Response to David Novak’s “Natural Law and Judaism”
Response to David Novak’s “Natural Law and Judaism”
Abstract and Keywords
This Response provides a response to Chapter 1 which is about Judaism and natural law. The response addresses the common presumption of natural law as associated with the Latin West, and explores the relevance, let alone possibility, of positing a natural law theory within a tradition from traditions that have a different genealogy. In particular, it takes issue with those who would reject a Jewish or Islamic natural law as anachronistic to the respective traditions. Moreover, it reflects on the common presumption of natural law as espousing universal values, while also addressing whether, how and to what extent a community of tradition, with its own conceptual vocabulary, can contribute to a natural law discourse.
David Novak’s scholarship on natural law and Judaism spans decades; and from his contribution to this volume, it is obvious that there are many points to which I could address this response. I will focus my response on a narrow range of issues, which I will structure along the lines of Novak’s numbered points and considerations. In particular, this response will focus on three points that arise in Novak’s essay and which pose important and interesting points of comparison in the spirit of this volume.
I. Is Natural Law Endemic to Islamic Thought?
Both Novak and I argue for natural law theories within the Jewish and Islamic legal traditions, all the while aware of a critique that rejects such a theoretical possibility. As Novak writes, “[t]here are those who presume coherent natural law thinking presupposes the type of natural ontology developed by classical Greek philosophers, especially Plato, Aristotle, and the Stoics.”1 In the case of Islamic natural law theories, the theoretical approaches I have identified in pre-modern Islamic legal philosophy, namely the approaches of Hard and Soft (p.46) Natural Law, have engendered, among others, the objection that to frame such approaches as “Islamic” natural law theories gives undue priority and authority to a “Christian/Western” tradition that defines the terms of what can count as an “Islamic” approach to natural law. A more philological version of this objection may be to suggest that there can be no “natural law” tradition in Islamic law because the very idea and phrase “natural law” does not occur in Islamic legal history. There are other terms of art that such critics would invoke as more appropriate focus for a study about reason and authority in Islamic law. Those terms might include maslaha, maqasid, istihsan. I suspect that similar criticisms can be applied to any other attempt to articulate a natural law approach from traditions other than the Christianized Western one.
In the Islamic studies context, these sorts of critiques draw their significance and strength from the critiques of Orientalist scholarship that sometimes too easily frame the Christian West (and its intellectual tradition) in imperial terms.2 This is not to suggest that such critiques are unfounded; indeed they are important historiographic contributions to the study of Islam and Islamic law specifically, and the post-colonial world more generally. But to argue from such positions against the possibility of an “Islamic” natural law is arguably to posit as “Islamic” only that which is unadulterated or uncontaminated by ideas that are associated with an Other. By implication, such a position presumes a pure or authentic Islam that, ironically, reifies what Islam is and can be in a fashion akin to what Orientalist scholars of Islam have already done, and for which they have been roundly criticized.3
Although these post-colonial forms of critique are important to address and account for, they do not and cannot solely and fully define the scope of what is possible in terms of Islamic legal research. They cannot define and delimit the questions that we can pose of the Islamic tradition. Indeed, to suggest that we can delimit the questions that can be posed of a historical tradition suggests that all we can do is explore (p.47) new answers to old questions. But as the critic of post-colonial theory, David Scott, suggests, critiques such as those posed of my approach to Islamic natural law ignore the pressing imperative of accounting for how changes in our twenty-first century world pose new questions that old answers (or new answers to old questions) cannot satisfy. As Scott writes: “In new historical conditions, old questions may lose their salience, their bite, and so lead the range of old answers that once attached to them to appear lifeless, quaint, not so much wrong as irrelevant.”4 Throughout the Muslim world, we are witnessing how old/new answers to old questions either miss the point of innovative scholarship or actively seek to suppress such scholarship in the name of an Islamic purity. For instance the well-known legal action in Egypt against the late scholar Nasr Hamid Abu Zayd on grounds of apostasy alleged that he had written about the Qur’an in a manner that reflected the heterodox theology of Mu’tazilism—an allegation that was dubious at best,5 politically motivated at worst.6
