Introduction
Laws regulate behavior among people in society and, in a religious law, between a person and the divine. As a set of rules, laws indicate how one ought to behave and, thus, are intimately connected to ethical criteria that guide one's conduct and assess it as good or bad, right or wrong.
Yet, how is good conduct determined? Aristotle points out that “legislators make the citizens good by forming habits in them, and this is the wish of every legislator.”[3] Virtuous conduct, for him, is behaving in accordance with the laws the legislator laid down for the polis, the city state. For Muslims, God is the Legislator, who revealed His Law[4] to humankind through the Prophet Muhammad. The Qur’an and the Sunna, as the practice of the Prophet, inform about dos and don’ts. Divine rulings are simultaneously ethical and legal guidelines, and inform about a person's fate in the Afterlife in relation to acting upon these guidelines. The divine origin and otherworldly dimension of one's earthly conduct also means that questions of theology influence Muslim scholars as those tasked with articulating how Revelation translates into ethico-legal guidelines. Their theological positions inform, for example, their approach to the divine speech, its meaning, and its impact on the mundane conduct and otherworldly consequences for the believer. Ethics, law, and theology are closely entangled. Yet, as Mohamed Eissa in particular has demonstrated and as evident in the following chapters, there is no clear-cut dependency between a particular position in theology and a particular legal doctrine. Eissa concludes his study on the effects of theology on legal theory with the words “although theology has an impact on the legal theory of individual jurists, on group level this impact is not consistent.... [N]o one particular theology shapes the legal theory of a school of law.”[5] Throughout his study, Eissa shows that the legal implication of a particular theological position is often interpreted differently. He claims that scholars, whether deliberately or not, maintain a certain distance between theology and law in order to prevent theological differences from producing legal disagreement, thereby preserving the unity within the school of law.[6] While theological school affiliation does not determine a particular legal position, there are, I argue, nevertheless certain theological commitments that guide a scholar's interpretation of ethics and law (more on this in Chapter 1).[7] Notwithstanding the multitude of positions espoused by members of the same school of theology or law, there is some impact of theology on law, an impact that is noticeable - in particular with regard to individual jurists - yet that also interacts with a range of other factors, such as language theories, the socio-political environment in which a scholar lives, and personal psychology. Given that it is impossible to detect the influence of all factors on a jurist's position, this study focuses on a particular relationship between theology, ethics, and law - namely how Muslim jurisprudents understand the ethical content of the divine Law.If asked, Muslim scholars would deem it inconceivable that the Law imposed by God is not good. Yet, how exactly is it ‘good'? The connections between divine commands and ethics have always been a topic of debate. Similar to the Euthyphro dialogue, Muslims disagree over whether God commands an act because it is good, proposed by scholars leaning toward Mbtazilism in theology, or an act is good because God commands it, as Ashtaris hold.[8] The debates over the ways to discern the goodness of God's decrees were most intense prior to the 6th∕12th century, while the Mbtazili school of theology was still a major force in Muslim intellectual production. This is not to say that Mbtazili thought subsequently lost all influence or that its school had no proponents after that time.[9] However, its societal role waned in the later middle period of Islam, giving rise to a Sunni- dominated worldview in mainstream Islam that was characterized in theology by Ashtarism, Maturidism, and traditionalism.[10] My study is concerned with the period just prior to the 6th/12th century, and, more precisely, with the interplay between law and ethics before Sunnism and Ashtarism dominated the way scholars thought about the divine Law.
