
changeable with “anti-Westernism” more generally (cf. Carrier 1995;
Buruma and Margalit 2004; Aydin 2007; Duvall 2019).
But the conundrum of terminological definitions—which at its heart
concerns questions of how accurately or inaccurately those definitions rep-
resent corresponding realities, cohering conceptions, or (falsely) imag-
ined/invented constructs—eventually carries us into the debates over not
only ‘orientalism’ and ‘occidentalism,’ but ‘post-modernism,’ ‘post-
structuralism,’ ‘deconstructionism,’ ‘the linguistic turn,’ ‘the cultural
turn’ and more. The details of those debates need not be rehearsed here
(cf. Evans [1997] 1999; Breisach 2003; Iggers [1997] 2005), though the
volume by all means speaks to them in various ways at various junctures,
both implicitly and explicitly. Meanwhile, Anthony D. Smith has done
some of the best work thus far in both analyzing and synthesizing the
deeper historical and theoretical issues lying beneath and behind “cul-
tural,” “ethnic,” “national,” and other related (cf. “civilizational,” “racial,”
etc.) identities, placing them in historical context and proposing his own
middle-ground position along the way (Smith 2000).
Within my own chapter, I demonstrate that within a larger world his-
torical context of crosscultural contact and exchange, various forms of
1 INTRODUCTION: REASON, REVELATION, AND LAW IN GLOBAL… 3
Western and Islamic law have reciprocally influenced one another through-
out their long centuries of interaction, from the rise of Islam in the early
seventh-century to the fifteenth-century CE and beyond. These centuries-
long exchanges took place by way of their shared borders and living spaces
around and across the Mediterranean world and included not only legal,
but cultural, economic, political, and other forms of crosscultural influ-
ence. Thus, various forms of Western law (and culture) already contain
within them varying degrees of influence from diverse forms of Islamic law
(and culture), and vice versa. Along, therefore, with a great deal of diver-
sity and variation within Western and Islamic societies themselves, both
historically and presently, the large amount of shared heritage and recipro-
cal exchange across fourteen centuries results in inclusive (as opposed to
exclusive) understandings of each society: various ‘Western’ societies are,
in varying measure, partly ‘Islamic’ and various ‘Islamic’ societies partly
‘Western.’ This brings us back full circle to the question of whether
‘Islamic’ and ‘Western’ societies should be distinguished in such dichoto-
mized terms. In spite of the way in which the Israeli-Palestinian conflict,
the Iranian Revolution, 9/11, and other “clashes” have contributed to the
further politicization of the question, respective cases can be made for not
only “Judeo-Christian,” but “Islamo-Christian” (cf. Bulliet 2004),
“Judeo-Islamic,” and “Judaic-Christian-Islamic” syntheses—replete with
all their similarities and distinctions, harmonies, and tensions—which have
ebbed and flowed in various times and places amid the historical interac-
tions of these three monotheistic Middle Eastern religious-cultural tradi-
tions and their related societies.
Beyond this, a mutually reflexive relationship between various ‘Islamic’
and ‘Western’ societies implies numerous other streams of historical influ-
ence from multiple other non-Western and non-Islamic sources. These
sources would include not only the philosophical rationalism (as well as
medical approaches) of ancient Greek civilization from which Jewish,
Christian, and Muslim societies have all drawn (cf. Rubenstein 2003), but
also the Indian, Persian, Central Asian, East Asian, African, and multiple
other traditions. This provides a more accurate representation of the com-
plexity of human history viewed in global perspective, without denying
the uniqueness which various combinations of factors have produced
among particular human communities across both time and space (see
esp. Ansary 2019; cf. also McNeil and McNeil 2003; Bowden 2007). It is
a vision of continuing historical transformation in the face of ongoing
crosscultural exchange as opposed to static monolithic traditions placed in
4 R. C. WELLER
opposition to one another who are entirely unaffected by their encounter

with ‘the other’ and even seek to insulate themselves from such encoun-
ters. Academic debates (at least within Western scholarship) regarding
these kinds of interchanges between various human communities both
historically and contemporaneously can be traced back to the mass human
migrations of the nineteenth and early twentieth centuries resulting from
a combination of factors associated with industrialization, imperialism,
and the global economy. The most important articulations of these debates
found expression in the works of Oswald Spengler and Arnold Toynbee
respectively during roughly the second quarter of the twentieth century
(cf. esp. Costello 1994). The ongoing dynamics of ‘globalization’ and
corresponding resurgence of studies in transnational, transregional, world,
and global history carry these debates forward in our day. Important ques-
tions remain, of course, as to what degree and at what pace religious,
ethnic, cultural, civilizational, and other related transformations are inten-
tional or unintentional, forced or voluntary, internally or externally driven,
and whether the results are for better or worse, but answers are best found
in complex equations incorporating all these elements in ebbs and flows as
opposed to simplistic, isolated juxtapositions inflexibly positing one or the
other option.
* * *
The particular global encounter which gave rise to this small collection of
essays was, in fact, what, two years later, finally culminated in 2018 in the
denial of citizenship to a Syrian Muslim family by Swiss authorities. This
denial came after their two sons, ages 14 and 15 at the time (April 2016),
“requested an exemption from shaking a female teacher’s hand” (Taylor
2016; O’Grady 2018). In barring the Syrian Muslim family from citizen-
ship, the Swiss authorities insisted that “[t]he handshake is part of our
culture” and “the public interest concerning gender equality as well as
integration of foreigners far outweighs that concerning the freedom of
belief of students” (O’Grady 2018). Meanwhile, the president of the
Federation of Islamic Organizations in Switzerland suggested that the
boys and their family were “misinterpreting” the teachings of Islam, that
“the Islamic commandment of mutual respect” far outweighed an alleged
injunction against shaking hands with opposite genders (Taylor 2016).
Others cried out, with historical precedent, that ‘neo-imperialist foul play’
was involved on the side of the Swiss authorities. Although magnified
within the post-9/11 context, this was not really a ‘clash of civilizations,’
or at least did not need to be. At heart, it was merely one in a multitude of
crosscultural communication issues occurring all throughout human his-
tory. This particular case reflected the intersecting of religion, custom, law,
rights, and citizenship, with conceptions of ‘natural’ and ‘divine law’
grounded respectively in ‘reason’ and ‘revelation’ all in the mix. And once
again we have, in the latter two pairs, concepts which have often been
juxtaposed, yet which are not mutually exclusive, as the essays of
Mårtensson, Moad, Taliaferro, and Kurmanaliyeva all demonstrate.
Ultimately then, this volume speaks to the way that concepts and prac-
tices of both ‘natural’ and ‘divine law’ (cf. ‘human reason’ and ‘divine
revelation’) shape the histories and identities of various Islamic and
Western societies, particularly in the course of their encounters with one
another and ‘others’ within the global community. Within the covers of
this book, Ulrika Mårtensson, drawing on the work of John Finnis, refer-
ences “the history of natural law theory from Plato and especially Aristotle,
via Thomas Aquinas, into the Universal Declaration of Human Rights
(UDHR 1948).” Filling in the gaps between Aristotle and Aquinas,
Matthew Levering has elsewhere traced out “the sources of Christian
reflection on natural law” in “five influential patristic theologians, namely
Origen and John Chrysostom in the East, and Ambrosiaster, Pelagius, and
Augustine in the West” (Levering 2014: 66–67). Levering likewise notes,
“the extensive development of natural law doctrine by Christians since the
medieval period” (ibid.). As he demonstrates, Christian commentators
throughout the ages have advanced various ‘natural law’ theories based on
an oft-cited passage from the first-century Jewish-Christian theologian
Paul of Tarsus (i.e., “the Apostle Paul”), whose writings were eventually
incorporated into the Christian New Testament via later church councils.
The passage, in English translation, reads: “when Gentiles who do not
have the Law do instinctively the things of the Law, these, not having the
Law, are a law to themselves, in that they show the work of the Law writ-
ten in their hearts” (Romans 2:14–15, NASB). Against this historical
backdrop, the drafters of the UDHR included Dr. Charles Malik. Along
with having “played a major role in Lebanese politics,” he was “[a] Greek
Orthodox Christian” and “theologian who successfully reached across
religious lines, appealing to his fellow Eastern Orthodox Christians,
Roman Catholics and Evangelicals alike” (Hijazi 1987: D19; DHL n.d.).
But apart from the initial passing reference to Plato and Aristotle—
which leaves out Euripides, the Stoics, and more (Moyn 2014:
6 R. C. WELLER
365–366)—this brief historical overview thus far emphasizes Christian

contributions to the UDHR, and predominantly “Western” Christian
ones at that.1 The contributions of “the ancient rabbinic sages” and their
descendants, particularly Maimonides, merit inclusion within this histori-
cal stream of influences as well (Novak 2012; 2014: 30–31; cf. Neusner
1996; Cohen 2017: 62). Likewise, as my own chapter within this volume
suggests: “[t]aking…the influence of Islamic thinkers on Christian theore-
ticians in the Western tradition—particularly Aquinas and Mirandola…—
into consideration, the Islamic contribution to the United Nation’s
Universal Declaration of Human Rights and its ongoing appropriation
around the globe deserves recognition” as well.
And our brief survey here has not even taken into account the possible
streams of historic influence from Confucianism, Buddhism, Hinduism,
Sikhism, Shintoism, African, Native American, and numerous other spiri-
tual and cultural perspectives around the world. Indeed, we must agree
with Roman Tokarczyk (1991: 77) who, in treating many of these world
historical sources, argues that “[r]econstructions of the natural-law basis
of social order in different traditions call for comparative studies, suggest-
ing [a] multidimensional universalism.” Tokarczyk’s inquiry carried for-
ward, some four decades later, the vision of the Natural Law Institute at
the University of Notre Dame from the 1950s when, among their
Proceedings, they published a volume treating natural law in the Judaic,
Muslim, Hindu, Buddhist, and Chinese traditions (Barrett et al. 1953).
That many, if not all, of these worldviews shaped the drafting of the
UDHR is evident in the fact that, according to one estimate, “thirty-seven
of the member nations stood in the Judeo-Christian tradition, eleven in
the Islamic, six in the Marxist, and four in the Buddhist tradition,” with
efforts made “to draw up a declaration that was acceptable to all the par-
ticipating states” (Morsink 2011: 21 citing Chapelle 1967: 44). In spite,
however, of increasing recognition which has come with “discussions of
transnationalism, international regimes, and the limits to political realism”
since the 1980s (Waltz 2001: 45), we still lack a clear picture and, thus,
full appreciation of the way in which “the UDHR constitutes an essential
cornerstone in the modern history of human rights by drawing upon
ancient to contemporary philosophies” (Duan 2017). As the history of
the UDHR has been further explored across the past several decades in
particular, “it has become more complex, and more nuanced,” not only
with regard to the role played by “small states” (Waltz 2001: 45, 2002),
but multiple religious-cultural traditions as well. To the point: concepts
and practices of both “natural” and “divine law” have shaped not only the
histories and identities of various Islamic and Western peoples, but the
entire globe, through the UDHR and beyond. This broader global vision
adds new dimensions to the question of the historical relation of ‘reason’
and ‘revelation.’
Meanwhile, the historic tensions between these concepts and their cor-
ollaries of ‘natural’ and ‘divine law’ remain entrenched in various Islamic
and Western societies. Polarizations have resulted in extremes at either end
of the spectrum. Among those arguing for recognition of specifically reli-
gious contributions, assertions of superiority or outright exclusivist claims
continue to be voiced regarding the allegedly Jewish, Christian, or Islamic
origins of ‘human rights’ as well as their often closely associated form of
government—‘democracy.’ For example, an influential Muslim scholar in
the Kazakh context, Murtaza Bulutai, has argued that
[t]he acceptance throughout the world in recent times of the more highly
developed doctrines such as the dialogue between religions which continues
to be formed, the granting of freedom, the looking upon one another in a
favorable way, [and] the protection of human rights is one of the results, the
fruits, of having understood the benefits which Islam has preached for cen-
turies. (Bulutai 2000: 278; cf. Weller 2014: 160–170)
Elsewhere in relation to similar claims, Bulutai promotes the idea that

Qur’anic “principles serve as a basis for the formation of a state system
(statehood)” (Bulutai 2004). While Bulutai speaks of incorporating these
ideas into “a secular state,” he clearly envisions a foundational role for the
Qur’an and Islamic principles of law therein.
The Organization of Islamic Cooperation (or Conference, OIC)—
founded in 1971 and eventually becoming “the second largest inter-
governmental organisation after the United Nations,” with 57 member
states who claim to collectively function as “the collective voice of the
Muslim world” (SESRIC n.d.)—maintains an Independent Permanent
Human Rights Commission (IPHRC). At their 19th annual gathering in
1990, the OIC issued the Cairo Declaration on Human Rights in Islam.
The Declaration opens with the following affirmations as part of the foun-
dation for their vision:
Reaffirming the civilizing and historical role of the Islamic Ummah which
God made the best nation that has given mankind a universal and well-
8 R. C. WELLER
balanced civilization in which harmony is established between this life and

the hereafter and knowledge is combined with faith; and the role that this
Ummah should play to guide a humanity confused by competing trends and
ideologies and to prove solutions to the chronic problems of this materialis-
tic civilization.
Wishing to contribute to the efforts of mankind to assert human rights,
to protect man from exploitation and persecution, and to affirm his freedom
and right to a dignified life in accordance with the Islamic Shari’ah. (OIC
1990: 3; cf. OHCHR 2011)
Here again we have aspirations “to contribute to the efforts of mankind

to assert human rights” mixed with claims that God himself created “the
Islamic Ummah” as “the best nation” offering “mankind a universal and
well-balanced civilization.” A claim is thus made for “the [lead] role that
this Ummah should play to guide…humanity” along the path to achieving
genuine human rights. Though it is doubtful at best that the UN would
take such claims at face value, the importance of this 57-member coopera-
tive’s vision for human rights is nonetheless indicated, among other things,
by the roundtable which the Office of the UN High Commissioner for
Human Rights (OHCHR) organized in October 2011 with the OIC and
the Non-Alignment Movement (NAM) in order to discuss “development
as a human right” (OHCHR 2011).
Meanwhile, within the Egyptian context, other internationally known
Muslim groups have been accused by certain Middle Eastern activists of
“promoting human rights in a politicized manner in order to gain grounds
on international platforms” (ETS 2019; cf. Qutb [2000] 2019).
From a Western Christian vantage, Rodney Stark—a former longtime
professor of sociology at the University of Washington who moved to
Baylor University in 2004—argues for The Victory of Reason: How
Christianity Led to Freedom, Capitalism and Western Success (2005; cf. also
Stark 2014). His vision of “freedom” and “Western Success” incorporates
claims regarding “the role of early and medieval Christianity in fostering
new ideas about human rights” through “[t]he blessings of a theology of
reason” (2005: xiv, 23). Contrary to the claims of Jews, Muslims, and all
others, religious or non-religious, Stark contends that “only Christianity
has devoted serious and sustained attention to human rights” (2005: 31).
More recently, in the summer of 2019, Samuel Gregg—research director
at a conservative Christian “think tank” in Michigan called the Acton
Institute—published a volume (via Gateway, an imprint of the avowedly
conservative publisher Regnery,) titled Reason, Faith, and the Struggle for
Western Civilization. Gregg, in agreement with Pope Benedict XVI,
emphasizes only “Jewish, Greek, Roman, and Christian sources” filtered
through the Enlightenment in relation to the UDHR. Accordingly, he
highlights only the contributions of Charles Malik, the Lebanese Greek
Orthodox member, and the “secular French Jew, René Cassin” (Gregg
2019, chapter 7).
These are only several of numerous other examples from both Muslim
and Christian sources where religious scholars, missionaries, and reli-
giously based political groups attempt to establish their own religious faith
tradition as the main source and guide for human rights and democratic
government around the globe. Most of them share in common an approach
which extols their own faith in an exclusivist manner while denigrating the
other(s) in the process, instead of inclusively affirming and welcoming the
contributions of all, equally mindful of the limitations and shortcomings
of each in fairness and balance, without necessarily holding to an entirely
neutral and egalitarian form of ‘cultural relativism’ in the process.
Religious contributions to the history of human rights and justice can-
not be denied (cf. e.g., the movements led by Gandhi and MLK). Then
again, very serious human rights abuses and injustices have also been com-
mitted in the name of these same religions, including oppressive attempts
to convert others to ‘the truth’ (as they each interpret it) through socially
coercive or even threatening means. The topic is thus delicate and freighted
with pitfalls; those who do not belong to these faith traditions quite
understandably carry deep concerns as to the motives and agendas of
those pursuing such discussions. These historic abuses and questionable
agendas have led to more secularized ideals centered in human reason
(cf. both ‘natural’ and ‘positive’ law’). While this includes atheistic
approaches, the emerging ideals have not always been in opposition to or
exclusion of divine revelation, but have rather included them by positing
natural scientific processes, human history and/or human rational thought
as various means of divine revelation themselves, as was the case with many
of the Islamic Golden Age and European Enlightenment philosophers.
Over the past century or more others have incorporated both reason and
revelation in similar ways based in more pluralistic humanist and religious
visions. Along with the Parliament of the World’s Religions originally
meeting and still based in Chicago since 1893, other more recent efforts
incorporating both ‘reason’ and ‘revelation’ as well as ‘natural’ and ‘divine
law’ perspectives include the Global Conference on the World’s Religions
hosted by McGill University in Canada and the Congress of the Leaders
10 R. C. WELLER
of World and Traditional Religions hosted by the government of

Kazakhstan in Nur Sultan (formerly Astana). All of these working groups
have produced a ‘Declaration’ addressing, among other matters, issues of
human rights and democratic ideals, explicitly working in conjunction
with the United Nations and UNESCO (PWR 1993; GCWR 2016; cf.
Greenaway 2016; CLWTR 2018).
Among the chapters in this volume, Taliaferro alone explicitly notes
how her discussion addresses “modernity’s aspirations of democracy,
equality and self-rule.” Mårtensson’s reference to the UDHR implies that
she is ultimately concerned with similar matters. But whether implicit or
explicit, all the chapters discuss in some way or other various Islamic theo-
ries of natural law, contributions to common and other forms of law, or
democratic ideals. Thus questions of “Islam and democracy” are, however
near or far, certainly in view (cf. Sachedina 2001; Bhutto 2008; Esposito
et al. 2015; Kubicek 2015; al-Ahsan and Young 2017). Theoretical com-
parisons as well as historical connections with Western Christian and secu-
lar traditions bring questions of reason, revelation, and law to the
foreground, all against this complicated and controversial historical
backdrop.
Ulrika Mårtensson, “Through the Lens of the Qur’anic Covenant:
Theories of Natural Law and Social Contract in al-Ṭ abarı̄’s Exegesis and
History,” (Chap. 3), follows my treatment of “The Historical Relation of
Islamic and Western Law” (Chap. 2). Mårtensson first:
• sets forth the UDHR as a comparative point of reference in the late

modern age,
• highlights the debate over Muslim religious-cultural rights as an
issue of human (minority) rights in the Swiss citizenship case,
• reviews the question as to whether human reason necessarily pre-
cludes sources of divine revelation in relation to theories of natural
law, as is sometimes asserted within Western scholarship,
• provides “an exposition of” two major competing interpretations of
“the Biblical-Jewish concept of Covenant and its significance in
American Puritan and revolutionary contexts,” thus supplying
another important and helpful comparative point of reference which
is historically prior to the UDHR, reaching back as far as the ancient
and medieval periods, and
• overviews debates concerning Islamic natural law theory.
With these matters in view, she proceeds to exegete both the Qur’an
and the legal tradition of Muḥammad b. Jarı̄r al-Ṭ abarı̄ (d. 310/923) in
the light of natural law and social contract theory. She first argues that the
Qur’an itself functioned as a form of social contract grounded in natural
law. This was accomplished by way of the concept of haqq, interpreted by
Mårtensson as a type of “right”, flowing forth from and situated within
God’s act of Creation as narrated in the Qur’an which serves as “the uni-
versal Creation Covenant between God and humans.” She then argues
that al-Ṭ abarı̄ “grounded his madhhab [law school] in a Qur’anic
Covenantal natural law and social contract theory…(mı̄thāq)” which was
built upon “a concept of the common good (maṣlaḥa)” as a means for
protecting the rights (ḥuqūq) which were granted. Because Ṭ abarı̄ located
the social contract in Creation, he “did not limit [it] to the Prophet’s pol-
ity,” but “conceptualized it in ‘universal’ terms.” Ṭ abarı̄ thus represents an
early form of this viewpoint and approach among Muslim interpreters
which would eventually culminate in the articulation of “a set of defined
‘objectives’ of the law (maqāsị d): preservation of religion, life, intellect,
lineage, and property,” the clearest expression of which would come nearly
two centuries later in the work of al-Ghazzālı̄ (d. 505/1111). Mårtensson’s
aim in all this is not, however, to trace out the path of historical develop-
ment from Ṭ abarı̄ to Ghazzālı̄, but to accentuate the contribution of
Ṭ abarı̄ within the context of debates over Islamic natural law theory and
history.
Edward Moad, “Al-Ghazali’s Ethics and Natural Law Theory” (Chap.
4), employs both historical-critical analysis and extensive philosophical,
analogical argumentation to “make the case that we can accurately describe
[Abu Hamid al-] Ghazali’s position as a natural law theory.” In so doing,
he concentrates on “the compatibility between the thought of…al-Ghazali
(1058–1111), and the dimension of natural law pertaining” not to Islamic
law schools and issues of legality, but “morality and moral epistemology.”
In the course of his inquiry into this moral dimension of al-Ghazali’s natu-
ral law theory, Moad takes “the moral theory of Saint Thomas Aquinas as
paradigmatic,” which means, among other things, that “reason is capable
of discovering moral norms independent of” divine revelation without
dismissing all forms of divine guidance. This includes, most importantly,
the conviction that “objective moral norms rooted in human nature are
discoverable by reason.” Ultimately then, in spite of the extensive philo-
sophical argumentation of both Ghazali and Moad which are encountered
throughout the essay, Moad’s study is at heart a comparative historical
12 R. C. WELLER
inquiry concerned with how closely the ideas of Ghazali regarding natural
law on a moral level align with those of Thomas Aquinas. Moad’s conclu-
sion is that Ghazali’s “natural law” theory—which shares a “basic similar-
ity” with “that of his contemporaries among the Muslim falāsifa
[philosophers]”—is, in fact, “comparable in its essential components to
that of Saint Thomas Aquinas,” and thus, by implication, other Western
theories across the centuries which have been shaped by Aquinas. In
advancing his argument, Moad challenges the “strictly ‘occasionalist’
interpretation of Ghazali’s metaphysics of nature” which “depends on an
oversimplification” and “a hasty conclusion,” proposing that even if such
an interpretation be granted, there is every possibility that Ghazali’s ideas
touching on natural law are simply “inconsistent with” (or perhaps an
exception to?) his general theory of metaphysics. In raising this latter pos-
sibility, Moad does not delve into questions of how Ghazali’s ideas may
have developed historically, but nonetheless offers “a plausible reading of
the relevant sections of Ghazali.” In the final analysis, “it remains the case
that the ethics [Ghazali] does expound is a natural law theory in all essen-
tial respects.”
Karen Taliaferro, “Elitist Democracy and Epistemic Equality: Aristotle
and Ibn Rushd on the Role of Common Beliefs,” (Chap. 5), compara-
tively traces out approaches to public knowledge and dialogue in the
fourth-century BCE Greek philosopher Aristotle and his later twelfth-
century commentator, the Iberian Muslim philosopher Ibn Rushd. These
are “Aristotle’s ‘endoxic method’ approach to political and moral inquiry”
and Ibn Rushd’s “bādı̄ al-rāʾı̄,” otherwise known as his “immediate point
of view” or “unexamined opinion” approach. Aristotle’s “endoxic
method” provides, she argues, “a discursive approach to knowledge”—a
type of correlation theory of truth—which takes into account “the com-
mon beliefs or opinions” of the populace, functioning as “the fundamen-
tal data of a system of ethics” within a democratic decision-making process.
Ibn Rushd’s “immediate point of view” sifts out common beliefs and
opinions which have “communal underpinnings” by virtue of their being
“immediately” convincing and/or “widely accepted” to most common
people on the streets. This “does not preclude the possibility that com-
mon opinion is shared by the elites, nor…cultural particularities among
such opinions,” but leaves room for more than “one version of ‘common
opinion,’” perhaps best understood as a collection of ‘common opinions’
among major segments of a given society which share core ideals and val-
ues. Taliaferro holds that this “communal knowledge” helps us perceive
those “unwritten laws” that, according to Ibn Rushd, “are in the nature of
everyone,” thus outlining a natural law theory. Taliaferro recognizes in all
this that “vesting authority in common opinion, elite opinion, or religious
revelation are perhaps equally likely to fall prey to blind spots.” Despite
potential shortcomings, however, it remains, she argues, “an invaluable
starting point in moral argumentation, especially considering the alterna-
tives of religious fideism, inflammatory populism, or appeals to mere self-
interest.” It reflects an “epistemologically humble” approach which seeks
“a plurality of voices and opinions,” helping us “move beyond not only
the elite/common divide but also to move past the equally unhelpful rev-
elation vs. reason and religion vs. politics antinomies.” She frames her
study around a concern for modern trends in democratic societies where
“certain voices rise to the fore in the public sphere while others are sup-
pressed,” suggesting that the related yet distinct approaches of Aristotle
and Ibn Rushd might provide helpful guidance for achieving “modernity’s
aspirations of democracy, equality and self-rule” by bridging, at least in
part, the “divide between elites and…ordinary citizens,” without denying
the need for “an adequate education,” including some kind of “moral
education,” in the process.
In the final chapter of the volume (six), Ainur Kurmanaliyeva offers “A
Comparative Study of Reason and Revelation in Relation to Natural and
Divine Law in al-Farabi and Ibn Rushd.” She describes al-Farabi
(870–950 CE)—who hails from the same Turkic-Kipchak steppe of
Central Asia as Kurmanaliyeva, with her university now named in his
honor—and Ibn Rushd as both “interpret[ing] divine revelation and
human reason as two forms of knowledge which complete rather than nul-
lify each other.” Farabi, however, according to Kurmanaliyeva, “extolled
the reliable nature of knowledge grounded in [human] reason.” Indeed,
in her view, “[t]he rational position peculiar to the treatises of al-Farabi is
proof of the advanced character of medieval Islamic philosophy.” Ibn
Rushd, meanwhile she suggests, held more to a middle-ground of balance
between the two. Rushd, in fact, she says, argued that “once divine revela-
tion and human reason are both considered means of attaining truth, then
truth and truth cannot contradict each other; on the contrary, they develop
in correlation with each other.” Nonetheless, Rushd recommended that in
cases where “divine revelation has principle contradictions” with conclu-
sions reached by human reason and natural science, an “allegorical inter-
pretation of the Qur’anic words” was the best approach to resolving any
such apparent conflicts. Intersecting with the work of Taliaferro, though
14 R. C. WELLER
from a differing angle, Kurmanaliyeva notes along these lines how Ibn
Rushd considered “[d]aily repetition of public opinion” and a lack of
“encounter[ing] any viewpoints contrary to what is habitually affirmed”
the reasons that the uncritical, unthinking masses accepted “the view that
the world was created out of nothing.” This suggests the willingness of
Rushd to call into question, not the divine revelation itself, but prevailing
interpretations which, in his view, had not been critically examined. Thus
Rushd supported “the opposite view of the arguments of religious schol-
ars such as al-Ghazali and al-Ash’ari.” Still, according to her reading of
Rushd, he believed that “religion constructed solely on the basis of human
reasoning [was] weak.” Among much else, her own conclusion to her
comparative study says it best: “The ability of al-Ghazali to promote his
own opinion in reaction to the questions raised by Al-Farabi, Ibn Sina and
other Islamic philosophers, followed by Ibn Rushd’s reaffirmation of the
harmony between human reason and divine revelation, and the unique
dialogue that ensued—this is the cultural heritage of the classical
Islamic era.”
Kurmanaliyeva’s final note, and indeed her entire treatment of the rela-
tion between divine revelation and human reason in connection to divine
and natural law, and the ability of Muslim scholars to engage these ques-
tions through open academic dialogue, hints at her own post-Soviet con-
text. This is reflected in the Foreword she has written for this volume
which expresses explicit concern for “understanding…the relation between
the principles of religious law and secular state,” particularly within “the
post-Soviet independent Central Asian states, where certain Muslims
remain unsatisfied with the strictly secular nature of the state, and leave
their states with the aim of building an Islamic state.” In this, she also—
like all of us, including the Muslim philosophers she and the other con-
tributors to this volume examine—is a “child of her time.” In her own
case, she lives in the shadow and still vivid memory of some 70 years of
Soviet atheistic suppression of the freedom of both speech and religion
now complexly layered over by not only an initial pendulum swing of
Islamic (and other religious) revivalism (cf. Weller 2014), but the
post-9/11 “War on Terror.” The Soviets of course, as an off-shoot Western
secular society, shared deep concern for the trends of Islamic revivalism
giving birth to Islamic states along their southern border, particularly in
Iran and Afghanistan. Thus the Soviet-Afghan War (1979–89) followed
immediately on the heels of the 1979 Iranian Revolution and resulted in,
among other things, US aid being funneled to Osama bin Laden and the
Mujahideen resistance. The success of their US-supported resistance

against the Soviets within the broader context of the Cold War gave rise to
the very thing both the Soviets and US feared, namely the Taliban at the
head of an Islamic Afghan state in 1996. By this time, the post-Soviet
Central Asian states, inclusive of Kazakhstan where Kurmanaliyeva herself
resides, had gained independence. Indeed, they gained it in 1991, due in
part to the failed Soviet military offensive in Afghanistan and subsequent
collapse of the Soviet Union. The Central Asian states were now free to
not only run their own governments, but take over the task of safeguard-
ing them from penetration by militant and other extremist groups whose
aim was the founding of an Islamic state established solely and strictly
upon Sharia as a divinely revealed code of law. How, then, to manage the
genuine, productive revival of their main historic religious tradition, Islam,
in a post-atheistic context without it resulting in a full-fledged Islamic
state? This remains one of the long-standing, though dynamically trans-
forming challenges they have faced. Meanwhile the Taliban in Afghanistan
provided refuge for al-Qaeda which, in turn, gave rise to Islamic State of
Iraq and Syria (ISIS) which, in turn, has generated renewed debate over
potentially reviving the Islamic Caliphate based in Sharia law (cf. Kennedy
2016; Hassan 2017), which, in turn, brings us back full circle to the long-
standing debates of “Islam and democracy” (see above) and the various
approaches to law within Islamic and Muslim-majority states (cf. Otto
2010; Daniels 2017).
This no doubt is an over-simplified summary, but it hopefully helps
clarify some of the various strands which connect the larger global context
embracing all the contributors to this volume, with Kurmanaliyeva’s
Foreword and Emon’s Epilogue reflecting this context most explicitly.
And yet, real and important though it be, this over-simplified narrative
too often over-shadows the more important dimensions of “the cultural
heritage of the classical Islamic era.” And here the post-Soviet heritage is
just as much an asset as a liability, in that the Soviets promoted the study
of Islamic Golden Age philosophers by Central Asian (and other) Soviet
Muslim peoples. In doing so, they in fact highlighted many of the same
points which al-Ghazali did in his Tahāfut al-Falāsifa (Incoherence of the
Philosophers), albeit for precisely the opposite purpose. Whereas Ghazali
was keen to condemn “the hide-bound atheists of our day” (Al-Ghazali
[c. 1095] 1963: 3) for their naturalist-based scientific and philosophical
theories about metaphysical topics such as God and the cosmos, the Soviets
employed these selfsame findings as propaganda for their own cause. But
16 R. C. WELLER
this, like Soviet and American meddling in Iran and Afghanistan, proved a
double-edged sword, for the majority of Central Asian (and other) Soviet
Muslim peoples were quite capable of politely ignoring the atheistic cam-
paigns—even if at times forced to pay them public lip-service—and instead
exploit the opportunity to further explore and safeguard their historic
Muslim heritage. Kurmanaliyeva is among the second generation of post-
Soviet Central Asian scholars to carry forward this legacy, aiming to help
recover for her own day the balance between faith and reason as well as
open academic inquiry which she explores in the work of Farabi and Rushd
(cf. Altayev 2016).
The Soviets did not simply choose, however, to attempt to co-opt
Islamic Golden Age scholarship of their own free will and innovative
thinking. They were rather forced to do so by the sheer weight of author-
ity which the tradition carried among Central Asian Muslim peoples from
the time of the Golden Age down to the Soviet subjugation of Central
Asia in the early 1920s. Indeed, as important as Baghdad and the Middle
East were, the main origins and sustenance (of at least the eastern branch)
of the Islamic Golden Age were located in the Central Asian heartlands
among the Turko-Persian scholars of Merv, Tus, Nishapur, Khorezm, and
other hubs of learning (cf. Starr 2013). This raises the question of the
alleged “decline of the Islamic Golden Age.” Sparing much detail on a
topic which remains widely contested to this day, one thing is certain: in
spite of the many important insights supplied by scholars such as Starr,
Ghazali (and/or the Asharites) did not single-handedly bring it all to an
end. To whatever degree he influenced subsequent scholarship—which
was certainly significant—that influence included Ghazali’s view that who-
ever “thinks that it is his religious duty to disbelieve…those things in
which the philosophers believe, and which do not come into conflict with
any religious principle…is really unjust to religion, and weakens its cause”
(Al-Ghazali [c. 1095] 1963: 6). True, Ghazali did argue for the unequivo-
cal, unquestioning primacy of revelation over reason. But the application
of human reason in the quest for truth, in and of itself, Ghazali insisted,
“involves no contradictions which might deserve our attention” (ibid.:
12). And thus, in spite of Omar Khayyam’s complaint in the early twelfth-
century Abbasid realm that they “were being tried by the disappear-
ance…of the men of learning, of whom only a handful are left, small in
number but large in tribulations” (Khayyam 1851:2, 129ff; cf. Grunebaum
1966: 693n1), other factors beyond Ghazali’s critique played a role. And
the “disappearance” was not necessarily permanent, certainly not in any
historically deterministic manner. The impact of “the Mongol devasta-

tion” (1258) cannot be minimized or dismissed on the supposed grounds
that Ghazali’s critique had already settled the matter fully and finally for all
time to come. The Mongol conquest contributed significantly to further
set back, at least in the more eastern realms. But none of this brought the
tradition to a complete and final end. Ibn Khaldun bears witness to the
continuation of the study of the Islamic sciences across North Africa, the
Middle East, and Central Asia, in varying measure, down to his own time
in the late fourteenth century (Ibn Khaldun [1377] 1958, Ch 6; cf.
Dale 2015).
Still, we must, within the Central Asian heartland, acknowledge a gap
between Ulugh Beg Mirza (d. 1449), who carried out his scientific work
within the Timurid Chagatai khanate centered in Samarqand, and the rise
of the nineteenth-century Central Asian “Jadid” movement as one branch
of the various Muslim modernist reform movements (cf. Kurzman 2002).
Beyond the latter movements, Anver Emon’s “Epilogue” offers “Critical
Reflections” from an established expert of Islamic natural law theory (cf.
esp. Emon 2010) on efforts among Islamic scholars to engage these issues
in the twentieth and early twenty-first centuries, with a view to how ques-
tions of reason and revelation relate to the study of Islamic law within vari-
ous disciplinary approaches.
As for the Soviet atheistic-scientific rejection of any and all ideas of
divine revelation as simply ‘opium of the people,’ this was only one form
of Western secularist ideology which contributed to fundamentalist and
extremist religious reassertions of their own divinely established authority
in the world. University Professor of Conflict Resolution and Public
Affairs at George Mason University, Richard E. Rubenstein (2003), offers
thought-provoking suggestions for the Euro-American branch of this self-
same struggle between the religious and secular, between faith and reason
in his study of Aristotle’s Children: How Christians, Muslims, and Jews
Rediscovered Ancient Wisdom and Illuminated the Dark Ages. After detail-
ing the many scientific, social, and cultural achievements which arose from
“a stormy, productive dialogue between faith and reason” (p. 281) in a
long lineage of Jewish, Christian, and Muslim thinkers who interacted
with Aristotle and one another, Rubenstein likens the dismantling of the
negotiated settlement between Western Christianity and Aristotelian
rationalism to “a sort of intellectual nuclear fission…generating a coldly
objectivist science and a passionately subjectivist religion” (p. 289; cf.
278–279). Indeed, this dismantling involved a “denial that Aristotle’s
18 R. C. WELLER
ideas and those of his medieval interpreters played any progressive role at
all in the course of human enlightenment.” Helping connect various
strands within this volume, Rubenstein compares this to “the rewriting of
history that we associate with Stalinism in the Soviet Union—the ‘air-
brushing’ out of figures and events embarrassing to the current regime.”
Instead, however, of co-opting the creative tension of reason and faith as
the Soviets did, various “[l]eading philosophers of the early modern
period” within Western Christian Europe “did not merely attack
Aristotelian Christianity, they dismissed it” (pp. 284–285). Helping tie
together still more strands within this volume, Rubenstein astutely
observes how “obliterat[ing] the Aristotelian revolution” not only “served
the interests of Europe’s new leaders,” since “Aristotelian Christianity was
an obstacle to all those who wished to break the power of the Catholic
Church,” it also had “the advantage of disguising the West’s enormous
debt to a more advanced Islamic civilization” (p. 286), namely “the cul-
tural heritage of the classical Islamic era” which Western Civilization
became heir to as well.
One final point should be made here regarding the relation of revela-
tion and reason, at least from this editor’s perspective: interpreting natural
scientific processes, human history, and/or human rational thought as
vehicles of divine revelation in and of themselves remains fraught with
what are ultimately unverifiable assumptions which risk conflating ‘acts of
nature’ and/or ‘acts of humans’ with ‘acts of God,’ or likewise ‘thoughts
of humans’ with ‘thoughts of God.’ Such conflations can too easily serve
to divinize alleged theories of racial hierarchies and the like leading to
social, political, cultural, and other forms of injustice and inequity, while at
the same time also provide the very foundations of constitutional democ-
racies and human-civil rights, at least in their originally conceived forms.
As for the more traditional views of divine revelation within Judaism,
Christianity, and Islam, which result in allegedly sacred and thus inerrant
or infallible scriptural canons and law codes, they must all fairly and hon-
estly engage the questions of historical context and human agency in the
processes of alleged reception, initial communication, preservation (cf.
scribal or isnadic transmission), textual criticism, canonization, trans-
historical as well as crosscultural communication of the messages via inter-
pretation and translation, and tests of internal consistency and historical
reliability. All such critical engagement necessarily involves human reason
guided by the established theories and methodologies of various academic
disciplines, which is what the essays in this volume are grounded in.
It is hoped that these analyses—arranged both historically and topically

and tied together by the overall theme of the volume—will prove benefi-
cial to scholars and students of religious studies, interreligious, intercul-
tural, and international relations, political science, history, sociology, and
related fields both within and beyond the Western and Islamic worlds, as
well as generally educated readers who take interest in these issues and
their ramifications. They are offered in a spirit of earnest, open and respect-
ful academic dialogue.
Although this volume is one of the first works to appear within Palgrave
Macmillan’s new “Islam and Global Studies” series, it adds to a growing
list of related Palgrave titles (see esp. Booth 2006; Cook et al. 2013; Bsoul
2016; Dunn 2016), all of which take their place alongside other important
contributions to a cluster of overlapping fields (see esp. Morris 2003;
Dobie 2009; Hyman et al. 2010; Kalin 2010; Al Ghouz 2018; Diagne
2018; Dobie 2019; El-Tobgui 2019, in addition to works already
cited above).
Note
1. The extent to which ‘Eastern’ Orthodoxy can rightfully be included among
the ‘Western’ Christian traditions is debatable. Opinions are bound to differ,
particularly with respect to Orthodox traditions in Lebanon and the broader
Middle East. They are intimately connected to the Greek Orthodox, French
Catholic, and Maronite traditions historically. Yet Christianity, like both
Judaism (and Islam) before it, was originally a ‘Middle Eastern’ religion. To
what degree Malik’s tradition in particular was shaped by Western cultural
norms and/or fostered its own distinctively Middle Eastern heritage is a
question beyond the scope of this Introduction.
References
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CHAPTER 2
The Historical Relation of Islamic

and Western Law
R. Charles Weller
Introduction
The historical relation of Islamic and Western law includes questions of
both Islamic influence on Western law and Western (as well as other non-
Islamic) influence on Islamic law within broader world history. With
respect to crosscultural contact and exchange within that broader world
historical context, the Western and Islamic worlds have, since the rise of
Islam in the early seventh-century CE, shared borders and even living
spaces around the Mediterranean (particularly in Spain, Italy, and
Anatolia), certain coastal areas (in France, Syria-Palestine, and elsewhere),
and the Mediterranean islands (especially Sicily, Sardinia, Corsica, Cyprus,
and Crete). For many long centuries, they engaged in not only military
conflicts which included hostage taking and exchange as well as the
R. C. Weller (*)
Al-Farabi Kazakh National University, Almaty, Kazakhstan
Washington State University, Pullman, WA, USA
e-mail: rc.weller@wsu.edu

https://doi.org/10.1007/978-981-15-6245-7_2
26 R. C. WELLER
negotiation of peace treaties, but a great deal of trade across a vast, com-
plex web of both land and sea routes leading to market places where mer-
chants daily mingled. This was all supplemented by diplomatic missions,
religious pilgrimages, political alliances, and other forms of encounter (see
esp. Boisard 1980). Reciprocal influence has thus occurred economically,
culturally, religiously, scientifically, philosophically, politically, and legally
through these centuries-long sustained encounters. In fact, it can be
argued that because of this long history of contact and exchange, ‘the
West’ is itself partly Islamic just as Islam is partly Western. Notwithstanding
appreciable differences, the great irreconcilable chasm between the two
civilizations does not, in reality, exist. The boundaries remain, down to the
present, blurred and shifting through ongoing interaction across space
and time.
Western as well as Other Non-Islamic Influence

on Islamic Law
With a view to the historical context in which Islam arose and took shape
across the late sixth to eighth centuries, possible historical sources for
sharia and broader Islamic law include the pre-Islamic Arabian, classical
Greek and Roman, Byzantine, Syrian, Sassanid Persian, and Ethiopian as
well as various Jewish, Christian, and Zoroastrian traditions. The disen-
tanglement of sources becomes even more complex when considering that
arguments, for example, for pre-Islamic Arabian influence, in whatever
measure, must also take into consideration the possible degree of
Byzantine, Persian, Syrian, Ethiopian, Jewish, and/or Christian influence
upon pre-Islamic Arabia, and vice versa. Indeed, when locating the con-
solidation of the foundational sharia law schools sometime between the
mid-eighth and mid-tenth centuries, the dynamic, multi-layered, reflexive
influences of all these possible sources on not only the various sharia law
schools, but one another across the span of two or more centuries present
a formidable challenge to scholarship on the origins of sharia and broader
Islamic law (cf. Potz 2011: 36 on “the transfer of Roman-Byzantine law
to Baghdad as well as its ‘re-import’ into the occident”).
Amid these interactions, Islamic law “assimilated and generated diverse
‘Near Eastern’ legal traditions” as part of a long historic process of “inter-
play” (Salaymeh 2016: 8). One prominent example of this is the “Covenant
of Umar” which, as part of sharia law, grants “religious toleration” to “the
2 THE HISTORICAL RELATION OF ISLAMIC AND WESTERN LAW 27
People of the Book”—namely Jews, Christians, and Zoroastrians. In brief

