Late Ash'arites and divine purposes ethics

Abu Hamid al-Ghazali (d. 505/1111) has often been considered a representative of extreme divine voluntarism.³⁵ Also, in his book The Spirit of Islamic Law, Bernard Weiss argued that the theory of al-Maqdsid is a DCT or indeed that it is fully compatible with Ethical Volun­tarism, saying that ‘the voluntarism and the intentionalism of Muslim jurists are opposite sides of the same coin.

The early Ash'arites did not approve of ratiocination (ta'lll) and that is clear from the early discussions in kaldm. Ratiocination of divine judgment seem to have been compared to the ratiocination of His action, which was problematic as it could lead to detestable conclusions, that would compromise divine free will and omnipotence. Any attempt to make sense of the world and explain how and why things happen in a certain way rather than another relies on the concept of causality, but there is no reason that explains divine actions in this world and thus no necessary relation between causes and effects. Ratiocination of divine actions and judgments was also the concern of the late Ash ‘arites like al-Ghazali, who accepted the occasionalist theory of causation. They disagreed on that with the Mu'tazilites, just as they disagreed on the issue of rational knowledge of good and evil. Al-Ghazali disputed causation in ethics and denied that there are any reasons behind divine commands and prohibitions, just as he disputed causation in the natural world and adopted the doctrine of occasional­ism. As noted by many scholars, he based the theory of maslaha and maqdsid on scripture by following inductive reasoning, whereas the Mu'tazilite arrived at similar conclusion by following a deductive way of reasoning. From the divine attribute of wisdom and goodness they would deduce that His rules and regulations must benefit His creation. Al-Ghazali’s in­duction of general objectives of law from particular rulings, in principle, could have resulted in anything, since God is free to do and command anything, which is the essence of Ash 'arite voluntarism. Nevertheless, the doctrine of al-mdqsid (objectives) was based upon the pre­sumption that divine judgments are founded. Divine judgments, according to the theory of al-maqasid are to be understood within their framework and ultimate purposes of the Shariah, which is preserving certain necessities that have traditionally included religion, life, intellect, progeny and property, often called al-kulliyat al-khamsa (the five universal princi­ples).

Nevertheless, one could argue that al-Ghazali could not have started his induction pro­cess without a working hypothesis. Whether that working hypothesis was based upon his observation of nature and the wonders of creation that led him to believe in the teleology in the natural world that was somehow related to teleology in revelation as recently argued by El-Shamsy³⁸ or whether that was based on his familiarity with the previous work on maslaha, it remains certain that he approached the text with a working hypothesis derived from the legal tradition that endorsed the belief that law serves human well-being and that was definitely established by the Mutazilites. It is precisely that working hypothesis that is based on reason and previous knowledge that he obtained fromfiqh. Therefore, although the maqasid theorists claim that the objectives were derived by induction from the texts, those were ultimately derived from their previous acquaintance with the principle of talil and its rational basis.

Al-Ghazall’s theory is a ‘Divine Purposes Theory’, yet it remains closer to the ‘Common Morality Theory’ than to a DCT, since he must have had in mind a working hypothesis to start with, and that working hypothesis is necessarily derived from the common morality which is shared with other people regardless of their claim to the opposite.

it is impossible that any society (milla min al-milal) or any legal system (shari ah min al- shard ’i') which aims at the benefit of creation (islah al-khalq) would not include prohi­bitions against neglect of and restraint from these five values, and that is why all legal systems prohibit disbelief (kufr), homicide, adultery, theft and intoxication.³⁹

I have argued elsewhere⁴⁰ that the Ash 'arite theory of good and evil is definitely consistent with the rest of the Ash 'ari theories of kaldm, but it is not indispensable in the principles of jurisprudence (usul al-fiqh). Admitting and acknowledging human agency in formulating and establishing the ‘universal necessities’ or maqdsid calls for a non-Ash 'arite ethical foundation that would open the door for ethical reflection on theoretical and practical matters from var­ious perspectives, taking into consideration the advancement of human knowledge. After all,

as human beings, we are subject to the laws of humanity that are etched into our very being — these laws are embedded in our cognition and consciousness, and are as stable and unwavering as the laws of mathematics or the logic that defines material reality. These are laws of rational elements that allow us to have a shared language about justice, ethics, values, happiness, misery and beauty.⁴¹

Development of'fiqh is related to development of kaldm, and kaldm needs to engage with sci­ence and philosophy in order to move beyond the doctrines developed by thinkers who were genuine and innovative, but at the same time operated within the framework of a world view and epistemology that is quite different from ours. The big questions that they asked should be revisited and the assumptions that they took for granted should be discussed in light of current epistemological position.