My inquiry into the ethical content of God's Law is motivated by what happened in Sunni legal theory after the late 5th/uth century. I try to work backward to find some of the roots to a shift that occurred in jurisprudents' thinking about analogical reasoning and the ratio Legis (rLLLa"). This shift, which I call the ‘ethical turn in legal reasoning,'[11] is exemplified by the Shafiti Ashtari scholar al-Ghazali (d. 505/1111). Accepting the practice of legal analogy (qiyds) suggests that Muslim scholars deem the acts that God commands and prohibits to have some characteristics that indicate their legal status and on the basis of which the ruling can be applied in analogy to situations not directly addressed by Scripture.[12] [13] In order to analogize, these characteristics must be recognizable in the commonality (ratio Legis) between the scripturally attested and the newly arriving situation. Prior to this shift that occurred in the late 5th to early 6th/late 11th to early 12th century, we find conceptions of the ratio Legis of divine rulings on a spectrum ranging from identifying it as a linguistic sign to determining its validity by its mundane consequences that are deemed to be intended by the Lawgiver, what Aron Zysow calls the ‘sign' and ‘motive' model of the ratio Legis, respectively.u These different approaches to the ratio Legis are significant for our topic and will be elaborated on throughout the study. The sign model, as described by Zysow, is associated with jurisprudents who understand the ratio legis as an indication and sign (amara, ralam) for its ruling, limited to linguistic and narrowly semantic features. Jurists who propose this view often consider efficacy (ta1thlr) the most important method to determine the ratio legis.[14] [15] [16] They reject the notion that the ratio legis in any way explains why God laid down the ruling. By contrast, proponents of the motive model understand the ratio legis to be a motive or incentive (daf, haith) for its ruling. It explains why God imposed a particular ruling and reflects God's legislative intent?3 In the motive model, the ratio legis is identified by its suitability (munasaha) to bring about the objective of the ruling?4 In order to analogize, jurists have to ensure that by giving the unaddressed situation the same ruling as the original case, they recognize and, hence, extend to it the same divine purpose. While one would expect that the sign model of the ratio legis is aligned with the Ashtari position that God's command makes an act good, this is, as we will see, not the case. After the 5th∕11th century, the motive model of the ratio legis became the leading way Muslim jurists conceptualized the relationship between God's legislative intent and the rulings He imposes upon humankind. This dominance, while coinciding with the ascendance of Ashtarism, is not a simple function of this school's approach to ethics. As Zysow remarks, a scholar's ethical theory does not necessarily determine his legal theory. One would think that a Muhazili approach to ethics and rationality is conducive to the motive model, whereas the Ashtari insistence on human inability to assign ethical status to acts would favor the sign model of the ratio legis. In practice, adherence to a particular model of the ratio legis cuts across theological and juristic school lines.[17] [18] [19] [20] [21] Hence, we find al-Jassas (d. 370/980) and Abu tAbdallah al-Basri (d. 369/980), two Muttazilis and Hanafis, on opposite sides of the ratio legis models.i6 Looking for motivation and purpose of the Law, counterintuitively, is championed by Ashtaris.17 It is also a feature of Maturidi legal thought. As we will see in the following chapters, it is not always easy to label one particular jurist as adhering only to the sign or the motive model of the ratio legis. The motive model is most clearly articulated by al-Ghazali, who understands the ratio legis as an expression of God's purpose in revealing His Law to humanity. He posits that the purpose of the Law (maqsud al-share) is maslaha, defined as protecting for humankind their religion (din), life (nafs), intellect (caql), offspring (nasl), and property (mal); what attains and preserves these elements on the level of necessity (damra), need (hdja), and improvement (tahsJn) constitutes maslaha, and is intended by the Lawgiver, whereas what harms them is mafsada, a cause of corruption that needs to be averted?8 Al-Ghazali justifies defining God's purpose as preserving these five elements of human existence with the revealed Law itself, namely on account of the scriptural prohibitions and harsh punishments for apostasy (ridda), drinking wine (sharb al-khamr), fornication (zind), and theft (sariqa) as well as rules of retaliatory punishment for bodily harm and killing (qisas).w God's purpose in revealing His Law was reified in the criterion of maslaha for these five existential elements. It served al-Ghazali to correctly identify the ratio legis and, additionally, to decide cases that did not have a concrete basis in the scriptural sources of the Law. Al-Ghazali defined the purpose of the divine Law as protecting the five necessary elements of human existence. His identification of the ratio legis of divine rulings in ethical and consequentialist terms had a lasting influence. Considering a ruling's mundane consequences on the five necessities became the prevailing way to determine a ratio legis when it was not explicitly stated. As Ahmad Hasan shows, the impact of understanding the revealed Law in terms of maslaha endured and spanned all four legal schools of Sunni Islam, though it was adopted in particular by Shafiti, Maliki and Hanbali jurists.