overview of an otherwise deeply complex historical subject, the origins of
the “jizya” (“poll” or “head tax”) as paid by “the People of the Book”
briefly referenced in the Qur’an (9.29) were shaped by pre-existing Greek
Byzantine, Sassanian Persian, and/or pre-Islamic Arabian laws and cus-
toms (cf. al-Tabari [c. 920] 1999: 252-263, esp. n625; Goodblatt 1979;
Ashtor and Bornstein-Makovetsky 2007; cf. Duri 1974 and Watt 1968:
49-50). Likewise, the variations found between not only the “Constitutions
of Medina” (Ibn Ishaq [767] 1998: 232-233) and the Covenant of Umar,
but the distinct and evolving forms of the Covenant of Umar itself point
to historical transformations across time and space. It is doubtful a coinci-
dence that, as part of these historical transformations, the general con-
tours of the Covenant of Umar share essential features as well as related
official ceremonies with the Sassanian Persian regulations and practices
governing Jewish and Christian minorities in their otherwise officially
Zoroastrian empire. The Persian codes were forged in the fourth and fifth
centuries CE, prior to the Islamic conquest, and then continued by the
Mongols upon their later conquest of the Islamic realms (cf. Gilman and
Klimkeit 1999: 111-143). This continuation of tradition across three
empires points to the active part played by the Jewish and Christian com-
munities in negotiating their relations with each new conquering power, a
fact attested in the versions of the Covenant of Umar as recorded by Ibn
Askir of Damascus in approximately 1170 CE (cf. Tritton 1930: 6-8).
These kinds of historically layered questions involving reflexive cross-
cultural contact and exchange among multiple peoples and cultures over
the span of several centuries are related to, yet distinct from the question
of whether the Arabs became “assimilated into the dominant cultures of
their new environments” or achieved a “distinctively Islamic cultural syn-
thesis that was not defined by ethnicity” (El Shamsy 2013: 2). Those who
seek to limit the sources of Islamic Law to divine revelation—what we
might call “purists” in this context—typically view its origins within the
confines which Ibn Khaldun, writing in late fourteenth-century Tunisia,
laid out: “These (laws) are derived from the Qur’an and the Sunnah (tra-
ditions), and from the evidence the Lawgiver (Muhammad) has estab-
lished for knowledge of (the laws)” (Ibn Khaldun [1377] 1958: 3; cf.
Kizilkaya 2012). But even if the Muslim architects of Islamic law who
guided the historic process of its canonization understood and defined
their Qur’anic and Hadith sources as being only divinely revealed (with no
human influence via non-Islamic peoples and cultures), complex historical
28 R. C. WELLER
questions remain about how those non-Islamic peoples and cultures may
have influenced and shaped the interpretations of those divinely revealed
sources by the architects of the various Islamic law schools. Whether such
influence was a part of what Khaldun identified as “evidence not derived
from texts [which] causes (still) other differences of opinion” (ibid.) is
unclear, but most Islamic Golden Age philosophers certainly embraced
ideas from non-Islamic peoples and cultures as part of God’s divine revela-
tion by viewing God as the source for all truth regardless of the channels
through which it came, whether the Greeks, Persians, Hindus, or others
(cf. Bertolacci 2018). The rank and authority they attributed to those vari-
ous divine and human sources in relation to one another differed among
scholars.
Adding still other complications, Khaldun noted that “the traditions
(Sunnah)” on which the various law schools depend “differ widely in
respect of the reliability of the recensions.” He thus acknowledged, at least
by implication, the need for historical-critical analysis of those sources
(Ibn Khaldun [1377] 1958: 3). Even more central is the history of the
Qur’anic text itself. While perhaps not differing as “widely” as the Sunnah,
textual variants still require the unraveling of historical layers through the
science of “textual criticism” (see esp. Sinai 2017: 92-110; Al-Imam
2007:14-57; al-A`zami 2011; Small 2011; Hilali 2017; Hilali and Burge
2019). Foreign loan words within or etymologically behind Qur’anic and
Islamic legal terminology, likewise, provide some evidence of borrowing
from Greek, Syriac, and other traditions (cf. Potz 2011:28; Jeffrey [1938]
2007; Luxenberg 2007; Al-Imam 2007:58-73; cf. also Salaymeh 2016:1,
who “explored other legal traditions and observed a common legal gram-
mar”). Furthermore, the Qur’an certainly references Hebrew and Christian
biblical material. While ‘purists’ contend that such references represent
fresh, new, direct revelations from God, the historical context in which
Islam arose, which included substantial contact and exchange between
Muhammad and various Jewish and Christian groups, makes such an
extreme position historically untenable. While differences of opinion over
degree of influence are understandable, there is no historically viable rea-
son to doubt that these prior Middle Eastern ‘Abrahamic’ faith traditions
exerted some measure of influence on the general contours of Islamic faith
and practice, including its moral-ethical, social, and legal thought.
Knut Vikor has skillfully overviewed the history of the most prominent
scholarship and related historiographical debates in a chapter on “The
Origins of Sharia” ([2014] 2016). Lena Salaymeh (2016) has, likewise,
made a substantial contribution to unraveling the complicated history

behind The Beginnings of Islamic Law: Late Antique Islamicate Legal
Traditions. In the process of reviewing past scholarship from her own
methodological vantage, she criticizes Western historiography’s linear
developmental preoccupation with the “origins” of Islamic law, its pre-
Islamic sources, and the emergence of an allegedly predominant “ortho-
doxy” (pp. 3-4). She argues instead for Islamic law’s “rootedness in
historically situated societies,” with emphasis on “the interchange between
law and history” in a continuous “interplay between innovation and tradi-
tion” from Muhammad down to the present (p. 1). She insists that
throughout its history “Islamic law is generated by multiple groups and
institutions (legal polycentricity) and non-Islamic legal traditions coexist
with Islamic ones (legal pluralism)” (p. 3). In the Ottoman Empire, for
example, particularly its ports, a “plural legal system…based on a shared
Mediterranean tradition of commercial and diplomatic treaties signed
between Muslim states and foreign communities” was common from at
least the fourteenth to the late eighteenth centuries. In this, the Ottomans
followed earlier Seljuk Turkish, Ilkhanid Persian, and Greek Byzantine tra-
ditions dating as far back as 1220 CE. (Zarinebaf 2018: 91-95). With
whatever measure of innovation, the continuing application by the
Ottomans in these situations of the Covenant of Umar in accordance with
the norms of sharia law points to legal traditions of religious toleration
which share at least some of their roots with Sassanian Persia, branching
off in multiple directions in the coming centuries (see above).
Along somewhat similar lines, Potz (2011: 37) points to the studies of
Rafael Altamira (1866–1951; cf. Chapman 1922) on Spanish legal history
which highlighted “examples in the areas of the leasing of land, irrigation
regulations, agrarian consortia and in types of concubinage and marital
property systems, which originate not in classical Islamic law but in Berber
customary law.” This accords with the later work of Clifford Geertz who
did a comparative anthropological study of Islam Observed: Religious
Development in Morocco and Indonesia. Geertz likewise highlighted, by
way of French colonial policy, a distinction between “the sharia, the
Islamic law” and the Berber’s “own customary courts” (1971:109).
French colonial rule in Morocco added yet another dimension to the
long, historic interaction between pre-Islamic ‘Near Eastern’ and broader
Afro-Eurasian, Arab Islamic, and later local customary law among the
multiple peoples who embraced Islam in the course of its worldwide
spread. Following the French conquest of Algeria in 1830, “French legal
30 R. C. WELLER
principles and shari’a” were likewise merged into “a hybrid Islamic-French

law” (Motadel 2014: 5-6). “In Britain’s colonies,” too, “an enlightened
‘Anglo-Mohammedan’ law emerged through legislation and case law”
(Otto 2010: 624). And in Muslim domains of the Tsarist empire, the
Russian government, amid ongoing debate, ultimately backed “the uni-
form enforcement of particular shari`a norms derived from the holy book”
through “the functioning of Islamic courts.” This application of “shari’a,
backed by tsarist law,” included “many practices that the bureaucracy
found consistent with…orthodox Islamic interpretation grounded in the
Qur’an or in a small number of Hanafi legal manuals” (Crews 2006: 87,
145, 153-54).
Thus, while Islamic law within European colonial empires at times
“presented a threat because it was a rival to imperial law and potential
ideational font of resistance,” particularly in cases of armed conflict
(Reynolds 2014: 194), it was more common, even necessary, to achieve
various negotiated approaches to the incorporation of sharia and other
forms of Islamic law in relation to European imperial law once the imperial
powers established their rule (cf. Moosa 2009; Sartori 2016). The dynamic
interaction—both in tension and cooperation—of Western and Islamic
law, including sharia, has continued in whatever complexly limited and
waning measures through ongoing (though debated) Western promi-
nence in world affairs and its emerging patterns of globalization across the
latter part of the twentieth and early twenty-first centuries (cf. Otto 2010:
619-25).
As Salaymeh (2016) and other studies have amply shown, sharia and
broader Islamic law require interpretation and application in each new
historical context, whether that context be the original rise of Islam, the
later various Islamic states and empires which spread across the Afro-
Eurasian world in the pre- and post-Mongol periods, the European colo-
nial era or post-colonial globalization. Judging by the standards of modern
international human rights within the present historical context of global-
ization, diverse approaches spanning the entire globe range from those
considered ‘barbaric and savage’ to those shaped by and conforming to
modern international standards in varying degree. Indeed, through
dynamic interaction with ‘modernity,’ modern progressivist interpreta-
tions and applications of sharia and broader Islamic law have themselves
had a role in helping forge those very standards, and continue doing so
(cf. Gabitov 2017: 287-288). Taking this as well as the influence of Islamic
thinkers on Christian theoreticians in the Western tradition—particularly
Aquinas and Mirandola (see below)—into consideration, the Islamic con-

tribution to the United Nation’s “Declaration of Human Rights” and its
ongoing appropriation around the globe deserves recognition, in spite of
the fact that no experts from a distinctively Muslim background were
included among its original authors (see “Introduction”).
The importance of these questions of Western as well as non-Western,
non-Islamic influence on sharia and broader Islamic law is seen in the fol-
lowing points of debate: (1) Some argue that non-Islamic sources deriving
from foreign peoples and cultures with which Islam has come into contact
in the course of its worldwide historical spread are the underlying sources
of the ‘barbaric and savage’ practices (such as ‘female genital mutilation’)
typically associated with an otherwise pure and just sharia law; (2) Some
attempt to undermine the claims of divine authority made for sharia law
(which are derived from claims of divine revelation) by demonstrating that
various non-Islamic and, thus, non-divine sources are the actual, historical
sources of that law; (3) Some contend that similarities between Islamic
and Western law (see above) are the result of earlier forms of Western legal
influence on Islamic law, particularly those stemming from interactions
between the Judeo-Christian and Islamic traditions during the latter’s rise,
as well as those occurring between the Greek Byzantine and early Islamic
empires, thus making Islamic law largely a product of the allegedly Western
Judeo-Christian and Greco-Roman heritage; according to this view,
Islamic law was not, therefore, a genuine source of ‘influence’ deserving of
any credit for alleged contributions, but simply an additional tributary of
Western law, re-infusing the original civilizational heritage back into the
streams of Western civilizational history by way of an outside loop, while
itself following an aberrant and corrupted course; (4) Some hold that
crosscultural contact and exchange between the Western and Islamic legal
traditions within the course of broader world history has resulted in genu-
inely unique Western and Islamic varieties which share common elements
from the same historic heritage, thus providing a basis for mutual under-
standing, negotiation, and cooperation both within and between their
respective societies. While the other positions may, at times, have varying
measures of merit, the latter view is most in accord with the historical
evidence.
32 R. C. WELLER
The Historical Influence of Islamic

on European Law
Against the backdrop of many long centuries of interaction and exchange

around the Mediterranean, from the rise of Islam onward, the influence of
Islamic law on European law is reasonably possible, probable, and actual
at a number of junctures across the centuries. For example, trade as well as
administrative and tax terms—including “tariff,” “customs office,” and
“mayor”—are part of a much broader Euro-American vocabulary bor-
rowed from Arabo-Persian Muslim sources (Potz 2011: 28; cf. Watt 1972:
85-92 and Rahim 2008). The transfer of these and other terms common
within legal trade agreements and practices is bound up with Europe’s
conscious and intentional borrowing (between the eleventh to thirteenth
centuries) of Arabic numerals together with Islamic accounting and early
capitalist practices (Labib 1969; Banaji 2007; Koehler 2014) which trace
their origins “back to the pre-Islamic caravan contract between the inves-
tor and the caravan leader” (Potz 2011: 32). Further exchanges in com-
mercial maritime law and practice may have accompanied Europe’s known
borrowing of oceanic cartographical and navigational knowledge as well as
instruments (in the form of maps, information regarding annual trade
wind patterns, the compass, and more) from the eleventh century onward.
Likewise, Louis IXth issued “laws regarding naval affairs and trade” which
he picked up during his crusading campaigns in the Middle East between
1248 and 1254 (Boisard 1980: 433-34, 440-41).
Of particular significance in Islamic-Western legal exchange are “The
Assizes (or Constitutions) of King Roger,” a Norman Sicilian law code
promulgated in the mid-twelfth century. Roger II’s (r. 1130-54) code
states at the outset that “[b]ecause of the variety of different people sub-
ject to our rule, the usages, customs, and laws which have existed among
them up to now are not abrogated unless what is observed in them is
clearly in contradiction to our edicts here” (Loud 2012: 315). Islamic law,
including sharia, was—together with earlier Roman and Byzantine impe-
rial law—thus incorporated into and became an integral part of late post-
classical European law, at least within Norman Sicily (cf. Mallet 2013:
673). Following Roger II, the Norman King William II of Sicily (r.
1166-89) likewise appears to have permitted Muslims to “hold firm to the
Muslim divine law” (though the eye-witness making that assertion, Ibn
Jubayr, was almost hagiographic in his depiction of Sicily’s Muslims as
“the splendour of his realm”; Ibn Jubayr [c. 1190] 1952: 337-341). As in
Spain, this intercultural exchange was facilitated by a European Christian

population which co-existed (albeit in segregated fashion) with the
Muslims and was, thus, largely fluent in Arabic, including King William II
and possibly some of the other Norman Sicilian kings (Ibn Jubayr [c.
1190] 1952:337-341; cf. Scarfiotti and Lunde 1978: 31-32).
Roger II’s “Constitutions” went on to influence other European can-
ons of law, most notably those of Frederick II of Germany and Norman
England (Loud 2012: 314; cf. Mallet 2013: 673; Potz 2011: 35). In the
case of Frederick, reasonable evidence suggests that he borrowed from
Islamic practices of direct and indirect taxation as well as customs duties
(Boisard 1980: 436-37). In the case of Norman England, although the
evidence must be recognized as comparative and circumstantial, “the fre-
quent exchange of ‘administrative staff’” between the two Norman realms,
along with a high degree of similarity between the respective codes, argues
in favor of Islamic influence on English Common Law via the Sicilian con-
nection (Potz 2011: 35 and 39, referencing a 1904 study in German by
Erich Caspar; cf. Makdisi 1990 and 1999, esp. section V and Conclusion).
Prevailing Christian influence on English common law has often been
presumed among English as well as American Christians (cf. e.g.,
Montgomery 1978:451), but Thomas Jefferson and others have long since
challenged these assertions (Jefferson 1814 and 1824; cf. J. Allison n.d.).
Eminently more qualified than Jefferson to speak to this particular subject,
one of the most prominent legal commentators of the eighteenth century,
William Blackstone, in his Commentaries on the Laws of England (1765-70),
recognized clearly that
[t]he great variety of nations that successively broke in upon and destroyed
both the British inhabitants and constitution…must necessarily have caused
great confusion and uncertainty in the laws and antiquities of the kingdom;
as they were very soon incorporated and blended together, and, therefore,
we may suppose, mutually communicated to each other their respective
usages, in regard to the rights of property and the punishment of crimes. So
that it is morally impossible to trace out, with any degree of accuracy, when
the several mutations of common law were made, or what was the respective
original of those several customs we at present use, by any chemical resolu-
tion of them to their first and component principles.
Against this historical backdrop, there is a strong case to be made for

Islamic law entering English common law during the reign of King Henry
34 R. C. WELLER
II (r. 1154-89) via his Norman Sicilian connections (Makdisi 1990:146;

cf. Lima 2008). King Henry II’s reign not only followed immediately
upon that of Roger II of Sicily, but was marked by Henry’s explicit interest
in Arabic scholarship (Burnett 1996:31-32, citing correspondence from
Adelard of Bath to King Henry II in 1150 CE). Thus John A. Makdisi
argues that, in particular, permission of “the transfer of property owner-
ship on the sole basis of offer and acceptance through the action of debt”
which appeared within contract law, the right to reclaim property (“the
assize of novel disseisin”) within property law, and the institution of “a
rational procedure for settling disputes through trial by jury” within the
royal courts all came into English common law via Islamic law: “The royal
English contract protected by the action of debt is identified with the
Islamic [su’c’]aqd, the English assize of novel disseisin is identified with
the Islamic istihqaq, and the English jury is identified with the Islamic
lafif” (Makdisi 1999: 1635-36). But even if—in the face of such compel-
ling historical evidence—Islamic legal influence be denied, the similarities
between certain portions of the Islamic codes with those of English com-
mon law demonstrate that Islamic law is not entirely ‘alien’ to or a civili-
zational ‘other’ in comparison with Western law.
Other avenues of influence from Islamic law on European common law
came by way of the law and justice program at the University of Naples in
Italy which translated Arabic legal texts and circulated them to other parts
of Europe (Boisard 1980: 440, 444). To what extent “natural law” theo-
ries among Islamic legal scholars and philosophers may have influenced
post-classical (cf. “medieval”) European thinkers remains an important
question calling for further research (cf. Inglis 2002). This is particularly
the case with the “natural law” theory of Thomas Aquinas, who not only
studied at the University of Naples, but displays and acknowledges a gen-
eral debt to Islamic philosophers, even if at times disagreeing with some of
their conclusions (cf. Smith 1944: 220ff; Starr 2013: 421; Shah 2016).
Moad within this volume, in fact, concludes his study of Ghazali’s “natural
law” theory by pointing out that it “is comparable in its essential compo-
nents to that of Saint Thomas Aquinas” (see below; cf. esp. Allison 2013).
Meanwhile, given that the Norman Sicilian approach to the negotiated
integration and co-existence of Islamic law within their Christian European
realm stood in considerable contrast to practices within the Roman and
Byzantine Christian empires (325–1453), as well as those observed in
Catholic Spain following the reconquests (1085–1492) and other parts of
Christian Europe during especially the times of Inquisition (1100s–1700s),
it is both reasonable and possible that the Norman Sicilian code may have
followed the model of the ‘dhimmi’ system of the various Islamic caliph-
ates, adapted as it was from Sassanian Persia (see above), and allowing the
observance of Christian and Jewish law codes within their overall legal
framework.
In spite of Catholic Spain’s persecution of Muslims and suppression of
their lifeways, it remained one of the most important conduits for the
influence of Islamic scholarship on Christian Europe. Along these lines,
King Alphonse IX (r. 1188-1230) was instrumental in translating numer-
ous Arabic texts and founding the University of Salamanca, an early foun-
tainhead for international law. Indeed, Alphonse codified an important
body of laws known as the Partidas which “appears both in form and
content as a direct adaptation of Muslim law” (Boisard 1980: 435-36).
Likewise, the close resemblance of the Spanish Consuls of the Sea (1340) to
classical Islamic law raises legitimate questions of influence by the latter on
the former within the context of such centuries-long contact and exchange.
The importance of this question lies in the Consuls essential “contribution
to early international law, as a codification of maritime rules and customs.”
(Boisard 1980: 433, 435; cf. also 441-42). Later, both the legal philoso-
phy of Francisco Suárez (1548-1617), which emanated from the formerly
Islamic center of Granada in the south of Spain to Paris and Rome, as well
as the international human rights ideals of the Spanish Jesuit Bartolomé de
Las Casas (1484-1566), which anticipated in many ways the Geneva
Conventions, shared much in common with pre-existing Andalusian
Islamic law (Boisard 1980: 445). To what extent they were influenced by
prior Islamic legal traditions remains another important avenue of research
waiting to be (funded and) pursued.
With respect to legislation regarding prisoners of war, it is doubtful a
coincidence that codes regarding the latter were significantly modified
within Europe in the twelfth century following the start of the Crusades
(Boisard 1980: 443). Meanwhile, probable reciprocal influence between
Islamic and European legal norms for the protection of foreign travelers
and merchants can be glimpsed in the 1489 treaty between the Republic
of Florence in Italy and the Ottoman Mamluk domain in Egypt which
took three years to negotiate. Islamic influence within this particular
exchange involves explicit reference to sharia (Boisard 1980: 433), again
showing that various aspects of sharia law were not historically at odds
with or a threat to Western legal traditions.
36 R. C. WELLER
With respect to the development of certain cardinal democratic princi-

ples and ideals within the history of Western civilization, a convincing case
has been made that Abu’ l-Ala al-Ma’arri’s risalat al-ghufran (Epistle of
Pardon, c. 1033 CE [see al-Ma’arri 1943]) and its ideals of “tolerance,”
socio-political critique (cf. freedom of speech) and government for the
people served as a model for Dante Aligheri’s Divine Comedy (1308-1321)
(see esp. Palacios [1918/1926] 2007: xiii-xiv; Goddard 2000: 104;
Schildgen 2014: 104; Mallat 2015: 88; cf. Nicholson [1921]
1969:106-107, who, after citing al-Ma’arri, “the people’s prince is servant
of those he rules,” declared: “It is not remarkable that an Oriental writer
should plead for just and rational government. …Ma’arri is alone in antici-
pating the modern democratic theory that the heads of the state are its
paid servants”; cf. also Cantor 1996). Dante’s Divine Comedy was clearly
influenced in other ways by other Islamic literature and science (cf. Starr
2013:166; Schildgen 2014:112).
Likewise, as an essential source for ideas of “civil” and “human rights”
for each dignified human being, the Italian Renaissance philosopher Pico
della Mirandola, in his Oration on the Dignity of Man (1486), tells readers:
“I have read in the ancient writings of the Arabians that Abdallah the
Saracen on being asked what, on this stage, so to say, of the world, seemed
to him most evocative of wonder, replied that there was nothing to be
seen more marvelous than man.” He then goes on to highlight how,
“committed to the teachings of no one man, I have ranged through all the
masters of philosophy, examined all their works, become acquainted with
all schools. As a consequence, I have had to introduce all of them into the
discussion lest, defending a doctrine peculiar to one, I might seem com-
mitted to it and thus to deprecate the rest.” Taking Mirandola’s reference
to “the Arabians” as clearly embracing non-Arab (specifically Persian and
Turkic) Islamic scholars who wrote in Arabic, he noted that
[a]mong the Arabians, there is in Averroës something solid and unshaken,

in Avempace, as in Al-Farabi, something serious and deeply meditated; in
Avicenna, something divine and platonic. What should have been our plight
had only the philosophical thought of the Latin authors, that is, Albert,
Thomas, Scotus, Egidius, Francis and Henry, been discussed, while that of
the Greeks and the Arabs was passed over, since all the thought of the bar-
barian nations was inherited by the Greeks and from the Greeks came down
to us? For this reason, our thinkers have always been satisfied, in the field of
philosophy, to rest on the discoveries of foreigners and simply to perfect the

work of others. (Mirandola [1486] 2012:108ff)
In addition to the Arabic Muslim influences which Mirandola named in

his Oration, he had translated Ibn Tufayl’s philosophical novel, Hayy Ibn
Yaqzan, into Latin in the latter part of the fifteenth century (Attar
2012:121). Mirandola’s Oration on the Dignity of Man is, of course, a
foundational source text for the study of this concept as it emerged within
the Western socio-legal tradition.
Conclusion
The foregoing study documents nearly fourteen centuries of encounter,
exchange, and negotiated co-existence—albeit sometimes following on
the heels of conquest—between the legal codes of various Western and
Islamic societies. Although the discussion has focused on encounters,
exchanges and negotiated co-existence occurring in and around the
Mediterranean from the rise of Islam in the early 600s down to the work
of Pico della Mirandola in 1486, some reference has been made to later
European imperialism encompassing most of the Islamic societies of North
Africa, the Middle East, Central Asia, South Asia, and beyond, as well as
the late modern global era, from approximately the mid-eighteenth cen-
tury down to the present. Much work remains to be done in unearthing
this vast topic, but even this cursory glance demonstrates a fair measure of
harmony, compatibility and negotiated settlement between various forms
of Islamic and Western law across the centuries. Recognition of the mutual
interdependence of these various societies historically has the potential to
(not entirely resolve and eradicate, but nonetheless) reduce conflict and,
in its place, promote mutual understanding, peace, and cooperation
through recognition of the significant heritage which they have come to
share. Still more, it underscores the need for a fundamental redefining of
the way we understand ‘the West’ and ‘Islam’ and their relation to one
another, both historically and presently. Not only are various ‘Western’
and ‘Islamic’ societies complex, with varying measures of difference and
similarity between and among themselves; they each contain varying
degrees of influence from one another so that Western societies are, in
part, Islamic and Islamic partly Western.
Reaching beyond these two overly simplified world civilizational con-
structs (‘Islam’ and ‘the West’), the storyline raises questions about the
38 R. C. WELLER
influence of the legal traditions of certain (formerly) non-Western and

non-Islamic peoples and cultures within the broader frame of world his-
tory. In this respect, it points toward the elusive fulfillment of that noble
goal UNESCO set forth not long after its inception in 1945, namely a
genuinely global history of humanity—and in this case, a history of its
legal traditions—which recognizes and incorporates the contributions of
all the world’s various peoples and cultures (see Duedahl 2011; cf.
Al-Rodhan 2009, Sustainable History and the Dignity of [Humankind]).
The achievement of that goal remains elusive after nearly 75 years for
many complicated reasons, including but not limited to the weaving of
hegemonic and imperialistic agendas—both explicitly and implicitly, inten-
tionally and unintentionally—into various historiographical accounts. The
goal nonetheless retains its nobility and endures as a worthwhile endeavor.
This brief essay attempts to make a small contribution to that end.
Note
1. Montgomery (1978), for example, argues that: “Anglo-American jurispru-
dence—the common law of England before the nineteenth century and the
common law of America since the eighteenth century—is permeated with
the spirit of Christianity to a greater degree than any other system of law
except canon law. …where common law is at its best, you feel that Christ
Himself would have smiled upon its judgments. It is so because in many
cases the judges have not hesitated to draw their inspiration and light from
the words of Christ and His Apostles, particularly St. Paul.”
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CHAPTER 3
Through the Lens of the Qur’anic Covenant:

Theories of Natural Law and Social Contract
in al-Ṭ abarı̄’s Exegesis and History
Ulrika Mårtensson
Preface
The discussions that inspired this volume sparked by a debate on the
Sociology of Islam email list in June 2016 over whether there is such a
thing as cultural and religious rights, if practices conflict with the norms of
the majority. For example, does a school boy have the right not to shake
his female teacher’s hand for religiously motivated reasons, even though
the teacher and, apparently, ‘the Whole Nation’ (Switzerland, in this case)
considers it a crime against social cohesion, should such a crime exist? The
debate carried on to the feasibility or not of multiculturalism, the policy
that protects minority- and individual right to differ from the majority
culture without suffering discrimination. The multicultural right to differ
U. Mårtensson (*)
Department of Philosophy and Religious Studies, Norwegian University
of Science and Technology (NTNU), Trondheim, Norway
e-mail: ulrika.martensson@ntnu.no

https://doi.org/10.1007/978-981-15-6245-7_3
46 U. MÅRTENSSON
refers, in international legal contexts, to human rights, which in turn are

grounded in natural law theory (Finnis 2012: 100). Consequently,
discussions veered toward the questions of whether there can be such a
thing as ‘natural law’ (lex naturalis); whether this English-Latin concept
has any counterpart in Islamic contexts; and whether natural law theory is
premised upon the ‘free use of reason’, in the sense of ‘not referring, for
substance and authority, to religious scripture’, that is, divine revelation?
This study begins with an Introduction, containing general definitions
of natural law theory and its relationship with social contract theory; an
exposition of the Biblical-Jewish concept Covenant and its significance in
American Puritan and revolutionary contexts; and a brief survey of the
debate over Islamic natural law theory. I then apply these outcomes to
analysis of natural law theory and social contract in the Qur’an, and in
al-Ṭ abarı̄’s methodology, Qur’an exegesis, and history.
Introduction
Natural Law Theory: ‘Western’ Concepts

In the Internet Encyclopaedia of Philosophy, Kenneth Einar Himma distin-
guishes between two forms of natural law theory. The first is natural law
theory of morality, which Himma illustrates by the Catholic Aristotelian
scholastic Thomas Aquinas (d. 1274). Aquinas posited ‘reason’ as the first
principle of human acts, and thus as the measure and definition of their
morality. Given that humans are ‘by nature’ rational beings, it is morally
appropriate that they should behave in a way that corresponds with their
rational ‘nature’. As Himma puts it, ‘Aquinas derives the moral law from
the nature of human beings’. The concept of the divine plays an important
part, since Aquinas defined human nature as the expression of Biblical
divine creation and providence (Himma, IEP). The second form is the
natural law theory of law. Here the premise is that laws depend for
authority ‘not on some pre-existing human convention, but on the logical
relationship in which they stand to moral standards. Otherwise put, some
norms are authoritative in virtue of their moral content, even when there
is no convention that makes moral merit a criterion of legal validity’
(Himma, IEP).
John Finnis, a natural law theory scholar with a Catholic background,
has highlighted the epistemic claim that underpins assumptions and
definitions of ‘reason’ and ‘normative moral standards’: a moral standard
3 THROUGH THE LENS OF THE QUR’ANIC COVENANT: THEORIES… 47
is necessarily supported by a claim of truth. In Finnis’ words, the truth-

claim that underpins natural law theory aspires to universal justification
and validity for the norms in case:
A theory of natural law claims to be able to identify conditions and princi-

ples of practical right-mindedness, of good and proper order among per-
sons, and in individual conduct. Unless some such claim is justified, analytical
jurisprudence in particular and (at least the major part of) the social sciences
in general can have no critically justified criteria for the formation of general
concepts, and must be content to be no more than manifestations of the
various concepts peculiar to particular peoples and/or to the particular
theorists who concern themselves with those people. (2011 [1980]: 18)
Consequently, Finnis conceptualizes the history of natural law theory

from Plato and especially Aristotle, via Thomas Aquinas, into the Universal
Declaration of Human Rights (UDHR, 1948), as the history of the
epistemic claim that a certain moral standard is true, and as a conscious
critique of the relativist episteme (Finnis 2012).
Finnis’ contemporary example of natural law theory is, then, the
Universal Declaration of Human Rights, promulgated by the United
Nations General Assembly in Paris on December 10, 1948:
Preamble:
Whereas recognition of the inherent dignity and of the equal and inalien-
able rights of all members of the human family is the foundation of freedom,
justice and peace in the world; (…).
Whereas it is essential, if man is not to be compelled to have recourse, as
a last resort, to rebellion against tyranny and oppression, that human rights
should be protected by the rule of law (my italics) (…).
Article 1:
All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in
a spirit of brotherhood.
This Preamble sets up recognition of the inherent dignity and of the equal
and inalienable rights of humans as the moral standard for the Declaration’s
substantive rights, and the rule of law as the practice that protects these
rights against tyranny. Article 1 identifies ‘reason’ and ‘conscience’ as
something all humans have by nature, but it does not identify these as the
sources of the recognition of human dignity and rights, and the requirement
48 U. MÅRTENSSON
of the rule of law to protect human rights against tyranny. Rather, the
starting point is the epistemic claim that inherent freedom and equality in
dignity and rights must be recognized as true. It is the ensuing text of the
Declaration, which defines these rights substantively, that constitutes the
authoritative source of the human rights. Consequently, the authoritative
text of the Declaration does not premise human dignity and rights on
reason and conscience, but defines these as coinciding. The norm that
humans should act toward one another in a spirit of brotherhood therefore
follows from the epistemic claim, not from ‘reason’.
‘Social Contract’
The UDHR Preamble, then, identifies ‘the rule of law’ as the practice that
protects human rights. According to Finnis, in the context of natural law
theory the rule of law refers to a constitutional ‘social contract’. Following
the Encyclopedia Britannica online, social contract generally refers to ‘an
actual or hypothetical compact, or agreement, between the ruled and their
rulers, defining the rights and duties of each’. In Finnis’ words, a social
contract that reflects the rule of law holds rulers ‘to their side of a
relationship of reciprocity, in which the claims of authority are respected
on condition that authority respects the claims of the common good (of
which a fundamental component is respect for the equal right of all to
respectful consideration)’ (Finnis 2011[1980]: 272–273). In another
definition, by the political scientist Jeremy Waldron, the rule of law
includes ‘procedure’:
The Rule of Law comprises a number of principles of a formal and proce-

dural character, addressing the way in which a community is governed. The
formal principles concern the generality, clarity, publicity, stability, and pro-
spectivity of the norms that govern a society. The procedural principles con-
cern the processes by which these norms are administered, and the
institutions—like courts and an independent judiciary that their administra-
tion requires. On some accounts, the Rule of Law also comprises certain
substantive ideals like a presumption of liberty and respect for private prop-
erty rights (Waldron 2016).
In other words, the contemporary human rights dependency on rule of

law for protection equals a dependency on democratic constitutional
separation of powers and related procedures and norms for legislation,
public administration, and the justice system.
Covenant, Constitution, Social Contract

As Charles Weller shows in his Introduction to this volume, Finnis’ trajec-
tory of natural law theory (Plato—Aristotle—Thomas Aquinas—the
UDHR) is a truncated one. One of the important legacies it excludes is
the Jewish and Christian concepts of Covenant. Daniel Elazar has defined
the Biblical Israelite Covenant with God as ‘the voluntary establishment of
a people and body politic’ that precedes and founds a constitution, and
which reflects natural law theory (1998: 29). Drawing also on Aristotle’s
model of a political system, Elazar identifies three components of
Covenant-based constitution. (1) The moral basis, including concepts of
justice, right and good. This dimension corresponds with Himma’s
definition of natural law theory of law as deriving its authority from a
moral principle, which is then the substance of what Finnis identifies as the
epistemic claim of natural law theory. (2) The socioeconomic basis,
including class, ethnicity, economy, and distribution of power. (3) The
frame of government, including the document(s) that define the
institutions of government and their powers, who should govern, and how
they are chosen (1998: 29–30).
Moreover, Elazar frames Biblical Covenant as a contractual partnership,
applied also in later Jewish political theory. The term ‘sons of Covenant’
(benai berith) signifies the polity’s practice of forming new covenantal
entities with several partners bound together like sons in a family, while
‘masters of Covenant’ (baʿalei berith) signifies the polity’s practice of
entering peace treaties with external parties (1998: 25–26, 128–139). In
the Bible, Abraham’s covenants illustrate both terms. Moreover, as God’s
contract partner, Abraham can negotiate with Him, for example, regarding
the rights of his treaty partners. However, God has the final right of
decision, signifying that Covenant is a hierarchical partnership (1998:
132–133).
Elazar extends his model of the Biblical Covenant to early modern
Anglo-American Puritan versions, and subsequent North American
compacts, though the latter departed from the divine frame and focused
on the civil ‘body politic’ as the locus for defining rights and obligations,
with corresponding egalitarian ideals (1998: 31). Elazar traces also the
term ‘social contract’ to the Covenant model, although he stresses that in
the French Jacobin republican context, the concept took a radically secular
turn. By comparison, Elazar argues, the American republican ‘compact’
continued the Covenantal model by insisting on a moral foundation for
50 U. MÅRTENSSON
constitution and law, even after the contractual link with God was severed
(1998: 32). Steven Green (2015) takes a slightly different approach.
Referring to the eighteenth-century American revolutionary context, he
identified two legacies: The Puritan Covenant theology, which restricted
rights by referring to God’s ‘highest law’, and the social contract legacy
from Locke and Deist Enlightenment thinkers, who followed the medieval
Magna Carta legacy of ‘God-free’ voluntary compacts, which enhanced
rights. Thus, Green argues, when some politician-jurists in the revolutionary
context argued for natural law and natural rights, in line with social
contract, but referred to God as the source of the natural ‘highest law’, in
line with Puritan Covenant legacy, their aim was to limit the powers of
parliament. In Green’s view, then, early modern revolutionary American
contexts show how divine Covenant becomes a rights-restricting referent,
while Elazar rather sees the compacts that accompanied American
democracy as a continuation of Covenant in its ancient and medieval sense
of conferring rights to a polity.
Since my own cases pertain to the early medieval period, I will follow
Elazar’s model of Covenant, and explore its possible compatibility with
natural law theory of law, in Himma’s sense.
Islamic Natural Law and Social Contract

None of the above definitions of natural law theory preclude that such
theory can derive from divine revelation, that is, scripture. Instead, Elazar
(1998) defines Biblical Covenant as a natural law theory, while Green
(2015) shows that natural law and natural right-arguments did in fact refer
to God’s ‘highest law’. Within Islamic studies, however, the fact that the
Qur’an as divine revelation, together with the Prophet’s sunna, constituted
the textual sources for lawmaking has been seen as precluding natural law
theory because of the nature of the corresponding Islamic social contract
theory. Thus, the historian Patricia Crone argued that Muslim political
thinkers defined social contract as originating with God, not with human
public deliberation, because they conceived of human ‘nature’ as flawed
and in need of divine revelation through a prophet. The polity was
therefore conceptualized as starting with the Prophet as giver of the divine
law. Consequently, Islamic social contract is not ‘man-made’, like those of,
for example, Hobbes and other European theorists, and this fact rules out
natural law theory, as well (Crone 2004: 262–272). Hence, Crone’s
analysis means that the Qur’an’s status as a revealed text prevents it from
functioning as an agreed-upon moral standard for lawmaking, in line with

a publicly negotiated social contract.
Anver Emon (2004–2005; 2010), who is a scholar of Islamic law, has
challenged Crone’s framing of the Qur’an’s function. Instead, he makes a
case for Islamic natural law theory by focusing on the jurists’ hermeneutical
methodologies, allowing us to see the Qur’an as any text that jurists
employ as moral standard for lawmaking. He shows how the jurists
constructed concepts of divine Creation as statements of ‘facts’ from
which they deduced moral standards, and then derived rules, with reference
to the Qur’an and sunna. Thus, the jurists used divine Creation ‘as a site
where fact and value are fused’ (Emon 2010: 3), in line with Himma’s
definition of natural law theory of law as the law deriving its authority
from a moral standard. Concerning ‘natural rights’, Emon refers to the
principle ḥuqūq Allāh wa ḥuqūq al-ʿibād, ‘the rights of God and the rights
of the servants’, which in his view pertains to the concept maṣlaḥa,
‘common good’ or ‘public welfare’. Thus, ḥuqūq Allāh refers to God
obligating the administration to protect maṣlaḥa, in the sense that God
has a right to hold administrators to account for this obligation, while
ḥuqūq al-ʿibād refers to the individual’s rights in relation to the
administration and the law (Emon 2004–2005: 379–381).
Regarding hermeneutics, Emon argues that the jurists developed moral
standards in a referential relationship to scripture, through two distinct
methodologies. ‘Rationalism’ or ‘Hard Naturalism’ (Muʿtazila) defined
moral standards and read them into Scripture: ‘God wants X because X is
good’. ‘Positivism’ or ‘Soft Naturalism’ (al-Ghazzālı̄ and the Ashʿarites)
instead used the model ‘X is good because God wants it’, deriving standards
from Scripture. Thus, the ‘Soft Naturalist’/‘positivist’ al-Ghazzālı̄ used a
concept of the common good (maṣlaḥa) as the moral standard for
legislation, and identified the common good with five defined objectives
(maqāsị d) of the law—religion, life, intellect, lineage, and property—
which he derived from the Qur’anic text (Emon 2004–2005: 366, 378;
2010: 24–37). Both these hermeneutical approaches align with Himma’s
definition of natural law theory of law, since they posit a moral standard
for deriving law.1
Summary and Procedure
Combining Himma’s definition of natural law theory of law, Finnis’ epis-
temic perspective, and the approaches adopted by Elazar and Emon, I
52 U. MÅRTENSSON
assume here that natural law theory of law allows the law’s moral standard
to be derived from scripture, and that God can serve as the authority that
makes a scriptural truth-claim absolute. I apply ‘social contract’ in the
general sense, as a compact between the ruler and the ruled, regulating the
rights and obligations of each, with reference to Elazar’s Covenant model
and Emon’s common good-oriented approach.
As a first step, I apply natural law theory of law and social contract to
Qur’anic concepts of Covenant, Creation, and ḥaqq. My thesis is that
these Qur’anic concepts constitute the divine claim that establishes a true
and right moral standard for rights and obligations, and a voluntary,
mutual contract. Thus, like Biblical Covenant, Qur’anic Covenant enables,
for example, Abraham to hold God to His terms. In spite of the fact that
the divine claim to truth and right is not negotiable, as such, it nevertheless
depends on the ability of God’s prophets and messengers to persuade
people of the truth.2 The fact that persuasion does not always work
suggests that gaining the people’s recognition of God’s moral standard as
true and right is the key deliberative problem that the Qur’an addresses.
Like the UDHR, then, the Qur’an as reference text establishes the
epistemic claim that must be recognized.
The second step is analysis of al-Ṭ abarı̄’s Qur’an exegesis, methodol-
ogy, and history, applying Elazar’s and Emon’s approaches. I focus on his
exegesis of the ‘Creation-verse’ Q. 4:1 for natural law theory, Q. 3:79 for
social contract theory, and sections of his History to identify the ‘facts’ he
fused with the Covenantal moral standard. I will argue that he conceived
of Qur’anic Covenant as a theory of natural law and rights, and social
contract, where the ruler and the administration are subject to the jurists’
law and obligated to protect ‘the common good’ and the people’s welfare.
Natural Law and Social Contract in the Qur’an

The Qur’an is, according to its own self-description, the writing that God
makes descend to the Prophet, with the command that he communicate
its message to his people, as God has previously sent it down to other
prophets and messengers to other peoples. A key point is that God
communicates His message in each people’s language, so that the
messengers can clarify God’s terms fully to them (e.g., Q. 14:4–5). The
terms constitute a contractual partnership, with mutual rights and
obligations for God and people. Hence, one of the earliest Meccan sūras,
Quraysh (Q. 106), describes a contract where the Prophet’s people
Quraysh has both the right and obligation to serve God at the Temple,
while God provides food and security for Quraysh:
. For Quraysh’s contract of protection (liʾı̄lāf Quraysh):

