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Islamic Law

and Legal Positivism

Raja Bahlul
Doha Institute for Graduate Studies
Doha, Qatar
[email protected]
[email protected]
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Islamic Law

and Legal Positivism

1. Introduction

By its own lights, Islamic law is of divine origin. Owing to its divinity, it may be

thought inappropriate to view Islamic law in terms of the conceptual framework of

Legal Positivism. According to this latter, law is to be understood in terms of social

rules, conventions, and norms, ‘posited’ and enforced by human beings, with no

reference to Nature, Morality, or Divine Will.

Yet it is our intention in this paper to look at Islamic law in terms of Legal

Positivism. This does not mean that the present study is based on contesting, or

denying the claim of Islamic law to being divine. A theological stand of this kind

would be out of place here, for our goal is purely analytical and descriptive. There is

no need to take a position on matters of theological truth or falsehood, and it hardly

needs to be said that Islamic law has been studied by historians and legal scholars

who maintained an attitude of complete neutrality about theological issues. What

matters is that Islamic law was historically promulgated by a recognized authority; it

was applied for a time (however long or short) and to some extent (however wide or

narrow); and it was elaborated (and developed) by jurisprudents who came to belong

to different legal schools.

No system of law is independent of what the people who apply it, interpret it, and

theorize about it in the context of a legal tradition take themselves to be doing. Hence
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in our examination we shall not only be concerned with the content and form of

Islamic law, but also with what Muslim theorists had to say about it. Thus we have a

two-fold thesis to explain and defend. (1) Islamic law can be comprehended by

reference to conceptual categories and propositions provided by Legal Positivism. (2)

Among competing views of Muslim theorists, the one that was destined to

predominate may justifiably be claimed to be a kind of Legal Positivism-- an Islamic

Legal Positivism, it can be said.

In section 2, we firstly explain what we take Legal Positivism to stand for -- its

main tenets, and some of its important concepts. Then we proceed to employ these to

look at Islamic law -- its origins, some of its structural features, and statements of

theorists who discussed and debated about obligation and proscription in the context

of divine law.

In section 3, we do two things: firstly, we outline some of the criticisms that

Legal Positivism has been subjected to in modern times. Secondly, we discuss the

debate that took place between Ash‘arism and Mu‘tazilism about morality and

obligation in relation to divine commands. A comparison between the ideas and lines

of thought followed by the Mu‘tazilites and critics of Legal Positivism shows that the

targets of criticism were similar.

In section 4, we draw a distinction between two different ways of understanding

questions about “grounds” of obligation. The distinction, it is hoped, serves to make

the disagreement between legal positivists and their critics (both Islamic and modern)

intelligible, and thus more amenable to resolution.

2. The Positivity of Islamic Law

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Speaking of the notions of ‘legal right’ and ‘legal obligation’ Dworkin says that our

understanding of these notions is “remarkably fragile”. The same could be said of the

notion of “law” itself, for, as Dworkin goes on to say, “We are used to summing up

our troubles in the classic question of jurisprudence: What is 'the law'?” (Dworkin

1978, 14) In answer to this question Legal Positivism (henceforth ‘LP’) provides a

general theory of what the law is -- “general in the sense that it is not tied to any

particular legal system or legal culture, but seeks to give an explanatory and clarifying

account of law.” (Hart 1961, 239).

What does Legal Positivism have to say about the law, then? To go by the

characterization given by Dworkin, LP asserts, firstly, that laws are rules, backed by

the use of public force, that are used by a community of people, to regulate their

affairs in the various areas of social life. But more interestingly, “These … rules can

be identified and distinguished by specific criteria, by tests having to do not with their

content but with their pedigree or the manner in which they were adopted or

developed.” (Dworkin 1978, 17) “[E]very legal system has a fundamental test for law

in the form of a rule of recognition.” (Dworkin 1978, 59)

Secondly, “[t]he set of these valid legal rules is exhaustive of ‘the law’, so that if

someone's case is not clearly covered by such a rule … then that case cannot be

decided by ‘applying the law’. It must be decided by some official, like a judge,

exercising his discretion, which means “reaching beyond the law for some other

sort of standard to guide him in manufacturing a fresh legal rule or supplementing an

old one.” (Dworkin 1978, 17)

Thirdly, “[t]o say that someone has a ‘legal obligation’ is to say that his case falls

under a valid legal rule that requires him to do or to forbear from doing something.
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…In the absence of such a valid legal rule there is no legal obligation;…” (Dworkin

1978, 17)

With this brief explanation of what Legal Positivism has to say about the law, we

can proceed to look at Islamic law and legal tradition. It is commonly known that

Islamic jurisprudence recognizes four “sources of law”: the Qur’an (which is literally

the very words of the Divine Legislator), the recorded sayings and practices of the

Prophet Muhammad (the Sunna), consensus of the Muslim community (or at least that

of its jurisprudents), and, finally, the use of Analogy, a reasoning method employed to

extend legislation to cases not covered by laws derived from the first three sources.