The majority of the ‘ulama’ held that since the realization of the objectives (maqdsid) of the Shari ‘ah necessitates identification of the cause rational of the ahkdm, it becomes our duty to discover these in order to be able to pursue the general objectives of the Lawgiver,⁴² and according to all the jurisprudential schools the purpose of the Shari ‘ah is to serve the best interests of human beings (tahqiq masdlih al- ‘ibad). Put differently, the objective of the law is not to apply technicalities regardless of their consequences, but to achieve the ultimate moral and ethical objectives that represent the essence of Godliness on this earth.⁴³

In order to achieve the ultimate moral objectives, some rules that have an instrumental rather than inherent value need to be assessed. The objectives (maqasid) of the Shari ‘ah have been linked to the individual rulings found in the Qur’an and the Sunnah; and those rulings are thus seen to have instrumental value, while the aims or the objectives have an inherent value. Since the maqasid were allegedly established by following the induction process, they could not have been used in evaluating the rulings from which they have been derived. Im­portant Quranic values like justice, benevolence and compassion that are not related to par­ticular rules seem to have been disregarded by most of the religious scholars (fuqahd ’). Justice, benevolence and other values that have inherent rather than instrumental worth are also Quranic principles that presuppose our ability to understand them and make sense of them. However, as we have seen, justice and goodness according to the Ash ‘arite moral theology meant nothing but obedience to commands. To my mind, the theory of al-maqdsid, which is an ethical theory that can be used to assess different legal rules, cannot be used unless we first establish it on a non-Ash ‘arite basis.

Mu ‘taz al-Khatib noted that the essence and the foundation of ratiocination (ta‘ldl) is the principle of rational knowledge of good and evil. He wonders how the maqdsid theory, which is essentially built on the assumption of the validity of ta‘ ldl, can be validated while rejecting its rational foundation.⁴⁴ Maqdsid al-Shari ‘ah were never used to derive or assess existing rules, as already mentioned. Thus, one is left to wonder whether what is known as fiqh al-maqdsid as advocated today is actually capable of introducing any change. Al-Khatib suggested a dis­cipline that could be calledfiqh al-wasd’il that would evaluate the appropriateness of the rules that have an instrumental value and their value rests on their ability to properly serve the objectives or the ends. The distinction between means and ends is significant to the devel­opment of normative knowledge, and so is the distinction between those rules or judgments that are related to worship and those that intend to regulate social and political life. Al-Khatib noted that classical scholars sometimes confused means and ends. He suggests a criterion that seems to satisfy the fiqhd methodology. According to this criterion, some rules or judgments that are explicitly mentioned in the texts could be considered contingent, as they only have instrumental value. Building upon the scholarship of significant classical scholars of maqasid, like al-Shatibi, al-Qarafi and al- ‘Izz b. Abd al-Salam, he concludes that rules that have instru­mental value can be changed. Distinguishing between the immutable ends that have inherent value and the changeable means is proposed as a proper methodology for fiqhi ijtihad that could be called the theory of means (al-Wasail) as distinguished from the theory of ends (al-Maqasid). Al-Khatib provides four restrictions (dawabit) or conditions that should be met in order to consider a mean changeable. The two most important conditions are, first, that the mean can be replaced by a mean that also serves the purpose in the same way or better, and, second, that the rule or a judgment which is considered to be a mean rather than an end or aim is related to a certain tradition (‘urf), specific situation or time.⁴⁵ To my mind, this suggests that not every rule articulated by jurists, even when based on textual evidence, is related to the ultimate aims of the Shari ‘ah, and that definitely applies to rules that discriminate against women and against non-Muslims. A theory like this seems to build upon the classical fiqht scholarship and re­mains faithful to the fiqha methodology, while possibly allowing for radical change. However, al-Tahir b. Ashur, the Tunisian scholar who adopted the maqasid approach and advocated using the approach for reforming Islamic law, saw no contradiction in holding the principle of equality as an absolute value and confirming judgments and rules according to which men are granted superior positions over women and Muslims over non-Muslims. He appeals to what he calls nature (al-jubbulla) to get out of the contradiction. Accordingly, woman is not equal to man because of her nature and not because of legislation,⁴⁶ as law confirms the status quo and does not establish reality. Thus the universal values that he upholds become formal and can be used to support different and contradictory positions. Evenfiqh al-wasa'il, proposed by al- Khatib, will not lead to reform unless articulated by people who have a good sense ofjustice and who would take the demands for reform seriously.