Drawing upon Scott’s critique of post-colonial theory, I suggest that a “natural law” frame of reference provides a valuable starting point for asking new questions of the Islamic tradition. As new questions, though, they disrupt a certain status quo in the historiography of Islamic law. For instance, if Islamic natural law theories posit nature as a mediating concept that makes possible the ontological authority of reason, one can appreciate this as an answer to questions about whether, how, and to what extent jurists understood their ontological authority to develop legal rulings in light of the infinite experience of humanity and the finite sources of authority. So much of the literature on the jurist’s legal authority has focused on his epistemic authority (i.e., ijtihad and other related methods). Islamic natural law theory, however, shifts the question from epistemology to ontology to explore new approaches to and insights on the issue of authority. Some may (p.48) find this question sufficiently unfamiliar as to be discomfiting. Take for example a fundamental irony about Islamic natural law theories that I discuss in my essay to this volume, namely that despite starting from opposing theological positions, jurists developed distinct natural law theories that are not terribly different from one another. The Islamic natural law approach reveals the theological distinctions between these jurists to be rather insignificant in regard to questions about ontological authority in law. Yet some might prefer focusing on debates about Mu’tazilite and Ash’arite ethics, and in that sense, disregard “natural law” as a useful organizing concept.7 Clearly uncomfortable with the question posed from a natural law vantage point, David Warren situates his voice squarely in defense of the intellectual status quo. He writes: “Indeed, it is perfectly acceptable to use abstract concepts such as Ash’arite, Mu’tazilite, and so on for hermeneutical or explanatory purposes, whilst noting that they can never capture individual intricacies, and that a particular thinker may display characteristics that are applicable to both, or neither.” Indeed, he suggests that such an approach has the merit of focusing on terms and traditions “more firmly rooted in the discipline of Islamic law.”8
To hold to the status quo is less a critique of a natural law approach, and more an acknowledgment that new questions—such as those posed by a natural law frame of analysis—disturb an intellectual status quo. That does not mean, however, that the natural law approach is invalid or somehow irrelevant to a study of Islamic legal history. Indeed, the approach posits new questions, and thereby opens up new possibilities for research and inquiry. For instance, Rumee Ahmed describes the established categories of Ash‘arism and Mu‘tazilism as “standard, simplistic” and sees the possibilities posed by the new questions and answers of an Islamic natural law as encouraging “a multifaceted view of legal theory and legal theorists.”9
What should be evident in this short analysis, therefore, is that whether natural law is a helpful model for understanding pre-modern Islamic jurisprudence depends less on what the pre-modern sources offer, and more on the dispositions of contemporary scholars writing (p.49) and researching about Islam. In a climate of ongoing debates about what counts as “true,” or “pure” or “authentic” Islam, the scholarly defense of old answers and/or old questions all too often reifies what Islamic law was and thereby can be.
II. Islamic Natural Law: Toward a Philosophy of Law in Islam
Novak makes an important set of observations when addressing how the universality of natural law is bounded by the circumstances and particularity of the community within which the practical reasoning of natural law takes place. In this regard, he asserts that natural law thinking may aspire to a universal set of values, but always from within a particular tradition or cultural context.10 Furthermore, he situates the particularity of natural law thinking at the juncture of the disciplinary poles of theology and philosophy.11 The juxtaposition of these two points offers an important opportunity to reflect upon how the Islamic natural law theories I address in my contribution to this volume are perhaps best appreciated neither as a form of theology (kalam) nor as a form of natural philosophy within the tradition of falsafa, but rather as a gesture toward a philosophy of law in Islam.