1
2. Their contract of protection is the journey of the winter and

the summer,
3. So let them serve the Lord of this House,
4. Who provided food for them against hunger and secured them3
against fear (alladhı̄ ʾat ̣ʿamahum min jūʿin waʾāmanahum
min khawf)!
In Ibrāhı̄m (Q. 14), 35–37, a late Meccan sūra,4 we see Abraham nego-
tiating with God, asking Him to fulfill His obligation to feed the people,
in return for their serving Him:
35. But Abraham said: “My Lord, make this city secure and keep me and my
sons away from serving the idols!”
36. “My Lord, [the idols] have led many people astray, but he who fol-
lows me is of me, while the one who disobeys me: surely, You are All-
Forgiving Protector of life!”
37. “Our Lord, I have settled some of my descendants in a valley without
crops, by Your Inviolate House, our Lord, so that they can enact standing
to the prayer. Then incline the hearts of the people towards them and sustain
them of the harvest fruits: hopefully, they will become thankful!”
In al-Baqara (Q. 2), 125–126, from Medina, God refers to the contract
He has entered with Abraham and his son Ismail, with the same terms as
above.5 Note that verse 126 states that God materially supports (yumattiʿu)
even the one who rejects His security (kafara), deferring punishment to
the future judgment:
125. When We made the House a meeting place for the people and a secure
haven: “Take for yourselves from Abraham’s standing place a place for
prayer!” We entered a contract with Abraham and Ismail: “Purify My House
for those who circle it, absorbed in worship, and kneeling in prostration!”
126. When Abraham said: “My Lord, make this a city that is secure (rabbi
ijʿal hādhā baladan ʾāminan) and sustain of the harvest fruits those of its
inhabitants who enact security through God and the Far-away Day!” (God)
54 U. MÅRTENSSON
said: “As for the one who rejects security, I shall support him a while, then
subject him to the chastisement of the fire: a painful outcome!”
This contract, with mutual rights and obligations, follows the universal
Creation Covenant between God and humans, described in al-ʾAʿrāf
(Q. 7), 172, from the late Mecca period:6
172. And when your Lord took from the sons of Adam, from their backs,
their descendants and made them testify against themselves: “Am I not your
Lord?” they said: “Certainly, we testify!” so that you cannot say on the Day
of Standing to trial: “But we were actually unaware of this!”
Thus, with the Creation of Adam, God has entered into a Covenant with
humanity, that He is their Lord, and since humans know this term as a
‘fact’ they are obligated by it, and God can rightfully hold them to account
on it.7 Consequently, Covenant can be seen as the reference for the
Qur’anic term ḥaqq. Since ḥaqq carries the two senses of ‘truth’ and ‘right’,
the ‘truth’ that the Qur’an communicates also confers ‘right’, which
makes the right ‘true’, not a vacuous claim.8 One of many relevant passages
is from al-Baqara, Q. 2: 176–177 (Medina). Verse 176 makes a claim to
ḥaqq on behalf of the writing,9 from which follows a list of commands in
verse 177. Here it is stated that ‘fulfilling contract’ is a virtue, in line with
the Covenantal obligation to fulfill one’s terms:
176. That is because God has made the writing descend with the truth and
the right, and indeed: those who disagree about the writing are indeed in
far-reaching dissent! (dhālika biʾanna ’Llāha nazzala ’l-kitāba bi’l-ḥaqqi
waʾinna ’lladhı̄na ’khtalafū fı̄ ’l-kitābi lafı̄ shiqāq baʿı̄d)
177. Righteousness (al-birr) is not to turn your faces in the direction of the
East and the West, but righteous is rather the one who enacts security
through God, the furthest day, the angels, the writings, and the prophets;
who gives of the property, in spite of his love for it, to his close kin, the
orphans, the poor, the wayfarers, and the beggars, and for the freeing of
slaves, and who enacts performance of the prayer and pays the community
tax (al-zakāt). And those who fulfil their contracts that they have entered,
and patiently endure privation, affliction, and times of battle: those are the
ones who are truthful, and those are the ones who fulfil their obligations!
In al-ʾAnʿām, Q. 6: 149–152, verse 149 introduces another list of con-

tractual obligations by referring to God’s persuasive proof. This outline
signals that God has to prove the truth and right of the message in order
for people to obey the commandments, but that the proof does not
always work:
149. Say: ‘For God has the persuasive proof (fali’Llāhi ’l-ḥujja l’-bāligha),
so had He wished, He would have guided you all!’
Verses 151–152 then outline the contractual terms, a Qur’anic version of

the Ten Commandments:
151. Say: ‘Come, I will recite what your Lord has made inviolate for you:
that you must not make anything partner with Him; goodness towards the
parents; that you do not kill your children out of fear of poverty: We provide
sustenance for you and for them; that you do not approach indecencies,
whether outwardly or inwardly; and that you do not kill a person, who God
has made inviolate, except for a rightful cause. That is what God obligates
you: hopefully you will grasp it! (laʿallakum taʿqilūna)
152. Do not lay kinship claims to the orphan’s property, except for what is
more good, until he comes of age, and give full measure and weight
equitably! We do not obligate a person except with its capacity, so when you
make statements, be just, even if it is a close kin, and fulfil God’s contract
(ʿahdi ’Llāhi). That is what He obligates you, so that you may honour it
(laʿallakum tadhakkarūna)!
Social contract as topic appears in the Medina sūra al-Fatḥ, Q. 48: 10,
where it refers to the allegiance to the Prophet. This too is part of
Covenant, since God authorizes the pledge:
10. Indeed, those who pledge allegiance to you (alladhı̄na yubāyiʿūnaka)

are actually pledging allegiance to God, God’s hand being over their hands,
so that he who breaks his oath breaks it against himself, while he who fulfils
what he has contracted with God will receive from Him an immense reward!
Finally, in line with Elazar’s point that the Biblical Jewish Covenant
entailed treaties and compacts with parties external to the divine Covenant,
al-Māʾida, Q. 5: 44–48 (Medina) defines the category ahl al-kitāb and
their contract with the Prophet’s polity. Here, the Qur’an speaks as the
56 U. MÅRTENSSON
scripture of the sovereign polity, acknowledging that since the Torah and
the Gospel contain the same divine guidance, light, and justice as ‘this
kitāb’, Jews and Christians can rule by their laws within their contract with
the Prophet. Hence, this passage states that the social contract originates
before the Prophet, in line with the Qur’an’s location of Covenant in
Creation (Q. 7: 172, above):
44. Indeed, We made the Torah descend! In it is guidance and light, by
which the prophets who promoted peace judged for those who guided (i.e.
the Jews), as did the masters and scribes by what they were made to preserve
of God’s writing (kitāb Allāh), upon which they were witnesses. So do not
fear the people but fear Me, so that you do not buy by My signs for a small
price! Those who do not judge by what God has made descend: those are
the ones who reject security (humu ’l-kāfirūna)!
45. And in it We wrote for them that a person’s life is by a person’s life, an
eye is by an eye, a nose is by a nose, an ear is for an ear, a tooth is for a tooth,
and that damages are recompense so whoever pays compensation for it, it is
an atonement for him. Whoever does not judge by what God has made
descend: those are the ones who do wrong (humu ’l-ẓālimūna)!
46. And We let follow in their tracks Jesus son of Mary, confirming what was
before him of the Torah when We gave him the Gospel. In it is guidance and
light, confirming what was before him of the Torah, as guidance and admo-
nition to those who fulfil their obligations (li’l-muttaqı̄na)!
47. So let the people of the Gospel judge by what God has made descend in
it! Whoever does not judge by what God has made descend: those are the
rebellious (humu ’l-fāsiqūna)!
48. And We have made descend to you the writing by the right and truth
(waʾanzalnā ʾilayka ’l-kitāba bi’l-ḥaqqi), confirming the writing that is
before it and surpassing it. So judge between them by what God has made
descend and do not follow their arbitrary whims instead of the right that has
come to you! For each of you We have made a path to guidance and a
method; had God wished to, He would have made you one community, but
He is testing you through what has come to you so compete in doing good!
To God is your return, all of you, and thus He is announcing to you con-
cerning the issues about which you disagree!
In sum: the Qur’an models the relationship between God and humans
as a Covenant, which extends into further rules and laws for the polity, and
its ‘other’ contract partners. The Covenant terms are absolutely ‘true’ and
‘right’ because they come from God, and yet they cannot be implemented
in society unless the people are persuaded of their good. Viewed from the
perspective of the jurists and scholars who derived rulings and guidance
from the Qur’an, the prophetic need for persuasiveness appears to reflect
their need to persuade the collegiate to validate points of law and doctrine
derived from the Qur’an (cf. Q. 4: 59). Thus, the context for using the
Qur’an was and is deliberative.
Al-Ṭ abarı’̄ s Exegesis and History
Al-Madhhab al-jarı̄rı̄
Al-Ṭ abarı̄, whose full name was Abū Jaʿfar Muḥammad b. Jarı̄r al-Ṭ abarı̄,
lived between 838/223–310/923. It seems his family were Abbasid
vassals in the region of Ā mūl in the Caspian Sea province of Ṭ abaristān
(Mårtensson 2016: 19). Having dreamed that his son would become a
defender of the Prophet’s sunna, al-Ṭ abarı̄’s father Jarı̄r b. Yazı̄d dedicated
his son to scholarship and sent him on a study journey that took him to
other cities in the region, then to Egypt, Syria, and Iraq. He settled in the
Abbasid capital Baghdad, where he studied and taught for the duration of
his life, living off revenue from the family lands in Ā mūl.10
In the biographical sources, al-Ṭ abarı̄ is designated mujtahid mut ̣laq, a
jurist who both made independent rulings and developed his own
methodology: al-madhhab al-jarı̄rı̄, after his patronym Ibn Jarı̄r (Kern
1902: 18–19). He was a system-building scholar, in the sense that there
are correspondences in doctrinal-legal substance and methodology
between his works, which span several disciplines.11 These include legal
methodology (uṣūl al-fiqh), rulings (aḥkām), doctrine (ʿaqı̄da), Qur’an
exegesis (tafsı̄r, e.g., Jāmiʿ al-bayān ʿan taʾwı̄l ʾāy al-Qurʾān), the history
of rulers and divine messengers from Creation to the year 302/915 in the
region corresponding to the Abbasid Caliphate’s realm (taʾrı̄kh, e.g.,
Taʾrı̄kh al-rusul wa’l-mulūk), and Prophetic ḥadı̄th (Tahdhı̄b al-āthār).
The treatise where al-Ṭ abarı̄ expounded his legal methodology,
al-Bayān ʿan uṣūl al-aḥkām, is not extant. It is, however, described in
biographical records from his student, the judge Abū Bakr b. Kāmil (d.
350/961), cited in Yāqūt’s biography (Stewart 2004). The title’s term
bayān, ‘clarifying distinction’,12 refers to the hermeneutics pertaining to
uṣūl al-fiqh since al-Shāfiʿı̄ (d. 205/820). The premise of bayān is that
rulings and doctrine derive from both the Qur’an and ḥadı̄th, through
58 U. MÅRTENSSON
interpretation that ‘clarifies’ the texts’ distinctions by harmonizing

meaning across the Qur’an and sunna, with reference to a legal or doctrinal
topic. This method applied in several ways, depending on whether the
exegetes vested interpretive authority in a particular doctrine that they
read into the text, or whether the text is the authority; and how the
interpreter weighted the Qur’an and ḥadı̄th against each other (Vishanoff
2011). Al-Ṭ abarı̄’s application of bayān is most clear in his ḥadı̄th
collection, organized according to Companion authorities (musnad). He
harmonized meaning between the Qur’an and ḥadı̄th, and determined
rulings and doctrine on the grounds of Qur’anic support for the meaning-
substance of a ḥadı̄th, and meaning-agreement across Companion-
transmitted ḥadı̄th with sound isnāds (Mårtensson 2016). Thus, al-Ṭ abarı̄
located authoritative legal and doctrinal consensus (ijmāʿ) in Companion
ḥadı̄th (cf. Stewart 2004). By locating consensus in a textual source
attributed to the Prophet, rather than in the consensus of jurists, al-Ṭ abarı̄
justified his own, independent madhhab as based on the Prophet’s sunna.
Moreover, al-Ṭ abarı̄ generally attached great significance to the princi-
ple that binding contracts should be written, and hence to the Qur’an’s
generic form as the writing (kitāb) that God sent down to His messengers,
binding them to His Covenant (mı̄thāq) (Mårtensson 2009, 2011, 2016).
As the divine writing, the Qur’an conveys God’s message about Covenant
through bayān (Jāmiʿ al-bayān, 1:1, pp. 16–17). Al-Ṭ abarı̄ expressed this
view in his definition of the opening sūra, al-Fātiḥa (Q. 1). According to
him, al-Fātiḥa is the front and source of the Qur’an (ʾumm al-Qurʾān),
which sums up and extends through the entire canonical corpus one
meaning: the contract between God and His servants and its terms, includ-
ing the servants’ right to sustenance through the material blessings of
God’s creation (niʿma):
What [al-Fātiḥa] contains of thanks and glorification and praise of [God] is

exhortation for the servants about His magnificence and rule and power,
and the magnitude of His kingship, so that they will honour Him for His
favours and give thanks to Him for His material blessings (naʿmāʾihi). They
have a right to the surplus of that from Him, and they are entitled to
an abundant reward from Him. (…) That is the meaning of the extended
clarification of the sūra ʾumm al-qurʾān, and of what corresponds to it in the
other sūras of the Distinction (al-furqān), and that is the persuasive capacity
for just judgement and the comprehensive proof (wadhālika ’l-ḥikma
al-bāligha wa’l-ḥujja al-kāmila). (Jāmiʿ al-bayān, 1:1, p. 127; bold added)
Exegesis of al-Nisāʾ, Q. 4: 1
Against this background, I turn to al-Ṭ abarı̄’s exegesis of Q. 4:1. Al-Nisāʾ
is from Medina, and contains legal topics and rulings, including on inheri-
tance and property rights. The first verse describes Creation:
1. O People! Fulfil your obligations towards your Lord, Who created you by
dividing one person and thereby distinguishing from it its other half, and
from the two of them dispersed numerous men and women! Fulfil your
obligations towards God by Who you appeal to one another, and towards
the family relationships, for indeed: God is continuously surveying you! (Yā
ʾayyuhā al-nās ittaqū rabbakum alladhı̄ khalaqakum min nafsin wāḥidatin
wakhalaqa minhā zawjahā wabaththa minhumā rijālan kathı̄ran wanisāʾa
wa’ttaqū Allāha ’lladhı̄ tasāʾalūna bihi wa’l-ʾarḥāma ʾinna ’Llāha kāna
ʿalaykum raqı̄ban)13
Al-Ṭ abarı̄ explained the verse as stating that all humans have rights by
virtue of being God’s creatures:
[God] (…) means by His statement (O People! Fulfil your obligations towards
your Lord, Who created you by dividing one person):
‘Beware, O People, of your Lord so that you do not contravene what He has
commanded you to do and what He has prohibited you from, for His
punishment will descend upon you and you have no power over it!’ Then
He (…) described Himself as the Uniquely One Who has created human-
kind as a whole from one individual (shakhṣ wāḥid), and He lets His servants
know how the beginning was when He issued that forth from one person
(nafs wāḥida), making them aware by that, that all of them are descendants
of one man and one mother, so that they are from one another, and that the
right (ḥaqq) of some of them over others is the obligation that one brother
has to the right (ḥaqq) of his brother, because of their common descent
from one father and one mother. What obligates them to guard over each
others’ right (ḥaqq) after the coming together of the descent from the
father who is common to them, is like what obligates them of that concern-
ing the closest descent. By that they feel affection for each other so that they
seek justice for each other, and do not oppress each other, and so that the
strong exerts himself to protect the right (ḥaqq) of the weak, according to
what God has obligated him to do. Therefore He said (Who created you out
of one person), meaning from Adam (Jāmiʿ al-bayān, 3:4, 296; bold added).
60 U. MÅRTENSSON
Thus, al-Ṭ abarı̄ established the moral standard, that because God has
created all humans from one person, constituting a universal brotherhood,
they all have rights like family members, and God commands especially
that the strong shall protect the rights of the weak. Who ‘the weak’ are
becomes apparent in the subsequent verses 4: 2–12, on orphans and their
property rights, and married women and their rights and inheritance,
including those ‘who your right hand owns’.14 Thus, verses 4: 2–3 state:
2. Give the orphans their properties without exchanging for good things
useless ones, or consuming their property together with your own: that is
indeed a great sin!
3. If you fear that you cannot provide equity for the orphans, you may marry
those of the women who appeal to you: two, three or four. But if you fear
that you cannot be just, then one, or what your right hands own; that is the
lowest baseline to keep you from unfairness. (waʾātū ’l-yatāmā ʾamwālahum
walā tatabaddalū ’l-khabı̄tha bi’l-ṭayyibi walā taʾkulū ʾamwālahum ʾilā
ʾamwālikum ʾinnahu kāna ḥūban kabı̄ran waʾin khiftum ʾallā tuqsitụ ̄ fı̄
’l-yatāmā fa’nkiḥū mā t ̣āba lakum min al-nisāʾi mathnā wathulātha
warubāʿa faʾin khiftum ʾallā taʿdilū fawāḥida ʾaw mā malakat ʾaymānukum
dhālika ʾadnā ʾallā taʿūlū.)
Al-Ṭ abarı̄’s exegesis of 4: 2–3 reflects a hierarchical society, where rights

differ depending on legal and social status. Orphans and married women
had property rights that respectively legal guardians and husbands were
obligated to uphold, but there were also ‘owned ones’ (mamālı̄k) who did
not have the same rights as orphans and wives to property and inheritance
vis-à-vis the men addressed in these verses. According to al-Ṭ abarı̄, they
are the ones referred to in 4:3 as ‘what your right hands own’ (mā malakat
ʾaymānukum). Further on, in verse 4: 36, God commands doing good
(ʾiḥsān) by ‘those who your right hands possess’:
36. Serve God and do not make anything partner with Him! Do good by
your parents and relatives, the orphans, the poor, the close neighbour and
the distant neighbour,15 the companion by your side, the traveller, and those
who your right hands possess, for indeed, God does not love the self-
aggrandising custodian! (waʿbudū ’Llāha walā tushrikū bihi shayʾan wabi’l-
wālidayni ʾiḥsānan wabidhı̄ ’l-qurbā wa’l-yatāmā wa’l-masākı̄na wa’l-jāri
dhı̄ ’l-qurbā wa’l-jāri ’l-junubi wa’l-ṣāḥibi ’l-janbi wa’bni ’l-sabı̄li wamā
malakat ʾaymānukum ʾinna ’Llāha lā yuḥibbu man kāna mukhtālan
fakhūran)
Al-Ṭ abarı̄, explaining 4: 36, refers to the Meccan exegete Mujāhid (d.
104/722),16 and argues for the following meaning:
Our Lord, the All-Mighty, has obligated His servants to do good by all
those, commanding His creatures to uphold His obligation towards
them, and He granted His servants the right to God’s obligation being
upheld regarding them, and then His Messenger (pbuh) upheld His obli-
gation (faʾawṣā rabbunā julla jalāluhu bijamı̄ʿi hāʾulāʾi ʿibādihi ʾiḥsānan
ʾilayhim waʾamara khalqahu bi’l-muḥāfaẓa ʿalā waṣiyatihi fı̄him faḥaqqa
ʿalā ʿibādihi ḥifẓa waṣiyati ’Llāhi fı̄him thumma ḥifẓ waṣiyat rasūlihi
(ṣaws)).17
Thus, God obligates (ʾawṣā) His creatures to do good by all His servants
that are under their custody, and they in turn have the right to this
obligation by virtue of being God’s servants and creatures. The term that
al-Ṭ abarı̄ uses here, ḥaqqa ʿalā, means they have a right that corresponds
to a specific obligation. In other words, even the ‘owned ones’ have the
inherent right as humans to be ‘done good by’, albeit their rights otherwise
correspond to their status as ‘owned’.18
Regarding al-Ṭ abarı̄’s method applied in the key verse Q. 4: 1 (above),
he ‘read into it’ the term ḥaqq, which does not appear in this verse.
However, it occurs in several other places in this predominantly legal sūra,
verses 105, 122, 151, 155, and 170–171. Starting with 4: 105:
105. We have sent down to you the writing with the truth and the right in
order for you to judge between the people by what God has made you see,
and not be an advocate for those who deceive! (ʾinnā ʾanzalnā ʾilayka
’l-kitāba bi’l-ḥaqqi litaḥkuma bayna ’l-nāsi bimā ʾarāka ’Llāhu walā takun
lil-khāʾinı̄na khaṣım
̄ an)
4: 122:
122. But those who promote security through faith and work for the com-
mon good We will let enter into gardens beneath which rivers flow to dwell
there forever; God’s promise is a right, for whose speech is more trustwor-
thy than that of God? (wa’lladhı̄na ʾāmanū waʿamilū ’l-ṣāliḥāt sanudkhi-
luhum jannātin tajrı̄ min taḥtihā ’l-ʾanhhāru khālidı̄na fı̄hā ʾabadan waʿda
’Llāhi ḥaqqan waman ʾaṣdaqu mina ’Llāhi qı̄lan)
62 U. MÅRTENSSON
4: 155:
155. Because of their violation of their Covenant, their rejection of trust in

God’s signs, and their killing the prophets without right (…). (fabimā
naqḍihim mı̄thāqahum wakufrihim biʾāyāti ’Llāhi waqatlihim al-ʾanbiyāʾa
bighayr ḥaqqin)
Finally, verses 4: 170–171 connect the fact that God’s Messenger brings
ḥaqq to the people with God’s power over Creation:
170. O People! Since the Messenger has come to you with the truth and the
right from your Lord, it is better for you to promote security. If you reject
security: surely, to God belongs what is in the heavens and the land, and
God is All-Knowing, Passing Judgment! (yāʾayyuhā ’l-nās qad jāʾakum
al-rasūlu bi’l-ḥaqqi min rabbikum faʾāminū khayran lakum waʾin takfurū
faʾinna liLlāhi mā fı̄ ’l-samawāti wa’l-ʾarḍi wakāna ’Llāhu ʿalı̄man
ḥakı̄man)
171. O Adherents of Writing! Do not exceed the boundaries of your reli-

gion, and do not say upon God except what is the truth and the right (yā
ʾahla ’l-kitāb lā taghlū fı̄ dı̄nikum walā taqūlū ʿalā ’Llāhi ʾillā ’l-ḥaqqa) (…)
To Him belongs what is in the heavens and the land, so God suffices as legal
guardian! (lahu mā fı̄ ’l-samawāti wa mā fı̄ ’l-ʾarḍi wakafā bi’Llāhi wakı̄lan)
Thus, it appears that al-Ṭ abarı̄ read the other references to ḥaqq in Q. 4
into his exegesis of the Creation-verse 4: 1. Arguably, he did so because he
wanted to locate ‘human ḥaqq’ in Creation, in line with Emon’s analysis of
how the jurists used Creation. Hence, the ‘fact’ that God created humans
as a universal brotherhood generates the ‘value’ that people should uphold
each other’s rights as brothers, and the strong should protect the rights of
the weak.
Exegesis of Ā l ʿImrān, Q. 3: 79

The next example, Q. 3: 79, refers to social contract. At al-Ṭ abarı̄’s time,
two distinct but co-existing theoretical models of social contract are
relevant. In the first model, the ruler is the legislator, capable of mastering
in person the disciplines of the Qur’an, ḥadı̄th and legal reasoning. In the
second model, the institution of the legal scholars legislates as experts in
the law, while the Caliph and administration constitutes the executive
power. The ruler is educated enough, however, to know how to seek

council from the jurists, and preside over the court of appeal (maẓālim).19
I assume that al-Ṭ abarı̄ supported the second model, as expressed in his
commentary on Q. 3: 79. The verse reads:
79. It is impossible that any human conveyor of the divine word (bashar)
who God has given the writing, the ruling, and the prophecy, would say to
the people: “Be servants to me instead of to God!” Rather, [he would say]:
“Be masters (rabbāniyyı̄na) by virtue of the writing that you have been
conveying knowledge of, and by virtue of what you have been studying!”
The verse establishes that to serve God means to study and teach the
writing to the people, so that they become ‘masters’, not to make the
people subservient to oneself. Al-Ṭ abarı̄ explained this in terms, which
define the ‘masters’ as those who protect the people’s welfare and the
common good (maṣlaḥa), and who supervise the state administration for
this sake:
[By ‘masters’ is meant] the scholar of jurisprudence (fiqh) and just judge-
ment (ḥikma), who is among those who promote the common good
(al-muṣliḥı̄na), and manage the people’s affairs by teaching them the good
(al-khayr) and inviting them to that which is in their best interest
(maṣlaḥatihim). [This kind of scholar] is just in judgement (ḥakı̄m) and
fulfils his duties towards God, and is the governor who governs the people’s
affairs according to the method (al-minhaj) of those among the promoters
of the common good who promote social justice (al-muqsiṭūna min
al-muṣliḥı̄na) (…) Thus, the ‘masters’ are the support of the people in juris-
prudence, scholarship, and matters of the religion and the nearest life (al-dı̄n
wa’l-dunyā). (…) Mujāhid said: They are above the scholars (wa-hum fawqa
’l-aḥbār), because the scholars are the learned men (al-ʿulamāʾ), whereas the
master combines learning and jurisprudence so as to oversee politics and
administration and represent (al-qiyāma bi) the affairs of the ruled so that
their best interests are furthered in this life and in religion. (Jāmiʿ al-bayān,
3:3, pp. 444–45)
It follows from Mujāhid’s commentary, which al-Ṭ abarı̄ agrees with here,
that ‘masters’ are those legal scholars who have the authority to oversee
that politics and administration serve the interests of the ruled, and who
must therefore be the legislators. If we correlate al-Ṭ abarı̄’s exegesis of
Q. 3: 79 and Q. 4: 1, his natural law standard appears to refer to the
second model of social contract, where the jurists are the legislators who
64 U. MÅRTENSSON
ensure that the law reflects the common good, by protecting the people’s
rights, especially the weak against the powerful.
The key term in the exegesis on Q. 3: 79, maṣlaḥa, is a legal technical
term, which occurs here together with the plural of the active participle,
muṣliḥūna, referring to the ‘masters’. According to Abdul Aziz Bin
Sattam, maṣlaḥa derives from the noun ṣalāḥ, antonym of fasād,
‘corruption, harm’, and carries the primary sense of ‘benefit’. In the fourth
declination ʾaṣlaḥa, it signifies ‘to restore benefit after corruption’. In
general, then, maṣlaḥa signifies ‘what brings benefit and counters
corruption and harm’, and in this sense, it guided the jurists’ derivation of
law (Bin Sattam 2015: 11–12). According to Felicitas Opwis, maṣlaḥa also
means ‘public interest’ and ‘common good’ (2010: 1–2).
Bin Sattam (2015: 18) argues that maṣlaḥa, understood as the techni-
cal principle of deriving laws through consideration of what is beneficent
and good (ḥasan), derives from the Qur’an itself, for example,
al-Naḥl, 16: 90:
90. Indeed, God by commanding justice, doing good to others, and giving
to kin, and diverting from indecency, bad deeds, and aggression, admonishes
you so that you may honour yourselves!
Furthermore, Bin Sattam identifies legal terms related to maṣlaḥa (e.g.,

istiṣlāḥ, ‘to seek the beneficent’, and istiḥsān, ‘to seek the good’) in early
reports from the Prophet’s Companions and Successors. In his view, it was
differences in understanding and applying these terms, which defined
boundaries between the emerging Sunni madhāhib in the second half of
the 800s (Bin Sattam 2015: 49–51; cf. Abdelkader 2003: 170–72).
Felicitas Opwis, however, argues that neither maṣlaḥa nor istiṣlāḥ have
Qur’anic foundation, and that related concepts in ḥadı̄th do not refer to
them in the technical sense of a principle that legislators apply systematically
in deriving new laws. The earliest example of anyone referring to ṣalāḥ as
a guide for legislation, Opwis finds, is the Abbasid scribe Ibn al-Muqaffaʿ
(d. c. 139/757) in his epistle al-Risāla fı̄ ’l-ṣaḥāba, addressed to the
Caliph al-Manṣūr (r. 136/754–158/775). Ibn al-Muqaffaʿ argued that
since there are different laws in different parts of the empire, the Caliph
should create a uniform law, including new laws for cases without
foundation in the Qur’an and sunna through the principle of the people’s
welfare (ṣalāḥ). Jurists could then proceed to the regions and judge
according to what they consider the welfare of the people (istiṣlāḥ). Yet
Opwis sees Ibn al-Muqaffaʿ as an early exception. Maṣlaḥa acquired its

technical sense only in the late 900s, when it was put to use in a systematic
and generally accepted manner (Opwis 2010: 9–15).
Despite disagreement over dating maṣlaḥa in the technical sense, Bin
Sattam and Opwis agree that al-Ghazzālı̄ (d. 505/1111) represents a new
identification of maṣlaḥa with defined ‘objectives’ of the law (maqāsị d):
preservation of religion, life, intellect, lineage, and property (Bin Sattam
2015: 11–12; Opwis 2010: 4; cf. Emon 2004–2005: 367). With
al-Ghazzālı̄, then, maṣlaḥa has become a formal procedure for deriving
laws within Sunnı̄ legal theory, assisting jurists in their quests for universally
recognized methods. As such, maṣlaḥa embodied in the maqāsị d aims to
ensure consistency, transparency, and predictability in legislation, that is,
the principles Waldron identify with modern constitutional rule of law.20
To some extent, the maqāsị d—to protect religion, life, intellect, lineage,
and property—align with Waldron’s point that ‘[o]n some accounts, the
Rule of Law also comprises certain substantive ideals like a presumption of
liberty and respect for private property rights’ (Waldron 2016; cf.
Introduction above). Yet here, rule of law and rights refer to separation of
powers between the ruler and the jurists as lawmakers, in a non-democratic
context.
Given that al-Ṭ abarı̄ produced his Qur’an commentary between 883
and 903 (HTI: 106, n. 363), his concept of maṣlaḥa pertains to the period
preceding the generally accepted technical use of the term. Yet he may
have drawn on Ibn al-Muqaffaʿ’s early technical approach. As we shall see,
al-Ṭ abarı̄ used Ibn al-Muqaffaʿ’s historical material about pre-Islamic
Persian dynasties, including information about the land tax (kharāj) and
the best principles and practices concerning tax rates, collection, and
redistribution. However, Ibn al-Muqaffaʿ represented the first social
contract model of the ruler as legislator (Heck 2004; Lowry 2008). He
conceptualized ṣalāḥ in terms of the land tax, arguing that the common
good required the Caliph be in charge of the land tax, from which he must
pay the military, for if the military is in charge of taxation they will extort
the people (Ibn al-Muqaffaʿ 1989: 314). For this purpose, the Caliph
must develop a documented, transparent administration, staffed with men
educated to implement the law (Ibn al-Muqaffaʿ 1989: 321–322).
Al-Ṭ abarı̄ appears to have made a case for the same centralized policy on
the land tax, although within the frame of the second social contract
model. Thus, al-Ṭ abarı̄ may well have understood maṣlaḥa in the same
technical sense as Ibn al-Muqaffaʿ, as referring to the land tax, even though
66 U. MÅRTENSSON
he operated with the second social contract model, which identified the
jurists as defenders of the common good, in their capacity as lawmakers.
Put in Emon’s terms, al-Ṭ abarı̄’s hermeneutics seems to fall under
Emon’s category Soft Naturalism/Positivism, according to which ‘X is
good because God wants it’; for example, upholding each other’s rights as
brothers is good because God wants it, as al-Ṭ abarı̄ argued in the exegesis
of Q. 4: 1. However, this comes with the reservation that he may have
defined the land tax as the chief common good topic, through which he
read the Qur’an (‘God wants X because X is good’). Still, I have not (yet)
found anywhere that he explicitly develops a method for deducing his
moral standard through this Hard Naturalist/Rationalist approach. I
therefore conclude that more research is necessary to determine his
hermeneutics, with reference to natural law theory and common good-
oriented methods, and his legal works, as well.21
Creation in al-Ṭ abarı̄’s History

I will now develop the topic of social contract and land tax with reference
to al-Ṭ abarı̄’s Taʾrı̄kh al-rusul wa’l-mulūk (History of the Messengers and
the Kings), focusing on his use of Creation.
Al-Ṭ abarı̄ worked on the History in parallel with his other writings, and
continued doing so after completing the Qur’an exegesis, until the year
915. For historiographical analysis of the History, al-Ṭ abarı̄’s relations
with the Abbasid administration are important.22 As mentioned, his father
Jarı̄r may have been the Abbasid vassal of Ā mūl. In Baghdad, al-Ṭ abarı̄ was
close to the wazı̄rs of the scribal families Khāqān and al-Jarrāḥ, including
the famous ʿAlı̄ b. ʿIsā ̄ b. al-Jarrāḥ. I have argued that al-Ṭ abarı̄ was
engaged in an ongoing tug of war between scribal factions over what was
the best administrative policy for the land tax (Mårtensson 2005, 2011,
2015 [2001], 2016).23 The social contract included the ruler’s grant to his
regional vassals the right to own land and to tax the peasants farming that
land, keeping some of the revenue for himself, in exchange for contributing
to the defense of the imperial realm, and submitting tax revenue to the
state treasury (Vali 1993). The administrative challenge concerned how to
manage these rights and obligations. If a vassal became too powerful, he
would secede and become an autonomous ruler, which happened
frequently in the 800s. If the vassal overtaxed the peasants, they would flee
the lands or rebel. It was therefore crucial to find a system, which enabled
the state to extract tax revenue from the vassals, without overtaxing the
peasants. At this time, the administrators could choose between two

principal models. One model (miṣāḥa, ‘measured area’) centralized tax
collection under the authority of the state administration’s judges, in
cooperation with regional judges, and based it on written records (kitāb)
of cadastral surveys with fixed tax rates per crop, type of land, and land
areal. The logic of miṣāḥa was formality, clarity of procedure, and
predictability for the state, with modifications made in cases of unforeseen
disasters. The alternative system muqāsama, ‘division (of responsibility)’,
put the vassals in charge of collecting the tax and making adjustments
depending on circumstances such as the size of the crop, which gave them
authority over the peasants and autonomy in relation to the state and the
treasury. Its logic was decentralization, adaptability, and flexibility for the
landlords (Mårtensson 2011; Campopiano 2011).
From the outset, al-Ṭ abarı̄’s History concerns itself with the land tax
and related issues. After a methodological introduction, he started history
with divine Creation, introducing the two main institutions ‘messengers’
(including prophets) and ‘kings’ (including caliphs). In this way, as ʿAbd
al-ʿAzı̄z al-Dūrı̄ (1983 [1960]: 150, 159) has pointed out, al-Ṭ abarı̄’s
History expands the Qur’anic concept of history, which locates the Arabic
divine writing (kitāb) within God’s history of messages to all the previous
messengers and prophets. Thus, al-Ṭ abarı̄ placed the Qur’anic narrations
about prophets and messengers within narrations about royal dynasties,
especially Persian ones, but also Israelites and Arabs, and to a lesser extent
the Byzantines, leading up to the Prophet Muḥammad (570–10/632),
and continuing with the Caliphate until the Abbasid dynasty in the year
302/915.24
The section on Creation starts with a discussion about God’s eternal
being, that everything except God is created, and about what was the first
thing that God created. Al-Ṭ abarı̄ sided with reports from the Prophet’s
cousin and Companion Ibn ʿAbbās (d. 68/687), that the first thing God
created was the Pen (cf. Q. 96: 4), which wrote down everything that
would be (HT I: 199). The significance of the Pen is that it writes the
contractual terms that constitute the human condition. In the same
Creation context, al-Ṭ abarı̄ placed reports referring to Q. 7:172, the
Covenant between God and Adam’s descendants. In the History, the
Covenant took place after God had forced Adam out of the Garden and
the company of Himself and the angels, down to earth. Landing initially
in India, Adam longed for God and the angels, complaining. Hearing his
plight, God sent the archangel Gabriel to help Adam find his way to the
68 U. MÅRTENSSON
(later) pilgrimage station ʿArafāt outside Mecca, where he could reestablish

contact with God (HT I: 290–307). At this point, the Covenant was
established:
According to Ibn Wakı̄ʿ -- ʿImrān b. ʿUyayna -- ʿAtạ ̄ʾ [b. al-Sāʾib] -- Saʿı̄d b.

Jubayr -- Ibn ʿAbbās:
When Adam was cast down [from the Garden to earth], God rubbed his
back and brought forth from it every living being to be created by Him until
the Day of Standing to trial. Then He said: “Am I not your Lord?” They
said: “Yes!” Then He recited: “When your Lord took from the backs of the
sons of Adam their descendants” (Q. 7:172). Thus, the Pen was dry from
that day by what is going to become until the Day of Standing to trial. (HT
I: 305; mod./TT I: 86)
As al-Ṭ abarı̄ proceeded from Creation to narrate the history of ruling

dynasties, he provided the Pen and the Covenant with historical referents:
the establishment of kingship and social contract, first by the Persians.
One of his most important sources on Persian kingship was the above-
mentioned Ibn al-Muqaffaʿ’s Arabic translation of the lost Pahlavi royal
history Khudāynāma (‘The Book of the Lords’) (Rubin 2008: 57; Zakeri
2008: 27–30). Al-Ṭ abarı̄’s first report about Persian kingship is about the
king who institutionalized justice and written terms for a social contract:
The Persians say that this Oshahanj was born a king. His way of life and the
way he administered his subjects were outstandingly praiseworthy, [and they
mention that he was the first to lay down legal rulings and defined boundaries
(al-ʾaḥkām wa’l-ḥudūd)].25 That gave rise to his surname Fāshdādh, which
in Persian means ‘the first to judge in justice’, for fāsh (Persian pesh) means
‘first’, and dādh (dād) means ‘justice and legal decision’. They further
mention that he went down to India and moved about in many places.
When his situation was straightened out and his rule firmly established, he
placed a crown upon his head and gave an address in which he said that he
had inherited the realm from his grandfather Jayūmart and that he meant
[to inflict] punishment and revenge upon rebellious human beings and
Satans. Again, they mention that he subdued Iblı̄s and his armies and
forbade them to mix with the people. Writing for them a binding contract
(wakataba ʿalayhim kitāban) on a white sheet, he imposed upon them
covenants (ʾakhadha ʿalayhim fı̄hi ’l-mawāthı̄q) enjoining them not to
confront any human being, and threatening them if they did. (…) (HT I:
342; mod./TT I: 106).
Here, the Covenantal term, that people are bound by the contracts they
enter, is transferred to a written contract (kitāb) between the ruler and the
ruled, which imposes non-confrontation upon ‘the rebels’, represented by
the Satans.
In the historical outline, the next institution attributed to the Persian
kings is the feudal system and the land tax. At this point, al-Ṭ abarı̄ referred
the Creation-related value, that the strong shall protect the rights of the
weak, to the land tax. I quote at length a speech attributed to the Persian
King Manūshihr, addressed to his tax administrators. It opens with a
reference to Creation, in which the power imbalance between ‘the strong
Creator’ and ‘the weak created’ is emphasized. The speech then moves on
to define the relationship between ‘the strong ruler’ and ‘the weak ruled’
in terms of their rights and obligations, with the land tax as the issue at
stake. Toward the end, it is emphasized that the concerned parties should
enter a mutually agreed contract, protecting the rights and interests of
both parties:
O People! Just as Creation belongs to the Creator, thanks is due to the