[27] [28] Zysow diligently presents how even among Hanafi scholars, who do not generally use the concept of maslaha in law-finding, a purposive view of the ratio legis (the motive model) was widely accepted after the 5th∕11th century, when Hanafis endorsed identifying the correctness of the ratio legis by its suitability (munasaba).26 It is, hence, appropriate to say that a paradigm shift occurred among the majority of Muslimjurisprudents2[29] toward conceptualizing analogical reasoning in line with the divine legislative purpose, which finds expression - and is identifiable - in the ratio legis. The ethical turn in legal reasoning, which imbued the ratio legis with the ethical value of God's legislative intent, expanded the ability of Islamic law to speak to all of human experience. It ushered in a worldview in which God's revealed Law is all-encompassing not just in theory but potentially also in legal practice2[30] - a theological position held in particular by Ashtari scholars. The divine legislative intent reified in the ratio legis as attainment of maslaha and prevention of mafsada for the five necessities can be applied in the procedure of analogy (qiyas) to all of human decision-making, leaving, potentially, no space for a purely rational or secular sphere in society.2[31] This form of scriptural legal universalism later enabled, for example, Ibn Taymiyya's (d. 728/1328) theory of siyasa sharciyya.[32] Its impact endures in the contemporary period in form of the maqasid al-sharlca or maqasidl approach to ordering society. When coupled with the nation-state's exclusive claim on the sphere of law, it allows jurists to argue, for example, not only that drinking alcohol is prohibited on account of preserving the intellect from harm, as al-Ghazali did, but to analogically extend this ruling to permit state censorship in order to protect people's minds from harmful information more generally.[33] [34] [35] [36] [37] State censorship, thus, becomes part of God's legislative intent and opposing it defiance to the divine Law. As Muhammad Qasim Zaman poignantly states, when employing the maqasidl approach in today's society often “the distinction between sin and crime, and between moral and legal infractions, collapses."32 While we have ample research on the impact of al-Ghazali's conception of God's legislative intent on subsequent generations of jurisprudents, we know less about the process by which the ratio legis was imbued with maslaha as a tangible criterion for determining its validity. It was certainly not new to understand maslaha as the purpose of the Law, yet it is not known to have been operationalized in the procedure of analogy until around the time of al-Ghazali. Previously, the Shafiti jurist al-Qaffal al-Shashi (d. 365/976) held that the divine attribute of wisdom (hikma) means that God's Law was revealed for the maslaha of humans; though in actual law-finding, he makes no connection between wisdom, maslaha, and the ratio legist Youcef Soufi shows that Shafitis of the 4th∕10th and 5th∕11th century interpreted and applied textual evidence based on their understanding of the beneficial functions their rulings promoted,34 though much of their conceptualization of benefit as ratio legis remains rather vague and intangible. Hanafi scholars, like Abu l-Hasan al-Karkhi (d. 340/951), also refer to God's wisdom underlying divine injunctions, calling it hikmat al-hukm, but he, too, does not operationalize maslaha in the procedure of analogy?5 Others, like the Muhazili- Hanafijurist al-Jassas (d. 370/980), explicitly reject using maslaha as criterion to identify the ratio legis. Al-Jassas refutes unnamed scholars who determine rationes legis by the maslaha the ruling attains; he relegates concerns with maslaha to the field of theology.