Laws which are explicitly and directly based on the Qur’an and the Sayings of

the Prophet were from the start recognized as having greater authority than the third

and fourth sources. For consensus proved to be a debatable concept, whose practicality was

challenged by Averroes (1198), himself a jurist of great repute. (Gracia 1996, 243-50). As to

the method of Analogy, it was denied the status of being a source of law by the Zahirite jurist,

Ibn Hazm. (Hourani 1985, 186). For these reasons it may be appropriate for us to focus

initially on the Qur’an itself (and the Sunna) for purposes of examining the character

of Islamic law.

In the Qur’an we finds a sizable number of verses that formulate rules (the so-

called ‘Ayat al-Ahkam’) that are designed to govern the life of the Muslim community

under the leadership of the Prophet. These verses, which have been variously

estimated to number between 500 and 1000 (Anzi 2004, 8-9), were divided according

to subject matter by early jurists. There are as many as 30 different subject matters on

some counts. The subjects are not neatly separated from each other1, but putting aside

1
On the matter of distinction between subject matters, Joseph Schacht had this to say: “One important
criterion of the sociology of law is the degree to which the legal subject-matters are distinguished and
differentiated from one another. There is no such distinction in Islamic law”. (Schacht 1964, 206).
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rules of ritual and worship, one finds that areas subject to divine legislation include:

alms-tax, war, sale (and interest), contract, testimony, (manumission of) slaves, spoils

of war, public expenditure, crimes and punishments, adjudication of disputes,

marriage and personal status, inheritance, safe conduct, and administrative regulation

among others.2

Consider verses such as the following, to give but a few examples,

Whatever booty you take, the fifth of it is God's, and the Messenger's, and the
near kinsman's, and the orphans', and for the needy, and the traveler. (8:40) 3
And the thief, male and female: cut off the hands of both, as a recompense for
what they have earned, and a punishment exemplary from God. (5:40)

[When contracting a debt:] And call in to witness two witnesses, men; or if the
two be not men, then one man and two women, such witnesses as you approve
of. (2:80)

These verses and others like them are not examples of familiar kinds of laws

which legal theory commonly deals with, namely, natural law, customary law,

statutory law, common law, or plain man-made positive law. Viewing such verses by

their own lights, there is nothing for us to call them but “divine laws”. But this may

not the most accurate description that we can offer. For there are uses of ‘divine law’

where it is said that rational human knowledge of the dictates of morality and natural

law count as a “promulgation of God’s Law to human beings. According to P.T.

Geach,

The rational recognition that a practice is generally undesirable … is thus in

fact a promulgation to a man of the Divine law forbidding the practice, even if
he does not realize that this is a promulgation of the Divine Law. (Geach 1969,
7).

2
A more thorough enumeration of subjects of legislation can be found in Nicolas Starkovsky (2004,
381-459).
3
All translations are from Arthur J. Arberry, The Koran Interpreted (Arberry 1964).
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Yet “laws” such as “All human beings are equal”, or “All humans have a right to

live in peace and freedom”, which we can (let us assume) know by Reason, are not of

the type which our examples are meant to illustrate. A more accurate description of

the divine laws we have mentioned would be to call them “divine positive laws”, for

they bear many of the marks that are commonly taken to characterize positive law, as

normally understood. These marks include deliberate enactment (being “laid down”,

or posited), and imposition by identifiable authority. This distinguishes both divine

positive law and what we may now call ‘human positive law’ from both customary

law and natural law (Murphy 2005, 3; 18). Furthermore, divine positive law

resembles human positive law in terms of specificity to legal systems. For each

human legal system may be said to have its specific laws, while (we suppose) all such

systems may share the same natural law precepts. In a similar fashion, Islamic law

recognizes that it is specific to Muslims, in accordance with the well-known Qur’anic

verse, commonly taken to refer to Christians, Jews and Muslims,

To every one of you We have appointed a right way (shir‘a) and an open road.
If God had willed, He would have made you one nation; but that He may try
you in what has come to you. (5:48).