Provider of blessings, submission belongs to the All-powerful, and what is is
inevitable, there is none weaker than a created being, whether he seeks or is
sought, none stronger than a Creator, none more powerful than the one
who holds in his hand what he seeks, and none more powerless than he who
is in the hand of the one who seeks him! Indeed, reflection is light,
carelessness is darkness, and ignorance is error! Because the first is followed
by the last, by the inevitable attachment of the last to the first, and thus there
have passed before us principles (ʾuṣūl) of which we are the derivatives
(furūʿ), since what derivative could be without its principle? Since God
Almighty and Splendid gave us the kingdom the praise belongs to Him, and
we ask Him to inspire us with the divine guidance, trustworthiness and
certainty. For the king has rights in relation to the people of the kingdom
and the people of his kingdom have rights in relation to him (waʾinna li’l-
malik ʿalā ʾahl mamlakatihi ḥaqqan waliʾahl mamlakatihi ʿalayhi ḥaqqan).
The right of the king in relation to the people of his kingdom is that they
obey him, counsel him, and fight his enemy, while their right in relation to
the king is that he provide them with their sustenance when it is due, for
they have recourse to nothing else since that is their trade. The ruled
(raʿiyya) have the right in relation to the king that he see to them, treat
them in a friendly manner, and not burden them with more (tax) than they
can bear, so that if a disaster befalls them from the heavens or the land that
diminishes its returns he reduces the land tax in proportion with the loss. If
a calamity ruins them, he should give them what they need to rebuild
70 U. MÅRTENSSON
themselves, and then for a year or two only take from them a proportion
that does not harm them. Command of the army is for the king like the
wings of a bird: it is the wings of the king, and when a feather is lost from
the wings, it is a loss to him; likewise with the king: he depends on his wings
and his feathers. Moreover, the king must possess three qualities: first, he
must be trustworthy and never lie; he must be munificent and not miserly;
and he must control himself when angered, for he is empowered when his
hand is stretched out and the land tax is coming to him. He must not
appropriate for himself what the army and the ruled are entitled to, and he
must be generous with pardoning for there is none more long-lasting king
than he who pardons or one more quick to perish than one who punishes.
Moreover, a man who errs in pardoning and pardons is better than one who
errs in punishing. (…) Know that this kingship stands only through
uprightness in speech and action (al-istiqāma; cf. Q.1: 6),26 obedience in
good, suppression of the enemy, fortification of the frontiers, justice towards
the ruled, and fairness towards the wronged! Your treatment is within
yourselves, for the remedy in which there is no ailment is uprightness in
speech and action (al-istiqāma; Q.1: 6) and commanding the good
(al-khayr) and prohibiting the bad (al-sharr), and there is no strength except
through God. Look after the ruled, for they are your source of food and
drink, and when you act justly towards them they desire cultivation, which
will increase your land tax and manifest itself in the increase of your
sustenance. But if you wrong the ruled they will abandon cultivation and
leave most of the land idle, which will reduce your land tax and manifest
itself as a reduction of your sustenance. Enter into a reciprocal contract
(taʿāhadū) of just treatment with the ruled. (HT III: 25–27; TT I:
229–230; bold added)
The topic of the land tax reappears in al-Ṭ abarı̄’s accounts of subsequent
Persian kings, including his famous report on the Sassanid Shāh Khusrāw
Anūshirwān (r. 531–579), whose rule coincides with the birth of the
Prophet (570). Due to rebellions in the provinces, Anūshirwān’s father
Kāvād I (r. 488-497 and 499-531) initiated a tax reform, which Anūshirwān
completed. The new tax system was based on the principles of miṣāḥa and
was intended to centralize under the state and the judges the setting of
rates, the collection, and the redistribution of the land tax, in order to
strengthen the state and create a just order that also ensured control over
the provinces (HT V:157, 255–267).27 According to al-Ṭ abarı̄’s verdict,
this tax policy, made transparent through written records (kitāb) and
applied justly with consideration of the needs of all parties, granted
Anūshirwān God’s approval, and a resilient empire. He added that the
second Caliph ʿUmar b. al-Khaṭṭāb (r. 12/634–23/644), conqueror of

both the Persian and Byzantine territories and establisher of the Caliphate
on imperial scale, implemented the same tax model as Anūshirwān had
done (HT V: 260–261). The tax system thus plays an important part in
al-Ṭ abarı̄’s depiction of ʿUmar as a just and upright ruler, who set up fair
contracts and upheld his part of them, treated the conquered peoples
according to the same ethical and legal standard as the Muslims, and gave
his subjects scope to complain about their governors (Mårtensson 2011:
224–227). In this way, ʿUmar appears in al-Ṭ abarı̄’s History as a model
ruler, in contrast with some other rulers and governors of both the
Umayyad and the Abbasid dynasties, who overrode rights and thereby
caused rebellions, including by the ʿAlids (Mårtensson 2009: 134–137,
140–144, 2011: 227–231). This shows that al-Ṭ abarı̄, similarly to Ibn
al-Muqaffaʿ, did not distinguish between pre-Islamic and Islamic rulers in
his conceptualization of the common good and the social contract. By
locating the Qur’anic terms related to Covenant and contract in Creation,
and then developing them with reference to first Persian kingship and then
Islamic Caliphate, he conveyed the theory that the Islamic social contract
was ‘universally valid’, based on ‘facts’ pertaining to imperial administration
and the land tax.
The question then is, how he could have considered ʿUmar b.
al-Khat ̣t ̣āb’s conquests of Sassanid territories legitimate, given that he
perceived the Sassanid social contract valid, in principle? I address this
question in detail elsewhere.28 Briefly put, al-Ṭ abarı̄ argued that Shah
Khusrāw Parvı̄z (r. 590–628) had violated the terms of his contract with
his Arab vassal, the King of the Lakhm dynasty in al-Ḥ ı̄ra (close to the later
Iraqi garrison city of Kufa), and he had disrupted the just balance that
characterized Khusrāw Anūshirwān’s tax system, favoring some groups
over others. Consequently, God took the imperial power away from the
Persians and gave it to the Arabs, and the Shah enacted God’s decision
through his politics. The first sign was the Battle of Dhū Qār (ca. 610),
which al-Ṭ abarı̄ correlated with the beginning of the Prophet’s mission,
and in which the Arabs won their first victory over the Sassanids, avenging
the King of Lakhm. Here, al-Ṭ abarı̄ reported frequently from the Kufan
genealogist and historian, Hishām b. Muḥammad b. al-Kalbı̄ (d. 214/819)
(HTV: 331–381). Al-Ṭ abarı̄ concluded his account of Khusrāw Parvı̄z’s
reign with the comment that Khusrāw Parvı̄z was killed at the hands of the
Persians and that the Prophet’s hijra from Mecca to Medina took place
toward the end of his reign (HTV: 381).
72 U. MÅRTENSSON
In this way, al-Ṭ abarı̄ legitimized the beginning of the Arab conquests
in terms of the Sassanid rulers’ failure to uphold the social contract with
its rights and obligations, and the common good, and he plotted both the
start of the Prophet’s mission and the hijra within this process. Thus, the
conquests appear not as ‘rebellion’ but as consequences of Sassanid
mismanagement, equaling God’s wish to restore the common good and
re-direct the material blessings that enable empire from the Sassanids to
the Arabs.
Conclusions
Initially, I framed the question whether there is Islamic natural law theory
with reference to general definitions of natural law theory and its
relationship with social contract and rule of law; to studies of Covenant as
a constitutional and political concept in Biblical-Jewish and American
Puritan and republican contexts; and to Crone’s and Emon’s approaches
to Islamic natural law theory.
I have found that the Qur’anic concepts of Creation and ḥaqq combine
to construct divine Covenant as a ‘true and right’ moral standard for the
law. Though God’s standard is absolute, it depends for societal
implementation on prophets persuading the people of its good.
Consequently, even though Qur’anic prophetic authority derives from
God, it is deliberative: those who remain unpersuaded cannot be forced to
change their minds, and their punishment is deferred to divine Judgment.
Moreover, the Qur’an defines a prophetic social contract, which has the
Torah (Jews) and the Gospel (Christians) as precursors and present
partners, and ultimately derives from the universal Covenant with Adam’s
offspring.
Al-Ṭ abarı̄ developed Qur’anic Covenant into a social contract theory,
which he expanded to include also Persian, Israelite, Arab, and Byzantine
kingship, alongside the Qur’anic prophetic history. His social contract
encompasses the three constitutional dimensions (moral, socioeconomic,
and political) of Elazar’s Covenant model. The moral dimension
corresponds with his exegesis of Q. 4: 1, as the standard that God created
humans as a universal brotherhood with rights, and the strong must
protect the rights of the weak. The political dimension corresponds with
his exegesis of Q. 3: 79, which reflects a division of power where the jurists
are the lawmakers who uphold the common good and surveil the
administration, as protectors of the common good and the people’s

welfare. The socioeconomic dimension is expressed in his History, as the
land tax and the principles for its rates, collection, and redistribution,
within the feudal system of vassalage. Consequently, I conclude that both
the Qur’an and al-Ṭ abarı̄’s works reflect the paradigm of natural law
theory of law, and its reference to social contract and the rule of law.
As for political context, al-Ṭ abarı̄’s social contract refers to the Abbasid
Caliphate. This is not a democratic constitutional monarchy with popular
representation, but a rule of law-model where the ruler and the
administration is subject to the law developed by the jurists. However,
Green’s argument for the early modern American context, that references
to Covenant and to divine ‘higher law’ served to restrict rights and
liberties, is only tangentially applicable to al-Ṭ abarı̄’s context. Following
al-Ṭ abarı̄’s account of the rise of the Arab Prophet and his polity in a
conflict between some Arabs and the Sassanid Empire, Covenant appears
to signify enhanced rights for the new Arab-ruled polity, and enables it to
enter treaties with external parties on new, sovereign conditions. This
aligns with Elazar’s model of Covenant as constituting a polity, applied to
Biblical-Israelite and medieval Jewish contexts. Although I have not been
able to go into the matter here, it should be mentioned that Baber
Johansen (1988) and Ziaul Haque (1977) have argued that some early
Ḥ anafı̄ interpretations of the Qur’an for land tax policy conferred property
rights to peasants. If so, this would further strengthen the case, that
Covenant confers contract-based rights on all members of the polity,
including the weak.29
Finally, I hope that this preliminary study can contribute some new
material and perspectives to Anver Emon’s work to include Islamic law in
the general history of natural law theory, recalling the theoretical and
political roles that concepts of God and divine Creation can play.
Acknowledgements Several colleagues have contributed to this article. Charles

Weller’s suggestions regarding the ‘constitutional’ frame of my study of al-Ṭ abarı̄’s
concepts have been decisive for any contribution that my article makes to the field.
In addition to the two anonymous reviewers’ helpful criticism, I have benefited
greatly from discussions with Deina Abdelkader and from her works. At an early
stage in the writing process, I also received valuable comments from Zeshan
Qureshi.
74 U. MÅRTENSSON
Appendix: Ṭ abarı and UDHR
Al-Ṭ abarı̄, late 800s UDHR, 1948
Exegesis of al-Nisāʾ, (4) 1 Preamble:

God means by His speech “O people, fulfil your Whereas recognition of the
obligations towards your Lord Who created you by inherent dignity and of the
dividing one person”: (…) equal and inalienable rights of
He (…) described Himself as the One Who has created all members of the human
humankind as a whole from one individual, and He lets family is the foundation of
His servants know how the beginning was when He freedom, justice and peace in
issued that forth from one person, making them aware the world; (…)
by that, that all of them are descendants of one man Whereas it is essential, if man is
and one mother, so that they are from one another, not to be compelled to have
and that the right of some of them over others is the recourse, as a last resort, to
obligation that one brother has to the right of his rebellion against tyranny and
brother, because of their common descent from one oppression, that human rights
father and one mother. What obligates them to guard should be protected by the rule
over each others’ right after the coming together of of law (…).
the descent from the father who is common to them, is Article 1:
like what obligates them of that concerning the closest All human beings are born free
descent. By that they feel affection for each other so and equal in dignity and rights.
that they seek justice for each other, and do not They are endowed with reason
oppress each other, and so that the strong exerts and conscience and should act
himself to protect the right of the weak, according to towards one another in a spirit
what God has obligated him to do. of brotherhood.
Notes
1. Felicitas Opwis has questioned Emon’s thesis (2004–2005) as applied spe-
cifically to the Muʿtazilı̄-Ḥ anafı̄ jurist al-Jaṣsạ ̄s (d. 370/980). Opwis
focuses on whether al-Jaṣsạ ̄s assumes that the divine moral intention behind
legal reasons can be known and argues that because he does not claim to
fully know the divine intention, that is, the moral standard for the law, he
does not meet the criterion for natural law theory (Opwis 2010: 17–26).
2. On Qur’anic argumentation and syllogistic proof of Covenant, though
without the natural law and social contract aspect, see Gwynne (2004).
3. Here the verb ʾāmana, usually translated as ‘to believe’ or ‘to have faith’,
means ‘to secure s.o.’, in accordance with one of the senses of ʾāmana
listed in Ibn Manẓūr’s (d. c. 711/1312) dictionary, Lisān al-ʿarab, under
the root ʾ-m-n; cf. Mårtensson (2008: 379); Eggen (2011). Given that
ʾāmana, and the active participle muʾmin, pl. muʾminūna, has this transi-
tive sense of ‘enacting security’ for others, I have chosen to translate it

accordingly in all citations, since it conveys important connotations related
to social contract. Consequently, kafara, which serves as the opposite to
ʾāmana, is translated here as ‘to reject security’.
4. Interestingly, the late Mecca period is when the Prophet started entering
voluntary compacts (First and Second ʿAqaba) with some of the Arab
tribes from Medina, preparing for his migration; Guillaume (1995:
198–213).
5. In Medina, the Prophet entered a voluntary compact with some of the
city’s Jewish and Arab tribes, that is, the ‘Medina Constitution’; Guillaume
(1995: 231–233); see Arjomand (2009), for research survey and analysis
of the compact.
6. Q. 7: 172 may thus serve as the Covenant model for the compacts that the
Prophet entered at ʿAqaba and in Medina.
7. Cf. Gramlich (1983: 229): “Because of the recognition of a Lord that is
immersed in this Creation of original Nature, it is a kind of Natural
Compact (Naturvertrag), in which a natural law-related obligation to
acknowledge and honour the One God is justified”.
8. See entry ḥ-q-q, Lisān al-ʿarab; on polysemy as applied to Qur’anic terms,
Eggen (2011).
9. Note that the ‘Medina Constitution’ is also referred to as a kitāb, ‘written
contract’; Guillaume (1995: 231); cf. note 5 above.
10. See Rosenthal (1989)/HTI for a full compilation of biographical and bib-
liographical references; also Gilliot (1990).
11. For a definition of ‘systemic’ thinkers, see Vishanoff (2011: 268); on
al-Ṭ abarı̄ as system-builder, see Mårtensson (2016).
12. For this translation of bayān, see Lisān al-ʿarab, entry b-y-n: the root signi-
fies separating (farq) and bringing together (waṣl), in the Qur’an applied
to distinguishing between divine guidance (hudā) and erring (ḍalāl).
13. In this translation, in addition to al-Ṭ abarı̄’s exegesis, I have used Ibn
Manẓūr’s Lisān al-ʿarab in order to bring out the ‘contractual ethics’ that
al-Ṭ abarı̄ associated with Qur’anic concepts; see below, and also Mårtensson
2011, 2016. Thus, I translate the verb ittaqā not as is common ‘to fear’,
but as ‘to fulfil one’s obligations towards someone’. In the Qur’an ittaqā
occurs in contexts of fulfilling contractual and legal obligations, toward
fellow human and toward God, and God obliges men to fulfill their
contractual obligations in general. By doing so, humans protect themselves
from God’s punishment on the Day of Judgment, when they are held to
account. I translate nafs as ‘person’, rather than ‘soul’, since the point in
Q. 4 is that the men and women who God created are legal persons, that
is, bearers of rights and obligations. Finally, in my translation of the verb
khalaqa, ‘to create’, I have emphasized the aspect that the creative act
involves separating and distinguishing things from one another, which fits
76 U. MÅRTENSSON
the general meaning of God creating legally responsible and accountable

individual persons.
14. Several other exegetes after al-Ṭ abarı̄ followed his rights-oriented interpre-
tation of 4:1, including the sunnı̄s al-Zamakhsharı̄ (d. 539/1144), al-Rāzı̄
(d. 606/1209), and the twelver shı̄ʿı̄ al-Ṭ ūsı̄ (d. 460/1067). See also my
forthcoming book, Divine Covenant: Science and Natural Law in the
Qur’an and Islamic Disciplines (Sheffield: Equinox, 2021).
15. For this rendering of ‘close or distant neighbour’ (jār dhū al-qurbā and jār
dhū al-junub) in the sense of any neighbour regardless of kinship or
religion, see al-Ṭ abarı̄’s argumentation, Jāmiʿ al-bayān, 5:5, pp. 109–113;
here al-Ṭ abarı̄ refutes those who understand qurbā as closeness in terms of
kinship or religion.
16. See Gilliot (2014) for a recent survey of the origins of Mujāhid’s exegesis,
its sources, and transmissions.
17. Jāmiʿ al-bayān, 5:5, p. 117.
18. In the exegesis of Q. 2:177 (cf. Q. 90:13; 5:89), al-Ṭ abarı̄ comments that
‘for the slaves’ means freeing them by paying ransom in accordance with
the written deed that binds them in servitude to their lords; Jāmiʿ al-bayān,
2:2, p. 133.
19. For the view that there was a temporal legal development from the first
model to the second over the course of the late 700s and early 900s, see
Heck (2004). However, Lowry (2008) argues that both the first and the
second models coexist because they are theoretical and that the second one
was the one that was implemented in practice from the 700s onward. I am
here following Lowry’s approach, which implies that several competing
theories can coexist in time, rather than succeed one another; for such an
approach applied in detail to al-Ṭ abarı̄’s legal methodology, see Mårtensson
(2016); and applied to competing social contract theories in early medieval
Maghrib, see Bennison (2014).
20. Deina Abdelkader (2003, 2011) argues that maṣlaḥa and maqāsị d were
used both by early and medieval legal theorists, and by modern ‘Islamist’
political thinkers, as tools for rationalizing, systematizing, and continuously
reforming the law. Her analysis also points in the direction that maṣlaḥa
and maqāsị d served the procedural purposes of consistency, predictability,
and transparency. In particular, Abdelkader criticizes analysts who apply
the Weberian ideal-type of ‘charismatic authority’ to modern ‘Islamists’;
rather, Abdelkader argues, the authority they seek conforms to Weber’s
type ‘rational authority’, because they apply the methodology pertaining
to maṣlaḥa and maqāsị d.
21. I am pursuing this topic and these genres further in the forthcoming
monograph entitled Al-Ṭ abarı̄ and the madhhab jarı̄rı̄: A Paradigm of
Natural Law and Natural Rights for the ʿAbbasid Caliphate, forthcoming
with Gorgias Press (2020).
22. See Franz Rosenthal’s General Introduction to HTI, for the History’s
place in al-Ṭ abarı̄’s oeuvre, and the remark by the biographer Ibn al-Nadı̄m,
that it was so exceptionally reliable and useful because of the author’s
connections with the state; pp. 133–134.
23. On the scribal policies on the land tax, see Sourdel (1960).
24. Cf. Khalidi (1994: 79), for the point that al-Ṭ abarı̄ in his History defined
the Islamic ʾumma (community) as ‘the prophetic heir of Biblical tradition
and the temporal heir of Persian dominion’.
25. The sentence within square brackets is missing from Rosenthal’s transla-
tion HT I: 342; cf. TT I: 106.
26. This translation of istiqāma follows al-Ṭ abarı̄’s translation of mustaqı̄m in
Q. 1:6 (ṣirāt ̣ al-mustaqı̄m) as ‘upright in speech and action’ (qawl wa
ʿamal); Jāmiʿ al-bayān, 1:1, p. 110.
27. On Anūshirwān’s tax reform, see also Frye (1984: 326), and Rubin (1995).
28. ‘Ibn Isḥāq’s and al-Ṭ abarı̄’s Historical Contexts for the Quran: Implications
for Contemporary Research’, in Sebastian Günther (ed.), Knowledge and
Education in Classical Islam, Vol. 1, pp. 315–353; the article is based on a
paper presented at the conference ‘Knowledge and Education in Classical
Islam: Historical Foundations and Contemporary Impact’, October 1–5,
2011, University of Göttingen. Cf. Mårtensson (2005: 327–329).
29. I am exploring this issue further in my monograph on al-Ṭ abarı̄’s natural
law and social contract theory; see note 21 (above).
Bibliography
I. Primary Sources
A. al-Ṭ abarı’̄ s Works

The History of al-Tabari. n.d. English translation, 40 vols. Ed. Ehsan Yar-Shater.
New York: State University of New York Press:
HT I: Volume I. General Introduction and From Creation to the Flood. Translated
by Franz Rosenthal (1989).
HT III: Volume III. The Children of Israel. Translated by William M. Brinner (1991).
HT V: Volume V. The Sāsānids, the Byzantines, the Lakhmids, and Yemen. Translated
by C. E. Bosworth (1999).
78 U. MÅRTENSSON
TT: Arabic edition of the History. Taʾrı̄kh al-Ṭ abarı̄: Taʾrı̄kh al-ʾumam wa’l-mulūk
li-Abı̄ Jaʿfar Muḥammad b. Jarı̄r al-Ṭ abarı̄ 224–310 H. Vol. 1-6. Beirut: Dār
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Ibn al-Muqaffaʿ. 1989. Risāla fı̄’l-ṣaḥāba in ʾĀ thār Ibn al-Muqaffaʿ. Beirut: Dār
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al-Rāzı̄, Muḥammad Fakhr al-Dı̄n. 1981. Mafātı̄ḥ al-ghayb. Vol. 33. Beirut: Dār
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al-Ṭ ūsı̄, Muḥammad b. al-Ḥ asan, al-Tibyān fı̄ tafsı̄r al-Qurʾān. 10 vols. Beirut: Dār
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al-Zamakhsharı̄, Maḥmūd b. ʿUmar. 2009. al-Kashshāf ʿan ḥaqāʾiq al-tanzı̄l
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Sirat Rasul Allah. Karachi: Oxford University Press.
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CHAPTER 4
Al-Ghazali’s Ethics and Natural Law Theory
Edward Moad
‘Natural Law Theory’ can refer to either a theory of law or a theory of

morality. The two are at least logically independent. For instance, one
might adopt a natural law theory of law, asserting a special relationship
between legal authority and moral principles, while also opposing natural
law as a moral theory by holding that moral principles are rooted ultimately
in cultural convention. Conversely, one might hold a natural law theory of
morality, while denying any special relationship between that and positive
law or legal authority. While it is questionable whether the distinction has
any practical relevance here, this chapter will focus on the compatibility
between the thought of Abu Hamid al-Ghazali (1058–1111), and the
dimension of natural law pertaining to morality and moral epistemology.
Specifically, we will examine to what extent we can accurately describe his
moral theory as a natural law theory.
In his extensive study on Islamic natural law theories, Anver Emon
(2010) has identified a ‘soft natural law’ operative in Ghazali’s theory of
E. Moad (*)
Department of Humanities, Qatar University, Doha, Qatar
e-mail: edwardrm@qu.edu.qa

https://doi.org/10.1007/978-981-15-6245-7_4
84 E. MOAD
maṣlaḥa and maqāsị d, as methods of Islamic jurisprudence. According to

Emon, however, the essential distinction between this and ‘hard natural
law’ appears to be theological. ‘Hard’ natural law entails a natural and
moral order that is not contingent on God’s will. The ‘soft’ natural law
which Emon discovers in Ghazali’s legal methodology, however, is
compatible with the position that the natural and moral order is contingent
on God’s will, and therefore underwritten by Divine grace, rather than on
any natural or moral order independent of God’s will (Emon 2010: 124).
George Hourani, on the other hand, had earlier argued that Ghazali’s
moral theory is incompatible with the natural law theory, in virtue of its
‘theistic subjectivism’. That is, “the belief that ‘good’, ‘right’, and similar
terms have no other meaning than ‘that which God wills” (Hourani 1985:
59). Part of his argument is that moral subjectivism follows from the very
contingency on Divine will, with which Emon understands ‘soft’ natural
law to be compatible. Emon bases his study on sections of Ghazali’s Shifā’
al-Ghalı̄l and al-Mustaṣfā min ‘Ilm al-Usūl, where Ghazali deals with the
topic of maṣlaḥa. Hourani, meanwhile, bases his opposing case on an
examination of a different section of the latter work, and a parallel section
of al-Iqtiṣād fi al-i’tiqād, where Ghazali discusses meta-ethical issues
involved in defining terms like ‘good,’ ‘bad,’ and ‘obligation,’ in the
course of critiquing the Mu’tazila position on the matter.
In this chapter, I will make the case that we can accurately describe
Ghazali’s position as a natural law theory, based on a reading of the same
texts Hourani focused on in his study. Kevin Reinhart (1995), on whose
translation of al-Mustaṣfā I will be depending in what follows, has also
treated this topic. Though he did not specifically compare Ghazali’s
position there with natural law theory, like Hourani (though for somewhat
different reasons) he interprets Ghazali’s position as subjectivist on key
points rendering it incompatible with natural law theory. Thus, I will
begin with a prima facie case for this incompatibility roughly along the
lines one finds in Reinhart, and argue that a closer examination of the
relevant text of al-Mustaṣfā along with the parallel section of al-Iqtiṣād,
also cited by Hourani, shows that Ghazali’s position is not conclusively
subjectivist, but instead is compatible with a natural law theory. I will
examine key sections of Ghazali’s Kimiya al-Sa’dāt that quite clearly
express a natural law theory of morality. Along the way, I will consider and
answer some key objections.
4 AL-GHAZALI’S ETHICS AND NATURAL LAW THEORY 85
What, then, counts as a natural law theory of morality? In what follows,

I will take it to include any theory according to which (1) there are
objective moral norms, (2) which follow from human nature, and (3) are
discoverable by independent reason. Secondly, I will take the moral theory
of Saint Thomas Aquinas as paradigmatic in this regard. This, of course,
bears on our understanding of what counts as ‘independent reason.’ It
means we cannot take this to require absolute independence, for according
to Saint Thomas nothing is independent of Divine Providence. What we
mean then is that reason is capable of discovering moral norms independent
of revealed scripture or law. As for the first requirement, of objectivism, I
will understand that to include, as Hourani puts it “any theory which
affirms that value has a real existence in particular things or acts, regardless
of the wishes or opinions of any judge or observer as such” (Hourani
1985: 58).
The Prima Facie Opposing Case

Based on these requirements, we can make a prima facie case, against the
suggestion that Ghazali held a natural law theory of morality based
straightforwardly on statements he makes in the beginning of the first qutb
of al-Mustaṣfā. Here, he defines the moral/legal status of an act (ḥukm)
and makes three assertions directed against the Mu’tazila. The ḥukm is the
dictum (khiṭāb) of the divine law (shar’) in relation to the act of those
under obligation. The obligatory (wājib) is the command to perform the
act and not to refrain from it. The forbidden (ḥarām) is the command to
refrain from it. If there is no such command, he writes, there is no ḥukm.
Thereafter, he makes the following three assertions. First, the intellect
(‘aql) neither commends nor detests. Second, the intellect does not
obligate thanking the benefactor. Third, there is no ḥukm for acts before
the arrival of the divine law (Reinhart 1995: 87).
Ghazali makes these three assertions in opposition to the Mu’tazila
position, according to which the intellect can perceive the good (ḥusn) or
bad (qabḥ) of some deeds (specifically excluding rites of worship), either
immediately in virtue of its self-evidence, or through rational inquiry.
Thanking the benefactor is one of the acts that, according to the Mu’tazila,
are obligatory by way of reason alone. On the face of it, these assertions
contradict all three of what we identified here as essential elements of a
natural law theory of morality. For, if the moral status of an act is simply
God’s declaration about it, and it has no moral status before that
86 E. MOAD
declaration, its moral status is not a fact about the act independent of the
declaration. Therefore, there are no objective moral norms. Furthermore,
Ghazali specifically states that the intellect does not perceive things as
good or bad, and (by extension from not obliging gratefulness to the
benefactor) neither obliges nor forbids any act. This seems to entail that
moral norms are not discoverable by reason.
Later in the same section, Ghazali deals specifically and in more detail
with the Mu’tazila position on thanking the benefactor. The first premise
of his argument against them identifies the obligatory even more
thoroughly with the divine command. “An indication of this,” he writes,
“is that there is no meaning to Obligatory (wājib) except ‘what God
makes Obligatory and commands and threatens punishment for neglect-
ing’” (Reinhart 1995: 97). It is natural to interpret this as asserting that
any use of the term obligatory for other than what God commands is
strictly meaningless. In that case, we have an expression of a divine com-
mand theory of a most positivist sort.
Objectivity of Obligation
Yet, a second look reveals that it would be a self-defeating one, for as a
definition it is circular: ‘obligatory means what God makes obligatory.’ If
we bracket the term itself from the definiens, we get ‘what God commands
and threatens punishment for neglecting.’ If we say the obligatory is what
God commands, it is equally circular, since to command is just to obligate.
Thus, when Ghazali says the obligatory is ‘what God makes obligatory
and commands,’ he is giving an extensional, not intensional, definition of
the term. That is, he is not telling us the meaning of obligatory per se, but
specifying what is to be included in the set of things that are ‘obligatory’
as a category of fiqh. When he says, ‘the obligatory is what God makes
obligatory,’ it is not strictly circular, since the term ‘obligatory,’ that he is
defining here, is a secondary, technical sense of the term, which appears in
the definition in its primary, general sense. The latter appears in the last
part of the definition: ‘and threatens punishment for neglecting.’
Ghazali confirms this later in the course of the argument, when he
defines the obligatory per se. “For there is no meaning to obligatory other
than ‘that the doing of which is preferable to being shunned, so as to pre-
vent a known harm or one [merely] fancied’,” he insists, “For the meaning
of the obligatory is [only] the preference of doing over shunning”
(Reinhart 1995: 99). Thus, the obligatory is not, by definition, ‘what God
makes obligatory.’ The obligatory is that which one must do, on pain of
some real or imagined harm. Therefore, it is not the case that the obligatory
has no meaning, independently of the command of God. Nor is it the case
that nothing is obligatory in the primary general sense, without God
commanding it. Nothing is obligatory in the fiqhi sense without a
command from God, but this is in virtue of the fact that ‘obligatory’ in the
primary sense means that which must be done on pain of a harm, combined
with information fiqh discovers, about acts for which God has threatened
harm or promised reward in the Hereafter. There is a ‘natural’ meaning
for obligatory here, independent of divine command, of which the
technical meaning is a specification.
In the al-Mustaṣfā, Ghazali introduces the discussion of the obligatory
by concentrating on this specific technical sense, appropriately for a manual
on uṣūl al-fiqh. His definition of the term in its primary sense only appears
in the course of his argument against the Mu’tazila, about thanking the
benefactor. The argument is that, if the intellect alone obliges thanking
the benefactor, then it either does so for an advantage or not. It is
impossible that it does not do so for an advantage, he argues, because
“that is futility and foolishness” (Reinhart 1995: 97). This is because an
act’s being obligatory, in its primary sense, just means that there is some
advantage in doing it, that is, the avoidance of a harm. That this only
appears later in the text is, perhaps, the reason Reinhart makes the mistake
of interpreting Ghazali as holding that the ḥukm is imperative rather than
descriptive (Reinhart 1995: 72). For to say that an act, if neglected, will
lead to harm, is descriptive, even if the harm it describes is in the hereafter.
For the purposes of uṣūl al-fiqh proper, the technical sense of ‘obliga-
tory’ is the primary concern. When Ghazali launches his rebuttal of the
Mu’tazila, and deploys his definition of the term in its general sense, he is
digressing to a connected issue that belongs primarily to the field of ‘ilm
al-kalām. Hence, while the treatment of the same question in his text on
that field, al-Iqtiṣād fi al-i’tiqād is substantially similar to that in the
al-Mustaṣfā, its order is different. Here, he starts with term ‘obligatory’
(rather than the ‘good’ and ‘bad’ as he does in al-Mustaṣfā), and focuses
on defining it in the general sense. “Indeed, what is specifically called
‘obligatory’ is that act the refraining from which leads to definite harm,”
he writes, “If this harm obtains in the next life and is known through the
revelation, we call the act ‘obligatory,’ and if the harm obtains in this
worldly life and is known through reason, in this case too the act might be
called ‘obligatory’” (Yaqub 2013: 159). The term, therefore, describes a
88 E. MOAD
relation between the act and a value (harm or benefit), and not simply a
relation between the act and a decree. For as he argues, such a decree has
no meaning outside of such a description.
Here, Ghazali treats the distinction, between ‘obligatory’ as a term of
fiqh and the primary sense of the term, in a manner appropriate to the
context of kalām. “We have arrived at two meanings for ‘obligatory’, both
of which are based on encountering harm,” he writes, “One of them,
however, is more general, because it is not specific to the hereafter; the
second is more specific and is our usage” (Yaqub 2013: 160). The
difference, then, is not that in ‘our usage’ the term ‘obligatory’ means
nothing more than ‘commanded by God.’ It lies, rather, in what sort of
harm we have in mind. This does not entail that use of the term ‘obligatory’
outside of the fiqh sense is mistaken. “We do not forbid this convention
according to the law,” he writes, “The terms are open to all and there are
no restrictions on them either due to the revelation or due to reason”
(Yaqub 2013: 159–160). The argument here is not that ‘obligation’ is by
definition a divine command. Rather, it is that acts are obligatory in virtue
of their relation to a consequence rather than (as the Mu’tazila maintain,
according to Ghazali) their intrinsic nature.
Does this notion of the obligatory preclude the possibility of objective
moral norms, of the sort required by a natural law theory? Not if it is a
matter of objective fact, whether refraining from an act will bring harm.
For, if there is an objective fact that a specific act will bring about a grave
harm, then that could underwrite an objective moral norm forbidding the
act. The only objection to this (coming from, e.g., a strict deontological
position) would be that consideration of an act’s consequences can only
underwrite a prudential evaluation, and not a properly moral one. Yet this
would also be an objection against natural law theory itself. Aside from
that, whether the relation between an act and a consequence can underwrite
an objective moral obligation depends on two separate questions: (1)
whether it is an objective fact that refraining from the act will bring about
the consequence in question, and (2) whether it is an objective fact that
the consequence in question is a harm.
The first question is answered simply enough. Obviously, for Ghazali
there are objective facts that refraining from certain acts will lead to harm,
namely in the hereafter. Yet this is also the case in the worldly context.
“The one who does not affirm the revelation might say that it is obligatory
for a hungry person who is dying of hunger to eat if he finds bread,” he
writes, “He means by ‘eating is obligatory’ that performing it is
preponderant over refraining from it because of the harm that is caused by

refraining from it” (Yaqub 2013: 159). It is an objective fact that someone
who does not eat will die.
A foreseeable objection here is that, according to Ghazali, it is God’s
decision that links the act to a punishment in the hereafter. Therefore, the
fact that the act will lead to that harm is not objective, since it is contingent
on God’s will. It is not clear how this follows. If it follows on a general
assertion that anything contingent on God’s will is subjective, then one
would have to conclude that for Ghazali, as well as for Aquinas (the
paradigmatic natural law theorist), the existence of the universe is
subjective. Perhaps the reasoning is that in order to be objective, the link
between the act and the consequence has to be mediated by nature (as a
‘secondary cause’) rather than directly by God. Yet imagine someone puts
a gun to my head and threatens to shoot unless I deny that it is an objective
fact that if he does I will die. Even though this is contingent on his
decision, it is certainly an objective fact that, if I refrain from acting as he
demands, at least my chances of dying are higher. Then, if contingency on
the decision of a human being does not render this subjective, why should
contingency on the decision of God?
This leads to a second potential objection. For Ghazali, there are no
objective facts about human acts leading to consequences, because human
acts do not lead to consequences at all, since everything that happens,
according to Ghazali, is a consequence of God’s act. This is the crux of
Hourani’s argument that Ghazali could not have been a natural law theo-
rist. (Hourani 1985: 152–153) This objection, however, depends on a
strictly ‘occasionalist’ interpretation of Ghazali’s metaphysics of nature
that is controversial. Even if this interpretation is correct, it just may be
that Ghazali’s moral theory is inconsistent with his metaphysics of nature.
That would be the case, if the position that human acts do not cause their
consequences entails that they do not have consequences. Yet in the sce-
nario imagined above, where someone shoots me for not complying with
a demand, it seems right to say my death would be a consequence of my
failure to comply, as an objective fact, even though the shooting (not my
non-compliance) is the cause. Therefore, even on the most strictly ‘occa-
sionalist’ interpretation of Ghazali’s metaphysics of nature, where only
God is the cause of anything, it does not follow that human acts do not
have consequences, as a matter of objective fact.
90 E. MOAD
Objectivity of Value
The second question is whether it is an objective fact that the consequence
in question is a harm, and by extension, whether there are any objective
values. For if it is an objective fact that an act will lead to a consequence
described as a harm, but it is a merely subjective matter whether the
consequence is a harm (i.e., if its status as ‘harm’ depends on the evaluation
of the one affected by it), then the moral principle based on that will be
subjective. If the moral principle is to be one that follows from human
nature, as natural law theory holds, then the value in question must follow
from human nature, as an objective fact. Likewise, if the moral principle is
to be discoverable by reason, then both the relation between the act and
the consequence, and the fact that its harmfulness follows objectively from
human nature, must be discoverable by reason. Hence, we must examine
Ghazali’s discussion of the terms ‘good’ (ḥasn) and ‘bad’ (qabḥ).
“The act that is in accordance with the agent is called ‘good’ for him;
there is no meaning to its being good other than its accord with his
purpose,” he writes, “The act that is contrary to his purpose is called
“bad”; there is no meaning to its being bad other than its contrariety to
his purpose” (Yaqub 2013: 160). ‘Good’ and ‘bad’ are, therefore, not
intrinsic to an act or its consequence, but in every case signify a relation of
accord or contrariety to an objective. They are in an important sense
relative.
If it is in accordance with one person’s purpose but not another’s it is called

‘good’ for the first and ‘bad’ for the other. For the terms ‘good’ and ‘bad’
are relational matters that vary with people. They even vary with the states
of a single person, and they vary with the purposes attached to a single state.
An act might be in accordance with a person in one way and contrary to him
in another way; hence it would be good for him in one way and bad for him
in another way. (Yaqub 2013: 161)
Again, this seems at first to mitigate against the objectivity of a moral

norm based on these values, but that would be a hasty conclusion. For the
relativity of ‘good’ and ‘bad’ in this sense does not entail their subjectivity.
That is, even though the meaning of a thing being ‘good’ is only that it is
in accord with one’s purpose, it does not follow that you can never be
mistaken about whether something is good. That a dosage of medication,
for example, is good for you means only that it is in accord with your
purpose in taking it (presumably, health). Yet this depends on objective

facts that differ from person to person (such as your specific condition,
age, weight, etc.), and not simply on your evaluation. Whether a moral
norm based on this conception of value is objective, depends on (1)
whether there is an objective fact as to whether the relation (of accordance/
contrariety) obtains between the act (or its consequence) and the purpose,
and (2) whether there is an objective fact as to what the purpose is.
Are there objective facts about the relations between acts and purposes?
In Ghazali’s view there are. “One speaker uses it [‘good’] for whatever
serves a purpose, whether the purpose is near at hand or far in the future,”
he writes. “Another speaker uses it specifically for what serves a purpose in
the hereafter, and this is what the revelation deems good; that is, exhorts
its performance and promises a reward for it; and it is the usage of our
peers” (Yaqub 2013: 161–2). In relation to this reward in the hereafter,
according to Ghazali’s position, obviously, there are objective facts about
which acts accord with it. These are the facts disclosed by revelation.
Yet even with respect to worldly purposes, there are objective facts
about which acts are in accord with them and which not, for one is often
mistaken on the matter. We can find a vivid illustration of this in Ghazali’s
psychological explanation of why people falsely conceive goodness and
badness as intrinsic properties of things. Reinhart headed his translation of
this section of al-Mustaṣfā with the title ‘Evaluations are subjective.’ Yet
from Ghazali’s position that goodness and badness are not intrinsic
properties, it does not follow that they are subjective. On the contrary, his
explanation of the faulty habit of thinking of them as intrinsic entails that
they are objective.
The ‘first error’ is that we apply the word ‘bad’ to what is contrary to
our objectives, while failing to notice that it is in accord with someone
else’s objectives. This leads us to ‘determine detestability unrestrictedly’
(Reinhart 1995: 93). That is, we wrongly conclude that it is bad for all,
when it is really just bad for us. This is a mistake precisely because it is an
objective fact that the same thing is in accord with someone else’s
objectives; that is, that it is good for them. If the matter of how the thing
relates to the others interests were subjective, then whether it is bad for
them would just depend on whether I think it is. There would be no fact
about how it relates to the others interest, and thus nothing for me to be
mistaken about. Yet, Ghazali’s argument starts with the observation that
there is an objective fact, which I fail to acknowledge, that the thing is in
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accord with someone else’s interests, both to prove that the badness of the
thing is not intrinsic to it, and explain why we tend to think it is.
The ‘second error’ is that, when something is contrary to our objective
in most cases, we fail to notice the few cases in which it is otherwise,
leading us to conclude that the thing is bad in itself. The ‘third error’ is the
fallacy of association. When one thing resembles another, which we know
to be contrary to our interests, we falsely conclude that the first is also
contrary to our interests. Ghazali gives the example of a snakebite victim
who feels aversion to colored rope. This is an error precisely because he
thinks the rope poses a threat when it does not; that is, he thinks it is bad
when it is not. If evaluations of good and bad were subjective, then this
would not be possible, for in that case there would be nothing to whether
the rope is bad, aside from whether one thinks it is. That is not the case.
One thinks the thing threatens his interests when in fact it does not.
Therefore, the relation between the thing and his interests is an objective
matter, and the fact that ‘good’ and ‘bad’ is such a relation does not render
these evaluations subjective.
This brings us to the question, whether there is any objective fact as to
what one’s purpose is. For if one’s purpose is a purely subjective matter
(i.e., if it is whatever one thinks it is), then any evaluation consisting of a
relation to that will also be subjective, as will any moral norm based on
such an evaluation. On the other hand, if there is an objective fact about
what your purpose is, for example, if you have a purpose that follows from
your nature, as natural law theory holds, then an evaluation of something
based on how it relates to that purpose, as well as a moral norm following
from that, may be objective. If these facts about your purpose and the rela-
tion of an act thereto are discoverable by reason, then the resulting moral
norm may be discoverable by reason.
Then does Ghazali hold that the question of one’s purpose is merely
subjective? Clearly not. For again, if your purpose is a subjective matter,
then it is whatever you think it is, and therefore logically impossible for
you to be wrong about. For, as Ghazali would certainly agree, punishment
in the hereafter is bad for you and reward is good. Then assume it is a
subjective matter what your purpose is. Since a thing being ‘good’ means
only that it is in accord with your purpose, then if you resolve to go to
Hell, that destination will be good for you. As I will argue in what follows,
Ghazali would say you were simply mistaken about what your purpose
actually is. Therefore, there is an objective fact about it, independent of
your subjective choice or assessment.
Another possible response to this hypothesis is that the notion of resolv-

ing to go to Hell is absurd. Since Hell is essentially bad, and ‘bad’ just
means that which is contrary to one’s purpose, then Hell is that which is
contrary to one’s purpose, whatever it may be. To resolve to go to Hell,
then, would be just to make it your purpose to defeat your purpose, which
is absurd. As a matter of objective fact, therefore, your purpose is
fulfillment. One may object that this is not a meaningful fact about the
nature of your purpose, since it does not distinguish anything specific that
would constitute fulfillment from its opposite. Fulfillment must be
fulfillment of something. Though it is of the nature of a purposive being
that it aims for fulfillment, and though this is an objective fact discoverable
by reason, in order for any objective moral norm to follow from this we
must be able to say something more specific about what it is, fulfillment of
which constitutes the purpose of the human being.
Reason and Human Nature

Ghazali places this question at the center of his Kimiya al-Sa’ādat, the
Persian synopsis of Ihyā Ulūm al-Din.
Therefore, you must seek out the truth about yourself: What sort of a thing
are you? Where did you come from? Where are you going? Why have you
come to this stopping place? What is your happiness and in what does it lie?
Where is your misery and in what does it lie? (Cook 2005: 11)
The premise here is that human purpose is an objective matter that is

subject to discovery rather than simply an individual’s decision. Hence, it
determines what is good and bad for you, that is, in what your ‘happiness’
and ‘misery’ lie. This purpose is the objective referent of the terms ‘good’
and ‘bad,’ as Ghazali defines them above. The good is that which is in
accord with it, while the bad is that which is contrary to it. Moreover,
Ghazali does not present the question here exclusively in terms of Divine
will as known through scripture, but as involving an examination of human
nature. He describes the human as exhibiting the attributes of cattle, pred-
atory beasts, demons, and angels.
Which of these is you? Which is the truth of your essential nature, while the
others are foreign and borrowed? If you do not know this, you cannot seek
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your happiness, because for each of these there is a different nutriment and
a different happiness. (Cook 2005: 21)
For Ghazali, of course, our essential nature is that corresponding to the

‘attributes of the angels,’ by which he means the intellect. “How do we
know that his origin lies in the essence of the angels,” he asks, “and that
the others are foreign and accidental?” (Cook 2005: 21) That he considers
this discoverable by reason is evident by the fact that he offers a reasoned
argument for it, as follows. “Know that you recognize this because you
know that a human being is nobler and more perfect than animals and
predatory beasts,” he argues, “Everything to which perfection has been
given, which is his final stage, is the reason for his having been created”
(Cook 2005: 21). The perfection of a thing is a feature unique to it in
relation to others whose features it shares. Ghazali compares horses to
donkeys, as an example. Whereas the function of the donkey is to carry
burdens, the horse can do all that the donkey can as well as run at speed,
which the donkey cannot. All those attributes of cattle and predatory
beasts that we find in the human being are not unique to the human being
but shared by (you guessed it) cattle and predatory beasts.
Therefore, a human being has that which has been given to the animals and
wild beasts, but in addition he has been given a perfection and that is
intellect. With it he comes to know God Most High and His handiwork.
With it, he delivers himself from the grasp of lust and anger. This is the
attribute of the angels. With it, he dominates animals and beasts of prey. All
are subservient to him: everything that is upon the ace of the Earth, as God
Most High said: He has made all of what is on Earth subservient to you. [45:
13] (Cook 2005: 22)
The position that human nature is discoverable by reason, however, is

not alone sufficient for a natural law theory. The latter holds that objective
moral norms rooted in human nature are discoverable by reason. And,
notwithstanding the apparent implications of what Ghazali says here about
discovering where your happiness lies, in al-Mustaṣfā he explicitly states
that the intellect neither commends nor detests, nor does it obligate
thanking the benefactor (or anything else, presumably). This would seem
to preclude the discoverability of moral norms by reason. There appears,
at least, to be a contradiction between his position there and here.
The resolution of this apparent contradiction is that, from Ghazali’s

assertion that reason does not commend and detest, or impose obligations,
it does not follow that it cannot discover them. To clarify what he means
by the former, we need to pay close attention to the course of his argument
against the Mu’tazila. Ghazali argues that the obligation of thanking the
benefactor is only sustainable in relation to a benefit (reward and the
avoidance of punishment) in the hereafter. This is because there is no
obligation without a consequence, and no benefit in this life for
gratefulness. But “there is no advantage to him in the Next World [either
as far as he knows], for the reward is gratuitous preferment from God and
is known [only] by His promise and His informing,” he argues, “If one is
not informed of it, whence does he know that he is rewarded for it?”
(Reinhart 1995: 97).
The substance of the argument, however, lies in Ghazali’s response to
the Mu’tazilite objection he considers directly afterward. “It may occur to
[the bondsman] that if he is ungrateful and disclaims [the benefaction],
perhaps he will be punished,” he has them say, “The ‘aql summons one to
travel the more secure path” (Reinhart 1995: 97). Ghazali’s reply here is
independent of what the intellect can know about the hereafter.
No. Rather, the ‘aql makes known the more secure path, and thereupon a
natural characteristic (al-tab’) impels him to travel it. For every person is
created with a disposition to love himself and dislike unpleasantness. You
have erred in saying that the ‘aql is a summoner; rather the ‘aql is a guide;
inducements and motivations proceed from the lower soul consequent to
the assessment (hukm) by the ‘aql. (Reinhart 1995: 97–98)
The intellect has a function here, which Ghazali explicitly describes as a

hukm; ‘making known the more secure path,’ indeed, in this case that
gratefulness is more likely to save one from punishment in the hereafter.
What he denies is that the intellect imposes the obligation. That is to say,
the obligation is imposed by one’s nature, in relation to which the
consequence of the act constitutes a harm. The function of reason is not
to impose, but to recognize this. This division of labor between one’s
nature and one’s intellect in the moral schema matches that of Saint
Thomas Aquinas, as explained by Father Copleston, in his History of
Philosophy, from the chapter on Aquinas’ moral theory. “Thus man, in
common with all other substances, has a natural inclination to the
preservation of his being,” he writes, “and reason, reflecting on this
96 E. MOAD
inclination, orders that the means necessary to the preservation of life are
to be taken” (Copleston 1946: 407).
Ghazali refers to the seat of the intellect as the heart (qalb). He tells us
that the nobility of the human heart has two dimensions: one pertaining
to power and another to knowledge. That pertaining to knowledge has a
degree that is accessible to the generality of humanity, and another that is
rare. The former involves ‘the ability to learn all sciences and arts, so as to
know all arts, and to read and learn all that is in books, such as geometry,
mathematics, medicine, astrology, and religious sciences.’ All of this,
according to Ghazali, is learned through the senses and pertains to the
physical, while the second degree of nobility is ‘a window inside the heart
open to the kingdom of the heavens,’ and pertains to the spiritual (Cook
2005: 22–23). Though this is the faculty, by means of which prophets
receive divine revelation, it is not strictly limited to them.
Do not suppose that this is restricted to the prophets. Rather, the essence of
all persons in its original nature is fit for this, just as there is no iron, in its
original nature, unsuited for the making of a mirror that may relate the form
of the world—unless it has been spoilt by some corrosive thrown into its
substance. In the same way, every heart that has been overcome by the
worldly greed and appetite for sins which have become firmly established in
it—to the point of being possessed by them and assuming their nature—
nullifies this (potential) suitability. All who are born are born with an innate
nature; their parents make them Jews, Christians, or Magians. (Cook
2005: 25–26)
On the one hand, this capacity is innate and universal. “It is as basic as
answering to every sane person who asks ‘Is two not greater than one?”
(Cook 2005: 26). It is natural reason, but as applied to moral questions,
one must contend with the effect of the ‘rust’ of sin that obstructs its
proper function, of reflecting the reality of one’s nature and the relation of
various deeds to that. Consequently, only very few people actualize this
ability to various degrees. It is not, as Ghazali depicted the Mu’tazila as
presuming, something developed in the same degree to everyone.
“However, not everyone who sows reaps, not everyone who travels arrives,
and not everyone who seeks finds,” he writes, “for the more precious a
thing is, the more numerous the conditions and the rarer its attainment”
(Cook 2005: 26). Like Ghazali, Saint Thomas according to Copleston
holds only that the potential (not actual) apprehension of moral norms by
the intellect is common to all. Citing Summa Theologica II Question 91,