[38] [39] Works of legal theory that link maslaha, in the sense of mundane benefit, to the ratio legis of rulings in a tangible manner remain elusive. In this study, I trace the rise of the purposivist view of the ratio legis, the motive model, dominant after al-Ghazali’s definition of maslaha as the purpose of the Law. I attempt to find the intellectual building blocks he used - admitting my bias that al-Ghazali’s theory of the purposes of the Law (maqasid al-sharia) was not articulated tabula rasa but was a creative (perhaps genius) utilization of concepts and ideas circulating among his predecessors. To understand this intellectual milieu, I present in the following the views of five 5th/ 11th century jurisprudents from two different legal schools adhering to three different theological thought systems. The jurists were selected for their influence as well as the content of their thought as a way to elucidate different conceptions of ethics and the ratio legis present in the 5th/nth century. The study moves through the legal writings37 of tAbd al-Jabbar al-Asadabadi (d. 415/1025), a Shafiti jurist and the leading figure of the Basran school of Muttazila at his time; his disciple in theology Abu l-Husayn al-Basri (d. 436/1044), who adhered in law to Hanafifzqh; Abu Zayd al-Dabbusi (d. 430/1039), a Hanafi in law and an early proponent of the Maturidi school of theology in the Eastern Islamic world; the Shafi'i Ashtari Abu Ishaq al-Shirazi (d. 476/1083); and last, but not least, Imam al-Haramayn al-Juwayni (d. 478/1085), who represents the Eastern branch of the Shafi'i and Ashtari schools and who was al-Ghazali’s teacher. In order to reconstruct the shift toward a consequentialist ethic in legal reasoning, this study investigates the above mentioned Mu'tazili, Maturidi, and Ash'ari jurisprudents with two main questions in mind. First, how do ethical norms translate into legal norms? Given that the divine Law is at once ethical and legal, the need arises to define what is ‘good’ and how to achieve ‘good’ through acting, i.e., which actions are obligatory, permissible, prohibited, recommended, and reprehensible. David Vishanoff points out that Muslim ethico-legal theories are action-oriented. God’s speech informs about the ethical and legal properties of human actions, and not, for example, their relationship with one another or their character.[40] [41] Scholars need to identify valid standards by which to characterize the moral content of acts and to evaluate their legal status. How is good and bad discerned and what legal value is assigned to it? For this line of inquiry, I look at definitions of good and bad acts and what criteria are used to classify them. As will be seen, our scholars employ different determining factors, such as praise and blame (madh. and dhamm), reward and punishment (thawab and ruqub), as well as benefit and harm (naf and darar), to classify an act as good (hasan) or bad (qablh). While overall, they have a consequentialist approach to determining ethical norms, their ethical theories display to varying degree deontic dimensions as well. In addition, they differ on which type of consequences are relevant to assess the ethical status of an act. As a next step, I investigate how ethical norms relate to the legal status of acts. Ethical norms are usually divided into a binary or dual structure, i.e., good and bad, with some scholars devising a third, neutral category. Islamic legal norms, however, are constructed on a five-fold scale, ranging from obligatory (wajib), recommended (mandub), permissible (mubdh), reprehensible (makruh) to prohibited (mahzur, haram). How, then, does good and bad translate into a more nuanced scale of legal norms? Are all good acts obligatory to perform and all bad acts prohibited? What are the criteria that differentiate a reprehensible act from one that is deemed to be prohibited? A second line of inquiry is concerned with the legal dimension and centers around the question whether or not the ethical content ascribed to God's ordinances can be employed by jurists through the procedure of legal analogy (qiyas).39 In analogical reasoning, a divinely revealed ruling is applied to a situation not directly addressed in Scripture on account of a common factor, in legal parlance the ratio legis (cilla), that the scriptural (asl) and non-scriptural (farf) situation share. Extending religious rulings to analogous situations not addressed in Revelation transfers to them not only the legal status but also the ethical value associated with it. The practice of legal analogy, as Vishanoff states, is based on the idea that “good acts are good because of some characteristic they have, and that other acts with similar characteristics are therefore also good.”