Finally, divine positive law, like the legal rules of human positive law, but unlike

natural and/or moral law, is able to “provide more specific guidance to human conduct

than do moral precepts”. This is important, and also relevant to our being able to call

something a ‘law’: “law must provide clear and determinate guidelines if it is to

coordinate myriad human endeavors.” (Murphy 2005, 4)

In choosing to think about Islamic law in terms of divine positive law, we follow

the practice of St. Thomas Aquinas who distinguished, within Mosaic Law, between

universal moral precepts which he called “Natural Law” (applicable to Jews,

Christians and others) and ritual, or ceremonial commands which he called “positive
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law” (Murphy 2005, 20). But we do not assimilate the positivity of Islamic law its

ceremonial or ritualistic features, for Islamic laws of ritual constitute only a small part

of the “practical guidance” which Revelation provides.

With these considerations in mind, let us proceed to discuss how Islamic law can

be comprehended in legal positivist terms. The first tenet of LP which says that

“[E]very legal system has a fundamental test for law in the form of a rule of

recognition” (Dworkin 1978, 59) is met by Islamic law in a straightforward manner:

the rule of recognition is simply inclusion in the Book of God, or counting among the

canonical sayings of the Prophet. We can, following the terminology of The Concept

of Law, refer to the legal rules based on the Qur’an, (such as “Contracts must be

witnessed by two men, or one man and two women”) as primary rules. But the rule

(or rules) which “validate” such primary rules (allow them to be considered part of

law) can be called secondary rules. (Hart 1961, 79-100).

Let us now see how Islamic law stands with regard to the second tenet of LP,

which requires that the cases where the law is not clearly applicable must be decided

by a judge, using discretion, and “reaching beyond the law for some other sort of

standard to guide him in manufacturing a fresh legal rule or supplementing an old

one.” (Dworkin 1978, 17)

The possibility of incomplete coverage contemplated in the second tenet is bound

to be encountered in legal practice sooner or later. In the case of Islamic law the

possibility arose during the life-time of the Prophet, and afterwards, as Muslim armies

brought more and more peoples and territories under Islamic rule (and law). A well

known tradition relates the story of a conversation which took place between the

Prophet and the Companion Mu‘ath ibn Jabal, who was to be sent to Yemen. The

Prophet asks Mu‘ath about the method he intends to follow in judging between
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disputants. Mu‘ath answers by saying that he would judge by what is in the Book of

God, the Qur’an. “What if the Qur’an does not give an answer?” the Prophet asks.

Mu‘ath would then have recourse to the Sayings of the Prophet. But what if the

Sayings of the Prophet do not provide an answer either? “I will exercise my judgment

without fail,” says the Companion. Upon hearing this, the tradition relates, the

Prophet thanked God and expressed pleasure at the Companion’s plan. (Abu Dawud

1997, #3592).

After the death of the Prophet, one of earliest school of jurisprudence to arise was

that of Hanafism, whose eponym, Abu Hanifah (767), was famous for his advocacy of

the ra’y, or exercise of personal judgment. (Arrabi 1999, 58-62) But the many

differences of opinions and disagreements between jurists, amid concerns about the

abuses and vagaries of private judgment, eventually gave rise to a jurisprudential

method for deriving “new” legal rules. This method, which came to be known as “the

use of Analogy” was added to the sources of Islamic law by Imam al-Shafi‘i (820),

and became accepted afterwards by other schools. This method depends on finding

relevant similarities between a novel situation requiring a legal decision, and the

occasions on which an old-established rule applied. The standard example which is

used to illustrate this method is the prohibition of a newly concocted intoxicating

drink (never mentioned in the Qur’an, of course) on the basis of the prohibition of one

specifically named in the Qur’an.

To all intents and purposes, the role Analogy is not very dissimilar to the role of

‘discretion’ in the second tenet of LP. For Analogy functioned as a kind of “controlled

discretion”, on account of its being a limited way of using one’s reason within the

bounds of existing rules. The question of how analogy is to be used raised (and

continues to raise) problems, including determination of relevant similarities, and the

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possibility of disagreement between results arrived at by different jurists or judges. In

these ways it is similar to the use of discretion.