Article 4, Copleston writes:
The natural law is the totality of the universal dictates of right reason con-
cerning that good of nature which is to be pursued and that evil of nature
which is to be shunned, and man’s reason could, at least in theory, arrive by
its own light at a knowledge of these dictates or precepts. Nevertheless,
since, as we have seen, the influence of passion and of inclinations which are
not in accordance with right reason may lead men astray and since not all
men have the time or ability or patience to discover the whole natural law
for themselves, it was morally necessary that the natural law should be posi-
tively expressed by God, as was done by the revelation of the Decalogue to
Moses. (Copleston 1946: 409)
For Ghazali, for one to arrive at this knowledge by means of reason

alone requires a cleansing of the heart, not only from passions and
inclinations that lead one astray, but also from the deceptive influence of
the senses and imagination. For this reason, it is a rare circumstance. The
moral knowledge that is accessible to the vast majority is limited to that
which is passed down on the basis of authority, and is merely the ‘husk’ of
truth, in relation to the ‘kernel’ that is possible for the intellect purified
from distorting elements. Yet, the former is indispensable for the scarcity
of the latter, and Ghazali is scornful of the ‘freethinkers’ and ‘useless ring-
doves’ of his era who dismissed positive religious law and legal learning in
the pretense of possessing or favoring the ‘kernel’ of true knowledge. He
compares common religious knowledge to gold, and the purified intellect
to the fabled ‘philosopher’s stone.’
They are like that person who has heard that the philosopher’s stone is bet-
ter than gold, because limitless gold can be made from it. If someone places
a treasure of gold before him, he will refuse it, saying: “What good is gold
and what value does it have? I want the philosopher’s stone, which is its
source!” He will never possess the philosopher’s stone. He will remain a
penniless, hungry wretch, relishing and bragging about his words: “I said
that the philosopher’s stone is better than gold.” (Cook 2005: 31)
Thus, while there is an elitism here that may effectively limit public
moral authority to the purview of positive religious law, it does not entail
that moral norms are not, in principle, discoverable by independent
reason. Indeed, Ghazali’s aim here is to explain how they are, and what
98 E. MOAD
one needs to do in order to actualize that capability. Since his position on

this is similar to that of Saint Thomas, who we are in good company in
taking as the paradigmatic natural law theorist, then there is no reason to
take Ghazali’s spiritual and moral elitism in this regard as reason to
preclude describing his position as a natural law theory.
We might make another instructive comparison to utilitarianism, which
though not a natural law theory nevertheless holds that moral norms are
discoverable by independent reason. The utilitarian Henry Sidgwick
(1874) argued that, though the principle of utility is true, the principle
itself demands that the public at large believe otherwise. Since most people
are incapable of accurately calculating which acts will maximize the general
utility, it would be a utilitarian disaster if everyone were to act on it.
Therefore, he argued, it would maximize the utility if most people simply
followed a set of moral rules formulated by those who are capable of
making accurate calculations. This may be objectionable for other reasons,
but we would not take it to imply that moral norms are obscure to reason.
We have given a plausible reading of the relevant sections of Ghazali’s
al-Mustaṣfā min ‘Ilm al-Usūl and al-Iqtiṣād fi al-i’tiqād that is consistent
with the overall approach to ethics we find in Kimiya al-Sa’ādat. Together,
they form a largely coherent theory that exhibits all the main features of a
natural law theory and is comparable in its essential components to that of
Saint Thomas Aquinas. A reader of Islamic philosophy will notice the basic
similarity between this theory and that of his contemporaries among the
Muslim falāsifa. The remaining objection to this comparison is that which
Hourani raised on the basis of Ghazali’s metaphysics of nature.
Hourani mentions that Ghazali never rejects the ethical theory of
falāsifa, yet he insists that it is certain that Ghazali opposed them, because
he must have opposed them, given his metaphysics of nature (Hourani
1985: 152). The argument is that, while the teleological ethics of the
falāsifa is centered on the causality operative between human nature,
human action, and the condition of one’s soul, Ghazali ‘denies causality,’
and therefore cannot have accepted this sort of moral theory. As mentioned
earlier, this depends on an oversimplification of Ghazali’s metaphysics of
nature; and specifically, a hasty conclusion that it precludes the possibility
of any natural order whatsoever. This discussion, however, is beyond the
scope of the present chapter, and has been discussed extensively by others,
including Frank Giffel (2009).
At least one piece of prima facie evidence, that Ghazali’s metaphysics of
nature does not preclude a teleological ethics involving human nature and
the effects of acts on the soul, is the simple fact that, as we have shown,
Ghazali does in fact advocate an ethics of precisely that sort. Then either
Ghazali believed (rightly or wrongly) that such a theory is compatible with
his metaphysics of nature, or he simply contradicted himself out of
negligence. Charity demands that we assume the former. Yet, even if his
ethical theory is incompatible with his metaphysics of nature, it remains
the case that the ethics he does expound is a natural law theory in all
essential respects.
References
Cook, Jay. 2005. Al-Ghazali’s Alchemy of Happiness. Chicago: Kazi Publications.
Copleston, Frederick. 1946. A History of Philosophy Book One. New York:
Doubleday.
Emon, Anver. 2010. Islamic Natural Law Theories. Oxford: Oxford University Press.
Giffel, Frank. 2009. Al-Ghazali’s Philosophical Theology. Oxford: Oxford
University Press.
Hourani, George. 1985. Reason and Tradition in Islamic Ethics. Cambridge:
Reinhart, Kevin. 1995. Before Revelation. Albany: SUNY Press.
Sidgwick, Henry. 1874. The Methods of Ethics. Indianapolis: Hackett.
Yaqub, Alladin. 2013. Al-Ghazali’s Moderation in Belief. Chicago: University of
Chicago Press.
CHAPTER 5
Elitist Democracy and Epistemic Equality:

Aristotle and Ibn Rushd on the Role
of Common Beliefs
Karen Taliaferro
It is a fundamental tenet of modern democratic thought that all people are

equal—equal before the law, equal in human dignity, and equally eligible
to participate in self-governance. While hardly an ancient or medieval fea-
ture, equality pervades political thought from at least the Enlightenment
onward, such that Tocqueville could aver that democratic peoples prefer
equality over all other “advantages society offers”; indeed, equality “forms
the distinctive characteristic of the age in which they live,” that is, the
democratic age.1 But this equality often proves aspirational rather than
factual; in practice, certain voices rise to the fore in the public sphere while
others are suppressed, contributing to a decay in confidence in institutions
and even faith in democracy itself. The resultant divide between elites and,
for lack of a better term, ordinary citizens, has been on display across the
K. Taliaferro (*)
School of Civic and Economic Thought, Arizona State University,
Tempe, AZ, USA
e-mail: Karen.Taliaferro@asu.edu

https://doi.org/10.1007/978-981-15-6245-7_5
102 K. TALIAFERRO
globe in recent years, from the Arab Spring uprisings to Brexit to the sur-
prising election of Donald Trump. On the whole, however, these populist
surges have not, at least yet, resulted in gains in democratic equality;
instead, recent global trends have taken authoritarian directions.
As students of the history of political thought will observe, however,
classical political philosophy seemed to see this coming. Plato’s caution
against democracy in Book VIII of the Republic, to take perhaps the most
famous example, suggests that it is the very egalitarian nature of a democ-
racy that will cause its downfall: without social recognition of the superior
wisdom of the guardians, the democratic city, “dispensing a certain equal-
ity to equals and unequals alike,” (558c) will devolve into disorder, lead-
ing to “faction and counterfaction” (560a) until the chaos and disdain for
the rule of the wise paves the way for a tyrant to take over, offering himself
as a friend of “the people.” Nor was Plato alone in his suspicions of demo-
cratic equality; most of ancient and medieval political thought relied on an
elite-masses distinction in one form or another, from Aristotle’s preference
for aristocracy in the Politics or his elite-raised phronimos in the Nicomachean
Ethics, to al-Fārābı̄’s notion of “men’s ranks of order” in The Political
Regime (al-Sı̄yāsat al-Madaniyya).
What I am interested in here, however, is a particular form of elitism,
what I term “epistemic elitism.” Epistemic elitism, which is almost taken
for granted in classical political thought, insists that only the wise and well-
bred are qualified for political leadership; it eschews the mere “iron souls,”
or ordinary citizens who are not selected for elite training and education.
This idea is obvious throughout both Western and Islamic sources,2 and
there is indeed a common-sense basis for it: surely s/he who has demon-
strated superior wisdom, who has had a good education, and who has
cultivated intellectual virtues should be put in a position of leadership
rather than one who, whether for lack of opportunity or interest, has not
received an adequate education or demonstrated the ability to think stra-
tegically and act prudently. Still, rightly or wrongly, elitism of any form is
often seen as an obstacle to modernity’s aspirations of democracy, equality,
and self-rule; if democracy is government by the people, then surely the
common man should be given as fair a chance as the Ivy League or al-
Azhar trained elite at participating in decisions concerning the public. At
the same time, though, in an era in which the notion of “alternative facts”
can gain traction, few deny the urgent need for educated political leaders,
not to mention an educated citizenry in general, in order to sort truth
from opinion or outright fiction in the public sphere.
5 ELITIST DEMOCRACY AND EPISTEMIC EQUALITY: ARISTOTLE AND IBN… 103
Modern democracies, then, whether advanced or aspiring, seem stuck

between the Scylla of elitism and the Charybdis of acephalous populism,
the former of which can undermine equality by restricting access to full
participation in self-governance, and the latter of which can undermine
knowledge and education among both leaders and citizens. Put another
way, democracy suffers from the inherent problem that rule by majority
can produce terrible results, yet restricting those results requires the inter-
vention of elites. So how can a society pursue the modern goal of demo-
cratic equality among all citizens, elite or not, while preserving the ancient
and medieval insistence on the superiority of wisdom and truth over
opinion?
Answering this question in whole far exceeds the limits of this chapter,
but I suggest that at least one means of addressing the problem of epis-
temic inequality exists within the classical sources themselves. This chapter
analyzes Aristotle’s “endoxic method” approach to political and moral
inquiry and what I argue is a related approach, known as bādı̄ al-rāʾı̄, of
Aristotle’s medieval Muslim commentator Ibn Rushd (Averroes). These
methods, which begin deliberation from common beliefs about political
and moral questions rather than from elite knowledge, model an episte-
mological humility that is very appealing to the late-modern political
thinker without giving up on the rigors of philosophical investigation. In
other words, they provide a mean between the extremes of elitist arro-
gance and populist relativism that is especially well-suited to the contem-
porary political moment. This chapter discusses both methods in their
similarities and divergences, showing how they mitigate the epistemic elit-
ism problem in ancient political thought and open space for both expert
political philosophy and the common citizen’s role in democratic
deliberation.
Aristotle’s Endoxic Method

Aristotle’s discussion of what can rightly be claimed as knowledge3 in the
political sphere seems at first to be a study in contradiction. He begins his
inquiry into political science in the Nicomachean Ethics with common
beliefs, asking about what “the many think” about such matters and
asserting that philosophizing ought “certainly begin from things known,”
as opposed to deducing knowledge from abstract principles (NE
1095a15–1095b4). This seems to uphold the view of the many as rele-
vant, even essential, to political inquiry. Yet in nearly the same breath he
104 K. TALIAFERRO
insists that politics is for those who “have been brought up in fine habits,”
suggesting that it is they alone who can become “adequate students of fine
and just things, and of political questions generally” (NE 1095b5–10).4
Which, then, is it? Is knowledge of political and moral matters available to
all, or only to elites?
Aristotle’s methodological reliance on endoxa, or opinions, is instruc-
tive here. This method appears in both the Politics, discussed below, as
well as in the Nicomachean Ethics, where we begin with the puzzles
Aristotle lays out surrounding incontinence. There, in Book VII, Aristotle
asks whether someone who acts incontinently acts with knowledge that
they are acting against the good. Plato had famously suggested in the
Protagoras that incontinence essentially did not exist; no one would choose
deliberately to act against what he believes to be good. Aristotle rejects
this position, but importantly he does so not through logical refutation
but by examining common beliefs or opinions. This method, often referred
to as the “endoxic method,” can be summed up as follows: first, Aristotle
considers the puzzle at hand (do people knowingly act against the good?),
states the common beliefs or opinions (endoxa) about the puzzle, dis-
penses with objectionable ones, and finally arrives at “adequate proof” to
establish the correct belief. For example, in NE VII.2, in asking “what sort
of correct supposition someone has when he acts incontinently,” Aristotle
first considers Plato’s position: “some say” that the incontinent person
“cannot have knowledge [at the time he acts].” He then proceeds to the
objections that “some people” raise and considers these dialectically until
reaching his conclusion that the knowledge that an incontinent person has
and acts upon is “not the sort that seems to be fully knowledge, but it is
only perceptual knowledge” (1147b15). The discussion concludes with
the declaration of “so much, then, for knowing and not knowing, and for
how it is possible to know and still to act incontinently” (ibid.).
While Aristotle’s exploration of this “perceptual knowledge” is itself an
interesting exercise in epistemology, it is his method of arriving at the
substance of that knowledge that interests us here. His most succinct
description of this endoxic method appears just before the discussion
quoted above:
As in the other cases, we must set out the appearances, and first of all go
through the puzzles. In this way we must prove the common beliefs about
these ways of being affected—ideally, all the common beliefs, but if not all,
then most of them, and the most important. For if the objections are solved,
and the common beliefs are left, it will be an adequate proof. (1145b5)
This description is striking, for at first glance it seems to imply a rather

airtight method for discerning correct beliefs. Indeed, Martha Nussbaum
sees Aristotle here as “promising to rehabilitate the discredited measure or
standard of…anthropocentrism” in philosophical inquiry, meaning that
we might locate “truth inside what we say, see, and believe.”5 To Nussbaum,
this Aristotelian method should be understood as opposed to Socrates’
(and others’) sharp distinction between truth and appearances, according
to which truth is discovered “far from the beaten path of human beings,”
by those who have left the cave—a juxtaposition that favors the philoso-
pher’s vantage point over a more common-sense approach of trusting
common beliefs and measuring philosophical conclusions against appear-
ances. If this is so, Aristotle’s method may serve as a corrective to philo-
sophical elitism and provide not only a means of saving Aristotle’s
appearances, as Nussbaum entitles her chapter on the endoxic method,6
but also a discursive approach to knowledge that is more amenable to a
democratic age than is a top-down elite philosophical training.
Whose Endoxa? Which Method?

The brief description of the endoxic method quoted above seems at first
glance somewhat simplistic—surely, one may respond, Aristotle is not
attempting to reduce philosophy to mere observation and pondering.
Considering common beliefs and responding to objections is hardly a
method in itself, and it leaves little room for questions in which so much
disagreement persists that a truly “common belief” doesn’t exist. Nor
does Aristotle elaborate on what to do if the objections cannot be solved,
or if the puzzle can only be solved in such a way as to disprove common
beliefs without offering an alternative explanation.
It is important to note, however, that Aristotle does provide guidance
on which endoxa are to be given weight; it is not simple commonness that
gives endoxa their force. In his discussion of the methods of investigating
happiness in Nicomachean Ethics Book 1, Aristotle writes that “it is rather
futile to examine all these beliefs,” and we should instead “examine those
that are most current or seem to have some argument for them”
(1095a30).7 But what sort of argument are we looking for? Aristotle
digresses slightly into a discussion of two types of knowledge used to
106 K. TALIAFERRO
support or justify arguments for or against given endoxa: “some are known
to us, some known without qualification,” and “we,” Aristotle stresses,
“ought to begin from things known to us” (1095b). But this raises the
critical issue of who this “we” refers to—just anyone, as in, “we [human
beings] should get eight hours of sleep per night,” or “we” as in “we phi-
losophers/elite thinkers”?
Nussbaum considers the “we” who are setting down appearances and
considering beliefs to be a loosely affiliated group: members of the human
race to be sure, but probably also particular civilizational groups of whom
Aristotle was aware and who shared “recognizably similar general condi-
tions of life.”8 The context, however, suggests a narrower category of
“we.” Aristotle follows the above-quoted line with, “That is why we need
to have been brought up in fine habits if we are to be adequate students of
fine and just things, and of political questions generally” (1095b5). If we
are going to begin with appearances and common beliefs, it is important
to begin with the right common beliefs, that is, true common beliefs, and
of these Aristotle says, “someone who is well brought up has the begin-
nings, or can easily acquire them” (1095b10). Nussbaum herself acknowl-
edges the need for some measure of paideia, or moral education, for
serious discourse; without it, one may be left confronting the ignoramus
who, for instance, denies the principle of non-contradiction.9 That this
turn does not mean disregarding common beliefs in favor of elite knowl-
edge, though, is evident both from the immediate context, in which
Aristotle has indeed considered what “the many” think happiness is, but
also from his later uses of the endoxic method. Returning to Book VII’s
discussion of incontinence, for instance, he again considers common-sense
approaches to such questions as “which bodily pleasures are choicewor-
thy?”, adding that “We must, however, not only state the true view, but
also explain the false view; for an explanation of that promotes confidence.
For when we have an apparently reasonable explanation of why a false view
appears true, that makes us more confident of the true view” (1154a22–26).
So far, then, we have whittled down the commonness of common
beliefs (and the meaning of “we” referred to above); it is the opinions of
those who have received proper paideia that should be considered. But as
Owen McLeod points out, even this is not enough; much later in the
Nicomachean Ethics Aristotle returns to the topic of “the beliefs of the
wise,” suggesting—as we might expect—that accordance with such opin-
ions is insufficient evidence of the truth of a particular position:10
Hence the beliefs of the wise would seem to accord with our arguments.
These considerations, then, produce some confidence. But the truth in
questions about action is judged from what we do and how we live…Hence
we ought to examine what has been said by applying it to what we do and
how we live; and if it harmonizes with what we do, we should accept it, but
if it conflicts we should count it [mere] words. (NE 1179a17–23)
In other words, the set of endoxa from which we begin our inquiries
should not only not conflict with the opinions of the wise or well-formed
but also, crucially, not contradict actual experience. In a sense, this latter
criterion serves to protect the endoxic method from the charge that it is
nothing but a defense of the elite status quo; in fact, as we see in the above
quotation, Aristotle seems to give more credence to experience, that is,
“what we do and how we live,” than to “the beliefs of the wise.” Whichever
endoxa we include in our inquiries, then, our final conclusions need to
correspond to lived experience—even, presumably, if this would conflict
with elite consensus.
Aristotle’s endoxic method thus at once elevates human rationality but
also acknowledges our tendency to err or mislead ourselves (and others)
into beliefs that are at best only apparently true. He is deeply concerned
with distinguishing true endoxa from the mere appearances of them, yet
he is aware of the epistemic demands this places on the philosopher. By
employing common beliefs as the fundamental data of a system of ethics,
Aristotle is attempting, in Nussbaum’s words, “at once to be seriously
respectful of human language and ordinary ways of believing and to do
justice to the fact that these very practices reveal an ongoing demand for
scientific understanding.”11
Limitations
I hasten to qualify this discussion with the observation, noted by both
McLeod and Jonathan Barnes,12 that Aristotle hardly relies on the endoxic
method as an exclusive means of inquiry. As Barnes points out, endoxa
seem to be absent from the Organon, at least in the sense in which we have
discussed them.13 Yet it is not our project here to delineate Aristotle’s
overall methods but rather to draw out the potential of one he does at
least sometimes employ. We are not all of us Aristotle, nor is our discursive
setting that of fifth-century Athens, so it can hardly discredit the endoxic
method wholly to show that Aristotle himself sometimes disregarded
108 K. TALIAFERRO
common beliefs. Still, given the above evidence, it seems that Aristotle did
at least sometimes think it appropriate to delimit the conclusions of our
philosophical inquiries to the reality in which we find ourselves.
Furthermore, we are looking for a philosophical method to deal with
questions of public import, which may be at least partly distinguished
from the more technical philosophical and scientific inquiries found in the
Organon. Moving, then, to Aristotle’s deployment of this method in the
Politics, we see that a topic hotly contested in a contemporary setting
might be discussed and debated through this endoxic method.
Endoxic Method in Aristotle’s Politics

What does this method look like in addressing political questions rather
that the more abstract ethical ones of the Nicomachean Ethics? Crucially,
can the endoxa ever actually serve to reveal general normative principles,
or do they only get us a few steps past aporia without actually solving the
puzzle? Aristotle’s inquiry into the nature of citizenship in chapters 1–2 of
Politics III can be illuminating here. This case presents a wide variety of
views and is explicit on the project to employ endoxa in seeking a general
principle: “We are seeking the citizen in an unqualified sense, one who has
no defect of this sort requiring correction” (1275a18).
Aristotle begins by stating the obvious puzzle, namely, “there is often
much dispute about the citizen, for not everyone agrees that the same
person is a citizen” (1275a2). He observes that the type of regime mat-
ters: “Someone who is a citizen in a democracy is often not one in an oli-
garchy” (1275a5), then proceeds to pare away the particular cases
(honorary citizens, slaves, aliens, etc.), making it clear that he is seeking a
general principle from the many and varied endoxa to determine what
constitutes citizenship.
Interestingly, Aristotle then takes a turn away from endoxa, simply
asserting, “the citizen in an unqualified sense is defined by no other thing
so much as by sharing in decision and office” (1175a22). But this move
permits him to explore the meaning of “office,” introducing a debate in
which some hold assemblymen to share in office whereas others do not.
“But it should make no difference: the argument is over a term, for what
is common to juror and assemblyman lacks a name that could apply to
both” (1175a25–30).
In taking this direction, Aristotle is able to raise the important point
that some endoxa may be as of yet unarticulated. “Perhaps someone might
say that [assemblymen] are not rulers…yet it would be ridiculous to

deprive those with greatest authority of [the title of] office” (emphasis
added). This discussion strikes the reader as at once hypothetical and yet
grounded in at least similar experience; Aristotle seems to want to settle a
disagreement among actual debaters and provide an alternative to com-
peting opinions: “For the sake of definition, then, let it be ‘indefinite
office.’ We set it down, then, that citizens are those who share in this way”
(1275a30).
But this apparently finalized definition returns to the microscope at the
beginning of chapter 2: “As a matter of usage, however, a citizen is defined
as a person from parents who are both citizens” (1275b1). Even more
controversial is the question of “those who came to share in the regime
after a revolution” (1275b35), in which case the question must necessarily
be raised concerning whether a given citizen is such justly or unjustly
(1275b35–38). This question marks the transition to chapter 3 as well as
a return to endoxa, from which Aristotle had strayed in chapter 2. We see
Aristotle’s method taking him not to a final consensus on the matter of
citizenship, but rather into an even richer field of inquiry, that of the city’s
identity vis-à-vis regime changes: “The question of [whether some are citi-
zens] justly or unjustly touches on…the question of when the city per-
formed an action [of regime change] and when it did not” (1267a6–8).
In these first three chapters of Book III of the Politics, then, there
emerges a familiar pattern as Aristotle deploys the endoxic method. He
lays out the various endoxa, considers each, articulates some definitive
understanding of the matter at hand (in this case, citizenship), then com-
plicates that understanding by introducing questions that are necessarily
related, even prior to, the original question, and which permit him to
delve more deeply into his political philosophy. For instance, after his
definitive statement “We set it down, then, that citizens are those who
share in this way” (1275a30), Aristotle notes that “the citizen must neces-
sarily differ in the case of each sort of regime” (1275b2–3), which leads
him to discuss citizens-in-regime as part of his inquiry into citizenship.
This requires a deeper understanding of regimes and their relationships
with cities, which takes the discussion away from citizenship qua citizen-
ship, and the question at hand (of the definition of citizenship), though
explored, is left without a clear answer.
Is this failure to reach clarity an indictment against the endoxic method?
Does it indicate the method’s relative uselessness in gleaning hard princi-
ples? Or is this lack of definitive, final answer actually integral to Aristotle’s
110 K. TALIAFERRO
moral and political philosophy? Returning to Book I of the Ethics, we

recall Aristotle’s moral qualification for participation in his method: “That
is why we need to have been brought up in fine habits if we are to be
adequate students of fine and just things, and of political questions gen-
eral. For we begin from the [belief] that [something is true]”—that is, we
are not here seeking first principles but working from pre-established prin-
ciples, of which “someone who is well brought up has the beginnings, or
can easily acquire them” (1095b5–10). In other words, if we are to employ
endoxa in our inquiry, we actually need some prior moral formation in
order to begin to discern which are worthy of consideration.14 This does
not mean that one cannot thereby glean real principles using the endoxic
method; rather, it is an indication of Aristotle’s recognition of the limits of
dialectical reasoning in attaining hard and fast answers to such nebulous
questions as what does, or should, constitute citizenship.
The above view is not wholly consonant with Nussbaum’s analysis of
Aristotle’s method, which sees in Aristotle’s method the advancement of
“an internality that is deeply rooted in Greek tradition.”15 Given the heavy
reliance of the endoxic method on moral education—and, by extension,
on political community—I cannot see that Nussbaum’s overall interpreta-
tion is quite accurate. Nor would I fully endorse Jonathan Barnes’ rather
strict interpretation of some of the same texts of Aristotle we have relied
on here, according to which, once the “difficulties have been solved—
once the original endoxa are purified or emended, and the appropriate
consistent subset of them is determined—the truth is to be found, exclu-
sively and exhaustively, in the subset that remain.”16 Exclusively and
exhaustively? Aristotle all but directly contradicts this by his insistence that
“the truth in questions about action is judged from what we do and how
we live” (NE 1179a20), that is, not only from the endoxa of the wise.
However, more plausible—and more damming if true—is McLeod’s char-
acterization of Aristotle’s method:
When planning to theorize about some subject, find out what other people
have said about it. Reject what seems false and accept what seems true. If
past opinions are all false, or if what is true is not the whole truth, or if there
simply are no preexisting views on the topic, then suggest something new or
advance a novel theory…There is nothing controversial about this
method…Indeed, the “method” just described is so bland and so pervasive
that the only real point in attributing it to Aristotle is to distinguish it from
the methods credited to him.17
There is a sense in which McLeod is perhaps right; it is difficult to deny

that the endoxic method can look a lot like common sense and thus appar-
ently lacking the theoretical richness that one looks for and expects in
philosophy. But is this entirely fair? After all, method is not substance. The
dialectic, for instance, is quite simple as a method: thesis, antithesis, syn-
thesis; a child could grasp this. But few children could grapple with the
substantive matters of ethics, morality, or politics that require the philoso-
pher’s, or at least the adult’s, more powerful intellect.
Beyond this defensive move, though, it is worth considering whether
the simplicity of the endoxic method might not mask a more ingenious
approach to our concern in this book, that of reason, revelation, and law.
If Aristotle can demonstrate, through such exercises as his discussion of
citizenship, not only the utility but the necessity of common beliefs in
addressing practical moral and political questions, our public discourse,
law, and policy can be circumscribed by a very humane set of consider-
ations. Elitism and populism will always stand in tension, of course, but a
trump card for either rarely bodes well for the common good. Employing
the endoxic method favors neither ab initio, but rather clears cognitive—
and social—space for both, affirming what holds up to lived experience as
well as clear thought on either side. Rather than the “bland” non-method
McLeod sees in Aristotle’s approach, then, we might see what Confucius
advocated: “Collect much information, put aside what is doubtful, repeat
cautiously the rest; then you will seldom say something wrong. Make
many observations, leave aside what is suspect, apply cautiously the rest;
then you will seldom have cause for regret.”18
Ibn Rushd on Common Opinions: Bādı ̄ al-rāʾı ̄

and the Unwritten Law
The divide between elites and ordinary citizens that finds such perennial
occurrence in the political arena is further complicated in a religious soci-
ety, where the tension between priestly classes or religious elites and com-
mon believers compounds the tension between political elites and ordinary
citizens. To what extent are the common practices and beliefs of the ordi-
nary faithful considered legitimate, even authoritative, precisely because of
their commonness? What, if anything, can be known about justice and
injustice outside of revelation? These questions require that we move
beyond the political elites-masses cleavage to the division between the
112 K. TALIAFERRO
religiously elite, that is, those considered to have esoteric religious knowl-
edge or interpretive/magisterial authority, and the body of the faithful or
ordinary believers.
We turn, then, to a setting in which such questions were much more
hotly contested than ancient Athens. Ibn Rushd’s thirteenth-century
Cordoba was one of great debate—and high stakes—concerning the
respective roles of reason, revelation, and authority. Religious schisms
were dividing society and the Muslim community, and, in Charles
Butterworth’s description, “the more zealous sought to gain acceptance
of their ideas by force…Philosophical thought, as well as religious specula-
tion, were threatened.”19 Such clashes, whether religious, political, or
philosophical, bring into relief the need for a common language of inquiry
to bridge the elites-masses divide, whether religiously or politically. Barring
such language or modes or inquiry, as history reminds us, it may indeed
be left to force to decide which ideas gain acceptance. I suggest that Ibn
Rushd’s use of the bādı̄ al-rāʾı̄, usually translated as “immediate point of
view” or “unexamined opinion,”20 gives us a glimpse into a rhetorical
device that relies on similar suppositions about common beliefs as I have
argued for the endoxic method above. This concept, which appears in the
Qurʾan (11:2721), appears also in the commentaries of both Al-Fārābı̄ and
Ibn Rushd in their commentaries on the Rhetoric, as well as in the works
of Ibn Sinna and Ibn Bajja. Interestingly, however, it was not a term or
concept adopted directly from Aristotle himself, who had no Greek ana-
logue.22 While a complete survey of the use of bādı̄ al-rāʾı̄ in medieval
Islamic sources would be desirable, for space considerations I focus on Ibn
Rushd’s development of the term, partly because his own work may well
have built on the other philosophers’ use of bādı̄ al-rā’ı̄, but principally
because of Ibn Rushd’s close relationship with Aristotle’s works was
unmatched; indeed, he was known as “The Commentator” for having
commented on all of Aristotle’s works except for the Politics.
Ibn Rushd’s clearest mention of bādı̄ al-rāʾı̄ appears in a rather techni-
cal portion of his Middle Commentary on Aristotle’s Rhetoric (Talkhis
Kitāb al-Khaṭāba li Arist ̣ū, hereafter MCR23), but in its essence, the
immediate point of view describes those premises either a) of which the
listener is more or less immediately convinced by himself upon hearing, or
b) which the listener accepts because of its notoriety (li shuhratahi), that
is, because the premise either is in fact or is thought to be widely accepted.
In Ibn Rushd’s description of bādı̄ al-rāʾı̄,
The premises used here should come from presumed things admitted
according to apparent opinion (bādı̄ al-rāʾı̄), not from things which are not
believed, unless they can be accepted and can convince [the hearer] easily
and closely [i.e., soon after mention]. The things about which one is con-
vinced here are of two sorts: the first is that which people believe and accept
by itself when they hear it and the other is that which [they] accept when
they hear it on account of its reputation and because it is praised by all
people. (MCR 2.23.19)
Again, setting aside the rather technical context of the above quota-
tion—the discovery of the implicit premise in an enthymeme24—what I
would highlight here are the communal underpinnings of this unexam-
ined opinion or immediate point of view. To Ibn Rushd, acceptance of a
given premise according to bādı̄ al-rāʾı̄ relies on communal knowledge—
not knowledge relative to an individual alone, nor the philosopher’s elite
knowledge, but what we might call “common knowledge.” Ibn Rushd
writes explicitly that the bādı̄ al-rāʾı̄ relies on the shared approbation of
“all people.” Just as common endoxa, not esoteric or technical philosophi-
cal knowledge, serve as a starting point for inquiry for Aristotle, it is those
concepts that are acceptable according to bādı̄ al-rāʾı̄ that should be used
in rhetoric rather than those requiring philosophical demonstration or
religious authority.
One may here object that it is only the second criterion given above—
that concerning reputation and approbation by others—that is communal;
the first, those things that can be accepted immediately, may be nothing
more than one’s own reaction without the influence of common opinion.
If this is true, then acceptance according to bādı̄ al-rāʾı̄ may serve to rein-
force prejudice, only deepening the divide between elites and non-elites.
However, Ibn Rushd immediately qualifies his two-part definition of the
bādı̄ al-rāʾı̄ by effectively collapsing the two criteria, such that one’s imme-
diate reaction is always already communal: “Now, man does not let himself
be convinced of the first sort [of premises, viz., those of which one is con-
vinced immediately upon hearing] unless he is of the opinion that they are
a part of the second [category, viz., those premises which are known and
praised by all]” (2.23.19). I am therefore inclined to agree with Aouad,
who sees in this passage an “argument from authority” inherent in speech
that employs the bādı̄ al-rāʾı̄, that authority being common opinion.25 Of
course, this reliance on the authority of common opinion does not pre-
clude the possibility that common opinion is shared by the elites, nor does
114 K. TALIAFERRO
it exclude cultural particularities among such opinions; there need not be

only one version of “common opinion.” Still, the point remains that this
bādı̄ al-rāʾı̄ which Ibn Rushd and other medieval Islamic thinkers stressed
tends toward a communal basis of knowledge.
This is quite an anti-elitist position, apparently ruling out specialist or
esoteric knowledge. Is this, though, the full story? To answer this, and to
grasp more fully the use of bādı̄ al-rāʾı̄ in Ibn Rushd’s thought, we turn to
his writings on the unwritten laws (sunan ghaı̄r al-maktūba), which occur
earlier in the MCR. These laws might be thought of as the substance of
common knowledge, and bādı̄ al-rāʾı̄ would be the means of knowing it.
These sunan ghaı̄r al-maktūba are “those [laws] that are in the nature
(t ̣abı̄ʿa) of everyone,” of which “everyone, by their nature, is of the opin-
ion that they are just or unjust”26—an eminently democratic form of
knowledge, or so it would appear. For Ibn Rushd writes two contradictory
statements about these laws:
1.15.6
As for following the unwritten laws and for determining [what they are],
this belongs to those who possess deliberative reflection and to the elites
among the people.27
1.15.18
Those who are named as judges in the cities are but those who know the
written laws, not the unwritten laws, for, concerning the apprehension of
the latter, there is equality among all people.28
It is difficult not to see contradiction in Ibn Rushd’s words here, for if,
as in the latter statement, these unwritten laws of nature are in fact avail-
able to all, they might serve as an antidote to elitism and a foundation for
commonly accessible knowledge. But if, as according to the first state-
ment, they require interpretation from elites, then we are still stuck in our
fundamental quandary; even that knowledge that is inscribed in the nature
of the world itself requires the authority that comes from elite
interpretation.
I suggest that the concept of bādı̄ al-rāʾı̄ provides the key to this puz-
zle. To Ibn Rushd, we know the unwritten law largely through acceptance
on the immediate point of view (bādı̄ al-rā’ı̄) of others: “For the good
according to the unwritten law is [comprised of] the acts which, whenever
a person increases them without end, his praise and acclaim or dignity and
status increase, [including] such [acts] as helping friends and paying back
benefactors” (1.13.8). In other words, if I act according to the unwritten

law, my acts ought to increase my respectability among other people. But
this does not resolve questions of the finer points of ethics and morality,
which will take the philosopher’s (or qādı̄’s) “deliberative reflection.”29
Nor, I submit, would even the most ardent egalitarians wish it otherwise.
For what Ibn Rushd is here providing is a way out of the elite-mass agon,
the continual struggle for power that so often marks the political sphere.
I noted above that acceptance according to bādı̄ al-rāʾı̄ can appear to
resemble a person’s knee-jerk reaction but argued that in fact, it is always
a communal and not merely personal form of acceptance. What we did not
address was the fact that such communal unexamined opinion can be at
least as reactionary—not to mention grounded in bias or emotion—as can
personal unexamined opinion; history is replete with instances in which
people thought they “knew by their nature” that something unjust was
justified. This problem, however, can occur in both the masses as well as
in the elites, and the alternatives to the use of bādı̄ al-rāʾı̄ as I have dis-
cussed it—namely, disregarding common opinion in favor of either elite
opinion or religious authority—are perhaps just as likely to fall prey to
blind spots or outright injustice. Rather, it seems that this problem is one
of moral formation, and Aristotle’s requirement of paideia—his insistence
on being “brought up in fine habits”—may be the necessary accompani-
ment to the use of common opinions in politics, or, indeed to democ-
racy itself.
Ibn Rushd acknowledged the same problem concerning a reliance on
common opinion: “People are by nature inclined against just excellences
(al-faḍāʾil al-ʿādala)” (MCR 1.1.14). His answer was to assign to elites
the indispensable task of using rhetoric to “incite citizens to excellent
works” (MCR 1.1.14). Ibn Rushd’s epistemic method, then, accesses the
timeless truths of the unwritten laws of nature through something of a
balancing act: he reserves the ability to determine its complex theoretical
truths for elites with the capacity for deliberative reflection (1.15.6, quoted
above30) and charges them with the task of using this capacity for the good
of the citizenry. At the same time, however, the unwritten law is known to
all people “naturally” (1.15.1031), and it is through bādı̄ al-rāʾı̄ that they
prove receptive to—and, indeed, can test—the rhetoric of political and
religious elites for the ends of virtue and excellence.
The immediate point of view, then, holds promise as an aid in address-
ing the epistemic inequality between the elites and the masses by render-
ing operable the unwritten law in moral matters; that is, it provides a
116 K. TALIAFERRO
common-sense method of knowing basic moral truths—a task that is nec-

essary because theoretical demonstration is not accessible to all citizens.32
On the elite side of the coin, the city’s leaders can nevertheless “incit[e]
citizens to excellent works” by tapping into the immediate point of view
without giving a full philosophical explanation. Even if the immediate
point of view yields only the thinnest of moral insights, it is an invaluable
starting point in moral argumentation, especially considering the alterna-
tives of religious fideism, inflammatory populism, or appeals to mere self-
interest. As Aristotle wrote, “We must therefore possess some sort of
capacity [to gain understanding] but not one which will be more valuable
than these states [by which one gets to know principles] in respect of
exactness.”33 This capacity, I submit, is what Ibn Rushd refers to as bādı̄
al-rāʾı̄.
Conclusion
We have seen two separate ways of arriving at truth: through deliberate
reflection, for the elites and others who have this capacity, but also through
the immediate point of view, if we consider it in light of the endoxic
method as discussed above, for ordinary citizens. These divergent episte-
mological paths, it must be acknowledged, deflate hopes for a wholly uni-
versally known, universally recognized, path to knowledge. At the same
time, however, they are tied together by the faculty of reason and are
bound to “what is,” in Aristotle’s words—that is, to the real nature of
things. That is, neither the bādı̄ al-rāʾı̄ understood as discussed above, nor
the deliberative reflection of elites is meant to invent one’s own truth or
cling to mere opinion. Rather, both Ibn Rushd and Aristotle manage to
elevate human reason by placing a high value on the common beliefs of
the wise while remaining epistemologically humble in seeking a plurality
of voices and opinions, not just one’s own or those of like-minded thinkers.
What this means, then—and this is the takeaway for the role of religion
in the public sphere—is that to both Aristotle and Ibn Rushd, there is
some basic level of shared moral knowledge possible for all people. It may
have a more complex theoretical or even revealed facet behind it, but
whether through bādı̄ al-rāʾı̄ or through deliberative reflection, genuinely
democratic political discourse is possible. This helps us not only to move
beyond the elite/common divide but also to move past the equally unhelp-
ful revelation-versus-reason and religion-versus-politics antinomies. For if,
as Aristotle and Ibn Rushd suggest, true knowledge is possible for all, then
public deliberation can in theory transcend factions, whether based in reli-
gion or class.
Notes
1. Alexis de Tocqueville, Democracy in America, ed. JP Mayer and trans.
George Lawrence (New York: Harper Perennial Modern Classics, 2006),
p. 504. Throughout this chapter I intend the term “democratic equality”
in the sense that I take Alexis de Tocqueville to have meant it—an ever-
increasing social drive for what he termed “equality of conditions.” There
is a robust discussion omitted from this chapter, which would deal with the
competing roles for such equality in a democracy versus a republic. Still, I
believe that Tocqueville was right about the “march toward democracy” as
a march toward equality of conditions. Whether this is the ideal form of
government “for the people” or even “by the people” is a question for
another work.
2. It must be acknowledged that these terms are quite flawed, particularly as
they juxtapose a geographical term against a religious one—and then, in
use, encompass more than either their geographic or religious denotations
suggest. Ibn Rushd, for instance, lived quite decidedly in what we refer to
today as “the West,” yet he is not called “Western,” and very often, think-
ers we label “Islamic,” such as al-Fārābı̄, produced texts primarily philo-
sophical, not religious, in nature (whereas Christian authors who wrote not
expressly religious texts are not given religious qualifiers; one usually refers
to Roger Bacon, for instance, simply as a “philosopher,” though he was a
Franciscan friar). Still, the monikers persist, and I beg the reader’s under-
standing for my adopting them.
3. This chapter does not discuss Arisotle’s conception of knowledge in an
exhaustive sense, of course, and I do not suggest that the endoxic method
discussed here is his exclusive means of pursuing knowledge or even moral
knowledge. His more technical epistemological work, especially in the
Posterior Analytics, would of course provide the philosopher with a much
richer account of what constitutes knowledge in the Aristotelian sense; I
am here only interested in what can count as knowledge for public and
political purposes. In several respects the “knowledge” I am after resem-
bles what Aristotle calls “opinion” (doxa) in the Posterior Analytics, which
differs from “knowledge” (epistēmē) in that it is contingent rather than
necessary (see PA Book 1 chapter 33). However, current usage tends to
distinguish knowledge from opinion on the basis of (true) fact versus
inherently subjective belief, which is neither what Aristotle (who held that
“the object of opinion is still the true or the false”) nor I intend, so I opt
for “knowledge” in order to keep to contemporary terminology.
118 K. TALIAFERRO
4. All references to the Nicomachean Ethics are Terence Irwin’s translation,