One cannot be sure whether any of those theories discussed above would provide us with the best answers and solutions that are dearly needed in Muslim communities. After all, the Shi ‘i al- Adliyya have endorsed the Mutazilite view and acknowledged the role of reason in morality. Yet that did not result in any progress in their fiqh because, in deriving their rules, reason and common morality were not given any role, as recently argued by Ali Reza Bhojani. So, despite the Shi ‘i adoption of the same meta-ethical position as the Mutazilites, ‘independent judgements of rational morality play little or no role in the actual inference of Shari ‘ah norms within mainstream contemporary Shi 1 thought’,⁴⁷ ‘A legal positivism, theo­retically associated with the Ash ‘arl meta-ethics, in the sense that considerations of legal va­lidity are detached from moral worth, appears as prevalent in Shi 1 fiqh as it does in any other Muslim legal school’.⁴⁸ Thus, acknowledging human reason and its ability to know good and bad and right and wrong does not necessitate a morally informed law.

Nevertheless, the ethical theory of maqasid, as I have argued above, remains a promising theory that is closer to common morality than Divine Command Theory. And a theory that is closer to common or objective morality can definitely provide a more inclusivist foun­dation for inter-faith and intra-faith dialogue, as well as for more understanding between religious and non-religious people living in the same communities, sharing similar socio­political and economic concerns.

Notes

1 J. Hare, God’s Command (London: Oxford University Press, 2015).

2 Anver M. Emon, Mathew Levering and D. Novak, Natural Law: A Jewish, Christian, and Islamic Trialogue (London: Oxford University Press, 2014).

3 S. Neiburg and R. Duval, Encyclopedia of Ethics (New York: Facts on File Inc., 1999).

M. Illathuparampil, Normativity of Nature, in Is Nature Ever Evil? Religion, Science and Value, ed. W. B. Drees (London and New York: Routledge, 2003), 225-34.

K. Haakonssen, ‘Natural Law', in Encyclopedia of Ethics, ed. L. C. Becker and C. B. Becker (New York and London: Gerland Publishing, 1992), 884-90.

H. P. Kainz, Natural Law: An Introduction and Re-examination (Chicago: Open Court, 2004).

M. Illathuparampil, ‘Normativity of Nature'.

A. Ezzati, Islam and Natural Law (London: ICAS Press, 2002).

Ibid., 25.

Ibid., 27.

K. Haakonssen, ‘Natural Law'.

G. F. Hourani, ‘Divine Justice and Human Reason in Mu'tazilite Ethical Theology', Ethics in Islam, ed. R. Hovannisian (Malibu, CA: Undena Publications, 1985), 58-9.

R. M. Frank, ‘Moral Obligation in Classical Muslim Theology', Journal of Religious Ethics (1983), 186-203.

Biographical sources vary on his death date. Some date it at the beginning of the third century, others date it in 225 AH and still others date it 279 AH.

A. al-Raysuni, Al-Tajdid al-Usuli: Nahwa Siyagha Tajdidiyya li-'Ilm Usul al-Fiqh (Herndon, VA: Inter­national Institute of Islamic Thought, 2014), 36.

Ibid., 41.

S. al-Nashshar, Nash'at al-Fikr al-Falsafi fi al-Islam, vol. 1, 9th edition (Cairo: Dar al-Ma'arif, 1995), 318.

Ibid., 378.

Ibid., 395.

Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005).

Ahmed El-Shamsy, The Canonization of Islamic Law — A Social and Intellectual History (Cambridge: Cambridge University Press, 2013), 44.

Ibid.

Wael Hallaq, ‘Was al-Shafi' i the Master Architect of Islamic Jurisprudence?' International Journal of Middle East Studies 25, no. 4 (1993), 587-605.

K. A. Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (New York: State Univer­sity of New York, 1995), 17.

Ibid., 18-21.

John Kelsay, ‘Divine Command Ethics in Early Islam: Al-Shafi'i and the Problem of Guidance', The Journal of Religious Ethics 22, no. 1 (1994), 101-26.

C. Brockelmann and L. Gardet, ‘al-DjuwaynT, in Encyclopaedia of Islam, ed. P. Bearman, T. Bian- quis, C. Bosworth, E. Donzel and W. Heinrichs, 2nd edn (Leiden: Brill, 1960-2005).

A. J. al-Asadabadi, Al-Mughnifi Abwab al-Tawhid wa-l-'adl, al-Iradah, ed. Mahmud Qasim, vol. 6 (Cairo: Ministry of Public Culture & Education, n.d.) 331.

Ibid., 384.

F. Rahman, ‘Law and Ethics in Islam', in Ethics in Islam — Giorgio Levi Della Vida Ninth Conference, ed. R. Hovannisian (Malibu, CA: Undena Publications, 1985), 3-17.

M. Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: The Islamic Texts Society, 2003), 49. R. M. Frank, ‘Moral Obligation in Classical Muslim Theology', Journal of Religious Ethics 11, no. 2 (1983), 186-203.

Ibid.

Sherman Jackson, ‘The Alchemy of Domination? Some Ash'arite Responses to Mu'tazilite Ethics', International Journal of Middle East Studies 31, no. 2 (1999), 158-201.

G. F. Hourani, ‘Divine Justice and Human Reason in Mu'tazilite Ethical Theology', 59; D. Brown, ‘Islamic Ethics in Comparative Perspective', The Muslim World 89, no. 2 (1999), 181-92; O. Lea- man, A Brief Introduction to Islamic Philosophy (Hoboken, NJ: Blackwell, 1999), 108.

B. G. Weiss, The Spirit of Islamic Law (Athens, GA: University of Georgia Press, 1998), 56.

A. E. Emon, Islamic Natural Law Theories (London: Oxford University Press, 2010), 21-2.

A. El-Shamsy, ‘Al-Ghazali's Teleology and the Galenic Tradition: Reading the Wisdom in God's Creation', in Islam and Rationality: The Impact of al-Ghazali. Papers collected on his 900th Anniversary, ed. F. Griffel, vol. 2 (Leiden: Brill, 2015), 90-112.

39 A. H. al-Ghazali, Al-Mustasfa min ‘Um al-Usul, vol. 1 (Beirut: Dar Sader, 1995), 258.

40 Mariam al-Attar, ‘Meta-ethics: A Quest for Epistemological Basis of Morality in Classical Islamic Thought', Journal of Islamic Ethics (forthcoming).

41 Khaled Abou El-Fadl, ‘The Epistemology of the Truth in Modern Islam', Philosophy and Social Crit­icism (2015), 473-86.

42 Kamali, Principles of Islamic Jurisprudence, 49.

43 Khaled Abou El Fadl, The Great Theft, Wrestling Islam from the Extremists (New York: Harper Col­lins, 2007).

44 Mu'taz al-Khatib, ‘Al-Maqasid wa-'Ilm al-Usul, Qira’ah fi al-Nasaq al-Ma'rifi', Maqasid al-Shari‘ah wa-l-Siyaq al-Kawni al-Mu'asir (Ribat: Al-Rabita al-Muhammadiyya lil- 'ulama’, 2013) 41-58.

45 Mu 'taz al-Khatib, ‘Manhajiyat al-Maqasid wa-l-Wasa’il wa-Atharuha fi al-Ijtihad al-Fiqhi', Majal- lat Islamiyyat al-Ma‘ rifa (2013), 43-78.

46 M. A. 'Ashour, Maqasid al-Shari 'a al-Islamiyya (Amman, Jordan: Dar al-Nafa’is, 2001), 332-4.

47 A. R. Bhojani, ‘Moral Rationalism and Independent Rationality as a Source of Shari ah in Shi i Usul al-fiqh: In Search of an Adliyya reading of Shari ah'. (Unpublished dissertation, Durham Uni­versity, 2013).

48 Ibid., 10.

Select bibliography and further reading

El-Fadl, Khaled Abou. ‘The Epistemology of the Truth in Modern Islam'. Philosophy and Social Criticism 41, nos 4-5 (2015): 473-86.

Attar, M. al-. Islamic Ethics: Divine Command Theory in Arabo-Islamic Thought (London: Routledge, 2010).

Emon, Anver E. Islamic Natural Law Theories (London: Oxford University Press, 2010).

Frank, Richard M. ‘Moral Obligation in Classical Muslim Theology'. Journal of Religious Ethics 11, no. 2 (1983): 186-203.

Griffel, Frank. ‘The Harmony of Natural Law and Shari 'a in Islamic Theology'. In Shari ‘a: Islamic Law in the Contemporary Context, ed. Abbas Amanat and Frank Griffel (Stanford, CA: Stanford Univer­sity Press, 2007), 39-61.

Hare, John. God’s Command (London: Oxford University Press, 2015).

Hourani, George F. ‘Divine Justice and Human Reason in Mu tazilite Ethical Theology'. Ethics in Islam (Malibu, CA: Undena Publications, 1985), 73-83.

Hourani, George F. Reason and Tradition in Islamic Ethics (London: Cambridge University Press, 1985). Jackson, Sherman. ‘The Alchemy of Domination? Some Asharite Responses to Mutazilite Ethics'. International Journal of Middle East Studies 31, no. 2 (1999): 158-201.

Reinhart, Kevin A. Before Revelation: The Boundaries of Muslim Moral Thought (New York: State Uni­versity of New York, 1995).