This pieces was written as a response to Karen Taliaferro's post, "A Tale of Three Laws," which can be found here.
By: Anver Emon
Let me first share a little bit about one of the challenges of the book [Natural Law: A Jewish, Christian, and Islamic Trialogue] as a whole. Each of us as authors come at our topic from different intellectual registers: Matthew is a theologian, David comes from philosophy; and I am a law professor. This frames the way we think about the question of natural law.
Thinking about Islamic law from a legal vantage point, I was interested in inquiring about the role of reason in Islamic law. Now, it’s a topic that has been addressed on a number of different levels by a number of different scholars throughout Islamic history. Often times it’s framed in the context of analogical reasoning or juristic interpretation; sometimes it’s framed in terms of customary norms. But I want to suggest that those frames for reason are more epistemic. They’re about reason as a mechanism of determining the law based on a variety of indices. I’m interested in reason as the index and how jurists did actually think about reason without reference to textual sources of any sort. Keep in mind that rule of analogy still has a textual reference at play.
So my question was: Is there ever a moment in Islamic legal thinking where jurists pondered the possibility of reason without reference to text? Now there’s a genre of legal writing called usul al fiqh. It’s interpreted a number of different ways—Islamic jurisprudence, Islamic legal theory, the foundations of law, whatever you want to call it. But it is a curious genre, and in that genre where jurists tend to think and reflect theoretically about the determination of law, there is a debate about what in Arabic is known as min qablu wurud al-shar’. It’s been defined as “before revelation,” or “in the absence of revelation.” I was curious about it because if you really think about it, the idea of suggesting that there’s no revelation at the moment the jurists were writing as counterfactual. Of course, there was revelation. They were writing theoretically about the possibility of the absence of revelation. If there is no revelation, or there are no textual indices, what is one to do? Does that mean there is no Islamic law? Does that mean there is no sharia?
So what was interesting to me, then, was to trace these debates: What’s going on, and do they get to an answer? Because they certainly thought that you could still have sharia, even if there was no revelation. But the question was: What do they mean by that? How do they limit it? It was through this vehicle that I was able to encounter not just simply a place for reason, but a place for reason that is very much, in my opinion, linked to an idea of nature. And so, in Islamic legal history, I identified two different trends—what I call the hard natural law theorists and the soft natural law theorists.
The hard natural law theorists moved from theology to jurisprudence. They argued, on certain theological presumptions about God being just: As a just God, would he create the world as a harm to people? No, that would not be really nice of him; that would be unjust. So would he create it for his benefit? God, being omnipotent, doesn’t need creation. So who’s it for? Well, maybe it’s for us human beings. If it’s a good that God creates for us, that was the moment, I argue, that they were able to fuse fact and value. So while we in the post-Enlightenment setting oftentimes ascribe to the separation of “is” and “ought” and the naturalistic fallacy, it’s important to keep in mind that in this historical period, that was not the case. Relying on that fusion, early theorists were then able to argue that from nature, we can reason to the good, and from that rational assessment of the good, determine the law. And it was the way by which they could move from the “is” to the “ought” and to law.
My soft natural law theorists thought the theology of God’s justice does not do God justice: that an omnipotent God could not be held to mere mortal notions of what just is; that God can do as he wills—who are we to call it just or unjust? And so rejecting that theological presumption, they had to counter the possibility that the world might be created for evil, for harm. Now, of course, they would not say that, because who are they to attribute evil to God? So they made this little maneuver; they suggested that it’s not that God is or isn’t just. It’s that he just happened to have created the world in a way that’s good. Now if he wants to, he can change his mind. But out of God’s grace and mercy—here, they use the words fadl and rahma —he won’t change his mind, and we have no indication that he’s changed his mind. And so on the presumption that God has created the world as good—but not holding him to that—we’re going to then encounter reason as a way of thinking through nature as well.
The irony is that even though these two groups of jurists start from competing theological starting points, they effectively get to the same jurisprudential point. I find that the jurisprudence does work in overcoming what are otherwise rarified theological encampments. So that’s irony number one that I was able to identify.
But what’s also interesting about these soft natural law theorists is that they knew that there’s an irony here. They knew that they looked a lot like these hard natural jurists, and God forbid that they ever look like that. So they developed what is often times considered the maqasid model of reason. The idea here, they would say, is that the law has five core values: the protection of life, lineage, property, mind, and religion. So anything that upholds those values is in furtherance of these aims. And of the things that might uphold those five values, some are nice, some are needed, but some are absolutely necessary. And as Al-Ghazali suggests, it’s only in those specific instances in which a necessity is at play that fulfills one of these five values that you then have a law of God. It’s as if it were the law of God, even though God did not articulate it. So what is God doing? He is, through this maqasid model, narrowing the scope of reason. On the one hand, while God grants reason and ontological authority through his theory of nature, he also limits it through this maqasid model.
The irony here, of course, is that modern Muslim reformers who ascribe to maqasid as a reformist technique ignore or don’t fully understand this limiting dynamic of maqasid So what do I do with that? Well, on the one hand, as the intellectual historian, I could simply leave with that. I could simply say, “Ta-da, that’s it. We’re done.” But this book with both David and Matthew offered me an opportunity to go beyond that simple framing and also put this idea of a jurisprudence of natural law into conversation with natural philosophy in general.