What do I mean by a philosophy of law in Islam? Certainly this is not the place to articulate a robust picture of what philosophy of law in Islam can or should look like. But whatever Islamic legal philosophy is or might be, it cannot be merely elided with the genre of usul al-fiqh, or viewed as a set of deductive methods of legal determination (e.g., qiyas, maqasid and maslaha). To view usul al-fiqh as reflecting for the most part a legal method betrays the prioritization of epistemological questions over and even against the ontological ones such as authority and its sources. As Rumee Ahmed has shown in his Narratives of Islamic Legal Theory, there is more to the usul al-fiqh genre than merely debates about method of legal derivation. In the interstices of debates in treatises of usul al-fiqh, he shows that there are significant theological and cosmological questions that have (p.50) implications not just for the epistemology of Islamic legal theory, but also for foundational questions about law, authority, and governance.12 Additionally, to elide usul al-fiqh and Islamic legal philosophy ignores how the detailed fiqh debates among jurists and across legal schools can and often do reveal a philosophy of law that might be implicit across a range of issues. Indeed, as I have shown in my treatment of the dhimmi rules, there is an implicit relationship between law and the enterprise of governance such that any contemporary approach to Islamic law and pluralism cannot also ignore how the advent of the modern state contributes new conditions of intelligibility for any discussion of what Shari’a can and ought to be.13
None of this is to deny that a philosophy of law in Islam would draw upon arguments from kalam and falsafa. But it cannot be so tied to such arguments as to be over-determined by them. Indeed, as noted above already, a fundamental irony of Islamic natural law theories is that despite starting from opposing theological camps, jurists of competing natural law theories reached roughly similar answers to the question about reason’s ontological authority in law. Furthermore, though their philosophy of law was premised upon a certain conception of nature, their approach to nature for purposes of natural law was different and distinct from their consideration of nature for purposes of their natural philosophy (al-tabi’iyat). If we examine the conceptual work that “nature” did in the different natural law theories espoused by pre-modern Muslim jurists, we find that it made possible the grant of ontological authority to reason. Whether one agrees or disagrees with any particular theory of Islamic natural law, the conceptual contribution of nature in an Islamic natural law theory does not simply reflect some empirical sense of an objective world, or require one to stake out a position as a hard or soft determinist with respect to causation. Rather, as suggested in my contribution to this volume, “nature” in Islamic natural law theories allows, at the very least, for enough determinacy to make possible the fusion of fact and value, which in turn makes possible the ontological authority of reason.
For many specialists of Islamic law, “maqasid” and “maslaha” are important technical terms of art that relate directly to the scope and nature of Islamic legal reasoning. Some specialists might even go so far as to say that any attempt to espouse an Islamic natural law theory is either at worst an imperialist intellectual exercise, or at best inattentive to the resources within the Islamic tradition. No doubt these terms of art are important ones; they have animated Muslim reformist thinking throughout the twentieth century and continue to bolster the hopes of those who look for increased space for inquiry within the rich, deep, and at times constraining tradition of Islamic law. Some might argue that such traditions are so organized against the interests of certain groups (e.g., women) as to preclude a more liberating reading of the tradition. That critique, though, does not preclude the fact that for people of faith, traditions such as Islamic law are repositories of meaning and identity; they are sites of both commitment and contestation. For example, the Muslim women’s reform movement Musawah seeks to reform Islamic family law in the Muslim world, in large part by working within the tradition of Islam as opposed to stepping outside of it. While secular feminists might view such an endeavor as quixotic, Musawah’s advocates recognize that for many Muslim women around the world, equality and belonging to community are both important principles that cannot be, nor necessarily need to be, hierarchized or prioritized in relation to one another.