To complete this account of how Islamic law can be understood within the

conceptual framework provided by LP, we turn now to third tenet, according to which

an obligation for one to do or to forbear is created by the application of valid legal

rules, in whose absence no claim of obligation can be made. (Dworkin 1978, 17)

In some ways the treatment of the concept of the obligatory, the forbidden,

proscribed, and other concepts that lie between these, is the most definitive mark

which suggests that Islamic legal philosophy may be viewed as a kind of legal

positivism. As Schacht says, these classifications serve a unifying function as far as

Islamic law is concerned:

The central feature that makes Islamic religious law what it is, that guarantees
its unity in all its diversity, is the assessing of all human acts and relationships,
including those which we call legal, from the point of view of the concepts
obligatory/ recommended/ indifferent/ reprehensible/ forbidden. (Schacht
1964, 200)

The obligatory/forbidden scheme is not remarkable on account of its unifying

function, because a legal system by its nature aspires to be encompassing and unified.

What is remarkable is the range of notions that were brought to bear on the semantics

of these legal terms from early on in the history of Islamic jurisprudence.

If we are to go by what Kevin Reinhart says, it seems that as early as the late first

century of Islam, reflective Muslims were asking questions about the status of actions

which people engaged in before the advent of Revelation, that is, before God revealed

His judgment (hukm). Were actions such as lying, thanking a benefactor, killing,

eating or drinking permitted, obligatory, or proscribed, or with no value at all?

According to Reinhart “We see this question as inchoate before the development of
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the science of principles of jurisprudence (usul al-fiqh) in its classic form.” (Reinhart

1995, 14). Those who followed the “Permitted” position said that “in the absence of

revelational knowledge to the contrary, useful acts are permitted.” (Reinhart 2005, 38)

Those who followed the Proscribed position said they were forbidden. There were

also those who chose to say that “No Assessment” was possible .

To say that no assignment of value is possible before the advent of Revelation

implies that the assignment of value is a function of revelation itself. This is not the

same as saying that obligation must be defined in terms of “being commanded by

God”. But it certainly paves the way for this claim, for what changes with the advent

of revelation is that divine commands and prohibitions are addressed to us,

obligations are created, and then it is up to us to violate or obey them. By analogy, to

say that useful acts are permitted in the absence of revelation implies that unaided

human reason is able to pass value judgments on actions with regard to their

“permissibility” of lack thereof. And while this does not imply that obligation is to

be defined by reference to what Reason dictates, it surely can be seen as giving

Reason a role in the knowledge of value, even if only to give independent

confirmation of the deliverances of Revelation.

During the formative period of Islamic jurisprudence there was much intellectual

fluidity and diversity in the positions of the different schools. The “Permitted”

position had many adherents among Shafi‘ites, even the Hanbalites, not to mention

the Mu‘tazilites (who seem to have had some “Proscribers” of their own). But

gradually, as orthodoxy began to set in, the Shafi‘ites and Hanbalites and others chose

to follow the “No Assessment” position, in preference to the Permitted position.

(Reinhart 2005, 2006). In this way, jurisprudence settled for itself the question of what

role, if any, reason could play in the assignment of value to action. It could be at best
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subsidiary, the major role being reserved for canonical texts of the Qur’an and

Sayings of the Prophet.

But it remained for al-Ash‘ari (935) and his spiritual heirs to formulate and

defend a theoretical notion of obligation in accordance with the positivist spirit

implicit in the “No Assessment” position. In essence, the Ash‘arite idea was that God,

who rules over the universe, is King and Owner of everything. He lays down rules for

what to do and what not to do. These laws define what is obligatory and what is

forbidden. This can be best illustrated by reference to the writings of Juwaini (1085),

because his explanation of the notion of obligation is clear and to the point. According

to him:

If we describe an action as obligatory or forbidden we do not mean there is an

intrinsic distinguishing quality which distinguishes it from that which is not
obligatory. Rather we call obligatory that action which has been commanded
by the Shar‘ [divine law], and we mean by forbidden that action which the
Shar‘ has made forbidden and haram [illicit]. (Juwaini 1950, 259) Emphasis
added.

Obligation, in general, is a matter of being subject to law, so there are limits

which one is not allowed to transgress. This is what Juwaini’s teacher Al-Ash‘ari

(935) said before him:

It can be shown that God is entitled to do whatever He does. For He is the

Commander, and above Him there is none that can command, permit, or
prohibit, or draw boundaries for action. This being so, it follows that nothing
which God does can be evil. For what makes an action on our part evil is that
we transgress boundaries that have been drawn for us, and we do that which
we are not entitled to do. Since the Exalted is not under order, it follows that
nothing which he does can be evil. (Ash‘ari 1955, 117).
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A confirmation of the idea that obligation is defined by reference to an obliging

law is found in the idea that there are no obligations which God has to fulfill.