2nd ed. (Indianapolis: Hackett), 1999.
5. Martha Nussbaum, The Fragility of Goodness: Luck and Ethics in Greek
Tragedy and Philosophy (Cambridge, UK: Cambridge University Press,
1986), 242–243. Nussbaum is here quoting Parmenides in Plato’s dia-
logue of the same name.
6. Nussbaum agrees with G.E.L. Owen in rendering phainomena as “appear-
ances” rather than as the more Baconian “observed facts” that W.D. Ross
favors; into this category of appearances, then, she includes “our beliefs
and interpretations,” whereas the Baconian interpretation would exclude
anything but empirically verifiable data, free of interpretation. See Fragility
pp. 243–244.
7. As a note, this concerns Aristotle’s discussion of happiness or the good life
in NE 1095a, which also proceeds via the endoxic method.
8. Nussbaum, Fragility, 245.
9. Nussbaum, Fragility, 252. For Aristotle, as well, education is a prerequisite
of political engagement (Pol. Book VIII) as is age—the latter because the
youth are prone to act on emotions rather than reason (see NE 1095a).
10. See Owen McLeod, “Aristotle’s Method,” in History of Philosophy
Quarterly, Vol. 12, No. 1 (Jan., 1995), 8.
11. Nussbaum, Fragility, 250.
12. See Jonathan Barnes, “Aristotle and the Method of Ethics,” Revue
Internationale de Philosophie 34, pp. 494–5.
13. McLeod, “Aristotle’s Method,” 5.
14. It is for another paper to take up the question of whether this is ultimately
a circular line of reasoning—one needs to be brought up well in order to
use the endoxic method, presumably by moral teachers who deploy the
endoxic method.
15. Nussbaum, Fragility, 242, footnote, emphasis in original. Nussbaum does
not here expand on what that tradition of internality is, though she does
add in the same footnote that it is perhaps “at odds with one specifically
philosophical tradition.”
16. Barnes, “Method of Ethics,” 493.
17. McLeod, “Aristotle’s Method,” 14.
18. Confucius, The Analects, trans. Simon Leys, ed. Michael Nylan (New York:
Norton, 2014), 2.18.
19. Charles Butterworth, “Averroes: Politics and Opinion” American Political
Science Review 66, no. 3 (Sept. 1972): 896–897.
20. The translation of bādı̄ al-rāʾı̄ is a matter of some contention; see, for
example, Charles Butterworth’s “De l’Opinion, le Point de Vue, la
Croyance, et la Supposition” in Perspectives Arabes et Médiévales sur la
Tradition Scientifique et Philosophique, ed. Ahmad Hasnawi, Abdelali
Elamrani-Jamal, and Maroun Aouad (Paris/Leuven: Institut du Monde
Arabe/Peeters, 1997): 453–464. Aouad adopts “immediate point of view”

(“point de vue immédiat”) in his translation of the Middle Commentary of
Aristotle’s Rhetoric, whereas the Butterworth prefers “unexamined opin-
ion.” (The most literal rendering may be “apparent view.”) The difference
is not without consequence; as an anonymous reviewer helpfully pointed
out, among Arab philosophers, bādı̄ al-rāʾı̄ had a logical nature, or at least
connotation, to it, allowing it be philosophically considered in a way that
points of view are not thought to be. This would seem to support
Butterworth’s translation; as he remarks, “points of view are not the object
of dialectical debate. One holds a point of view, but one does not examine
it.” See Butterworth, “De l’Opinion,” p. 463.
21. It should be acknowledged that the context is a denigration of the
Prophet’s followers as only those who do not give proper consideration to
his message, i.e., those who accept his message immediately and without
consideration.
22. Maroun Aouad, “Les Fondements de la Rhétorique d’Aristote Reconsidérés
par Farabi, ou le Concept de Point de Vue Immédiat et Commun,” Arabic
Sciences and Philosophy 2 (1992): 133.
23. All references to MCR come from Averroes, Commentaire Moyen à la
Rhétorique d’Aristote, trans. with commentary by Maroun Aouad, 3
Volumes (Paris: Vrin, 2007). All translations from the Arabic are mine,
with gratitude to Nadia Oweidat for her assistance. Aouad’s skillful French
translation of the Arabic has also been of particular use as a basis of
comparison.
24. The context (MCR 2.22.9-2.23.20) is a discussion of how one can dis-
cover the missing premises of ethymemes (i.e., logical arguments that sup-
press a premise). Doing so requires, according to Ibn Rushd, knowledge of
mawāḍiʿ, positions, which are the “elements of enthymemes” (ustạ qisāt
al-ḍamāʾir; 2.22.9). It is in his lengthy discussion of these mawāḍiʿ, then,
that Ibn Rushd gives the apparently summary comments about the types
of premises that ought to be used in such rhetoric, that is, in rhetoric
employing enthymemes at 2.23.19. The Arabic reads as follows:
‫وينبغي أن تكون المقدّمات الّتي تُسبع َمل ههنا من األشياء المظنونة في بادي الرأي ال من األشياء الّتي ال يُصَّدق بها إِ ّل أن تكون مما يُمكن ويقع باه‬
‫اإلنسان صدّق به وفبله من ذاته و اآلخر ما إِذا‬ ِ ‫ أحدهما ما إِذا سمعه‬:‫ وذلك أنّ األشياء الّتي يقع باه التصديق ههنا صنفان‬.‫اإلقناع من فرب وبسهرلة‬ ِ
. ‫الجمثع‬
ٜٜ ‫لشهرته وألنّه محمود عندعند‬. ‫سمعه قبله‬
25. “Même quand celui-ci admet immédiatement quelque chose de lui-même,
il le fait parce qu’il a l’opinion que cette chose est notoirement admise. Par
conséquent, les points de vue immédiats on toujours rapport au notoire—
ce qui a été effectivement appréhendé comme tel ou ce dont on a l’opinion
seulement qu’il est tel. En ce sens, les discours demeurent soumis à
l’argument d’autorité.” Maroun Aouad, “Définition par Averroès du
Concept de ‘Point de Vue Immédiat’ dans le ‘Commentaire Moyen de la
Rhétorique,” Bulletin d’Etudes Orientales 48 (1996): 119. Aouad also
120 K. TALIAFERRO
writes, concerning Al-Fārābı̄’s use of bādı̄ al-rā’ı̄, “at the fundamental level
of oratory persuasion, there is thus an argument from authority,” the
authority being “the generality of men.” Aoud, “Fondements,” 145.
26. MCR 1.13.2. The full quotation reads, “I mean by unwritten, those that
are in the nature of all. They are the ones everyone, by his natural disposi-
tion, is of the opinion that they are just or unjust even if there is no agree-
ment or contact between each of them.”.
‫ و يه اليت يرى اللكّ فهيا بطبعته �أهنا عدل �أو حور وإ�ن مل يكون بني واحد واحد مهنم يف ذكل‬.‫و �أعين بغري املكتوبة تكل اليت يه يف طبيعة امجليع‬
.‫اتفاق و ال تعاقد‬
27. .‫ف�أما الاقتداء ابلسنن الغري مكتوبة و تقديرها فهو ذلوي الرويّة و اخلو ّاص من الناس‬
28. .‫حكّم ًا يف املدن �إمنا مه ّالين علموا السنن املكتوبة ال السنن الغري املكتوبة ف�إن ّلك امجلهور ي�ستوون يف �إدراكها‬ ‫ينصبون‬َ ‫وهو �أن ّالين‬
29. My treatment of unwritten law neglects an important discussion of its rela-
tionship to written law; for Ibn Rushd, that relationship could be described
as symbiotic. See especially MCR 1.13.9: The “determined [written]
law…is not sufficient in that it determines relative to good and evil in the
behavior of each individual human, in such a way that one needs to add to
it or subtract from it something according to the unwritten law.”
‫لرش يف معامةل خشص خشص من �أشخاص الناس فاحتيج �ىل الزايدة و النقصان فهيا حبست‬ ّ ‫مل تكن اكفية تُق ِدّر من اخلري وا‬...‫ال�سنّة املقدرة‬
‫إ‬
.‫ما تقتضيه ال�سنّة الغري مكتوبة‬
See also Feriel Bouhafa’s excellent work on this concept in “Natural
Justice Under the Scope of Rhetoric: The Written and the Unwritten Laws
in Ibn Rushd’s Political and Legal Philosophy,” Ph.D. Diss., Georgetown
University (2016), pp. 146–150.
30. “As for following the unwritten laws and for determining [what they are],
this belongs to those who possess deliberative reflection and to the elites
among the people.”
31. “[T]he written law is of the order of opinion, given that it is received from
others, whereas the unwritten law is not received from others and is known
only by nature (bil tạ bʿ).”
32. See Erwin Rosenthal, “The Place of Politics in the Philosophy of Ibn
Rushd,” Bulletin of the School of Oriental and African Studies, University of
London, 15 (1953), 275.
33. It is worth adding here that others have worked out fuller theories of moral
reasoning based on such basic goods as might be perceived through the
immediate point of view. Beyond new natural law theory (John Finnis,
Germain Grisez, Robert P. George, Christopher Tollefson and others),
ethicists from Henry Sidgwick to Robert Audi have defended forms of
philosophical intuitionism that are not unrelated, in my view, to the bādı̄
al-rāʾı̄ discussed here. Posterior Analytics quotation from Aristotle and
Jonathan Barnes, Aristotle Posterior Analytics. Oxford: Clarendon Press,
1994. eBook, Academic Collection (EBSCOhost), EBSCOhost (accessed
11/22/14).
References
Aouad, Maroun. 1992. Les Fondements de la Rhétorique d’Aristote Reconsidérés
par Fārābı̄, ou le Concept du Point de Vue Immédiat et Commun. Arabic
Sciences and Philosophy 2: 133–180.
———. 1996. Définition par Averroès du Concept de “Point de Vue Immédiat”
dans le “Commentaire Moyen de la Rhétorique”. Bulletin d’Études Orientales
48: 115–130.
Aristotle. 1984. Politics. Trans. Carnes Lord. Chicago and London: University of
Chicago Press.
———. 1994. Posterior Analytics. Trans. Jonathan Barnes. Oxford: Clarendon
Press. eBook, Academic Collection (EBSCOhost).
———. 1999. Nicomachean Ethics. Trans. Terence Irwin. 2nd ed.
Indianapolis: Hackett.
Averroes. 2007. Commentaire Moyen à la Rhétorique d’Aristote. Translated with
commentary by Maroun Aouad. 3 vols. Paris: Vrin.
Barnes, Jonathan. 1980. Aristotle and the Method of Ethics. Revue Internationale
de Philosophie. 34 (133/134): 490–511.
Bouhafa, Feriel. 2016. Natural Justice Under the Scope of Rhetoric: The Written
and the Unwritten Laws in Ibn Rushd’s Political and Legal Philosophy.
Ph.D. Dissertation. Georgetown University. https://repository.library.george-
town.edu/handle/10822/1042795.
Butterworth, Charles. 1972. Averroës: Politics and Opinion. American Political
Science Review 66 (3): 894–901.
———. 1997. De l’Opinion, le Point de Vue, la Croyance, et la Supposition. In
Perspectives Arabes et Médiévales sur la Tradition Scientifique et Philosophique,
ed. Ahmad Hasnawi, Abdelali Elamrani-Jamal, and Maroun Aouad, 453–464.
Paris; Leuven: Institut du Monde Arabe; Peeters.
Confucius. 2014. The Analects. Trans. Simon Leys and Ed. Michael Nylan.
New York: Norton.
McLeod, Owen. 1995. Aristotle’s Method. History of Philosophy Quarterly 12
(1): 1–18.
Nussbaum, Martha. 1986. The Fragility of Goodness: Luck and Ethics in Greek
Tragedy and Philosophy. Cambridge, UK: Cambridge University Press.
Plato. 1968. The Republic. Translated with Notes, an Interpretive Essay and
Introduction by Allan Bloom. New York: Basic Books.
Rosenthal, Erwin. 1953. The Place of Politics in the Philosophy of Ibn Rushd.
Bulletin of the School of Oriental and African Studies, University of London
15: 246–278.
de Tocqueville, Alexis. 2006. Democracy in America. Trans. George Lawrence and
Ed. J. P. Mayer. New York: Harper Collins Perennial Modern Classics.
CHAPTER 6
“A Comparative Study of Reason

and Revelation in Relation to Natural
and Divine Law in al-Farabi and Ibn Rushd”
Ainur D. Kurmanaliyeva
The worldviews of al-Farabi and Ibn Rushd were closely connected with the
tenets of Islam (cf. Tadzhikova 2013). Though there are no direct quotes
from the Quran or the hadiths in their philosophy, it is obvious that each
treatise is commenced with words devoted to God, and to the ambassador of
God—the prophet Muhammad. This shows us the respect which these schol-
ars displayed toward Islam. Whatever questions they consider, therefore, they
are understood from the point of view of reason as well as revelation.
While one of the first Eastern ‘Peripatetics’ (i.e., Aristotelians), al-Kindi,
defended the priority of religious revelation over human reason, al-Farabi
Translated by Zhuldyz Zhumashova, edited by R. Charles Weller. This chapter

represents a significantly revised and expanded version of Kurmanaliyeva’s
original article: “Al-Farabi and Ibn Rushd on the Correlation Between
Philosophy and Religion,” Comparative Islamic Studies, Vol 3, No 2
(2007):247–253. DOI: 10.1558/cis.v3i2.247. Courtesy of Equinox Publishing.
A. D. Kurmanaliyeva (*)
Department of Religious and Cultural Studies, Al-Farabi Kazakh National
University, Almaty, Kazakhstan

https://doi.org/10.1007/978-981-15-6245-7_6
124 A. D. KURMANALIYEVA
extolled the reliable nature of knowledge grounded in that selfsame rea-

son. From al-Farabi’s works it is clear that, along with Plato’s Republic and
Laws, Aristotle’s Nichomachean Ethics, and Indian and Persian worldviews
(as interpreted in the works of Ibn al-Muqaffa), works of Islamic scholars
of fiqh (i.e., law or jurisprudence) also had an impact on the thinker’s
social opinion.1
More explicitly, however, the philosophy of al-Farabi directly appealed
to the ancient heritage of Plato, Aristotle, and the foundational ideas of
Neoplatonism. He adapted characteristics of the Greek philosophical
worldview to Islamic thought, forming the original character of Eastern
‘Peripateticism.’ The rational position peculiar to the treatises of al-Farabi
is proof of the advanced character of medieval Islamic philosophy.
A number of conclusions based on al-Farabi’s Principles of the Opinions
of the Citizens of the Virtuous City had a prominent impact on the works of
Ibn Sina (Avicenna), Ibn Bajja (Avempace), Ibn Tufail, Ibn Rushd
(Averroes), and Ibn Khaldun.2 Among these, Ibn Rushd embraced the
ideas of al-Farabi on social philosophy and agreed that an individual’s exis-
tence in complete solitude, outside of society, is impossible. Self-
development depends on one’s direct relationship with other members of
society, and the process of self-development is accomplished by the perfec-
tion of intellectual knowledge.
Ibn Rushd and the philosophers he mentioned gave heed to knowledge
acquired by way of revelation. All religions are based upon revelation with
human reason then added in. According to Ibn Rushd and other classical
Islamic philosophers, religion constructed solely on the basis of human
reasoning is weak. Although philosophers acknowledged the authority of
reason, they also knew that they could influence people only through reli-
gious authority, so they were convinced that the laws governing everyday
life had to be provided by the prophets and religious leaders.
From al-Farabi’s point of view, religion, stemming from divine revela-
tion, is a set of thoughts and actions that have a defined boundary. Based
in this uniqueness, religion is a symbol of practical thought. The practical
application of divine revelation, including religious law, brings many ben-
efits to society and individuals.
Al-Farabi and Ibn Rushd interpreted divine revelation and human rea-
son as two forms of knowledge which complete rather than nullify each
other. This point of view was unique and novel. In this regard, both of
them emphasized that, if philosophy were an instrument of a select few
people for the comprehension of the meaning of existence, then religion
6 “A COMPARATIVE STUDY OF REASON AND REVELATION… 125
is what gives the general populace a way to express their understanding of

life. “The Second Teacher’s” (i.e., al-Farabi’s) theory of human intellect is
the main method of philosophy for reaching the truth. If the aim of phi-
losophy is to reach the horizon of real truth, the latter is realized only
when ‘the splendid perfection’ has taken place. Human perfection in all its
forms is achieved in the course of mastering philosophical knowledge.
The purpose of al-Farabi’s philosophy is to understand that the Creator
is the Almighty, the first cause of all things, and that He has established the
order of the universe through His justice and wisdom. In the philosophi-
cal system of Ibn Rushd, God is acknowledged as the beginning of both
divine revelation and human wisdom, suggesting the unity and harmony
of the two, with the Qur’an, in all affairs, never misleading humankind.
Al-Farabi finds the unique existence of the world in the unity of God,
nature, and humankind. Natural law arises from the continuity of the nat-
ural and ‘post-natural,’ that is, the physical and metaphysical worlds. It is
an interpretation that comes from the attempt to associate the ‘natural law
of nature’ with the laws of a religious worldview. Substances that exist take
their start from the ‘First Cause’ or ‘First Reason,’ moving in causal order
from above to below in the spheres of heaven. Among heavenly, immate-
rial bodies there is the active intellect [aqlfa ‘al] which stands at a higher
level and is the main power transforming a potential intellect to an actual
intellect. It is actualized only with respect to humankind. Al-Farabi believes
wholeheartedly in the idea that nearly all matters in this world can be
apprehended through human intellect.3
The philosophical bases of al-Farabi, which study the importance of the
essence of material things, were developed afterward in the Andalusian
philosophy by Ibn Rushd, and it is clear that these bases directly affected
Ibn Rushd’s philosophical worldview. His words, “a thing which is born at
first and then dies cannot be eternal in itself, in its essence” is proof of this
opinion (Ibn Rushd in Sagadeev 1973; Esim 2005). Al-Farabi is the chief
authority in the East; he is a child of his time, a genuine Muslim philoso-
pher. The scholar’s acceptance of (the idea of) divine revelation did not
create any barrier for him in his pursuit of science. In fact, through his
attempt to reconcile divine revelation and human reason al-Farabi
advanced the scientific interpretation of the bases of religion and raised
medieval philosophy to a new level.4
According to al-Farabi’s philosophy of the First Reason, God is the
peak of world harmony, the absolute source, and the material world devel-
ops freely and independently from the First Reason. The nature of
creation can be explained from the point of view of both natural and divine
laws. In this case, natural law was interpreted in terms of the word ‘tabi’ah’
(‘nature’), while explaining creation from the perspective of ‘religious law’
found expression within the scholarship of ‘metaphysics’ (‘ma ba’âd al-
tabi’ah’). Al-Farabi thus clarifies the border between metaphysics and the-
ology. In metaphysics, the ability for substances to develop is self-contained
and self-determined, whereas in (occasionalist) theology the movement of
every piece of matter is decided beforehand. Metaphysics is called ma ba
‘da at-tabi’a—“something beyond nature”—in the philosophy of al-
Farabi,5 explained by the concentration of metaphysics on more abstract
matters than on natural matters. The delineation of metaphysics by al-
Farabi as a “divine knowledge” (cf. divine revelation) points out the pecu-
liarities of the ontological foundations of the scholar: he holds that the
being which takes its start from the First Cause finds its continuation in
the existence of natural substances, and directs the integration of the
whole world toward achieving unity with the master of the living, the
conscious creature—human beings. The cognition of objects in metaphys-
ics begins from determination of the existence of natural matter. Related
to this, the close connection between material and immaterial, concrete
and abstract matters is studied first. Consideration of the substance of the
world which is beyond nature or parallel with nature is reduced to the
inseparable unity of the physical and metaphysical worlds.
Al-Farabi values the physical (cf., natural, material) world more highly
than the metaphysical, since the objects of study for material science and
‘natural law’ are of natural matter, whereas the objects of metaphysics are
unseen and immaterial, with their nature and existence abstract. The main
discipline of metaphysics is to study absolute existence. The dividing line
between the two fields of science is shown through the method of study of
the two adjacent subjects. Both material science and metaphysics start
their study with a definition of the first prerequisite of matter; metaphysics
may therefore use proven concepts of material science in this regard. As
the Kazakh scholar A. Mashanov (1994: 60) concluded, al-Farabi main-
tains that “nature is the source of knowledge, and the way of understand-
ing creation and its Creator is through observing, studying, mastering,
and examining nature, in order to find the laws of the universe and dis-
cover its secrets.”
Through studying the structure of the creation of the world, al-Farabi
indicated the consequence of existence and thought, and thus considered
in parallel both ontology and epistemology. His teachings about existence
and the theory of knowledge start from the premise of the First Essence.
When approaching the problem of the First Cause, al-Farabi is not
restricted to the terrestrial and material world, but studies the direct con-
nection between the First Cause and the celestial world and broader cos-
mos. According to Farabi’s scientific theories, the spheres of heaven and
earth are material.6
Although all things take their origination from the First Essence, this is
not considered the reason or the purpose for the First Essence. The First
Essence is independent, the first origin. He is God, who cannot be com-
pared to any object; He has no defect, and He is not dependent upon any
other thing. Al-Farabi says, “The hierarchical principle in the spheres of
heaven moves from the First Reason to final ‘Eleventh Being’ (or
‘Essence’), from above to below; but in the terrestrial world it moves from
the elements to the human intellect, from below to above”’ (Kasimzhanov
1998: 95). There is nothing in existence which is accidental or exists in
vain; the forms, the type and the origin, the time and the conditions of
phenomena are all closely interrelated, as is explained by the hierarchical
and causal principles of existence.
In interpreting the system of the universe (cf. cosmos) and the (natural)
laws of the creation, there are two possible hypotheses for the existence of
God within Muslim philosophy. One holds that God’s nature and eternal
matter have clarifying attributes, the other that God’s nature has no attri-
butes. The philosophical outlook of Ibn Rushd is closely related to the
idea of the Almighty as an indefinable attribute of eternal nature. Apart
from the existence of God, one of the central issues is the emergence of
matter. The theory of Aristotle is examined from the point of view of the
three theories that are familiar to the scientific circles of that time.
According to those who believe in the theory of evolution, the creation
takes place when the matter is multiplied by the division of matter from
the substance in nature (cf. emanation). The second opinion is that of the
Mutakallim, or Scholars of classical Kalam theology. According to the view
of the Mutakallim, the divine process of creation has no need for pre-
existing matter. This theological perspective is broadly rooted in the views
of Ghazali. The third group understands the issue according to Aristotle’s
theory, the shaping force (cf. first cause) brings together form and matter,
moving all matter to a state of actuality. Consequently, the force acting
does not create anything, it rather merges matter and form from out its
state of possibility to actuality. It is clear from the works of Ibn Rushd that
in dispute with the Mutakallim over this important matter, he held to

Aristotle’s view.
According to the explanation of Ibn Rushd, the acceptance of the view
that the world was created out of nothing (cf. the Lat. phrase ‘ex nihilo’)
is tied to habit of mind and skills of perception and critical analysis. Human
beings do not typically notice distinctions among the everyday phenom-
ena they encounter. Common conceptions are accepted as normative;
most people do not concern themselves with the meaning of these phe-
nomena, they do not pay attention to why it is precisely so, considering it
appropriate to accept things according to what is presumed to be common
knowledge. Daily repetition of public opinion strengthens their belief in
such viewpoints while at the same time they do not encounter any view-
points contrary to what is habitually affirmed. The mental acumen of phi-
losophers differs from the popular majority. Since they begin to place
doubt in the information commonly accepted by the popular majority and
express opposing viewpoints, they abandon what they had believed in
prior to their time of doubt and seek the truth through education and
scholarship.7 A special doctrine of philosophers, according to Rushd, is the
knowledge of researching that which exists in the world (cf. Aristotelian
empiricism). The main purpose is to learn about the Creator, His works,
and His nature. While the path to proving the existence of a Creator is,
according the representatives of divine revelation, to be found in the
praiseworthy methods of God, in the opinion of the philosophers, the
path is in discovering truth through human reason. If the representatives
of divine revelation make faith their foundation for understanding the
mystery of the universe, the philosophers rely on the help of human wis-
dom. These viewpoints reveal al-Farabi’s and Ibn Rushd’s special places in
interpreting ‘natural law’ and ‘religious law.’
The peak of al-Farabi’s achievements is the concept of the human
being, which was continued and developed by the thinkers of the Near
and Middle East such as the Banu Musa (Jaʿfar, al-Qāsim and al-Ḥ asan),
Ibn Sina, al-Maari, Ibn Bajja, Ibn Tufayl, and Ibn Rushd (cf. Altayev
2013). Thus the question of humanity acquired a special characteristic,
which corresponded to the teaching of Ibn Rushd. Humanity is a miracle
of nature in which the eternal and perishable worlds are joined. According
to the intellectual abilities of people, Ibn Rushd divided them into three
categories: orators, apodeictics, and dialectics, that is, those who preach
religious truths and religious laws; philosophers, who spread the truth by
means of reasoning and rationalizing; and theologians, who pose religious

answers to questions about God and the world.
Ibn Rushd preferred to elucidate to the simple masses [amma] by influ-
encing their feelings. The enlightened group [hassa], or the elite, is, of
course, able to master philosophical knowledge. Those who use the dialec-
tical method occupy the middle ground between the amma and the hassa.
Questions regarding human beings that were brought up by Islamic
philosophers have an intellectual and ethical character. The increase of
innate human knowledge, as well as of acquired knowledge, is always
regarded as something that is obligatory, to be carried out with the pri-
mary aim of satisfying ethical demands. If power of intellect is the reason
that humans are elevated to a higher level than that of animals, then the
range of this power of intellect is completed by the virtue of character. The
person who stands out due to their intellectual erudition, but shows a
weakness of character in their habits, cannot join the ranks of the truly
noble in heart and mind.
A number of the philosophical questions raised in the works of al-Farabi
were reflected in the teaching of Ibn Rushd. The most complex matter
among them is that of the interrelation between religion and philosophy.
Up to this point I have emphasized the peculiarities of Arabo-Islamic phi-
losophers which are closer to the Greek school of human rationality, and
attempted to consider them apart from their historical environment. Yet
every thinker is a child of their time. In this regard al-Farabi and Ibn
Rushd lived in an Islamic milieu and created their system of philosophical
thought in that context.
Ibn Rushd argues that if divine revelation provides true knowledge and
calls for the pursuit of truth, then scholarly inquiry which requires proof—
in this case attestation through evidence from the natural world and
human reason—is not contradictory to divine revelation. He says that
once divine revelation and human reason are both considered means of
attaining truth, then truth and truth cannot contradict each other; on the
contrary, they develop in correlation with each other. In some cases, when
a point of controversy emerges, religion leaves these philosophical ques-
tions unanswered, is silent on the subject, or speaks to them indirectly. If
religion and philosophy converge, that is to say, could understand each
other, this is appropriate for the achievement of the common purpose—
reaching the truth. If divine revelation has principle contradictions toward
the question considered as a target of the study, then Ibn Rushd recom-
mended the allegorical interpretation of the Qur’anic words. In situations
where there emerges a threat of an obvious contradiction between religion

and science, Ibn Rushd expressed his thoughts clearly. He said, “in the
course of argument, if the achieved conclusions come opposite to the lit-
eral meaning of the religious teaching, according to the interpreting prin-
ciples in Arabic language, allegorical interpretations are permitted” (Ibn
Rushd, cited in Sagadeev 1973: 177–78). Thus, he took directly from the
Qur’an and accepted its tenets as his basis. Ibn Rushd, in comparison with
his predecessors, such as al-Kindi, al-Farabi, and Ibn Sina, tried to harmo-
nize the relationship between religion and philosophy. He strove to draw
the attention of representatives of religious teaching to philosophy, and
aimed, together with them, to understand the world which surrounds
humanity. While al-Farabi tried by means of logical arguments to establish
the priority of philosophy with reference to religion, Ibn Rushd did not
restrict himself to the harmonizing of religion and philosophy, but
attempted to use religion for the popularization of philosophy, as well as
the raising of its prestige. If we take into account the fact that this was
during the period when the Almoravid and Almohadic leaders were reas-
serting the prevalence of Islam within the North African and Andalusian
context(s), we could say that this was a clever method of solving the phi-
losopher’s dilemma. Ibn Rushd clearly realized that it was not necessary
for science to contend with religious orthodoxy.
If al-Farabi says that rationalism is the superior basis for solving the
problem of the relationship between religion and philosophy, Ibn Rushd
went even further. Among his works, writings such as A Decisive Discourse
on the Delineation of the Relation Between Religion and Philosophy and
Tahafut at-Tahafut (The Incoherence of the Incoherence) stand out as spe-
cific examples of scientific dialogue in the history of science which support
the model of agreement. The latter was written as an answer to the Tahafut
al-Falasifa (The Incoherence of the Philosophers) of al-Ghazali—a represen-
tative of religious philosophy—and it begins with these arguments: “the
world is not created, it is eternal.” In order to prove this philosophical
theory, Ibn Rushd “brings up evidence using three types of methods.
First, he uses the arguments of Aristotle, that is to say, his concept of the
First Reason. Secondly, he proves it by using an allegorical interpretation
of the Quran. Thirdly, he expresses his opinion by stating arguments which
support the opposite view of the arguments of religious scholars such as
al-Ghazali and al-Ash’ari” (Esim 2005: 442).
The ability of al-Ghazali to promote his own opinion in reaction to the
questions raised by al-Farabi, Ibn Sina, and other Islamic philosophers,
followed by Ibn Rushd’s reaffirmation of the harmony between human

reason and divine revelation, and the unique dialogue that ensued—this is
the cultural heritage of the classical Islamic era. In this regard, I agree with
the thoughts of Garifolla Esim, who says: “al-Ghazali does not deny phi-
losophy as a whole; according to his understanding, the matter is in the
neutrality of the philosophers’ principal questions” (Esim 2003). Ibn
Rushd offered an appropriate way of explaining the relationship between
divine revelation and human reason (cf. religion and philosophy) which, in
his time, was being called into question. He removed the discrepancy
between religion and philosophy, and established that in the end they both
have one aim—the pursuit of truth.
Notes
1. According to Islamic legal scholars, Islamic law offered not only interpreta-
tions of religious preaching, but also formed a code of conduct for Muslims
as individuals within society. This included their relations with other mem-
bers of their society. Muslims live as citizens, members of society, residents
of the community. A Muslim’s public life must therefore be subject to law.
Since Islamic law is, in the eyes of Islamic scholars of fiqh, revealed by God,
it is the most perfect and flawless. The state should, therefore, be established
and further developed on the basis of this law. The superiority of religious
law places religion higher than philosophy. The Shari’ah is, in their view,
superior to the law of the philosophers, because the Shari’ah brings happi-
ness to a developed society not only in this world, but also in the other
world. And this was considered to be much more important than the Greeks’
‘nomos,’ which leads to happiness only in this world.
2. Reflecting the influence of Farabi, Ibn Sina held that the state stems from
the necessity of human co-existence. Human communities need legitimacy
and justice. They thus need to establish laws for themselves. A good leader,
according to Ibn Sina, leads citizens to benevolent deeds, and, as such, the
number of kind people increases. In his social science, Ibn Sina is thus influ-
enced by Farabi, but focuses more on prophetic governing. Although Ibn
Bajja’s social attitudes are akin to al-Farabi’s doctrine, he is distinguished by
the concept of self-management. In his opinion, the philosopher who lives
in the “imperfect” city lives in solitude. He must strive for real truth—which
may not be embraced by other city members—by improving himself. He
remains a true philosopher even if he is not supported by other urban resi-
dents. Among the heirs of al-Farabi, the place of Ibn Khaldun is significant.
The philosopher states that the unification of people originated from the
simplest causes (necessity of food and need for protection). However, a
c ertain authority must govern the basic needs of human beings. This unites
people in allegiance and obedience to one ruler. The city, which emerged by
natural demand, has to be dependent on the laws of the city’s ruler.
3. Along these lines, al-Farabi reveals three unique aspects of his view of the
First Cause: (1) along with the doctrine of the creation of the universe, he
posits its eternality; (2) he interprets reason (or wisdom) as preeminent; and
(3) from a scholarly (i.e., reason-based) perspective, he presents God as the
abstract origin, the first cause of all things. Al-Farabi’s ‘First Cause’ is, in
fact, part of the cosmos, it/he co-exists in time with the world. The First
Person “does not live for anything else, and nothing lives outside of him”
(al-Farabi 1973: 243).
4. Although some researchers, such as Naji Ma’ruf, Ishak ben Adb el-Aluji, and
Adb es-Selam, have different points of view on this matter, they do not
doubt the faith of al-Farabi.’ Naji Ma’ruf, for example, thoroughly demon-
strates that “al-Farabi believed in the eternity of the world, the immortality
of the soul, the eternal bliss and the painful suffering of the hereafter.” We
can see these points of view of al-Farabi in his treatises like “Attainment of
Happiness,” “Opinions of People of the Perfect State,” and “Words of a
Statesman” (Nadji 1975; Sadiq 1975; Aludzhi 1975; IFPR 2014-a, 2014-b;
cf. al-Farabi 1975, 2013, 2014).
5. Note that “ma ba’âd al-tabi’ah” was how the title of Aristotle’s work on
“Metaphysics” was typically translated into Arabic.
6. Material objects are divided into six categories in “The Civil Policy” of al-
Farabi. The first category consists of the four main elements: fire, air, earth,
and water. The other categories of the material world are the bodies com-
prised of those elements. They are: minerals, plants, unconscious animals,
conscious creatures, and heavenly bodies (al-Farabi 1975: 49–50). The
world is built upon the combination of different amounts of the initial ele-
ments or natural bodies. Al-Farabi describes the different levels of perfection
of structures as a hierarchical stairway of existing objects, beginning with the
first four sources and continuing to the level of humans: “the lowest in its
perfection is common first matter; after that, according to their degree of
perfection, and in consequent order come elements, minerals, plants,
unconscious animals and, finally, unsurpassed conscious creatures” (Gafurov
and Kasimzhanov 1975: 257). If it were not for the last being, it would not
be possible for any being to exist. Thus, the beings are situated according to
a certain order, and transformed into one entire system.
7. Cf. chapter four in this volume: Karen Taliaferro, “El, Democracy and
Epistemic Equality.”
References
(al-Farabi) Әл-Фараби. 1973. Қайырымды қала тұрғындарының көзқарастары
жайындағы трактат. In Философиялық трактаттар. Алматы: Ғылым.
———. 1975. Әлеуметтік-этикалық трактаттар. Алматы: Ғылым.
———. 2013. Книга букв. пер. Таджиковой К.Х. Алматы: Қазақ университеті.
———. 2014. Книга об аль-Фараби. Алматы: Международный клуб Абая.
(Aludzhi) ‘Абд әл-Халид әл-‘Алуджи. 1975. Әл-Фараби фи Ирақ. Бағдад.
(Altayev) Алтаев, Ж. 2013. Әл-Фараби өркениеттер сұхбатында. Алматы: Қазақ
университеті.
(Esim) Есім, Ғарифолла. 2003. Фалсафа тарихы. Алматы: Раритет.
———. 2005. Ибн Рушд. In Ортағасырлық діни философия, 439–496.
Алматы: Жазушы.
(Gafurov) Гафуров Б.Г., Касымжанов А.Х. Ал-Фараби в истории мировой
культуры. - М: Наука. 1975. - 181 с.
(IFPR 2014-a) Идеалы аль-Фараби и социогуманитарное развитие современного
Казахстана. Алматы: Институт Философии, Политологии и Религиоведения,
2014. – 232 с.
(IFPR 2014-b) Наследие аль-Фараби и формирование нового интегрального
мировоззрения. Алматы: Институт Философии, Политологии и
Религиоведения.
(Kasimzhanov) Касымжанова, А. А. 1998. Обоснование политической
философии в наследии Абу Насра аль-Фараби. Алматы: ТОО Компания PS.
(Mashanov) Машанов, А. 1994. Әл-Фараби және Абай. Алматы: Казақстан.
(Nadji) Ма’руф Наджи. 1975. Әл-Фараби араби әл-маутин уа әс-сақафа. Бейрут.
(Sadiq) Сабих Садиқ. 1975. Әл-Фараби уа асруху фи әл-фалсафа әл-уруби.
Маурид 3: 109–138.
(Sagadeev) Сагадеев, А. В. 1973. Ибн Рушд (Аверроэс). Москва: Мысль.
(Tadzhikova) Таджикова, К. Х. 2013. Отношение к религии. In Аль-Фараби и
современность. Алматы: Қазақ университеті.
CHAPTER 7
Epilogue: Critical Reflections in Retrospect

and Prospect
Anver M. Emon
A volume like this does not come about in a vacuum. The essays herein
were not written in a historical void. They all speak with a certain urgency,
given our particular time of fierce, raucous, and even violent, debate (if
not polemic) about the possibility of tolerance1 amid difference. The con-
tributors adopt different disciplinary approaches to address the overall
theme of the book—sociology, philosophy, political science, and history.
But their disciplinary differences attest to how the questions animating
this volume (and the original discussion that instigated it) speak to a
shared, historical experience. A book in English on reason and ethics in
Islam cannot help but be read in the shadow of the so-called West, espe-
cially in these curious days of Brexit turmoil in Britain, Muslim bans in the
United States, and an increasing national security regime surveilling
Muslims the world over. A book like this serves an ongoing hope for peace
in a time of conflict in which we cannot help but worry that the twentieth
A. M. Emon (*)
Institute of Islamic Studies, University of Toronto, Toronto, ON, Canada
e-mail: anver.emon@utoronto.ca

https://doi.org/10.1007/978-981-15-6245-7_7
136 A. M. EMON
century’s twilight promise of ‘Never Again’ was only just so many

pious words.
It is a privilege to write this final, concluding set of reflections as a way
both to bring together what has been addressed in this volume, and to
gesture to future questions on reason and identity amid difference.
Reflecting on an interdisciplinary volume such as this is no easy feat. This
is simply to say that the following set of reflections are limited by its writ-
er’s positionality, both in our historical moment and in relation to the
subject of Islamic studies and the study of natural law theory. It would
seem appropriate, therefore, that this epilogue first begin by positioning
my own work in this area as a prelude to reflecting on the essays and their
contribution to a set of questions we pursue together. The essays of this
volume, explicitly and implicitly, uncover a fundamental irony that besets
any attempt to posit shared values in a context of difference, namely that
universal ideals are universal presumably because they transcend history,
despite the fact that all of us live in history. In each essay, we find strategies
for overcoming this irony. For some the answer lies in abstracting from the
particular; for others the answer lies in tracing genealogies of transfer,
translation, and sharing; for yet others, the answer lies in sustaining and
tolerating contradiction across different and seemingly discreet fields of
intellectual inquiry. In the years that have passed since I first published on
Islamic natural law theories, my own approach has been informed by a
historical appreciation of an ironic disjunction: oppression and discrimina-
tion and hatred do not distinguish between one tradition or another, but
rather are equally operative despite pious ideals to the contrary.
This irony prompts considerations about prospects for ongoing delib-
eration about a shared ethics, and the imperative of provincializing our
own epistemologies (whether disciplinary or otherwise) through increased
collaboration, despite the incentive structures in the humanities and social
sciences to pursue the siloed mode of academic production. Collaboration,
however, is not offered here as if it will identify in positivist fashion the
appropriate ethical content for living together with difference. Rather col-
laboration operationalizes an interminable, utterly agonistic, quest for the
universal. Rather than suggesting that natural law theory of any tradition
offers a substantive repository, I suggest it serves the rhetorical function of
making questions about shared virtue and ethics intelligible across differ-
ence. In short, collaborations like this volume enact a necessary discursive
agonism that ‘clears ground’ as a prelude to articulating the ever elusive
‘common ground’. The challenge posed by this volume is to articulate a
7 EPILOGUE: CRITICAL REFLECTIONS IN RETROSPECT AND PROSPECT 137
greater degree of humility within one’s discipline and value tradition, rec-
ognizing all the while that the irony noted above is perhaps the one thing
we can identify as both shared and universal.
Distinguishing Disciplines, Positioning Scholarship