For reformists, the challenge remains how to argue for a liberating project within the framework of Islamic law. On the one hand, there are inherited doctrines (fiqh), which constitute much of the traditional corpus against which reformists argue. Some might argue that these doctrines have a preclusive effect, constituting as they do precedents for issues across a range of topics. On the other hand, the inherited fiqh doctrines are themselves embedded as contingent particulars within a normative tradition. Any approach to a liberating model of practical reasoning would need to first recognize how the particularity of these fiqh rules limits their normative authority, and thereby limits their preclusive effect on any de novo attempt at interpretation within Islamic law. This is not the place to expand upon the authority (p.52) of fiqh; that topic has been addressed elsewhere at length.14 It suffices here only to summarize basic, but important, findings of existing scholarship on the authority of fiqh. As many have shown, despite the all-too-often determinate sounding nature of fiqh doctrines, they are embedded in a theoretical structure that limits their scope of authority. As I have shown elsewhere, the fiqh are those doctrines that arise from a jurist’s interpretive effort (ijtihad). Epistemically, these doctrines are premised upon a recognition that the jurist is limited: limited in knowledge, limited in time for research, and limited in his or her ability to know the divine will with any certitude. Indeed, the theoretical structure within which fiqh doctrines are embedded generally denies to such doctrines the quality of certainty or certitude. Rather, as jurists argued, the most a jurist can claim is that his or her legal conclusion is more likely than not to conform to the divine will, or most likely right though perhaps possibly wrong. In Arabic, the technical phrase is ghalabat al-zann, with zann being the key word that directly conveys the sense of opinion or speculation, and indirectly implies a certain epistemic humility when positing the normative heft of a legal argument.15 Given this theoretical frame within which fiqh doctrines are embedded, it is possible to envision how, despite the existence of these doctrines, a liberating project within the tradition of Islamic law might find a legitimate space to offer critique and espouse a different vision of what should count as fiqh.
Once space has been made within the framework of Islamic legal thought, the question remains how to orient such a project. As suggested in my own contribution to this volume, the historical natural law theories in Islam may require certain presumptions or commitments that contemporary thinkers might find unappealing. Some might take issue with the resort to nature, the fusion of fact and value, or a theology of God that espouses particular conceptions of divine justice or grace. Perhaps for these reasons or others, the pre-modern Islamic natural law theories may not find an audience today.
Regardless of the reason for rejecting such pre-modern approaches, there remains a fundamental irony in contemporary recourse to the pre-modern tradition. Reformist thinkers working within Islamic (p.53) law often resort to the maqasid-maslaha model of reasoning. This model was a pre-modern answer that is used today to respond to the contemporary challenge of clothing a liberating project in the historical language of the Islamic legal tradition. This is in no way to suggest that such projects are illegitimate or inappropriate. The issue of right and wrong, legitimate and illegitimate is less interesting than the irony of how pre-modern answers are made to answer modern questions. I use the term irony only because as suggested in my contribution to this volume, the maqasid-maslaha model of reasoning was the Soft Natural Law jurists’ attempt to circumscribe the scope of natural legal reasoning once they had espoused a theology of grace and a legal philosophy that granted reason ontological authority. The maqasid-maslaha model was their way of superimposing an epistemic model that both gave space for reasoned deliberation about the law, and substantially limited it so as to preserve the primacy of source-texts that either had or might otherwise be made to address a given legal controversy. For contemporary reformers to utilize the maqasid-maslaha model of reasoning to liberate themselves from the constraining features of fiqh is to utilize it for a purpose against which it was designed to protect. Here lies the irony.
Does the irony matter? Perhaps not. The historical tradition offers fruits that anyone can pick, if he or she so chooses. There is no police to discipline such usage. In that sense, in the absence of widely accepted institutions of authority, the wide-ranging resort to the maqasid-maslaha model, however one aims to use it, reflects a certain democratic spirit in contemporary debates on Islamic law. From a different vantage point, though, the irony does matter. Despite the proliferation of maqasid studies and reformist agendas modeled along the line of maqasid, there is one thing that links them together—the resort to the same five values articulated by al-Ghazali in the eleventh century: the protection of life (nafs), lineage (nasl), property (mal), mind (‘aql), and religion (din). In some cases, writers will invoke al-Qarafi’s reference to dignity (‘ard) as a substitute for religion or as a sixth value.16 But all too often, despite the recourse to maqasid in a liberatory spirit, the explication of what values count as aims of the law remain tied to and constrained by the historical tradition. So while the maqasid values may be broader and more indeterminate (p.54) than a given fiqh rule, the stipulated five (or six) aims in al-Ghazali’s al-Mustasfa constitute an anchor that keeps the liberatory project clothed with an Islamic attire while limiting how far it can move.
