The Foundation of Norms in Islamic Jurisprudence

THE FOUNDATION OF NORMS IN ISLAMIC JURISPRUDENCE – Book Sample

Classical Islamic Thought and the Promise of Post-Secularism

This book asks two questions: why and how do we rely on divine revelation in guiding our actions? To answer these questions, it draws upon theories of divine speech and command in Islamic theology and jurisprudence. In a secular world, the most obvious way to answer these questions would be to refer to faith and obedience. We consult divine revelation because we believe in God, and we follow God’s commands by understanding and obeying them.

To obey and have faith in a divine creator is a matter of personal choice that, by its nature, cannot be the subject of rational public debate.1

As a reaction to this characterization of religious forms of law-making, there was a noticeable shift toward theories of natural law, which, broadly speaking, attempt to show that what God commands coincides with what is good and rational in a secular sense.2

This primacy of secular reason is certainly not a phenomenon we encounter in the study of the premodern Islamic tradition. In the classical Islamic disciplines of theology, jurisprudence, and law, public rationality was entwined with individual virtue in an overarching theistic framework.

 Thinking about proper and required behavior was inseparable from an understanding of the world as a divine creation, and revelation-based guidance as a matter of collective rational deliberation. While ideas of natural law, as we will see throughout this book, were defended at all levels of theological and jurisprudential thought, the view that actions are good and right because God com-manded them was advanced consistently and unapologetically.

While this idea, which we refer to as “divine command theory,” has drawn an increased interest in recent years,3 little attention was paid to what can be learned from the classical Islamic tradition. Reconstructing some of the key features of an Islamic divine command theory, in conversation with its natural law interlocutors, is the primary purpose of this book.

In its most abstract form, the question we will address is the following: Given what we know, or believe we know, about the world, its origin, and human reason, how we can advance principles that are designed to guide humans toward correct behavior?

In this most general form, the question is not specific to any given tradition of thought. Every known attempt in theoretical ethics, as well as legal theory, is an effort to construct a theoretical apparatus capable of justifying norms of behavior consistently with a given view of the world.

Whereas a secular ethicist may develop a general theory of moral norms and values based on human intuitions, emotions, the faculty of reason, biological evolution, or other considerations, a theistic ethicist or jurisprudent will be concerned with models that can offer a coherent justification of judgments based on theocentric views of the world.

 In intellectual traditions that view the world as the creation of a deity, discussions often focus on the place of God’s revealed words in the formulation of norms of action and value judgments. The three major Abrahamic traditions are obvious examples of this tendency.4

 That is hardly surprising. Since language is the prime tool of production, preservation, and dissemination of meaning, communities that share a theistic understanding of the origin of existence frequently resort to a text as a tool of central importance for guiding behavior.

This resorting to some form of divine revelation can raise specific types of difficulty. For example, if revelation is understood as a direct form of communication from another agent (i.e., God), the subject that resorts to revelation as a source of guidance will be faced with questions concerning the rationality of her reliance on revelation and its implications for her moral autonomy.5

Theories advanced in contemporary religious ethics and legal theory on the role of revelation in guiding action tend to involve two stances commonly referred to as divine command and natural law theories.6 These two approaches to revelation are characteristic of different responses to the question of the indispensability of divine revelation for the knowledge of values and judgments, and therefore the regulation of action.

Divine command theories can generally be characterized as views that stem from an understanding of revelation as necessary for the guidance of action.7 Natural law theories, by contrast, tend to deal with divine revelation as informative and effective in the process of knowledge of normative judgments, but not necessarily constitutive thereof.8

 The conversation between these two approaches to revelation evokes a wide variety of philosophical problems pertaining to epistemology, the nature of divine speech, the place of human autonomy in a theocentric view of ethics, and the construction of normative judgments. We will explore some of those underlying questions in the classical Islamic tradition through an analysis of key classical Islamic debates on divine speech.9

By reconstructing divine command, and the corresponding natural law, views on how God speaks and how norms can be formed through his speech,10 we will see that two fundamental features of the Islamic divine command model are both distinctive and promising. First, scholars of the divine command trend tended to justify the need to rely on revelation on the shortcomings of our unaided reasoning.11 Second, the legal tradition tended to view the formation of norms as a collective exercise that involves the community of believers.

The reconstruction of the theoretical foundations of revelation-dependence in Islam allows us to see how the view of law and morality as necessarily reliant on divine speech came to be accepted, without us ascribing this reliance to mere “traditionalism.” As we will see, a unique attribute of Islamic intellectual trends that we may refer to as divine command theories is their advancement of an epistemological critique of the formulation of judgments independently of divine revelation. This critique centered on the difficulty of generalization of judgments made by individual agents.

Accordingly, divine-command–minded scholars argued for a conception of divine revelation as an intervention intended to remedy the intrinsic human inability to formulate general and objective norms. This view was coupled with an understanding of divine speech not as an expression of the will of a similar but transcendent moral agent, but as a timeless attribute of God. The juristic engagement with the earthly manifestations of divine speech was regarded as the collective task of the