[42] I examine how jurists understand the relationship between the original case and the ratio legis (cilla), i.e., the commonality between two legal instances that allows one to transfer a ruling from the source (asl) of the Law to an unprecedented situation (farf). What is the function of analogy in their legal thought? How is the ratio legis identified correctly to warrant attributing a divine ruling to a legal incident not mentioned in Scripture? Looking at the way jurists determine the correctness of rationes legis, I also probe whether they utilize the grounds that give rise to the legal norm (hukm), in particular the pairs of praise/blame and benefit/harm, to identify the ratio legis. Is the ethical content of the original ruling reflected in the ratio legis and does it play a role in correctly identifying the latter? This study deliberately retains the focus on the legal work of these five scholars. It hopes to complement the research by scholars, such as George Hourani, Richard Frank, Ayman Shihadeh, and Sophia Vasalou, who approach the subject matter from the perspective of theology and ethics, drawing attention to the importance of legal considerations for ethical theories. Examining the interplay between ethic and law does not neglect the theological dimension. Theology provides some background but it is not the focus of this study to investigate, as, for example Omar Farahat, Eissa, Abdul-Rahman Mustafa, and Rami Koujah do, whether and how theological school affiliation influences legal doctrines. Rather, I look at a particular set of relations between theology, ethics, and law, namely between the goodness of the Law - its ethico-legal dimension - and how this goodness is defined, and how it is applied (or not) when the Law is extended in analogy to situations not directly covered by the textual evidence. Theological affiliation, we will see, is not a cause for a particular position in legal theory, but explains the parameters within which a jurist operates. By looking more restrictedly at the sphere of law, I also want to draw out how the different ethical theories exhibited by our 5th∕11th century Muslim scholars affect their view of ordering society - a worldview that is reflected in their conceptualization of legal analogy (qiyas). The way legal analogy is conceptualized is, on the one hand, driven by the practical needs of society to adjudicate situations not expressly addressed in the Law but, on the other hand, also reflects the desire to regulate human behavior beyond the letter of the revealed word in close alignment with the divine Law, and, thus, with God's intention as expressed in Revelation. Legal reasoning, as Wael Hallaq puts it, aims at coming “closest to the law decreed by God.”[43] At the same time, out of practical considerations, legal reasoning strives to provide a stable and consistent law for Muslim society. Since divine rulings are at once ethical as well as legal applying them to analogous situations transfers to them their ethico-legal value. Investigating how legal analogy, particularly the ratio legis, is conceived of and employed therefore sheds light on questions of the human ability to understand God's legislative intent. It reveals the way in which jurists deem the ordering of society to be pleasing to God and ensuring otherworldly salvation for the individual believer. Intertwined with approaches to legal methodology is the notion of religious culpability (taklif). Are humans held accountable in the Afterlife for all of their conduct in this world, or only for those acts for which God specifically prescribes a course of action in the revealed Law? Does the religious Law regulate all of human experience and action or are there areas that fall beyond the purview of God's legal intent in which humans autonomously, i.e., without divine instruction, evaluate and determine their behavior? If human culpability toward God extends only to following the textually established laws, then, theoretically, all acts that Revelation does not explicitly address lie outside of the revealed Law (this would be an extreme literalist position).[44] [45] [46] Such acts would have to be assessable according to ethico-legal standards that are driven by purely rational mundane considerations. Throughout Islamic history we encounter debates over the limits of divine guidance and the religious laws53 The scope allowed for human rational investigation into ethical and legal normativity varies greatly among Muslim scholars, depending often primarily on theological commitments. Muttazilis endorse the intellect's ability to arrive at norms independently from Revelation. The opposing position, articulated by Ashtari scholars, rejects such freedom in assessment, and instead turns to language as a tool to assess ethical and legal normativity in the revealed word of God. In addition, the scope given to analogizing unaddressed incidents, and thereby integrating them into the religious Law, is influenced by scholars' understanding of how