According to Juwaini, again,

God is not subject to obligation…. We ask one who disagrees with us, what
does it mean for there to be obligation on God to do something? If you mean a
command is directed at God, this is impossible. For He is the Commander, and
there is no commander above Him. If you mean that He obliged to do on
account of wanting avoiding harm, then this, too, is impossible. Finally, if you
mean that an action is made obligatory on account of its inherent goodness,
and the evil of its omission, then this is false too, because good and evil are
not intrinsic qualities. (Juwaini 1950, 272)

In defining obligation and other moral notions in these terms, it seems that al

Ash‘ari and his heirs, who came to stand for Muslim orthodoxy, do no more than

draw the logical conclusions implicit in the ideas of the previous generations of

jurisprudents who tended to favor Revelation over Reason.

From all of this it is possible to conclude that the type of legal philosophy which

al-Ash‘ari and his heirs subscribed to was a kind of legal positivism, an Islamic Legal

Positivism, if you will. For al-Ash‘ari’s explanation of the notion of the obligatory is

not at all different from that of LP, as we have just explained. And, of course, he

cannot pose any objection to the idea that legality, or the validity of rules is

recognized by reference to the accepted authority of the Qur’an and the Sayings of the

Prophet. As for the tenet of discretion, he could not have denied this, having accepted

a role for consensus and the use of Analogy in his philosophy of law.

3. Positivism, Obligation, and Moral Principles

The aim of the preceding section was to justify the twin claims that (1) Islamic Law

can be comprehended in terms of LP, and (2) Islamic legal philosophy, as theorized by
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the dominant school of Ash‘arism, could be viewed as a kind of legal positivism— an

Islamic Legal Positivism.

This claim can be further substantiated by reference to problems and criticisms.

Neither LP, nor the Islamic version of it, has been without its critics. It will be argued

in the present section that similar lines of criticism can, and have been, be pursued in

these two areas. This stands to provide additional support for the idea that this way of

comprehending Islamic law and legal thought is not without foundation.

3.1 Dworkin’s Critique of LP

Dworkin begins his criticism by reflection on the “hard cases” of the law, that is,

cases which may appear to fall under the jurisdiction of a clear legal rule, but which

are “hard” in that lawyers, judges, and even ordinary people, may judge that the rule

should not be applied. Under regular circumstances, a son who is named in his

father’s will has a right to inherit in accordance with the will. But what is the law to

say in “the hard case” where the son kills his further in order to hasten the prospect of

inheriting? When we argue about such cases, says Dworkin, we find ourselves

appealing to principles, policies and standards that are not legal rules in any ordinary

sense of the term (Dworkin 1978, 23). In the present example we may invoke a

maxim such as “No one shall be permitted to profit by his own fraud, or to take

advantage of his own wrong, or to found any claim upon his own iniquity, or to

acquire property by his own crime.” (23) This maxim is not similar to a law which

defines and prescribes a punishment for exceeding a precisely defined speed limit.

Dworkin claims that LP cannot accommodate these “non-rules”. If Legal

Positivism were to include them in the law, then the rule of recognition tenet goes by

the board, for there is no rule of recognition that can be associated with these non-
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rules. At the same time we cannot say that judges have unlimited discretion to apply

these principle or not. For we are inclined to take such principles as binding, in the

sense that a judge who fails to apply them is thought of as failing in his duty. Thus the

second tenet fails (35).

Tenet 3 does not fair any better. For if there are principles that are not the same as

the regular “primary” rules of the legal system, and if they may be viewed as

“binding” and determinative of obligation, then we can no longer define obligation by

reference to falling under the purview of legal rules. According to this line of thought,

the murderer does not have a right to inherit by his father’s will. Had the possession

of such a right depended on merely falling within the purview of the legal rule, an

obligation would have existed for him to inherit. But as no such obligation exists, it

follows that obligation is not a matter of falling under a legal rule. Tenet 3 has to be

abandoned. (44)

One way of focusing on the substance of Dworkin’s critique of LP is to say that it

highlights the relevance of morality to the law by saying that obligation, rights, and

duties cannot be reduced to an outcome of the application of legal rules. This is stated

clearly in Dworkin’s reply to his critics—he now asserts that “no ultimate distinction

can be made between legal and moral standards, as positivism insists.” (Dworkin

1978, 47)