In 2010, I published Islamic Natural Law Theories (Emon 2010). A first
book, it was a topic that quite frankly fell into my lap. I recall driving on
Sunset Boulevard in autumn 2000 in my well-loved and reliable Jeep
Wrangler, just north of UCLA, talking with my then doctoral advisor
about the topic I should choose for my dissertation. He blithely suggested
‘natural law’ and pointed me in the direction of usul al-fiqh debates on
husn and qubh, which I will explain below. I had yet to take my general
exams; research on the dissertation did not begin in earnest till summer of
2001. It was during this early period of dissertation research on a premod-
ern debate that I woke up to the news of airplanes flying into the World
Trade Centre. Shortly thereafter, I recall awkward moments with librari-
ans, fellow students, faculty, and just about anyone else when I’d talk
excitedly about my chosen focus on Islamic natural law theories. For some,
the topic was exactly the indulgence of the ivory tower that neo-cons had
increasingly begun attacking. What national security interest could such a
project serve in a context of horrific violence, wars in Afghanistan and
Iraq, and the proliferation of terrorist attacks around the world, they
would retort.2 For some, a project on Islamic natural law theories was just
what the world (read ‘Muslim world’) needed to overcome the spiraling
descent into violence. For others, the idea of an Islamic natural law was an
oxymoron, given that same spiraling descent. For me, I was simply a curi-
ous, budding legal historian, and was convinced (and still am) that the
pursuit of intellectual curiosity is a good in itself. I begin with this anec-
dote to acknowledge the politics (disciplinary and otherwise) that encircle
any talk of ‘natural law’ in Islam. It was not a politics I appreciated back in
2000 on Sunset Boulevard. Only over time and after examining the
responses to the study have I come to appreciate the political stakes
involved in the project, stakes that remain with us in the academy
and beyond.
This essay will introduce the basic, theoretical architecture of Islamic
natural law theories from the premodern period (ninth to fourteenth cen-
turies) (Emon 2010). Specifically, it will outline juristic debates in the usul
al-fiqh genre on reason as a source of law, where revelation is silent (min
138 A. M. EMON
qablu wurud al-sharʿ). Thereafter it will relate a range of doctrinal debates

in which many of those same premodern jurists came to legal conclusions
without reference to scriptural (or any other) text. Drawing on a curious
heuristic they labelled huquq Allah and huquq al-‘ibad (the claims of God
and the claims of individuals), jurists developed law based on a mode of
rationality that could be called anything from ‘rational’ to ‘commonsense’
to ‘pragmatic’. Whether or not the huquq Allah/huquq al-‘ibad heuristic
is proof positive of natural law in Islam is less important than recognizing
the scope of questions that have yet to be examined across disciplinary
divides. But as I will suggest in the third and concluding part, there are
political reasons (some of which enjoy disciplinary cover) that help explain
why some questions are not asked, and why some answers (such those that
proffer an Islamic account of natural law) are deemed naïve if not impolitic.
Disciplinary Calibrations
Theology. If the study of an Islamic natural law is framed in theological
terms, the entire inquiry will be cast in light of the academic study of
Islamic theology (kalām), with implications on the appropriate genre
within the Islamic literary tradition most ideal for such an analysis (e.g.,
kalām sources) However, to use theology to frame the inquiry happens to
coincide with the institutional organization of Islamic studies in the
European university context. As Suzanne Marchand recounts, the German
university structured the study of Islam in theological terms, in large part
because of the support this field of inquiry provided to biblical historicism
(Marchand 2009). Moreover, to frame Islamic natural law theory in theo-
logical terms coincides with the secular imperative to cast the study of
religion in Christian—if not distinctively Protestant—terms. Among the
various implications of that approach is to put law outside the realm of
religion, and reduce the study of Islam (including Islamic law) to the study
of theology. In the shadow of the Gelasian Doctrine, the Investiture
Controversy, the Wars of Religion, and the Treaty of Westphalia it is
unsurprising that the study of Islam (and Islamic law) would be structured
in theological terms.
Frank Griffel, a German-trained scholar of Islamic theology and phi-
losophy,3 adopts a theological approach to the study of Islam. Consequently,
any natural law theory in Islam would naturally involve (for Griffel) a
focus on theological writings from the Islamic literary tradition. As Griffel
writes, ‘[t]he terminology used by Muslim theologians when discussing

these issues is, however, quite different. In the West the language comes
from Greek philosophy and Roman law, but in Islam the issue of natural
law is discussed in notions that stem from the Qur’an’ (Griffel 2007, 42
emphasis added). Addressing the Qur’an and Qur’anic use of terms such
as fitra (natural dispositions) and hanif (faithful monotheist), Griffel
approaches natural law theologically: ‘Although the Qur’an is not explicit
about what exactly the original constitution of humans is, Muslim theolo-
gians understood … that being a hanif is the original religion of humans
and that polytheists, as well as Jews and Christians, have distorted this
natural religion’ (Griffel 2007, 43 underlining added). Where he writes
about the jurisprudence of natural law (as elaborated below), he never
ventures far from a narrow theological frame of reference. Indeed, he even
gives special attention to the voluntarist ideals that have assumed the man-
tle of Sunni theological orthodoxy (Griffel 2007, 44–45). In a curiously
dismissive manner, Griffel questions the possibility of natural law by
adopting the vantage point of a presumed Sunni theological orthodoxy,
stating that ‘most Sunni theologians and jurists denied the existence of
natural law’ (Griffel 2007, 45).
This tendency to frame natural law in theological terms is expressly why
Edward Moad’s corrective contribution to this volume is so important. By
taking aim at Albert Hourani’s characterization of Abū Ḥ āmid al-Ghazālı̄
(d. 1111), Moad suggests that too strict disciplinary frames can blind us
to the natural law implications that might otherwise follow. Moad’s close
reading suggests that Ghazālı̄’s endorsement of natural law took shape in
the interstitial chasm between Hourani’s narrow disciplinary limitations.
In his examination of al-Ghazali’s writings, but across different premod-
ern disciplinary fields, Moad shows that the extent to which any analysis of
al-Ghazali’s natural law ethic fundamentally depends on the genre of and
disciplinary approach to any given set of readings.
Sunni Orthodoxy. Curiously, Griffel’s theological vantage point cor-
relates with (if not corroborates) a Sunni confessional conservativism.
Premodern debates on natural law (among Sunni jurists at least) began
from competing first principles of theology, namely about the justice of
God (‘adl Allah). While all agreed that God is just, the theological debate
centered on how best to characterize God’s justice. For the Ashʿarites—
presumed to represent Sunni orthodoxy—God’s justice is voluntaristic:
whatever God wills is by definition just. In other words, if God commands
us to do X, then X is necessarily good just; if God prohibits us from doing
140 A. M. EMON
Y, then Y is necessarily unjust. Whether we can appreciate why X and Y are

just or unjust is irrelevant.
In contrast, Mu‘tazilites—theologically cast as heterodox—argued that
God wills only what is just; in a sense, God’s will is constrained by the
demands of a rationally determinable sense of justice (Makdisi 1985;
Hourani 1985). Muʿtazilites argued that God commands X only because
X is already understood as just; God prohibits Y because Y is already
understood as unjust. The evaluation of justice and injustice, they argued,
is something that humans can reason about and presume of God.
A natural law account that would be framed in these theological terms
would become a site of considerable policing. Theology was the discursive
space within which orthodoxy, heterodoxy, and heresy were determined.
The material stakes of falling on one side of that line or the other could be
substantial, if not dire. The history of Islamic theology is fraught with the
political implications of adopting one position or the other (Nagel 2010;
Watt 1998). Theology, in other words, was not a safe or playful space to
reflect on the possibilities of reason. Intellectually, to start from Sunnı̄
orthodoxy to argue about natural law is to create a path dependency that
results in the absence of natural law entirely. The more we frame a natural
law inquiry with an uncritical account of Sunni theological orthodoxy, the
more we necessarily will find a disjunction between reason and authority as
somehow fundamental and intrinsic to Islam, which in turn negates the
very possibility of natural law in the first place. In short, starting from a
presumed Sunnı̄ theological orthodoxy predetermines the outcome in a
manner that preserves an intellectual and theological status quo.
Jurisprudentially, the natural law theories gesture to a conjunction of
reason and authority that extends beyond the realm of theology into the
field of law. As premodern Muslim jurists shifted their writing from the
genre of theology to legal theory (usul al-fiqh) we find them grappling
with the implications of this conjunction on the content of law. As will be
shown below, different Muslim jurists created competing natural law the-
ories that performed end-runs around the theological divisions of ortho-
doxy and heterodoxy. Of course, to make this argument is to invite
theological disapprobation: merely suggesting that orthodox and hetero-
dox theological camps came to a shared approach to the authority of rea-
son undermines the very premise upon which claims to Sunni Islamic
orthodoxy are based. If the genre of jurisprudence can work around the
exclusionary force of theological orthodoxy, then the claim to orthodox
belief loses its political force and effect. Indeed, we cannot help but
appreciate that inherent to the study of Islamic natural law theories is a

politics of constructing orthodoxy in Sunni Islam.
Philology and Philosophy. A more lexical approach to ‘Islamic’ natu-
ral law might focus on the Arabic terminological equivalent of ‘nature’,
which is tabi‘a. Across the Islamic literary tradition, tabiʿa is philologically
linked to Islamic natural philosophy, and thereby the academic discipline
of philosophy (Emon 2014a). To claim that natural law in Islam is best
explored through the concept of tabi‘a gives priority to philology as a
starting point for the study of Islam (Emon 2014a). Since the nineteenth
century, the academic study of Islam generally, and Islamic law specifically,
has revolved around philology. Philology is textually and lexically oriented,
thereby emphasizing analytic methods that are more linguistic than juris-
prudential. If an ‘Islamic’ natural law demands a more jurisprudential
analysis, philology must yield its centrality in the study of Islamic law, lest
it generate a false negative given its gesture to Islamic natural philosophy.
Analytically, the field of natural philosophy (al-tabi‘iyyat) is not the
same as legal philosophy. The debates between Ibn Sina (d. 1037), al-
Ghazali (d. 1111), and Ibn Rushd (d. 1198) in philosophy (falsafa)
reflected different questions from those that might animate legal theory.
For example, in al-Ghazali’s natural philosophy, causation and miracles
were centrally relevant. But their implications extended to truth and verac-
ity, rather than reason, authority, and legal judgment. Moreover, the aca-
demic study of Islamic philosophy cannot fully be appreciated without also
accounting for Leo Strauss’ catalyzing influence on the renaissance of
mediaeval philosophy generally, and mediaeval political philosophy in par-
ticular (Gutas 2002). But in recognizing Strauss’ support for the academic
study of mediaeval philosophy, we cannot ignore his doubt about the pos-
sibility of natural law. His Natural Right and History doubts whether
natural law can overcome the unrepentant moral relativism that he
bemoaned in the human sciences. But Strauss offered only critique as a
mode of engaging the natural law question (Strauss 1965; Batnitzky
2016). Correlatively, one also cannot ignore the influence of Strauss in the
construction of Islamic philosophy as a sub-specialty within the academy.
Certainly, Strauss’ students, such as Charles Butterworth, Muhsin Mahdi,
and Ralph Lerner, have made important contributions through their
translations of significant Arabic texts within the Islamic philosophical tra-
dition. But at the same time, and perhaps unsurprisingly, Straussian schol-
ars of Islamic philosophy channel Strauss’ dubiousness about the possibility
of natural law (Gutas 2002, 22). For instance, in his introduction to his
142 A. M. EMON
translation of Ibn Rushd’s Fasl al-maqal, a treatise on the harmony of law

and philosophy, Charles Butterworth emphasizes that philosophy and law
share the same intention toward governance or politics:
both seek to provide for the well-being of all to the extent possible … [T]he
agreement between the two depends in no way upon determining to what
extent individual philosophers privately assent to the Law, nor in probing
the sincerity of their various efforts to buttress its claims. The reasoning
leading to this interpretation looks, rather, to what is required for sound
political life. (Butterworth 2001, xxxviii)4
And following Strauss’ Natural Right and History, Butterworth ends

his introduction by reference to Ibn Rushd’s political intention, despite
other texts by Ibn Rushd (such as his Bidyat al-Mujtahid wa Nihayat al-
Muqtasid) that one might ‘plumb [for] the content of that intention’,
beyond the merely political (Butterworth 2001, xxxviii). In this Straussian
context of Islamic philosophy, the contributions of Ainur Kurmanalieva
and Karen Taliaferro provide an important check against what might oth-
erwise be an unaccounted for Straussianism in the critique of Islamic natu-
ral law and/or ethics.
Framing the Question, Selecting the Genre: Islamic

Natural Law Between Theology and Law
A study of Islamic natural law, as understood within the broader disciplin-
ary field of jurisprudence, requires moving between the fields of theology
and law. Bridging both fields is an important genre of legal literature called
usul al-fiqh. This genre has been variously translated as ‘legal theory’ or
‘jurisprudence’; in short, it is a genre of Islamic legal literature in which
mediaeval scholars trained in both theology and law would debate onto-
logical first principles and develop an epistemological framework that
moved from those first principles to derivations of law. While some con-
sider this genre committed to delineating a ‘legal method’ of deducing the
law, I suggest instead that this genre was designed to discipline the jurist
to ‘think like a lawyer’, while also providing sufficient space for ‘play’ at
the boundaries of orthodoxy. It disciplined the subject-jurist into a com-
pliant participant in the field of law, trained as he (and exceptionally, she)
was in a legal grammar used to articulate conclusions of law. Importantly,
that genre created a wide-enough space in which jurists could explore,
contemplate, and elaborate ideas that might be too dangerous to consider

in the genre of theology (Ahmed 2012). In other words, if theology was a
policed site of compliant belief, usul al-fiqh offered a space for intellectual
play.5 In this space of play, jurists articulated competing theories of natural
law that, despite distinct theological first principles, shared important jur-
isprudential resemblances concerning the relationship between reason,
nature, and legal judgment.
Importantly, jurists did not illustrate how their theoretical approach
might result in specific legal outcomes. Ulrike Martensson’s contribution
to this volume illustrates how a jurist such as Muhammad b. Jarir al-Tabari
leveraged the tafsir genre to become a space of play to reflect on reason,
nature, governance, and judgment. My own interest, though, remains in
the genres of fiqh and ikhtilaf. Ranging from single-volume handbooks to
multi-volume encyclopedias, fiqh sources detail the doctrine of one legal
school of thought (i.e., madhhab) or another, while the khilaf genre exam-
ines the differences between the schools and why they exist. I say ‘possi-
ble’ because jurists did not mechanically insert the lexicon of natural law
jurisprudence into their more particularized doctrinal debates. This admis-
sion precludes, of course, any definitive determination of natural law oper-
ating in the interstices of Islamic doctrinal analysis. Rather, as a thought
experiment, this essay gestures to the possible existence of natural law rea-
soning in doctrinal debates by reference to the legal heuristic of huquq
Allah (claims of God) and huquq al-‘ibad (claims of individuals). Jurists
utilized this heuristic to determine legal doctrines in circumstances where
there was no express, divine will. This turn to fiqh debates, as a site of natu-
ral law reasoning, is speculative and exploratory. It is offered as a gesture
toward future research on reason, law, and authority in Islamic legal
history.
Islamic Natural Law as Legal Theory

Importantly, Muslim jurists were not only theologians. The scale and
scope of their intellectual corpus spanned a range of fields that they con-
sidered distinct and different. As George Makdisi and others have shown,
the mediaeval disciplinary boundaries between law and theology were
policed through a curriculum that offered many ‘off-ramps’ based on the
particular talents or competencies of the mediaeval student (Makdisi
1984). Moreover, not all these off-ramps were as consequential as the
realm of theology. For Muslim jurists, disputes about law did not invite
144 A. M. EMON
the policing power of theological orthodoxy. Whereas differences in theol-

ogy could put someone outside the ambit of orthodoxy, differences in law
were to be expected. This is an important disciplinary distinction for pur-
poses of our inquiry into natural law in Islam. Vis-à-vis the Latin West, we
all too often take for granted what the Gelasian doctrine propounded as
compromise: a jurisdictional division of human practice into the world of
the sacred and the profane. This jurisdictional division may have allowed
two legal worlds to flourish, the ecclesiastical or canonical on the one
hand, and what we might call the ‘secular’ (for purposes of governance)
on the other. But this division between what we call the religious and the
secular helped create the conditions for a secularism that both animates
how we understand the political project of the state, and structures debates
about the extent to which the state’s legal arm can and should reach into
our private or intimate lives.
Islamic law, however, does not operate in the shadow of such a Gelasian
contrast. The scope of Islamic legal reasoning operates at a scale that we
consider outside the competence of the modern state and its legal system.
For instance, Islamic legal debates include matters of ritual worship, for-
mation of contract, and admissible evidence in trial, all addressed in fiqh
texts across time and space. Importantly, theology and fiqh constitute dif-
ferent subject matters along a spectrum of intellectual history that is
reflected tangibly in the literary genres they helped inspire. In neither sub-
ject area do we find the jurisprudential debate on natural law: neither on
the battlefield of theology (kalam) nor in the doctrinal technicality of fiqh.
The genre of usul al-fiqh (legal theory) is where we find jurists thinking
theoretically about reason and its contribution to the law. Specifically, we
find a curious debate that bears the hallmarks of natural law thinking,
allowing us to identify two versions of natural law among premodern
Muslim jurists, which we will call hard natural law and soft natural law.
Hard Natural Law

Hard Natural Law was mostly, though not exclusively, proffered by
Muʿtazilite jurists such as al-Qadi ‘Abd al-Jabbar (d. 1025) and Abu al-
Husayn al-Basri (d. 1044). It is important to emphasize that not all hard
natural law jurists were necessarily Muʿtazilite. Sources are unclear or
ambiguous about the theological affiliation of the Hanafi al-Jassas, for
instance. Whereas al-Jassas offered a hard natural law account, it would be
historically inaccurate to call him a Muʿtazilite, despite playing with
Muʿtazilite first principles in his usul al-fiqh. Hard Natural Law advocates
rooted their natural law jurisprudence in a particular understanding of
God, or a theology of first principles. They began by asking whether
humans can know the good and the bad (husn, qubh), and whether they
can subjunctively attribute that knowledge of good and bad to God, as if
God made it clear to humanity. They argued that when God created the
world, He did so to create a benefit. Indeed, the world could not have
been created to cause harm, as that would have been either futile or unjust
of God, which for them was contrary to their understanding of God’s
justice (‘adl). Moreover, as God was perfect, the benefit could not have
been for Him. For them, since God is just, created the world as a bounty
for others and not for Himself, he must have created the world to benefit
humanity. These first principles about God were the bases on which Hard
Natural Law jurists imagined the world itself to provide a foundation for
the normative implications of their reasoned deliberation about the world.
If the world is for the benefit of humanity, they argued, then one can rea-
son about the world and human experience to reflect on norms for order-
ing human welfare. God’s creative act both creates the physical reality of
the world, and gives positive normative content to that reality. Put differ-
ently, God’s creative act made nature a scriptural-text-analogue subject to
reasoned analysis and deliberation. In this manner, Hard Natural Law
jurists fused fact and value in the natural order, enabling them to reason
from an ‘is’ to an ‘ought’.
Many modern philosophers will retort that this form of reasoning
indulges the ‘naturalistic fallacy’. The ‘is’ is not always something that is
good or right; sometimes what exists may be quite bad, if not evil.
Moreover, sometimes what we might think is good or right is contradicted
by revelatory texts. For a Hard Natural Law jurist such as Abu al-Husayn
al-Basri, though, Hard Natural Law offered a method of analysis that cre-
ated a rebuttable presumption. That presumption could be rebutted by
findings from revelation or elsewhere. The point for him, though, was that
as a presumption, it is sufficiently justified theoretically to inform the law,
unless sufficient countervailing evidence or considerations existed.
Soft Natural Law

Soft Natural Law theory was proffered by Ash‘ari theologians, such as Abu
Hamid al-Ghazali (d. 1111), al-Tufi (d. 1316), al-Shatibi (d. 1388) and
146 A. M. EMON
others. They did not believe that God created the world for human ben-
efit. On the contrary, to assert such a position would be theologically
unacceptable, as it would limit God’s omnipotence by reference to human
presuppositions about justice (‘adl). But neither was the world created to
humans’ detriment. To maintain their orthodox theological position, they
simply insisted that God creates the world as He sees fit. However, they
argued that because of God’s grace (rahma, tafaddul), it just so happened
that God created the world to benefit humanity. In other words, rather
than rendering the natural order into a scriptural-text-analogue by refer-
ence to God’s justice (‘adl), which was a fraught theological issue, they
rendered it a scriptural-text-analogue by reference to God’s rahma
and fadl.
This turn to grace is important because it allowed Soft Natural Law
jurists to fuse fact and value in nature without also giving up their theo-
logical voluntarism. Because their theory of grace implied God can change
His mind, it allowed Soft Natural Law jurists to retain their commitment
to God’s willful omnipotence. From this theological point, Soft Natural
Law jurists could get to the same jurisprudential point as the Hard Natural
Law theorists, while preserving their commitment to a voluntarist theol-
ogy. They sustained their natural theory by arguing, at the interstices of
theology and jurisprudence, that since there is no evidence that God has
changed His mind, the natural world must therefore be for the benefit of
humanity. Consequently, Soft Natural Law jurists claimed they too could
reason from the natural world to a normative conclusion, or, in other
words, reason from an ‘is’ to an ‘ought’. Their shared teleological approach
with the Hard Natural Law theorists reflects the historical Islamic contri-
bution to debates on natural law.
Maqasid al-shari‘a: Controlling for the Slippery Slope

As much as this broadly shared jurisprudential position technically circum-
vented the confines of voluntarist theological orthodoxy, Soft Natural Law
jurists were anxious that their natural law jurisprudence did not do enough
to avoid theological heterodox. Though the genre of usul al-fiqh is located
between the disciplines of theology and legal doctrine (fiqh), its in-
between-ness led Soft Natural Law jurists to anticipate and control for
mistaken perceptions from the more theologically inclined. They worried
that merely distinguishing their position on grounds of God’s grace was
not sufficiently robust enough to distinguish their theory from the
theologically suspect Hard Natural Law approach. Out of an abundance of

theological caution, Soft Natural Law jurists articulated a method of legal
reasoning that maximally preserved their voluntarist theological first
principles.
Soft Natural Law jurists such as al-Ghazali articulated a circumscribed
mode of legal reasoning that revolved around two terms of art, namely
maqasid and maṣlaḥa. Importantly, he expressly designed his method of
reasoning to limit the scope of reason’s authority in law, out of deference
to his voluntarist theology. Maqasid (s. maqsad) is the Arabic term for aim,
object, or purpose; maṣlaḥa is often defined as welfare or public interest.
In al-Ghazali’s model, a maslaha was a local, specific, and particular issue
that invoked a core aim or purpose of the law, and for which a maqasid-
based analysis was appropriate. On his account, al-Ghazali argued that
there are five basic purposes of the law, namely the preservation of life
(nafs), lineage (nasl), mind (‘aql), property (mal), and religion (din). In
the absence of scriptural authority, al-Ghazali argued that particularized
public interests (maslaha) may very well uphold those aims. In some cases,
the maslaha upholds an aim that is deemed a necessity (darura), whereas
in other cases the interest is merely a ‘need’ (haja) or purely edificatory
(tahsin). For al-Ghazali, any maslaha that is not addressed by scripture
(i.e., is based on reason), upholds the maqasid, and poses a necessary
interest (maslaha darura) has the authority of law. Framed in subjunctive
fashion, the proposed judgment or rule derived from a necessary maṣlaḥa
is treated as if God had legislated it. Anything less than a necessary maslaha
falls short of offering the necessary foundation for law; indeed, to impute
such a maṣlaḥa-based rule to God would so empower reason as to vitiate
the primacy of voluntarist first principles about God’s willful divinity. By
hierarchizing maslaha for legal purposes, al-Ghazali restricted the scope of
reason’s authority, out of deference to voluntarist theological first
principles.
Islamic Natural Law as Legal Practice?

Recalibrating our disciplinary starting point from theology or philosophy
or philology to jurisprudence, the scope of plausible inquiry shifts and
opens up new possibilities. This recalibration offers different standpoints
from which to appreciate what might be otherwise taken for granted as
merely ordinary, mundane, even uninteresting modes of legal discourse.
In other words, a jurisprudential approach to Islamic natural law theory
148 A. M. EMON
offers a new appreciation of the rationality inherent in particular sites of

doctrinal debate (fiqh) (Emon 2018). While there is no direct, express, or
deductively reassuring application of usul al-fiqh theory on specific fiqh
doctrines, there are various modes of reasoning in fiqh debates that are
worth examining, from the standpoint of natural law jurisprudence.
One example is the premodern legal heuristic of huquq Allah and huquq
al-‘ibad (respectively, claims of God and claims of individuals). It is impor-
tant to specify that by claims of God, we are not suggesting some legal
theology in which God appears as claimant or litigant. The tendency to
read huquq Allah in theological terms reflects the secular tendency of too
quickly characterizing Islamic law as ‘religious’. Likewise, the tendency to
read huquq al-‘ibad (or huquq al-nas) as human rights assumes too readily
that this phrase resonates in the echo chamber of the distinctively post-
seventeenth-century European state and the Enlightenment’s liberal rights
tradition. In the context of the historical fiqh tradition, huquq Allah serves
metaphorically to refer to the well-being of society and public policy inter-
ests. The phrase huquq al-ʿibad refers to the kinds of claims and interests
and expectations we have as individuals living in a society with others, for
example, property, privacy, contract, and so on (Hohfeld 1913). In the
aggregate, the two terms of this heuristic highlight the fact that any given
wrong will have both a public and private dimension. Importantly for the
purpose of this chapter, it was up to jurists to determine in many cases
what those dimensions were, the values at stake, and how best to resolve
possible conflicts or contradictions, whether scriptural sources were on
point or not (Emon 2006).
For instance, most readers will be familiar with the Qur’anic injunction
against theft, namely amputation of the hand. In the event A steals B’s
property, A may be subject to the punishment of hand amputation, so the
argument goes. But even if A loses his hand, that does not make B whole.
B suffers an ongoing loss that the corporal punishment does not redress.
Does this seem fair, right, or good? A natural law theorist might ask, ‘Is it
just?’ These kinds of questions animated juristic debate about legal doc-
trine; the vehicle by which they posed these questions was the legal heu-
ristic of huquq Allah and huquq al-‘ibad.
For jurists of the Hanafi legal tradition, the answer to the question of
compensatory liability for theft came in the form of a source-text, specifi-
cally a prophetic tradition or ḥadı̄th. In this textual tradition, a victim of
theft was allowed to choose compensatory damages in lieu of the corporal
punishment against the theft. Whereas the ruling regime would impose
the corporal sanction to serve the public interest, the victim could prevail
against that public interest to be made whole once again. For the Hanafis,
the victim enjoyed a superior claim against the public interest, the latter
being served by the deterrent function of corporal sanctions. On the one
hand, the Hanafi position was justified by recourse to a text, thus taking it
outside the scope of natural law reasoning. On the other hand, the posi-
tion can be explained (rather than justified) by reference to comparative
loss-spreading competencies: whereas society could distribute the loss
occasioned by the theft (e.g., social costs about reliable possession), the
individual was not always in a position to distribute his loss. The Ḥ anafı̄s
relied on a textual tradition to introduce a degree of choice and variance
in the outcome of theft, based on the victim’s capacity to sustain the
loss or not.
But other Sunni schools of law considered the Hanafi’s source-text
inauthentic and of no legal consequence. These other jurists had to resolve
the issue without reference to a source-text. For them, the question
remained: must B suffer his loss in silence, or can B somehow claim com-
pensatory damages when the thief/defendant also suffers the corporal
sanction? These other jurists turned to the huquq Allah–huquq al-‘ibad
heuristic to reason to their preferred legal outcome. They held that the
Qurʾanic injunction on amputation upheld a haqq Allah, or claim of God,
which served as a proxy for the public interest in securing private property
possession. Indeed, they fully recognized that without such security of
possession, one could not have a reliable market for trade and exchange
(Al-Ayni 2000, 7: 216–217). But security of possession was not merely a
public matter that scaled outward in macroeconomic terms. At the micro-,
individual level, theft meant that the victim suffers a direct and specific
harm, which is not easily distributed to others. This harm, which is both
real and sustained, could not go unaddressed by the law.
According to the Shafi‘is and Hanbalis, to redress one sort of harm
(e.g., the public harm via amputation) did not mean the other went away
or could simply be ignored (e.g., the private harm of lost property). Both
the private and public harms existed at the same time; resolving one did
not render the other irrelevant or resolved. Consequently—and without
reference to scriptural sources—Shafi‘i and Hanbali jurists argued that the
victim in theft has a claim against the thief for compensatory liability, even
though the thief may also be subject to the corporal Qurʾānic sanction.
Malikis recognized that both claims coexist, but they also introduced a
third claim, namely of the defendant. Malikis worried that to impose on a
150 A. M. EMON
defendant both forms of liability (i.e., punitive and compensatory) might

appear as a double punishment for the single underlying offence. Certainly,
the victim of theft has a claim against the defendant. But the Malikis wor-
ried that if the defendant-thief loses his hand through amputation, and
must financially compensate the victim of his theft, the defendant-thief
may end up in a form of involuntary servitude, having to pay off a debt
that he cannot reasonably afford. To impose this dual form of liability may
transform an impoverished defendant-thief into a ward of the regime, pos-
ing an extra cost to the public weal. Given these countervailing concerns,
Maliki jurists came up with a compromise position. Whether the defen-
dant was liable to pay compensation—in addition to suffering the corporal
sanction—depended on his financial capacity between the moment he
stole and the judgment of guilt. If he was sufficiently wealthy to compen-
sate the victim without suffering unduly, he had to compensate the victim.
If he was too poor to compensate the victim, then no compensatory liabil-
ity was imposed.
How did jurists develop these rules? Their fiqh texts suggest that they
simply reasoned to a range of values about property, possession, the public
weal, and the interests of both victim and defendant. Without invoking
the usul al-fiqh or theology discussed above, jurists nonetheless reasoned
toward the good, the right, and the just using the huquq Allah and huquq
al-‘ibad heuristic. Whether we agree with their assessments is beside the
point. Rather, these doctrinal debates illustrate that reason operated in the
absence of source-texts to determine specific legal outcomes. Indeed,
these doctrinal debates implicitly posit the de facto use of reason to do so.
The Politics of Islamic Natural Law Theory

The significance of reason resonates differently depending on the disci-
plinary field within which it is examined. If we view the question about
reason and authority only through the lens of theology or philosophy, we
miss something important about the disciplinary plurality embedded
within Islamic law, and within Islamic intellectual history more broadly.
Our challenge in the academy, whether in research universities or seminary
contexts, is to scale our disciplinary approaches so as not to mistake a part
for the whole. Nevertheless, the politics of naming, let alone proffering, a
jurisprudence of ‘natural law’ in Islamic legal studies has been and will
remain subject to varying political critiques and forms of
instrumentalization, ranging from the contests over discipline, the polem-

ics around Orientalism, and even the rhetoric of security and
anti-terrorism.
For instance, some argue that natural law embodies the inappropriate
application of a phrase with origins in the Latin West, making it inapposite
to the Islamic intellectual tradition. The thrust of this critique stems from
the seminal work of Edward Said’s Orientalism, and the extensive subal-
tern tradition of post-colonial analysis that followed in Orientalism’s wake
(Said 1979). For Said and his intellectual descendants, the study of the
East generally, and Islam and Muslims specifically, is structured around
Europe as both center and norm, rendering the ‘Islamic’ as a foil for re-
instantiating the legacy of Europe (culturally, politically, and so on) as a
measure against which to evaluate non-Europe, or in this case, the ‘Islamic’
(Chakrabarty 2000). On this understanding, any study of ‘Islamic natural
law theories’ must necessarily center the Latin Christian study of natural
law as standard and norm, against which the success or failure of the
‘Islamic’ is measured. This post-colonial critique is not without merit.
However, it also runs the risk of so insisting on the uniqueness and par-
ticularity of the ‘Islamic’ as to take it outside a globally connected history.
Paradoxically, it runs the risk of rendering the ‘Islamic’ no less exceptional
than the Orientalist scholars once did (and still do). R. Charles Weller’s
essay in this volume is an important reminder that the implicit binary in
the above critique assumes far too much of the history between traditions
cast in distinctively ‘Islamic’ and ‘Western’ garb.
Admittedly, post-colonial critics of Islamic natural law theories are cor-
rect that Muslim jurists did not have a specific or express term to denote
‘natural law’. But the absence of such a term does not mean that the fun-
damental questions underlying a broad range of natural law theories (e.g.,
questions of reason and authority) were unknown to Muslim jurists or
irrelevant to them. Nor does this lexical absence suggest they did not think
or reflect on creation and its implications for how they might reason to
norms and law to govern the infinite variations of human experience and
conflict. As scholars have extensively shown, these questions were at the
forefront of their inquiries in legal theory manuals (usul al-fiqh). Whether
one could or should put these questions under the rubric of ‘natural law’
depends in part on the institutional stakes involved in producing different
kinds of Islamic research. The more one is located within departments
narrowly focused on Islamic law or religious studies (e.g., area studies
programs, or religious studies programs), the more likely it is one will
152 A. M. EMON
adopt an approach to Islam that emphasizes its uniqueness and particular-

ity. The institutional force of those disciplines—the incentives to produce,
the professional associations within which one rotates—will contribute to
this narrowing of the inquiry (Bourdieu 1987, 1988).
This does not mean the post-colonial critics can simply be ignored.
Indeed, there is an important aspect to their concern. Around the world,
the study of Islam stands alongside national security projects of combat-
ting Muslim extremism. This politics of, on, and around Islam and
Muslims is no less relevant for the study of Islamic natural law theory.
Indeed, for some, if there were a natural law in Islam, it might offer a
recipe for a more harmonious global order.
For example, in 2009, the Catholic Church’s International Theological
Commission (ITC) issued a report on natural law, implicitly suggesting
that religious and value-based traditions the world over could locate func-
tional equivalents in their own tradition (ITC 2009). The ITC cast the
natural law tradition in Islam in terms of the theological debates between
the voluntarist and ethical rationalists of Islam (i.e., the Ashʿarites and
Muʿtazilites), suggesting that Muslims would do well to adopt a more
rationalist, Muʿtazilite orientation. In the report, the Commission distin-
guished the voluntarist theology of the Ash’arites from the rationalist one
of the Mu’tazilites, creating an intellectual dichotomy that reduced the
‘Islamic’ to terms that were familiar to the Commission (i.e., theological
terms), but ones not particularly enlightening about the complex Islamic
tradition. By representing Islamic natural law in Islamic theological terms,
the Commission did not fully appreciate the disciplinary logics, not to
mention the material implications, that distinguish between Islamic theol-
ogy, jurisprudence, and law (Emon 2014b). Such material implications
include, for instance, the apostasy-related trials of the Egyptian intellectual
Nasr Hamid Abu Zayd (O’Sullivan 2004; Johansen 2003). Moreover,
their endorsement of one side over the other is exactly what post-colonial
critics identify as the centering, if not empowering, of Europe and the
bearers of its legacy to define the ‘Islamic’ for Muslims themselves.
In an entirely different vein, Sunni Muslims committed both to a vol-
untarist theological orthodoxy and to modernist legal reform may find the
restrictive casting of the historical maqasid model unacceptable. Some
modern liberal or progressive Islamists look to maqasid and maslaha as
ways to reform Islamic law and allow for greater reasoned deliberation
(Auda 2016). The irony, though, is that the maqasid-maslaha model was
designed to limit the scope of reason’s authority in the law. This is not to
suggest that modern reformers cannot draw upon the maqasid tradition.
Rather, the inefficacy of maqasid-based reform efforts to date is due to the
inability or unwillingness of reformers to reflect on the original design of
maqasid as a narrowing, limiting device on reason’s scope and sway
(Nassery et al. 2018).
Conclusion
The debate on Islamic natural law in the academy and among Sunni theo-
logians reflects a broader conundrum that lies at the heart of natural law’s
very promise. The promise of natural law lies in the ethereal universal ideal
of common ground, whereby such values presumably transcend human
difference, despite differences in tradition and value systems. There is a
paradox involved in locating the universal in particular traditions.
Universals tend by their very nature to be ahistorical, yet the traditions
from which these universals are sought are nothing if not historical, rooted
in time, space, and the practices of communities. In some sense, universals
are not unlike the claim of something to be ‘common sense’, which itself
has a history (Rosenfeld 2014). The seemingly interminable, hope-laden
inquiry into natural law across traditions is meant to create a new cultural
product—one that people of all traditions can contribute to and partici-
pate in. While this remains a highly laudable goal, it might be better
understood in terms of an eternal, yet agonistic struggle, rather than a
formal process of discovery.
We can see this agonistic tendency in the history of human rights in the
latter half of the twentieth century and into the twenty-first century. The
Universal Declaration of Human Rights, and the various subsequent
instruments thereafter, articulate in the aggregate a universal set of values
for all of humanity. But as scholars have already illustrated, these instru-
ments do not promise the same freedom for everybody. The European
Court of Human Rights has shown repeatedly in its religious freedom
cases (e.g., Sahin v Turkey, Dahlab v Switzerland, Lautsi v Italy) that it
cannot help but articulate the scope of freedom by reference to the par-
ticular, historically situated demands of the European state (Bhuta 2012;
Shany 2005; Spielmann 2014).
If there is a universal at all, it is the agonistic character of debates about
universals. Rather than trying to identify the content of a universal (which
is little more than a claim of truth), the challenge is to create maximal
space for claims about what the universal might be. But to do so will
154 A. M. EMON
require, in addition, a humility that has thus far evaded conversations

about value, since no one can meaningfully claim, in this imagined, expan-
sive dialogical space, to have an exhaustive grasp of the truth.
Notes
1. Tolerance as used herein is not meant to reflect an aspirational goal, as it is
deeply embedded in a politics of domination and regulation. See, Wendy
Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire
(Princeton: Princeton University Press, 2008).
2. As it turns out, this attitude has become official US government policy given
its recent refusal to continuing funding the University of North Carolina
and Duke University Middle East Studies Program, on grounds that it does
not sufficiently support the national security interests under Title VI. Erica
L. Green, “U.S. Orders Duke and U.N.C. to Recast Tone in Mideast
Studies,” The New York Times, September 19, 2019, online at: https://
www.nytimes.com/2019/09/19/us/politics/anti-israel-bias-higher-edu-
cation.html (accessed September 20, 2019).
3. See, for instance, Griffel’s academic website listing his training in Germany.
https://religiousstudies.yale.edu/people/frank-griffel (accessed September
18, 2018).
4. Butterworth completed his PhD in political science at the University of
Chicago in 1966, three years before Strauss left the University of Chicago’s
Political Science Department.
5. This curious function of usul al-fiqh would arguably require Straussian advo-
cates to recognize the limits of Strauss’ argument about exoteric and eso-
teric readings of mediaeval texts.
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Index1
A al-ʾAnʿām (Q. 6:149–152), 55

Abbasid Caliphate, 16, 57, 67, 71 al-ʾAʿrāf (Q. 7:172), 54, 56, 67,
Al-Ṭ abarı̄’s relationship with, 66, 73 68, 75n6
‘Abd al-Jabbar, al-Qadi, 144 Al Baqara
Abdallah the Saracen, 36 Q. 2:125–126, 53–54
Abdelkader, Deina, 76n20 Q. 2:176–177, 54
Abraham negotiating with God, al-Fatḥ, 55, 58
49, 52, 53 Al-Iqtiṣād fi al-i’tiqād (Al-Ghazzālı̄ ),
Abū Bakr b. Kāmil (Ibn Kāmil, Abū 84, 87, 98
Bakr), 57 Al-Manṣūr (caliph), 64
Abu-Husayn al-Basri, Abu, 144, 145 Al-Mustaṣfā min ‘Ilm al-Usūl
Abu Zayd, Nasr Hamid, 152 (Al-Ghazzālı̄ ), 84, 85, 91,
Acton Institute, 8 94, 98
Adelard of Bath, 34 Al-Nisāʾ, Exegesis of Al-Ṭ abarı̄, 59–63,
‘Adl (God’s justice), 139, 145, 146 66, 72, 74
See also Jurisprudence and justice on al-Nisāʾ, 52
Afghanistan, 14–16 Alphonse IX (Spanish king), 35
Ahl al-kitāb, 55 Al-Qaeda, 15
See also Kitāb al-Shāfiʿı̄, 57
Ā l ʿImrān, Exegesis of Al-Ṭ abarı̄,19, and Shafi’i jurists, 149
52, 62–66, 72–73, 76n14 Altamira, Rafael, 29
1
Note: Page numbers followed by ‘n’ refer to notes.

https://doi.org/10.1007/978-981-15-6245-7
158 INDEX
Aluji, Ishak ben Adb el-, 132n4 Al-Ash’ari and Ash’arites, 14, 16, 51,
̄
ʾAmana, interpretation of, 74n3 130, 139, 145
Ambrosiaster, 5 Ancient Greece, impact on
Amma (simple masses), 129 philosophical rationalism, 3
Andalusian Islamic law, 35 Assize of novel disseisin, 34
Anglo-American jurisprudence Assizes (or Constitutions) of King
(English Common Law), Roger II, 32, 33
33–34, 38n1 Audi, Robert, 120n33
Anglo-Mohammedan law, 30 Augustine, Saint, 5
Anti-Americanism/anti-Westernism, 2 Authority, 13
Antiterrorism, 151 arguments from authority, 113,
Aouad, Maroun, 113, 118–119n20, 119–120n25
119–120n25 and Aristotle, 109, 113
ʿAqaba, First and Second), 75n4, 75n6 divine authority, 17, 31, 52, 72
‘aql, see Intellect (‘aql) and Al-Fārābı̄, 125
Aquinas, Thomas, see Thomas al-Ghazālı̄ on, 97, 141, 147
Aquinas, Saint Ibn Khaldun on, 131–132n3
“Argument from authority”, 113, Ibn Rushd on, 112, 114, 115, 124
119–120n25 moral authority, 48, 49, 51, 83, 97
Aristotle and Aristotelianism, and natural law theory of law, 46,
112, 115, 116, 118n7, 48, 49, 51, 52, 83
118n9, 119n20, 123 rational authority vs. charismatic
Aristotelian Christianity, 18, 46 authority, 76n20
Aristotelian empiricism, 128 and reason, 112, 124, 140–141,
Aristotelian rationalism, 17–18 143, 147, 150–153
concept of the First Reason or First religious authority, 28, 46, 113,
Cause, 127, 130 115, 124
endoxic method of Aristotle, 12, and social contracts, 48, 52, 63, 72
103–111, 113, 117n3, 118n7, Avempace, 36, 124
118n9,14 See also Ibn Bājja
and Ibn Rushd, 12, 13, 101–117, Averroes, 36, 103, 124
127–128, 130 See also Ibn Rushd
medieval thinkers on, 17–18, Avicenna, 36, 124
102, 103 See also Ibn Sina
and natural law theory via St.
Thomas Aquinas, 5, 46, 47
works of Aristotle, v, 102–112, B
117n3, 118n9, 124, 132n5 Bacon, Roger, 117n2
Aristotle’s Children: How Christians, “Bad”
Muslims, and Jews Rediscovered al-Ghazālı̄ on the “good” (ḥusn)
Ancient Wisdom and Illuminated and the “bad” (qubh), 84, 85,
the Dark Ages (Rubenstein), 17 87, 90–93
INDEX 159
and Hard Natural Law, 145 Charismatic authority, 76n20

the Qur’an on, 64, 70 Christianity, 17, 34, 117n2
usul al-fiqh debates on good and Aristotelian Christianity, 18
bad, 137 Christians as People of the
Bādı̄ al-rāʾı̄, 12, 111–116, Book, 27
118–119n20, 119–120n25, 120n33 and common law, 33, 38n1
Banu Musa, 128 and covenant or social contract,
Barnes, Jonathan, 107, 110 49, 56, 72
Bayān (clarifying distinction), 57, 58 defining Western Christian
The Beginnings of Islamic Law: Late traditions, 19n1
Antique Islamicate Legal and divine revelation, 18
Traditions (Salaymeh), 29 Eastern/Orthodox/Byzantine
Beliefs Christianity, 5, 19n1, 34
common beliefs, role of, influence on Islamic law, 26–31
12, 101–117 Islams influence on, 32–37
experience vs. beliefs, 107 Judeo-Christian syntheses, 3, 5, 6, 31
freedom of, 4 medieval Christianity, 5, 8
orthodox beliefs, 140–141 and “natural law,” 5, 138, 139, 151
subjective belief, 117n3 role in human rights, 5–8 (see also
of the wise, 106–107, 116 Universal Declaration of
Benedict XVI (pope), 9 Human Rights (UN))
Benefactor, thanking the, 85–87, 94, sources of Western Christian
95, 114–115 traditions and philosophies, 3,
Biblical Covenant, 10, 46, 49–50, 5, 10, 17, 26, 35, 117n2
52, 55, 72 Citizenship
Bidyat al-Mujtahid wa Nihayat Aristotle on, 108–111
al-Muqtasid (Ibn Rushd), 142 denial of in Switzerland, 4–5,
Bin Laden, Osama, 14 10, 45
Bin Sattam, Abdul Aziz, 64, 65 “The Civil Policy” (al-Fārābı̄),
Blackstone, William, 33 132n6
Bulutai, Murtaza, 7 Claims of God and claims of
Butterworth, Charles, 112, individuals, see Huquq Allah
118–119n20, 141–142, 154n4 (claims of God) and huquq
al-’ibad (claims of individuals)
Commentaries on the Laws of England
C (Blackstone), 33
Cairo Declaration on Human Rights “The Commentator,” see Ibn Rushd
in Islam, 7 Common beliefs (opinions),
Casas, Bartolomé de las, 35 12–13, 101–120
Cassin, René, 9 Aristotle looking at, 12–13,
Central Asia 103–111, 116–117
Islamic Golden Age in, 15, 16 Ibn Rushd looking at,
and Soviet Union, 14–17 12–13, 111–117
160 INDEX
Common good, 48, 65–66, 111 components of Covenant-based