language works. Whether the language of Revelation is treated as utterance (lafz) or meaning (macna) expressing God's inner speech influences jurists' understanding of the nature and role of analogy and how to correctly determine the ratio legis. As we will see throughout the study, there is no clear-cut dependency of school of law with the positions held on the ratio legis, confirming Eissa's findings.44 Yet, a good measure of predictability exists when it comes to ethical theory and theological affiliation. Theological school doctrine influences in particular these scholars' approach to legal language. Still, as apparent with regard to al-Shirazi and al-Juwayni - both contemporaries and adherents to Shafitism and Ashtarism - each of these schools of thought encompasses a wide variety of views without breaking the fold.[47] This study also hopes to highlight the need for paying attention to the differences among scholars of the same school of law or theology. Schools of thought like Muttazilism, Ashtarism, and Maturidism are large umbrellas under which a wide spectrum of scholars aggregate who may hold a variety of sometimes incompatible views. Assumptions about school doctrine may lead to questioning a person's fidelity to the school (as has been done with al-Shirazi), and calling a school ‘rationalist', as often applied to the Muttazila, may miss the a-rationality of some of their positions. The study is divided into six chapters. Chapter 1 lays out some basic features of Muttazili and Ashtari thought on epistemology, ethics, and God's speech. It also provides a brief Abriss of the main characteristics of Maturidi theology. The outline of theological commitments is not meant as a comprehensive portrayal of these schools' positions but to facilitate tracing basic ideas and arguments around which our scholars construct variations and which help to situate their thought within their school of theology. Chapter 2 through 6 surveys the position of our five jurists on the relationship between ethical and legal norms, including how to obtain moral knowledge, and how the ethical value of an act relates to its legal status. It investigates for each of these jurists the role they assign to analogy, paying special attention to the methods used to identify the ratio legis and whether or not the ratio legis is informative about God's legislative intent and the ethical content of the divine Law. My analysis of these five jurists builds on the previous work of scholars such as Zysow, Hasan, Hallaq, and others, who have written on the development of Islamic jurisprudence and analogical reasoning. It adds a detailed presentation of these jurists' positions on legal analogy and the ratio legis and how these intersect with their ethical doctrines and theological commitments. It continues the work of scholars such as Hourani, Frank, Vasalou, Omar Farahat, Shihadeh, Anver Emon, Mariam al-Attar, Mairaj Syed, and others on ethical theories in Islam and the interplay between ethics and law. Yet, it also highlights the subtle shifts of positions that become apparent by a close comparison of members of the same school of theology and/or law. My study also provides a counterpoint to Hourani, who argued that Muslim scholars held that there was no unifying ethical principle in divine rulings, though he admits that this position only holds for the formative period of Islam.[48] [49] [50] Likewise, this study challenges Fazlur Rahman's claim that law (Jtqh) was not concerned with issues of speculative theology (kalam), especially prior to al-Ghazali because, as he maintains, Jiqh only requires a God who commands and prohibits and a religiously accountable person (mukallaf) whose duty it is to obey. Theologians, philosophers, and mystics left the practical field of ethics to law, and, hence, no comprehensive and systematic moral philosophy developed in Islam. 47 Yet, as we will see throughout this study, the Euthyphro dilemma was a question of intense interest not only to theologians or ethicists but to jurisprudents alike. The answer given influences the way a jurist constructs legal values and, thus, informs the believer's conduct on her path to salvation. I hope to highlight the interplay, not dependence, between theology, ethics, and law by showing that the goodness of God's Law, i.e., its ethical content, was always understood as maslaha, though Muslim scholars found a variety of answers to what constitutes maslaha, how to recognize it, and how to employ it in the law-finding process. And, while this study alone is not able to answer ‘why' Ashtarism and Maturidism became the dominant theological schools/8 it hopes to give some insight into ‘how' they did so in the sphere of the Law.