The idea then is that moral principles must be considered when thinking about

what the law is. The existence of rules and their enforcement by sanction creates a

situation of people being obliged to do or to forebear. This is different from situations

where obligations, rather than obligings obtain. The idea that force is not the same as

right nor capable of creating one is an old idea, of course. Hart recognizes it, and a

main objective of his Concept of Law is to accommodate this idea within a legal
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positivist conceptual framework. He attempts to do this by reference to the notion of

“accepted social practice.” (Hart 1978, 79-88) But this difficulty may not be solved

even if we were to stipulate that the rules are willingly accepted and complied with, in

the absence of force and social pressure. As Dworkin argues, at one time a generally

accepted rule required men to pay certain courtesies to women. If that meant the

existence of obligations on the part of men to (for example) take off their hats when

greeting women, then what could it possibly have meant for someone back then to

deny the existence of such an obligation on the ground that it was an insulting kind of

condescension? One would have expected an obligation that was constituted by

social rules to be as real as the social rules themselves. But whereas the existence of

the rules could not be denied, the obligation could (and has been, in fact) denied (cf.

Dworkin 1978b, 57)

How are we to understand the obligatoriness of the law, then? According to Priel,

the content (substance) of the law must be considered, not just its formal feature of

being a law:

One answer that as a historical matter many philosophers found persuasive is

that law is, at least potentially, committed to justice. …A putative legal system
flourishes when it succeeds in promoting justice; when it utterly fails in doing
so, or worse, when it subverts it, it no longer counts as a legal system at all: it
becomes something that bears some superficial semblance to law, but really is
not different from the acts of the gunman, only writ large. (Priel 2013, 10)

Much the same idea, stated in less radical terms, is behind the claim of the

relevance of natural law to legal rules. By ‘positive law’ Cotta understands “an Ought

that has a factual existence,” but “it is exactly to this positive (i.e. factually enacted)

form that natural law is opposed (or proposed) as indicating what the former ought to
 17

be.” (Cotta 1983, 267) Were we to specify what positive law ought to be, we would

have to bring in morality.

Mu‘tazilism and Islamic Legal Positivism 3.2

According to Fazlur Rahman, Ash‘arism “came to claim for itself the exalted function

of being the ‘defender of the bases of Islamic law’.” (Rahman 1982, 26) This is

undoubtedly related to the position of eminence which Ash‘arism attained in the field

of legal thinking in Islam. Given this, it stands to reason to think that a look at the

extended criticism of Ash‘arism by the Mu‘tazilah may expose some of the problems

of Islamic Legal Positivism.

Following the example of Dworkin, we may begin by focusing on “the hard

cases” where our ideas about obligation are tested. Here is one. In the Qur’an it is

stated: “And the thief, male and female: cut off the hands of both, as a recompense for

what they have earned, and a punishment exemplary from God.” (5:40) But a few

years after the death of the Prophet, Muslim lands were afflicted with famine, which

led to many cases of theft. Under these circumstances, the Caliph ‘Umar I was led to

order the suspension of the limb amputation punishment.

Other hard cases can be imagined in connection with the legal rule that requires

that a man’s testimony carry more weight than that of a woman. According to

Rahman, “to say that, no matter how much women may develop intellectually, their

evidence must on principle carry less value than that of a man is an outrageous affront

to the Quran’s purposes of social evolution.” (Rahman 1982, 19)

If we think about such “hard cases”, real or imagined, and the way they can be

dealt under Islamic law, we will inevitably be led to consider the place of principles,
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policies and standards in such a system. But at this point it will be asked: aren’t these

principles, policies and standards to be found in the sources of Islamic law itself,

namely (and mainly), the Qur’an and the Sayings of the Prophet? It may be true, as

Rahman himself says, that the Qur’an mostly deals with concrete situations and offers

practical solutions, but it also “provides, either explicitly or implicitly, the rationales

behind these solutions and rulings, from which one can deduce general principles.

(Rahman, 1982, 20) Moreover, according to the same author, the Qur’an has a basic

moral message:

The basic élan of the Qur’an--the stress on socioeconomic justice and essential
human egalitarianism--is quite clear from its very early passages. Now all that
follows by way of Qur’anic legislation in the field of private and public life,
…., has social justice and the building of an egalitarian community as its end.
(Rahman 1982, 19)

Many Qur’anic verses can be cited which express judgment on matters that fall

within the realm of the moral, such as privacy, freedom of religion, individual

responsibility, equality, honesty, and elements of the virtuous life generally, as noted

by Abu al-Acla al-Mawdudi (1978) in his enumeration of “Islamic human rights” in

his Caliphate and Kingship (Mawdudi 1975). One can also find legal precepts and

allowances that ought to govern legal proceedings, such as the Saying attributed to the