But where do those five values come from? What do they mean? And how do they operate as contemporary guides in a liberatory project toward justice? According to al-Ghazali, these five values are the kinds of values that any legal system would uphold. He then proceeds to illustrate how the Islamic legal tradition upholds these values, namely by reference to Qur’anic injunctions. For example, the Qur’anic injunction against theft protects property. Arguably, his invocation of Qur’anic injunctions does not mean these values are derived from the Qur’an. Rather, his reference to the Qur’an is meant to corroborate the five values that al-Ghazali identifies intuitively. Corroborating, though, is different from founding or determining or otherwise constituting these values. In other words, the source-texts are not the source of the five values; the values come from somewhere else—they are the values that any society would uphold if it is committed to a social life in which law provides a means of ordering and fulfillment.
But if al-Ghazali posited the five purposes of the law in al-Mustasfa intuitively, as if taken for granted, then the question for today’s maqasid advocate is whether and to what extent al-Ghazali’s five purposes prevail as the principle aims of a modern legal system embedded in an international state system that is highly bureaucratized and subject to global pressures of regulation, trade, communication, and so on. If al-Ghazali’s five values do not fully capture the scope of values that animate modern legal systems, then what are the purposes of the law that contemporary Islamic legal thinkers should posit? On what basis can they do so, and still claim to be wearing the cloak of an Islamic legal tradition that symbolizes their authority for their respective audiences?
More problematically, though, does positing such purposes of the law, whether old ones or new ones, actually aid in the practice of practical reasoning? For instance, suppose someone posits as new maqasid the modern human rights tradition. Such a set of values, though, begs important questions about what that tradition is, how it operates, and to what ends. Indeed, as contemporary scholars of Islamic law, human rights, and the international system have shown, there are serious concerns about how these various traditions, rather than acting in a liberatory fashion, all too often circumscribe certain (p.55) freedoms and liberties in favor of other interests and values.17 Suppose a new maqasid value is simply equality. As much as that might seem straightforward, there is no shortage of debate about what equality means. For instance, does equality refer to formal equality where everyone is treated the same, or substantive equality where we differentiate between peoples who are or are not disadvantaged in term of resource allocation?18
The modern recourse to the maqasid-maslaha model of reasoning poses notable concerns about whether and to what extent the model promises more than it can deliver given that it was originally designed to limit the scope of reasoned deliberation. It also forces serious questions about what it means to posit broad, abstract ideas as purposes of the law when so much of what legal inquiry concerns are highly contingent and particular issues framed by a broader cultural and linguistic context in which a specific legal issue or conflict arises. For that reason, it is useful to recall Novak’s remarks about natural law thinking: “[I]nstead of an attempt to find some universal phenomenon to ground natural law, or posit some ideal from which to deduce natural law, it seems to be more philosophically astute to see natural law as the projection of a universal horizon by a thinker in a particular culture for one’s own culture.”19 Novak is careful to circumscribe the ambit of Jewish natural law thinking so as to forestall any concern that natural law thinking is imperialistic. His remark about the significance of context, though, also serves as a reminder that (p.56) despite a desire to identify shared, universal values that bring humanity together, the fact remains that legal inquiry remains a sufficiently context-specific endeavor. Recourse to broad, abstract claims about aims or purposes of the law tend to over-determine or over-simplify what ought to remain a context-specific mode of inquiry.
There are many other issues that could be addressed in a response to Novak’s fine essay. Space prevents me from going further. Nonetheless, the three issues addressed above showcase important points of engagement that can arise by reading and working collaboratively on a project such as this. Each tradition posits questions and ideas, some of which resonate across traditions and others that do not. Dialogue across difference is not meant to undercut or delegitimate the more common and popular pursuit of shared values. But to recognize difference, work through that difference, and appreciate how we are each provoked by that difference increases not only an appreciation for the tradition we each consider “ours,” but also enhances our appreciation for the “other” tradition that, through the juxtaposition, helps us see “our” tradition more clearly.