Emon’s approach to, 52, 66 constitutions, 49
Maṣlaḥa as common good or public Covenant model, 49, 52, 72, 73
welfare, 11, 51, 63–64, 72–73, (see also Compacts)
147 (see also Maṣlaḥa) Creation Covenant, 11, 52, 54,
Qur’an on, 52, 61, 72–73 56, 75n7
and the social contract, 66, 71, 72 divine Covenant, 50, 55, 72
Common law, 33–34, 38n1 ḥaqq as Qur’anic term for, 54
Communal (public) knowledge, Jewish concept of, 10
12–13, 113, 117n3 and mı̄thāq, 11, 58
Compacts Qur’anic Covenant, 10, 11,
Covenant model for, 49–50, 45–73, 75n6
55, 75n6 on relationship between God
entered into by the Prophet, 75n4–5 and humans as a social
Natural Compact contract, 52–56
(Naturvertrag), 75n7 between the ruler and the
See also Contracts; Covenants ruled, 52, 69
Compensatory liability, 148–150 signifying enhanced rights, 50, 73
Confucius and Confucianism, 6, 111 al-Ṭ abarı̄ on, 58, 67, 68, 71–73
Congress of the Leaders of World and See also Contracts
Traditional Religions, 9–10 Creation, 57, 75n7, 151
Constitutions of Medina, 27, Creation Covenant, 11, 52, 54,
75n5, 75n9 56, 75n7
Consuls of the Sea (Spanish law), 35 divine creation (God’s creation), 46,
Contracts, 10, 71, 73, 75n3, 75n13, 144 51, 58, 67, 73, 75n7, 127, 145,
caravan contracts, 32 146 (see also “First Cause,”
contract law, 34 “First Reason” or “First Esence”)
contractual ethics, 75n8 al-Fārābı̄ on, 126–127, 132n3
contractual terms or obligations, 55 laws and theories of, 126–128
God’s contract partner, 49–50, Al-Ṭ abarı̄’ on, 11, 52, 59, 62, 66–72
52–54, 58 Crone, Patricia, 50–51, 72
reciprocal contracts, 70 Cross-cultural contacts, v, 3–5,
between ruler and the ruled, 52 18, 45–46
written contracts (kitāb), 69, 75n9 cross-religious traditions and
See also Compacts; Covenants; Social UDHR, 6–7, 10
contract theory historical relation of Islamic and
Copleston, Frederick, 95–97 Western law, 2–3, 10, 25–38
“Covenant of Umar”, 26–27, 29 impact of Swiss denial of citizenship
Covenants to Syrian Muslim family,
in America (Puritan Covenant), 4–5, 10, 45
49–50, 72 sharing of vocabulary and terms, 32
Biblical Covenant, 10, 46, 49–50, Crusades, 35
52, 55, 72 Cultural rights, 10, 45–46
INDEX 161
D Soviet Union rejection of, 17–18

Dahlab v Switzerland, 153 in theories of natural law, 5, 10, 46,
Dante Aligheri, 36 50, 123–132
A Decisive Discourse on the Delineation Divine will, 84, 93, 143
of the Relation Between Religion
and Philosophy (Ibn Rushd), 130
“Declaration of Human Rights” E
(United Nations), see Universal Elazar, Daniel, 49–52, 55, 72
Declaration of Human Elitism
Rights (UN) elitist democracy and epistemic
Democracy, 13, 15, 18, 36, 50 equality, 12, 101–117
democratic ideals, 10 epistemic elitism, 102, 103
elistist democracy and epistemic al-Ghazālı̄ on moral and spiritual
equality, 10, 12, 101–117 elitism, 98
and equality, 13, 102, 103, 117n1 Hassa (enlightened elite), 129
and human rights, 7, 9, 10, 48 Emon, Anver M., 51–52, 55, 65, 72,
Plato on, 102 73, 74n1
and separation of powers, 48 “Epilogue” of, 15, 17, 135–154
Dhū Qār, Battle of, 71 on soft natural law, 51, 66, 83–84
Divine creation (God’s creation), 46, Encyclopedia Britannica, 48
51, 58, 67, 73, 75n7, 127, Endoxic method of Aristotle, 12,
145, 146 103–111, 117n3, 118n7, 118n9,14
See also “First Cause,” “First English Common Law, 33–34, 38n1
Reason” or “First Esence” Enthymeme, 113, 119n24
Divine law, v, 5, 7, 9, 32 Epistemic equality and elitist
comparative study of Al-Fārābı̄ and democracy, 10, 101–117
Ibn Rushd, 13, 123–131 Epistemology
and ḥukm, 85, 87, 95 and Aristotle, 104
Prophet as giver of, 50 moral epistemology, 83
role the divine plays in moral law, 46 and ontology, 126
Divine Providence, 85 Equality, 13, 48
Divine revelation, 9, 28, 44, 46, 128 elistist democracy and epistemic
al-Fārābı̄ on, 124–126 equality, 10, 101–117
al-Ghazālı̄ on, 96 and gender, 4
and human reason, 5, 10, 14, 18, Esim, Garifolla, 131
124–125, 129, 131 Ethical rationalists, 152
Ibn Rushd on, 13–14, 124–125, Ethics, 111, 115, 135, 136, 142
129, 131 Aristotle on, 12, 107
and Islamic law, 27, 31 contractual ethics, 75n13
in Judaism, 18 al-Ghazālı̄ on, 11, 12, 83–99
and moral norms, 11 teleological ethics, 98–99
and the Qur’an, 27, 50, 58, 75n12 See also Morality
162 INDEX
Euripides, 5 “First Cause,” “First Reason,” or

European Court of Human “First Essence,” 125–127,
Rights, 153 130, 132n3
European law, see Western law See also Creation
Exegesis of Al-Ṭ abarı̄, 76n14 Florence, Republic of, 35
on Ā l ʿImrān, 52, 62–66, 72–73, Frederick II (German king), 33
76n14, 76n19 Freedom, 7, 8
on al-Nisāʾ, 52, 59–63, 66, 72, 74 of belief, 4
on Q. 2:177, 76n18 religious freedom, 153
Experience vs. beliefs, 107 of speech, 36
suppression of in Soviet Union, 14
in the Universal Declaration of
F Human Rights, 47–48, 74, 153
Al-Fārābı̄, 13, 14, 36, 102, French Catholic traditions, 19n1
117n2, 131 French legal history, 29
on bādı̄ al-rāʾı̄, 119–120n25
comparative study of Al-Fārābı̄ and
Ibn Rushd, 13–14, 16, G
112, 123–131 Gateway (publisher), 8
and concept of the human Geertz, Clifford, 29
being, 128 Gelasian Doctrine, 138, 144
on creation, 126 George, Robert P., 120n33
on divine revelation, 124–125 Al-Ghazālı̄, Abu Hamid, 14,
faith of, 132n4 127, 130–131
on “First Cause, 125–127, 132n4 on ethics, 11–12, 83–99
influence of, 131n2 on God’s will, 89
on interrelation between on the “good” (ḥusn) and the “bad”
religion and (qubh), 84, 85, 87, 90–93
philosophy, 129–131 on intellect (‘aql), 11, 51, 65,
on levels of perfection, 132n6 85–87, 94–97
and the material world, on maṣlaḥa, 51, 65, 147
125–127, 132n6 on Mu’tazila, 84–87, 95, 96
on metaphysics, 126 on natural law theory, 11–12, 34,
works of, 102, 124, 125, 51, 83–99
132n3, 132n6 on natural philosophy, 141
Fāshdādh (Persian king), 68 on the obligatory, 86–88, 95
Fasl al-maqal (Ibn Rushd), 142 on one’s purpose, 90, 92–93
Federation of Islamic Organizations, 4 on reason, 16, 93–99
Finnis, John, 5, 46–49, 51, 120n33 and Soft Natural Law, 51,
Fiqh, 63, 86–88, 124, 131n33, 143, 84, 145–147
144, 146, 148, 150 works of, 11, 15, 84, 85, 87, 91,
See also Usul al-fiqh 93, 94, 98, 130
INDEX 163
Global Conference on the World’s Heart (qalb), 96

Religions, 9 Henry II (English king), 34
“Good,” 84 Ḥ ikma (just justice), 63
Aristotle on, 104, 118n7 Himma, Kenneth Einar, 46, 49–51
al-Ghazālı̄ on the “good” (ḥusn) Hishām b. Muḥammad b. al-Kalbı̄, 71
and the “bad” (qubh), 84, 85, History, Al-Ṭ abarı̄’s, 66–72, 77n24
87, 90–93 History of Philosophy (Copleston), 95
and Hard Natural Law, 145 Hourani, George, 84, 85, 89, 98, 139
Ibn Rushd on, 114–115, 120n29 Ḥ ukm, 85, 87, 95
and just, 139, 150 See also Divine law
usul al-fiqh debates on good and Human nature, 46
bad, 137 and moral norms, 11, 85, 90
See also Common good and reason, 11, 85, 93–99
Greek Orthodox, 5, 9, 19n1 Human reason, see Reason
Green, Steven, 50, 73 Human rights, 7–11
Gregg, Samuel, 8, 9 Cairo Declaration on Human
Griffel, Frank, 138, 139 Rights, 7
Grisez, Germain, 120n33 Independent Permanent Human
Rights Commission, 7
international human rights, 30, 35
H Multicultural rights, 45–46
Ḥ adith, 57–58, 62, 64, 123, 148 and religious freedom cases, 153
as divine revelation, 27 and rule of law, 47–48
Ḥ anafı̄ (Islamic school of of the ruler and the ruled, 52, 69
jurisprudence), 30, 73, 74n1, Al-Ṭ abarı̄ on, 59, 62
144, 148, 149 UN High Commissioner for Human
Hanbali jurists, 149 Rights, 8
Haqq, concept of, 11, 62 See also Huquq Allah (claims of
haqq Allah (claim of God), 149 (see God) and huquq al-’ibad
also Huquq Allah (claims of (claims of individuals);
God) and huquq al-’ibad Universal Declaration of
(claims of individuals)) Human Rights (UN)
as a Qur’anic concept, 52, 54, 72 Huquq Allah (claims of God) and
Al-Ṭ abarı̄ on, 59, 61 huquq al-’ibad (claims of
See also Covenants individuals), 51, 143, 148–150
Haque, Ziaul, 73 Ḥ usn, see “Good”
Hard Naturalism, 51, 66
Hard Natural Law theory,
84, 144–147 I
Al-Ḥ asan, 128 Ibn ʿAbbās, 67, 68
Hassa (enlightened elite), 129 Ibn al-Muqaffaʿ, 64–65, 68, 71, 124
Hayy Ibn Yaqzan (Ibn Tufayl), 37 Ibn Asakir of Damascus, 27
164 INDEX
Ibn Bājja, 112, 124, 128, 131n2 Independent Permanent Human

Ibn Jubayr, Abu ‘l-Husayn Rights Commission (IPHRC), 7
Muhammad ibn Ahmad Inequality, 103, 115
al-Kinini, 32, 33 Intellect (‘aql), 85, 129
Ibn Kamil, Abū Bakr (Abū Bakr b. active intellect (aqlfa ‘al), 125
Kāmil), 57 al-Fārābı̄ on, 125, 127
Ibn Khaldun, 17, 27, 28, 124, 131n2 al-Ghazālı̄ on, 11, 51, 65,
Ibn Manẓūr, 74n3, 75n13 85–87, 94–97
Ibn Rushd, 117n2, 142 Saint Thomas Aquinas on, 96–97
and Aristotle, 12, 13, 101–117, Internality in Aristotle’s endoxic
127–128, 130 method, 110, 118n15
on bādı̄ al-rāʾı̄, 12, 111–116 International Theological Commission
comparative study of Al-Fārābı̄ and (ITC, Catholic Church), 152
Ibn Rushd, 13–14, 16, Internet Encyclopaedia of Philosophy, 46
112, 123–131 Intuitionism, 120n33
and concept of the human Investiture Controversy, 138
being, 128 IPHRC, see Independent Permanent
on divine revelation, 13–14, Human Rights Commission
124–125, 129, 131 Islamic State of Iraq and Syria
on harmony of law and (ISIS), 15
philosophy, 142 “Islam and Global Studies” series, 19
on interrelation of religion and Islamic Caliphates, 15, 35, 71
philosophy, 129 Islamic Golden Age, 9, 15, 16
on knowledge, 112–114, 116, Islamic law, 15, 17, 138, 144
119n24, 124, 128, 129 as a code of conduct for Muslim
on mawāḍiʿ, 119n24 citizens, 131n1
on natural philosophy, 141 divinely revealed code of law (see
relationship with Averroes, 103, 124 Shari’a (sharia/sharia) law)
on theories of creation, 128 influence of on Western law, 32–37
use of the philosophical bases of reform for, 152
al-Fārābı̄, 125 sources and beginnings of, 27–29
works of, 112–114, 118–119n20, Sunni legal theory, 65
119n24, 120n26, 120n29, and theology/religious studies,
130, 142 131n1, 148, 151
Ibn Sina, 14, 36, 112, 124, 128, 130, Western and Non-Islamic relation
131n2, 141 to, 2–3, 10, 25–31, 151
Ibn Tufayl, Muh‘ammad ibn ‘Abd See also Cross-cultural contacts;
al-Malik, 37, 124, 128 Fiqh; Islamic natural law
Ibrāhı̄m (Q. 14:35–37), 53 theories; Juries and jurists;
Ihyā Ulūm al-Din (Al-Ghazzālı̄), 93 Jurisprudence and justice; Law,
Immediate point of view, see Bādı̄ theory of; Objectives of the law
al-rāʾı̄ (masqāsị d); Usul al-fiqh
INDEX 165
Islamic natural law theories, J

10, 17 “Jadid” movement in Central
Emon’s studies of theoretical Asia, 17
architecture of, 17, 51, 74n1, Ja‘far, 128
83–84, 135–154 Jāmiʿ al-bayān ʿan taʾwı̄l ʾāy al-Qurʾān
al-Ghazālı̄ on, 11–12, 34, 51, (Al-Ṭ abarı̄), 57, 58, 63, 76n15,
83–99 76n18, 77n26
mı̄thāq (Qur’anic Covenantal Al-Jaṣsạ ̄s, 74n1, 144
natural law and social contract Jayūmart (Persian king), 68
theory), 11, 58 Jefferson, Thomas, 33
natural and divine law in Al-Fārābı̄ Johansen, Baber, 73
and Ibn Rushd, John Chrysostom, Saint, 5
13–14, 123–132 Judaism and the Jews, 8, 18, 19n1,
and politics, 141, 150–153 56, 72, 96, 139
and social contracts, 10, 50–51 Jews as People of the Book, 27
Sunni Islam on, 139–141 Juries and jurists
Al-Ṭ abarı̄ on, 11, 45–74 approach to legal outcomes, 143,
use of by juries and jurists, 149, 150
51, 135–154 guided by concept welfare of the
as a Western concept, 46–48 people or common good, 52,
See also Islamic law; Law, theory of; 62, 64, 72–73 (see also
“Natural law” theory; Maṣlaḥa)
Objectives of the law (masqāsị d; guided by Qur’an, 57
Universal Declaration of jurist debates in the usul al-fiqh
Human Rights (UN); genre, 137–138, 140 (see also
Usul al-fiqh Usul al-fiqh)
Islamic Natural Law Theories Lafif and English jury, 34
(Emon), 137 and law based on a mode of
Islamic natural philosophy, 141 rationality, 138
Islamic philosophy, v, vi, 13, 98, 124, al-madhhab al-jarır̄ ı, Al-Ṭ abarı̄
141, 142 as, 57–58
Islamic revivalism, 14 and moral standards, 51
Islamic Ummah, 7, 8, 77n24 Muslim jurists not having
Islam Observed: Religious Development term to denote “natural
in Morocco and Indonesia law,” 151
(Geertz), 27 and rulers, 63, 73
Istihqaq and assize of novel Shafi’i, Hanbali, and Maliki
disseisin, 34 jurists, 149
ITC, see International Theological Al-Ṭ abarı̄ on, 63–64, 66
Commission (Catholic Church) use of natural law theories,
Ittaqā, 59, 75n13 51, 135–154
166 INDEX
Jurisprudence and justice, 135–154 Saint Thomas Aquinas on, 97

Anglo-American Al-Ṭ abarı̄ on, 63
jurisprudence, 38n1 Kurmanaliyeva, Ainur D., v–vi, 5,
ḥikma (just justice), 63 13–16, 123–132, 142
and Islamic natural law, 135–154
justice (’adl), 139, 145, 146 (see also
‘Adl (God’s justice)) L
and natural law theories, 51 Lafif and English jury, 34
Al-Ṭ abarı̄ on, 63–64 Land tax, 65–67, 69–71, 73
See also English Common Law; Fiqh; Lautsi v Italy, 153
Maqāsị d; Maṣlaḥa Law, theory of, 83
English Common Law, 33, 34, 38n1
in a global historical
K perspective, 1–19
Kalām (kalam), 88, 127, 138, 144 human need for law, 131n2
Kāvād I (Sassanid Shāh), 70 legal philosophy, 35, 142–143
Kazakhstan, 10, 15 legal theology, 144, 148, 150
Khalaqa, interpretation of, 75n13 legal theory or methodology
Khayyam, Omar, 16 (see Usul al-fiqh)
Khilaf (legal disputes), 143 moral standard for, 74n1
Khusrāw Anūshirwān (Sassanid natural law theory of morality
Shāh), 70, 71 (see Morality)
Khusrāw Parvı̄z (Sassanid Shāh), 71 objectives of the law (see Maqāsị d)
Kimiya’e Saadat (Al-Ghazzālı̄), purposes of law, 144, 147
84, 93, 98 religious law, v, vi, 14, 97, 126, 128
Al-Kindi, 123, 130 (see also Shari’a (sharia/
Kitāb, 56, 58, 67, 69, 70, 75n9 sharia) law)
Ahl al-kitāb, 55 secular law, vi
Knowledge, 103, 145 unwritten laws, 12–13, 111–116,
Aristotle on, 12, 103–106, 120n26, 120n29–31
116, 117n3 Usul al-fiqh as bridge between
based on revelation, 124–125 theology and law, 140,
and faith, 8 142–143, 146, 150
al-Fārābı̄ on, 124, 126, 127 See also Divine law; Islamic law;
al-Ghazālı̄ on, 96, 97 Islamic natural law theories;
Ibn Rushd on, 13, 112–114, 116, Juries and jurists;
119n24, 124, 128, 129 Jurisprudence; “Natural law”
moral knowledge, 97, 116, 117n3 theory; Rule of law;
vs. opinion, 117n3 Western law
perceptual knowledge, 104 Laws (Plato), 124
public (communal) knowledge, Legal philosophy, 35, 142–143
12–14, 113 vs. natural philosophy, 141
religious knowledge, 112 Legal theology, 144, 148, 150
INDEX 167
Lerner, Ralph, 141 Mawāḍiʿ, 119n24

Levering, Matthew, 5 McGill University, 9
Lisān al-ʿarab (Manẓūr), 74n3, 75n8, McLeod, Owen, 106, 107, 110, 111
75n12, 75n13 MCR, see Middle Commentary on
Locke, John, 50 Aristotle’s Rhetoric (Talkhis Kitāb
Louis IX (French king), 32 al-Khaṭāba li Arist ̣ū) (Ibn Rushd)
Lowry, Joseph E., 76n19 Medieval studies, 10, 50, 154n5
legal theorists, 76n20
medieval Christianity, 5, 8
M medieval Islamic philosophy, v–vi,
Al-Maʻarrı̄, Abū al-ʻAlāʼ, 36, 128 13, 112, 114, 124, 125
Madhhab [law school], 11, 13, 58 medieval Jews, 73
Magna Carta, 50 medieval philosophers, 34
Mahdi, Muhsin, 141 medieval thinkers on Aristotle,
Maimonides, Moses, 6 17–18, 102, 103
Makdisi, George, 140, 143 Medina, 27, 53–59, 71, 855, 75n4–6
Malik, Charles, 5, 9, 19n1 Metaphysics
Maliki jurists, 150 al-Fārābı̄ on, 125, 126
Mamluk (Ottoman domain), 35 al-Ghazālı̄ on metaphysics of nature,
al-Manṣūr (caliph), 64 12, 15, 89, 98, 99
Manūshihr (Persian king), 69 and theology, 126
Maqāsị d (objectives of the law), Middle Commentary on Aristotle’s
11, 152–153 Rhetoric (Talkhis Kitāb
defined objectives of, 51, 65 al-Khaṭāba li Arisṭū) (Ibn
in Islamic jurisprudence, 84 Rushd), 112–115, 119n20,
Maqasid al-shari‘a:, 146–147 119n23, 119n24,
Maqāsị d and Maṣlaḥa, 51, 65, 120n26, 120n29
76n20, 84, 147 Mirandola, Pico della, 31, 36, 37, 56
Marchand, Suzanne, 138 Miṣāḥa and land tax, 67, 70
Maronite traditions, 19n1 Mı̄thāq (Qur’anic Covenantal natural
Mårtensson, Ulrika, 5, 10, 11, law and social contract
45–77, 143 theory), 11, 58
Ma‘ruf, Naji, 132n4 See also Qur’anic Covenant
Mashanov, A., 126 Moad, Edward, 5, 11–12, 34,
Maṣlaḥa 83–99, 139
as common good or public welfare, Mongol devastation
11, 51, 54, 62–64, 72–73, 147 (conquest), 17, 27
al-Ghazālı̄ on, 51, 65, 83, 84, 147 Montgomery, John Warwick, 33, 38n1
Maqāsị d and Maṣlaḥa, 51, 65, Morality, 13, 28
76n20, 84, 147 Aristotle on, 12, 103, 104, 106,
Al-Ṭ abarı̄ on, 62–65 110, 111, 115, 116, 117n3
“Masters of Covenant” (baʿalei and Covenants and
berith), 49 constitutions, 49, 72
168 INDEX
Morality (cont.) applying to Qur’an and Qur’anic

essential elements of, 85 concepts, 52–57, 67, 72
al-Ghazālı̄ on, 11, 90–94, 96–98 authority and natural law theory of
and moral epistemology, 11, 83 law, 46, 48, 49, 51, 52, 83
moral knowledge, 97, 116, 117n3 comparative study of Al-Fārābı̄ and
moral norms and standards, 11, 46, Ibn Rushd, 13–14, 123–132
47, 51, 52, 60, 66, 72, 74n1, definition of, 46, 49, 50
85, 86, 88 and free use of reason, 46
moral reasoning, 120n33 al-Ghazālı̄ on, 11, 12, 34, 83–99
moral relativism, 141 God as source of “highest law,” 50
natural law theory of morality, hard natural law, 84, 144–146
11–12, 46–48, 83–85 history of, 5, 11, 34, 47
objective moral norms, 11, 85, 86, Latin Christian study of, 151
88, 93, 94 and natural law philosophy,
Saint Thomas Aquinas on, 11–12, 138, 141
46, 47, 95 natural law theory of morality,
Al-Ṭ abarı̄ on, 52, 60, 66, 72 11–12, 46–48, 83–85
UDHR preamble as example of new natural law theory, 120n33
moral standards, 47, 74 reason and divine revelation in
See also Ethics theories of natural law, 5, 10,
Muhammad, Prophet, 27–29, 67, 71, 46, 50, 123–132
75n4–6, 123 soft natural law, 83, 84, 144–146
Prophet’s Companions and Al-Ṭ abarı̄ on, 52, 66
Successors, 58, 64, 67 UDHR preamble as example of, 10,
Prophet’s sunna, 27, 50, 57, 58 47, 48, 74
and the Qur’an, 27, 50, 51, 55–56 Western concepts of, 7, 8, 46–48
Mujāhid ibn Jabr, 61, 63 See also Islamic natural law theories
Muqāsama and land tax, 67 Natural philosophy vs. legal
Mutakallim, 127, 128 philosophy, 141
Mu’tazila, 51, 74n1, 140, 152 Natural Right and History (Strauss),
al-Ghazālı̄ on, 84–88, 95, 96 141, 142
and Hard Natural Law, 51, Neoplatonism, 124
144–145 Nicomachean Ethics (Aristotle),
102–106, 108–111, 118n9, 124
Non-Alignment Movement (NAM), 8
N Nussbaum, Martha, 105–107, 110,
NAM, see Non-Alignment Movement 118n6, 118n15
National security interests attitudes,
137, 154n2
Natural Compact, 75n7 O
Natural Law Institute at University of Objectives of the law (Maqāsị d ),
Notre Dame, 5 11, 152–153
“Natural law” theory defined objectives of, 51, 65
INDEX 169
in Islamic jurisprudence, 84 Perfection, 94, 124, 125, 132n6

Maqasid al-shari‘a:, 146–147 Peripateticism, 123, 124
Maqāsị d and Maṣlaḥa, 51, 65, See also Aristotle and Aristotelianism;
76n20, 84, 147 Fārābı̄, Al-; Kindi, Al-
Objectivism, 85 Philology, 141–142, 147
Objectivity “Philosopher’s stone,” 97
and human purpose, 93 Philosophy, 132n2
objective moral norms, 11, 85, 86, legal philosophy, 35, 141–143
88, 93, 94 medieval Islamic philosophy,
of obligation, 86–89 124, 125
of value, 90–93 natural law philosophy, 138, 141
Obligation and philology, 141–142, 147
al-Ghazālı̄ on the obligatory, philosophical rationalism, 3
86–88, 95 political philosophy, 102, 103, 109,
objectivity of, 86–89 110, 141
Occidentalism/orientalism, 2 and religion, v, 125,
Office of the UN High Commissioner 129–131, 131n1
for Human Rights (OHCHR), 7 social philosophy, 124
OIC, see Organization of Islamic See also Islamic philosophy
Cooperation (or Conference) Plato, 5, 47, 49, 102, 104,
Opwis, Felicitas, 64, 65, 74n1 118n5, 124
Oration on the Dignity of Man The Political Regime (al-Sı̄yāsat
(Mirandola), 37 al-Madaniyya) (al-Fārābı̄), 102
Organization of Islamic Cooperation Politics, 63, 71
(or Conference), 7, 8 endoxic method in Aristotle’s
Organon (Aristotle), 107, 108 Politics, 108–113
Orientalism (Said), 2, 151 Ibn Rushd’s political intentions, 142
Orientalism/occidentalism, 2 and Islamic natural law theories,
Origen, 5 141, 150–153
“The Origins of Sharia” (Vikor), 28 political philosophy, 102, 103, 109,
Owen, G. E. L., 118n6 110, 141
vs. religion, 13, 116
Politics (Aristotle), v, 102, 104, 108,
P 109, 113
Palgrave Macmillan (publisher), 19 Populism, 13, 111, 116
Parliament of the World’s Religions acephalous populism, 103
(PWR), 9, 10 Positivism/Soft Naturalism, 51, 66
Partidas (laws codified by Posterior Analytics (Aristotle), 117n3
Alphonse IX), 35 Potz, Richard, 29
Paul, Apostle (Paul of Tarsus), 5, 38n1 Preamble to the UDHR, see Universal
Pelagius, 5 Declaration of Human
Perceptual knowledge, 104 Rights (UN)
170 INDEX
Principles of the Opinions of the Citizens Qur’anic citations

of the Virtuous City 1, 58
(al-Fārābı̄), 124 1:6, 70, 77n26
Proceedings (Natural Law Institute), 6 2:125–126, 53
Protagoras (Plato), 104 2:176–177, 54
Puritans and Biblical Covenant, 2:177 (Al-Ṭ abarı̄’s Exegesis
49, 50, 72 of), 76n18
Purpose, one’s, 90, 92, 93 3:79, 52, 72–73
PWR, see Parliament of the World’s 3:79 (Al-Ṭ abarı̄’s Exegesis of), 62–66
Religions 4, 75n13
4:1, 52, 72
4:1 (Al-Ṭ abarı̄’s Exegesis of), 59–63
Q 5:44–48, 55
Al-Qāsim, 128 6:149–152, 55
Qubh, see “Bad” 7:172, 54, 56, 67, 68, 75n6
Qur’an 9:29, 27
on “bad,” 70 11:27, 112
as basis for formation of a state 14:4–5, 52
system, 7 14:35–37, 53
on common good, 51, 63, 64, 66 48:10, 55
on compensatory liability, 148–150 96:4, 67
concepts of Creation and ḥaqq, 52, 72 106, 52
Covenants in the Qur’an Qur’anic Covenant, 10–11,
(see Qur’anic Covenant) 45–73, 75n6
as divine revelation and divine ḥaqq as Qur’anic term for, 54
guidance, 27, 50, 58, 75n12 Mı̄thāq (Qur’anic Covenantal
exegesis as legal traditions of natural law and social contract
Al-Ṭ abarı̄, 52, 59–66, 72–73, theory), 11, 58
76n14, 76n19 on relationship between God and
Ibn Rushd on allegorical humans as a social
interpretation of, 13, 129–130 contract, 52–57
and land tax, 66, 73 Al-Ṭ abarı̄ on, 52, 72–73 (see also
as moral basis, 51, 52 Al-Ṭ abarı̄, Muḥammad b. Jarı̄r,
and Muhammad the on Covenants)
Prophet, 67, 123 See also Creation Covenant
“natural law” theory applied to, Quraysh, 52, 53
45–73, 139 Qurbā (close or distant
and social contract, vi, 45–77, 75n13 neighbor), 76n15
as a source of rulings, doctrines and
laws, 27, 30, 51, 55–58, 64,
73, 75n13, 139 R
use of ittaqā to mean fulfilling Rational authority, 76n20
obligations, 75n13 Rationalism, 3, 17, 51, 130
INDEX 171
Al-Rāzı̄, Muḥammad Fakhr See also specific religions,

al-Dı̄n, 76n14 (i.e., Christianity, Judaism,
Reason Sunni, etc.,); Theology
and authority, 112, 124, 140, 141, Republic (Plato), 102, 124
143, 147, 150–153 Revelation
comparative study of Al-Fārābı̄ and comparative study of Al-Fārābı̄ and
Ibn Rushd on, 13–14, 123–131 Ibn Rushd on, 13–14, 123–131
and faith, v, 16–18 al-Ghazālı̄ on, 16, 91
as first principle of human acts, 46 in a global historical
free use of reason, 46 perspective, 1–19
al-Ghazālı̄ on reason, 16, 93–99 knowledge acquired by way
in a global historical of, 124–125
perspective, 1–19 and obligations, 87
and human nature, 93–99 and reason in relation to natural and
human reason and divine revelation, divine law, 123–132
5, 10, 14, 18, 124–125, 129, 131 relation of law and reason, 1, 7, 18
and moral norms, 11, 86, 92–94, 98 role of, 112
natural law theories, 140, 150–151 silence of (min qablu wurud
natural reason, 96 al-shar), 138
relation of law and revelation See also Divine revelation
to, 1–19 Rights of God, 51
and revelation in relation to natural Rights of Humans, see Human rights
and divine law (Al-Fārābı̄ and Risalat al-ghufran (Epistle of Pardon)
Ibn Rushd on), 13–14, 123–131 (al-Ma’arri), 36
role of, 112 Roger II (Sicilian king), 32–34
Saint Thomas Aquinas on, 11, 46 Ross, W. D., 118n6
theology of reason, 8 Rubenstein, Richard E., 17–18
Reason, Faith, and the Struggle for Rule of law, 65, 72, 73
Western Civilization (Gregg), 9 in the Universal Declaration of
Regnery (publisher), 9 Human Rights, 47–48, 74
Reinhart, Kevin, 84–87, 91, 95 Waldron on, 48, 65
Religions
and human rights, 8–10, 45–46
and philosophy, v, 125, S
129–131, 131n1 Sahin v. Turkey, 153
vs. politics, 13, 116 Said, Edward, 2, 151
religious authority, 28, 46, 113, Ṣalāḥ (people’s welfare), 64, 65
115, 124 See also Common good
religious knowledge, 97, 112 Salaymeh, Lena, 26, 28, 30
and religious law, v, vi, 14, 97, 126, Sassanid Empire, 27, 29, 70–73
128 (see also Shari’a (sharia/ “The Second Teacher” (al-Fārābı̄’s
sharia) law) theory of human intellect), 125
172 INDEX
Secular law, vi Soft natural law, 83, 84, 145–147

See also Law, theory of “Sons of Covenant” (benai berith), 49
Secular state, vi, 7, 14 Soviet Union
Selam, Adb es-, 132n4 and Central Asia, 14–17
Shafi’i jurists, 149 Muslim peoples in, 15, 16
Shari’a (sharia/sharia) law, 8, 131n1 rejection of divine revelation, 17
development of foundational sharia Soviet Afghan War, 14
law schools, 26 Spanish legal history, 29
as divinely revealed code of law, 15 Spengler, Oswald, 4
historical sources for, 26–30, 32 Stark, Rodney, 8
Maqasid al-shari‘a, 146–147 Starr, S. Frederick, 16
non-Islamic influence on, 31, 35 Stoics and Stoicism, 5
See also Islamic law; Islamic natural Strauss, Leo, 141, 142, 154n4–5
law theories; religions, and Suárez, Francisco, 35
religious law Sunna (Sunnah), 27, 28, 50, 51,
Al-Shatibi, 145 57, 58, 64
Shifā’ al-Ghalı̄l (Al-Ghazzālı̄ ), 54 Sunni Islam, 64, 153
Sidgwick, Henry, 98, 120n33 Sunni legal theory, 65
Slaves, 54, 76n18, 108 Sunni orthodoxy, 139–141, 152
Smith, Anthony D., 2 Sunni schools of law, 149
Social contract theory, vi, 74–75n3 Sūras, 52, 53, 58, 61
applying to Qur’an and Qur’anic See also specific Qur’anic
Covenant, 45–77 chapter names
and authority, 48, 52, 63, 72 Switzerland, impact of Swiss denial of
contractual ethics, 75n13 citizenship to Syrian Muslim
covenant and constitution in, 49–50 family, 4–5, 10, 45
Elazar on, 49, 50, 72, 73
and Islamic Natural Law,
50–57, 72, 73 T
and land tax in Al-Ṭ abarı̄’s History, Al-Ṭ abarı̄, Muḥammad b. Jarı̄r
66–67, 73 on bayān, 57–58, 75n12
and mı̄thāq, 11, 58 biographical information, 58, 65,
prophetic social contract, 72 66, 73, 143
Al-Ṭ abarı̄ on, 11, 45–77, on contractual ethics, 75n13
76n19, 77n29 on Covenants, 58, 67, 68, 71–73
theoretical models of, 62, 76n19 on creation, 11, 52, 59, 62, 66–72
UDHR preamble as example on land tax, 65–67, 69, 70, 73
of, 48, 49 on rights and ownership, 59, 60,
See also Contracts 72–73, 76n14, 76n15, 76n18
Sociology of Islam (list serve), 1, 45 theories of natural law and social
Socrates, 105 contracts, 10–11, 45–77
Soft Naturalism/Positivism, 51, 66 on ‘umma, 77n24
INDEX 173
use of tafsir, 57, 143 Kalām (kalam) theology, 127,

works of, 57–59, 63, 75n12, 76n15, 138, 144
76n18, 77n26 (see also Exegesis legal theology, 144, 148, 150
of Al-Ṭ abarı̄; History, and metaphysics, 126
Al-Ṭ abarı̄’s) Puritan Covenant theology, 50
Tafsir, 57, 143 theology of reason, 8
Tahāfut al-Falāsifa (Incoherence of the and usul al-fiqh, 140, 142–143, 146,
Philosophers) (Al-Ghazzālı̄), 150, 154n5
15, 130 voluntarist theology, 146,
Tahafut at-Tahafut (The Incoherence of 147, 152
the Incoherence) (Ibn Rushd), 130 See also Religions
Taliaferro, Karen, 5, 10, 12, 13, Thomas Aquinas, Saint, 6, 12, 31
101–120, 142 and al-Ghazālı̄, 12, 34, 89, 96–97
Taliban, 15 moral theory of, 11–12, 85, 95
Talkhis Kitāb al-Khaṭāba li Arisṭū and natural law theory, 5, 12, 34,
(Ibn Rushd), see Middle 46, 47, 49, 98
Commentary on Aristotle’s Tocqueville, Alexis de, 101, 117n1
Rhetoric (Talkhis Kitāb Tokarczyk, Roman, 6
al-Khaṭāba li Arisṭū) (Ibn Rushd) Tollefson, Christopher, 120n33
Taʾrı̄kh al-rusul wa’l-mulūk (History Toynbee, Arnold J., 4
of the Messengers and the Kings) Treaty of Westphalia, 138
(Al-Ṭ abarı̄), see History, Al-Tufi, Najm ad-Din, 145
Al-Ṭ abarı̄’s Al-Ṭ ūsı̄, Muhammad ibn
Taxes and tax reform, 32, 33 al-Hasan, 76n14
community tax (al-zakāt), 54
head (poll) taxes, 27
land tax, 65–67, 69–71, 73 U
Teleological ethics, 98–99 UDHR, see Universal Declaration of
Terrorism, v, 2 Human Rights (UN)
antiterrorism, 151 Ulugh Beg Mirza, 17
and national security interests, ʿUmar b. al-Khatṭ ạ ̄b (caliph),
137, 154n2 27, 71
War on Terror, 14 Covenant of Umar, 26–27, 29
Thanking the benefactor, 85–87, 94, Umayyad Caliphate, 71
95, 114–115 ʾUmma (community), Islamic,
Theology 7–8, 77n24
boundaries of law and theology, 143 United Nations, 7, 8, 10, 31, 47
of first principles, 139, 142, 143, Office of the UN High
145, 147 Commissioner for Human
framing Islamic natural law in Rights, 8
theological terms, 142–143 UNESCO, 10, 38
and Islamic natural law See also Universal Declaration of
theories, 138–142 Human Rights (UN)
174 INDEX
Universal Declaration of Human W

Rights (UDHR), 5–8, 52, 153 Waldron, Jeremy, 48, 65
comparing Exegesis of al-Nisāʾ Wars of Religion, 138
(al-Al-Tabari) to Weber, Max, 76n20
preamble of, 74 Weller, R. Charles, 1–19,
Islamic contribution to, 31 25–38, 49, 151
preamble as example of natural law Western law
and social contract theories, historical relation of Islamic and
10, 47–48 Western law, 10, 25–38
University of Naples, 34 Islamic law’s influence on,
University of Notre Dame, 6 32–37
University of Salamanca, 35 relation of reason and revelation, 1
Unwritten laws, 12–13, 111–116, terminologic definition of, 2
120n26, 120n29–31 Western and non-Islamic influence
Usul al-fiqh (legal theory or on, 2–3, 10, 25–31, 151
methodology), 137–138, 144, See also Cross-cultural contacts;
145, 148, 151, 154n5 Law, theory of; “Natural
as bridge between theology and law, law” theory
140, 142–143, 146, 150 Western societies, impact
al-Ghazālı̄ on, 87 of Islamic thought on,
See also Fiqh v, 3, 5, 7, 37
Utilitarianism, 98 Westphalia, Treaty of, 138
William II (Sicilian king), 32–33
V
Value, objectivity of, 90–93 Y
The Victory of Reason: How Christianity Yāqūt, 57
Led to Freedom, Capitalism and
Western Success (Stark), 8
Vikor, Knut, 28 Z
Voluntarists and voluntarism, 139, al-Zamakhsharı̄, Maḥmūd b.
146, 147, 152 ʿUmar, 76n14

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ISLAM AND GLOBAL STUDIES

a) provide comprehensive insights of the intellectual developments

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ISSN 2524-7328 ISSN 2524-7336 (electronic)

As Aristotle says in Politics, “humans are, by nature, social animals”. They

on philosophy grounded in human reason. It was typical for medieval

Department of Religious and Cultural Studies Ainur D. Kurmanaliyeva

Special thanks to Tugrul Keskin, editor-in-chief of the Sociology of Islam

1 Introduction: Reason, Revelation, and Law in Global

2 The Historical Relation of Islamic and Western Law 25

3 Through the Lens of the Qur’anic Covenant: Theories of

4 Al-Ghazali’s Ethics and Natural Law Theory 83

5 Elitist Democracy and Epistemic Equality: Aristotle and

6 “A Comparative Study of Reason and Revelation in

7 Epilogue: Critical Reflections in Retrospect and Prospect135

Anver M. Emon is Professor of Law and History; Canada Research

Ulrika Mårtensson is professor at the Department of Philosophy and

Introduction: Reason, Revelation, and Law

© The Author(s), under exclusive license to Springer Nature 1

First, with respect to the much debated and problematic constructs

opposition to one another who are entirely unaffected by their encounter

365–366)—this brief historical overview thus far emphasizes Christian

Elsewhere in relation to similar claims, Bulutai promotes the idea that

balanced civilization in which harmony is established between this life and

Here again we have aspirations “to contribute to the efforts of mankind

of World and Traditional Religions hosted by the government of

• sets forth the UDHR as a comparative point of reference in the late

Mujahideen resistance. The success of their US-supported resistance

historically deterministic manner. The impact of “the Mongol devasta-

It is hoped that these analyses—arranged both historically and topically

Altayev, Zhakipbek. 2016. Әл-Фараби мұрасының қазақ даласына қайта оралуы

Morris, Zailan. 2003. Revelation, Intellectual Intuition and Reason in the

Sachedina, Abdulaziz. 2001. The Islamic Roots of Democratic Pluralism. Oxford

The Historical Relation of Islamic

© The Author(s), under exclusive license to Springer Nature 25

Western as well as Other Non-Islamic Influence

People of the Book”—namely Jews, Christians, and Zoroastrians. In brief

made a substantial contribution to unraveling the complicated history

principles and shari’a” were likewise merged into “a hybrid Islamic-French

Aquinas and Mirandola (see below)—into consideration, the Islamic con-

The Historical Influence of Islamic

Against the backdrop of many long centuries of interaction and exchange

Spain, this intercultural exchange was facilitated by a European Christian

Against this historical backdrop, there is a strong case to be made for

II (r. 1154-89) via his Norman Sicilian connections (Makdisi 1990:146;

With respect to the development of certain cardinal democratic princi-

[a]mong the Arabians, there is in Averroës something solid and unshaken,

philosophy, to rest on the discoveries of foreigners and simply to perfect the

In addition to the Arabic Muslim influences which Mirandola named in

influence of the legal traditions of certain (formerly) non-Western and

Through the Lens of the Qur’anic Covenant:

© The Author(s), under exclusive license to Springer Nature 45

refers, in international legal contexts, to human rights, which in turn are

Natural Law Theory: ‘Western’ Concepts

is necessarily supported by a claim of truth. In Finnis’ words, the truth-­

A theory of natural law claims to be able to identify conditions and princi-

Consequently, Finnis conceptualizes the history of natural law theory

The Rule of Law comprises a number of principles of a formal and proce-

In other words, the contemporary human rights dependency on rule of

Covenant, Constitution, Social Contract

Islamic Natural Law and Social Contract

functioning as an agreed-upon moral standard for lawmaking, in line with

Natural Law and Social Contract in the Qur’an

. For Quraysh’s contract of protection (liʾı̄lāf Quraysh):

a) provide comprehensive insights of the intellectual developments

1 Introduction: Reason, Revelation, and Law in Global

2 The Historical Relation of Islamic and Western Law 25

3 Through the Lens of the Qur’anic Covenant: Theories of

4 Al-Ghazali’s Ethics and Natural Law Theory 83

5 Elitist Democracy and Epistemic Equality: Aristotle and

6 “A Comparative Study of Reason and Revelation in

7 Epilogue: Critical Reflections in Retrospect and Prospect135

is necessarily supported by a claim of truth. In Finnis’ words, the truth-