Prophet, which enjoins judges to “ward off the fixed punishments …on the strength of

shubhat [doubts about the truth] as much as you can.” (Peters 2005, 25)

If these considerations can be accepted, then it would appear that Islamic Legal

Positivism differs from the kind of legal positivism which Dworkin criticizes. As far

as Islamic theory of law is concerned, there can be no question of what do with

“principles, policies and standards”, because they are included in the system of law

itself.
 19

Despite the availability of moral principles for use in the elaboration of divine

law, it can be said that Islamic jurisprudence, historically speaking, was for the most

part rule-driven, rather than morality-driven. It is an historical fact that at no point was

it considered possible to strike any legal rule off the book, on the strength of changed

circumstances, or moral principles of the kind that Rahman refers to in connection

with the value of woman’s testimony. This is not hard to understand in view of the

fact that legal rules of Islamic law are taken to be statements of Divine commands that

cannot be revoked by humans.

Without denying the existence of morals principles, policies and standard in the

Qur’an, one can still wonder about the influence they were destined to exert on the

development of Islamic law. Joseph Schacht estimates the matter thus:

The opposite tendency, taking material facts into account, diverging from the
formally correct decision for reasons of fairness or appropriateness, is not
unknown in Islamic law; it appears in istihsan [consideration of goodness] and
istislah [consideration of utility]. But this principle, both in theory and in its
actual application, occupies too subordinate a position for it to be able to
influence positive law to any considerable degree. (Schacht 1964, 204)

What this suggests is that general moral principles tended to carry less weight

than the clear-cut rules which we refer to as “divine positive law”. Despite the efforts

of the Mu‘tazilites and other rationalists, no doctrine of natural law ever took root in

Islam deep enough to have to have an impact on Islamic legislation, or to pose a

serious challenge to Ash‘arism, which became the official doctrine of morality

surrounding jurisprudence.4
4
Patricia Crone denies the existence of a natural law doctrine in Islam (Crone 2004, 263-24). Avner
Emon (2010) disagrees, attributing a “soft” natural law doctrine to those who accepted a subordinate
role for reason. Undoubtedly, the use of analogy, and the invocation of maslaha (utility) in legislation
all require the use of reason, even belief in objective standards on some level. The question will always
be one of what impact moral considerations based on natural law and morality had in practice, and how
much official recognition they received.
 20

The tendency towards seeing the law in terms of divine positive laws, rather than

in terms of moral concepts and principles is part and parcel of how the dominant view

came to understand moral discourse in general. According to Ash‘arism, not only are

the (legal) notions of obligation and proscription to be defined in terms of divine

commands and prohibitions (as we saw in the last section), the same applies to the

(moral) notions of good and evil as well. Thus according to Ash‘ari,

A thing is evil on our part only because we transgress the limit and boundary
set for us and do what we have no right to do. …Lying is evil because God has
made it evil [by proscribing it]. Had he commanded it, it would not have been
objectionable. (Al-Ash‘ari 1955, 117)

Juwaini is even more emphatic, because he seems to imply an identity between

good and evil on the one hand, and divine command on the other:

Goodness is not a quality which is additional to “being commanded by the

scripture”. Being good and being commanded by the scripture are not
different. Thus the meaning of “good” is that for which scripture reveals praise
for its agent, and the meaning of “evil” is that for which scripture reveals
blame for its agent. (Juwaini 1950, 259)

Thus moral principles, standards and policies are themselves the product of

divine decision. This creates a difficulty. We are inclined to assume that ‘Umar I

suspended the amputation punishment because he thought it would not be morally

right for people to starve to death, when they could save their lives by a little stealing.

Perhaps, we think, he was guided by a moral principle to be found in the Qur’an—

e.g., the one that says “You ought not to take your own life” (2: 195) But according to

the Ash‘arite view, God was under no obligation to command this; He could have just

as easily commanded the opposite, in which case ‘Umar I would have been under an

obligation not to suspend the rule of amputation. No necessity attaches to moral

 21

principles. This does not set well with our firm intuition that, e.g., lying cannot be

prescribed.

To the Mu‘tazilites, who offered the most sustained and carefully worked out

criticism of Ash‘arism over many centuries, all of this ran counter to commonsense,

and made mockery of the idea of an all-good God. The Mu‘tazilites, at least as we

know them through the Mughni of Qadi ‘Abd- al-Jabbar, presented many arguments

against the Ash‘arite position.5 Here we shall consider only the ideas that are closely

relevant to the concept of obligation.