In writing my section on Islam, I was often taken to task with questions like, “Well, why did you, in articulating a theory of natural law, not start with the Arabic term tabi`a , which means nature?” So I used this as an opportunity to explore tabi`a. And what’s interesting is if you look at the term tabi`a, or in Arabic tabi`iyat, it refers to natural philosophy. If you look at al-Ghazali and his incoherence of the philosophers, he addresses natural philosophy there, and here, he’s inheriting it via Avicenna—Aristotle is coming to him through Avicenna. So it’s really the Avicenna version that he’s responding to.
What’s interesting in that discipline of Islamic philosophy is al-Ghazali wasn’t worried about natural philosophy; he didn’t really see it as a problem. What he seemed to be most worried about—you see this in his discussion in Book 17—is the ability of causation to determine things in a manner that precludes the possibility of miracle. He needed to be able to preserve God’s entry into the world. He needed to be able to preserve the possibility that the Qur’an could be revealed. If not, then when the Qur’an talks about Moses’ staff turning into a serpent, it creates the possibility that the Qur’an is a fabrication, that it’s poetic but is not literal. And he had to be able to create a space for that.
And so for al-Ghazali, his critique of natural philosophy was simply about suggesting that causation is far too determinant. What we rather want is correlation that allows space for miracle. If I can preserve a space for miracle, I can render the natural law sufficiently indeterminate for my purposes and theologically coherent for preserving the integrity and veracity of the Qur’an.
Now for those of you who are interested in natural philosophy versus natural law, there are two different moves going on here. Natural philosophy for al-Ghazali needs to be sufficiently indeterminate in order for a miracle to be possible. But for all of my jurists writing about natural law, nature had to be sufficiently determinant in order for law to have authority. So the most interesting takeaway from a project like this was that it forced me to encounter these two different moves: the indeterminacy of a natural philosophy that preserves miracle and the determinacy of law that covers up difference, particularity in this service of the general.
Now you might say, “Well, why should I care about this for the Religious Freedom Project?” Because the three of us come from very different traditions, one might say, “How can you talk about a natural law tradition from a position of particularity?” But I want to suggest to you that law does that; it’s the dynamic of law. It’s not just Islamic law. It’s not just Jewish law or Christian theology. There is, in fact, an attentiveness and this kind of situatedness of the claims for universality that we see in law as such.
So let’s take, for instance, Article 9 of the European Convention on Human Rights, which protects religious freedom. Religious freedom is protected, but as many of the provisions at that convention suggest, it can be limited. The manifestation of religious beliefs can be limited in a variety of instances.
For example, the European Court of Human Rights in Dahlab v. Switzerland decided that a Muslim woman schoolteacher wearing the headscarf in the classroom shouldn’t be able to do so. Her religious freedom to do so could be limited legitimately by the state’s commitment to secularism. The court, relying on its doctrine of the margin of appreciation, was able to defer to the Swiss government. Now this margin of appreciation is an interesting doctrine because it entails a transnational court trying to adjudicate domestic matters in a context where there is already anxiety of an overarching EU. So in this case, the margin of appreciation is the judge’s way of deferring to the government of the domestic state and how it defines its roles.
Many years later, you have Lautsi v. Italy, in which a father complained about the cross in Italian school systems as a violation of Italian commitments to secularity. The European Court of Human Rights can say, “Well, the Italian government says it’s not a violation of secularity—it’s a cultural artifact.” The margin of appreciation allows us to do that. So this doctrine reveals how in many ways, even a human rights claim that is framed in universalist language can itself be adjudicated in manners that are highly particular. Margin of appreciation provides the kind of particularity amidst a universal claim in ways that are no different from Christianity, Judaism, and Islam.
A focus on these three traditions allowed us an opportunity not only to think about differences, but to think about how always present in our talks was the democratic constitutional secular state. And thinking about religious freedom in that context forced us to think hard about what religious freedom jurisprudence looks like. Religious freedom jurisprudence oftentimes distinguishes between conscience on the one hand and manifestation on another. Limits on manifestation are justified by reference to what’s necessary for democracy: security, the well-being of the state, and often times, third-party rights.
What I want to suggest is that in those instances, what’s being actually protected is the state. And it’s in a trialogue like this, in the shadow of the modern state, alongside parallel conversations on human rights discourse, that we see that what natural law offers us: a vehicle of interrogating who and what is a state. What is its claim upon us? What are its demands upon us, and are these demands that limit our freedoms ones that we wish to abide by?
I want to suggest that in many respects, natural law, coupled with perhaps an anthropology of the state, provides fruitful opportunities for thinking through the way in which religion can be a mechanism for interrogating politics today.
Anver Emon is a professor at the University of Toronto Faculty of Law and the Canada Research Chair in Religion, Pluralism and the Rule of Law.
This piece is an edited partial transcript from the RFP's book event "Natural Law: A Jewish, Christian, and Islamic Trialogue." Read David Novak's comments on Judaism and natural law, or watch the full event video here. This piece was first published in this form as a two-part series on August 18 and 19, 2015 for theReligious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.