(1) Novak, Sec. 1.
(2) Edward Said, Orientalism (London: Routledge and Kegan Paul, 1978); Dipesh Chakrabarty, Provincializing Europe: postcolonial thought and historical difference (Princeton: Princeton University Press, 2000).
(3) Indeed, this is the critique Mohammad Fadel lays against Wael Hallaq’s arguments about Islamization and Islamic reform in the modern nation-state. Mohammad Fadel, “A Tragedy of Politics or an Apolitical Tragedy?” Journal of the American Oriental Society 131, no. 1 (Jan-Mar 2011): 109–27.
(4) David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment (Durham: Duke University Press, 2004), 5.
(5) Thomas Hildebrandt, “Between Mu’tazilism and Mysticism: How much of a Mu’tazilite is Nasr Hamid Abu Zayd?” in A Common Rationality: Mu’tazilism in Islam and Judaism, eds. Camilla Adang, Sabine Schmidtke, and David Sklare, (Würzburg: Ergon in Kommission, 2007), 495–512.
(6) Nasr Hamid Abu Zayd with Esther R. Nelson, Voice of an exile: reflections on Islam (Westport, CT: Praeger, 2004); Baber Johansen, “Apostasy as objective and depersonalized fact: two recent Egyptian court judgments,” Social Research 70, no. 3 (Fall 2003): 687–710; Susanne Olsson, “Apostasy in Egypt: Contemporary Cases of Hisbah,” The Muslim World 98 (2008): 95–115.
(7) See for instance, Taneli Kukkonen, “[Review of] Islamic Natural Law Theories,” Philosophy in Review 31, no. 1 (2011): 26–28.
(8) David Warren, “[Review of] Islamic natural law theories,” Islam and Christian- Muslim Relations 22, no. 4 (2011): 495–6, 496.
(9) Rumee Ahmed, “[Review of] Islamic Natural Law Theories,” Review of Middle East Studies 45, no. 1 (Summer 2011): 100–102.
(10) Novak, Sec. 7.
(11) Novak, Sec. 7.
(12) Rumee Ahmed, Narratives of Islamic Legal Theory (Oxford: Oxford University Press, 2012).
(13) Anver M. Emon, Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law (Oxford: Oxford University Press, 2012).
(14) See for example, Ziba Mir-Hosseini. “The Construction of Gender in Islamic Legal Thought and Strategies for Reform.” Hawwa 1, no. 1 (2003): 1–31.
(15) Anver M. Emon, “To Most Likely Know the Law: Objectivity, Authority and Interpretation in Islamic Law.” Hebraic Political Studies 4, no. 4 (2009): 415–40.
(16) Emon, Islamic Natural Law Theories, 154–55, 194–99.
(17) See for instance, the collection of articles in Anver M. Emon, Mark Ellis, and Benjamin Glahn, eds. Islamic Law and International Human Rights Law: Searching for Common Ground? (Oxford: Oxford University Press, 2012). For a critique of the contemporary human rights tradition, see Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: Belknap Press, 2010). On the limits of the international legal system and its perpetuation of the colonial paradigm, see Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton: Princeton University, 2009); Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2009).
(18) On different approaches to equality in the context of gender, see Anver M. Emon, “The Paradox of Equality and the Politics of Difference: Gender, Equality, Islamic Law and the Modern Muslim State,” in Gender and Equality in Islamic Law: Justice and Ethics in the Islamic Legal Tradition, eds. Ziba Mir-Hosseini, Kari Vogt, Lena Larson and Christian Moe (London: IB Tauris, 2013), 237–58; Ratna Kapur, “Un-Veiling Equality: Disciplining the ‘Other’ Woman Through Human Rights Discourse,” in Islamic Law and Human Rights: Searching for Common Ground?, eds. Anver M. Emon, Mark Ellis and Benjamin Glahn (Oxford: Oxford University Press, 2012).
(19) Novak, section 7.