The Mu‘tazilite criticism of the Ash‘arite concept of obligation turns out to be not

vastly different from criticisms of contemporary LP. In both cases what is found

objectionable is the idea of considering law (and legality) in abstraction from

morality. In particular, they thought that commands and prohibitions (divine or other)

could not be the ground of obligation. A fortiori, a command that was not in

accordance with what is morally required could not ground any obligation

whatsoever. The role of Revelation is merely to reveal the existence of an obligation,

but without creating, or constituting it in any way. In the words of cAbd al-Jabbar:

Revelation only uncovers in the character of these acts aspects whose evilness
or goodness we should recognize if we knew them by reason; for if we had
known by reason that prayer is of great benefit to us, …, and that we will be
rewarded for in the afterlife, we should have known its obligatory character
[also] by reason. Therefore we say that revelation does not necessitate (la
yujib) the evilness or goodness of anything, it only uncovers the character of
the act by way of indication. (cAbd al-Jabbar 1958-65, 64)

Here an alternative view of obligation is illustrated by means of the example of

prayer. The Ash‘arites, of course, will say that what makes prayer obligatory is divine

command, and nothing else. But ‘Abd al-Jabbar claims that what makes prayer

obligatory is the goodness of its consequence in this life and the next. Had we been

5
For an overview of the Mu‘tazilite arguments, see Mariam al-Attar (2010).
 22

able to know these consequences by reason, “we should have known its obligatory

character [also] by reason.” Obligation, thus, is grounded in goodness, not in divine

command.

In a much later statement of the Mu‘tazilite understanding of important legal

concepts, we read the following:

Wajib is the judgment (hukm) of an act which, if not performed, entails or

leads to corruption or harm (mafsada).
Haram is the judgment of an act which, if performed, entails corruption.
Mandub is the judgment of an act, which, if performed, entails some benefit
(maslaha).
Makruh is the judgment of an act, which, if not performed, entails benefit.
Mubah is the judgment of an act, which does not entail any corruption or
benefit. (al-Tahanawi 1996, 668)

Now if the Mu‘tazilites in fact equated good with utility, and evil with harm, then

we can replace the phrase “entails benefit” in the above definition with the phrase

“entails good”, and the phrase “entails harm” with the phrase “entails evil”. But it is

not universally accepted that the Mu‘tazilites were utilitarian. According to Hourani:

[T]he Mu‘tazilites chose to define the main terms of ethics in ways which
avoid teleology. Mu‘tazilite ethics is deontological, because it explains wajib
[obligatory] hasan [good] and qabih [bad] not entirely by relations to ends, but
sometimes at least as characters of acts themselves. (Hourani 1985, 153)

This seems to be Richard M. Frank’s view too, for although, according to him,

“[doing] what is right can…be rationalized on purely utilitarian grounds”,

nevertheless,

That we ought to do so, however, that is, to fulfill the moral obligation to seek
one's own good and to avoid grave or irremediable harm, is absolute and
irreducible. (Frank 1983, 207)
 23

Perhaps what Hourani and Frank are saying can be illustrated by ‘Abd al-Jabbar’s

treatment of the case of someone who gives directions to the lost traveler.

We know by experience that one will sometimes give directions to one who
has lost his way …without there being any benefit for him personally—no
reward for commission or punishment for omission,…no expectation of
thanks, fear of blame or desire for praise…. nor because he is soft-hearted
(otherwise most everybody in the world would be soft-hearted). (cAbd-al-
Jabbar 1958-65, 223, 224, 225)

We can infer from this is that providing guidance for the lost is good (hasan), and

that its goodness is sufficient to motivate action. By itself, this does not prove that

goodness bears no relation to consequences. What it shows is that some of our actions

can be other-regarding, that we do not always act for self-regarding reasons. But it

remains true to say that the goodness of the action is not independent of the

consequences for the person whose good we have in view. Acting with no end in view

(personal or other) is the same acting purposelessly, something which Mu‘tazilites are

well-known for opposing vehemently.

Be the case as it may with regard to the Mu‘tazilite stand on utilitarianism and

deontology, what matters essentially is fact that their critique of the legal positivism of

Ash‘arite doctrine was based on the idea that obligation cannot be divorced from the

moral considerations of goodness, and that the law is answerable to the standards of

morality. Obligation is never a matter of being commanded to do this or that. In

spirit, their criticism was not really different from that of Dworkin, according to

whom “no ultimate distinction can be made between legal and moral standards as

positivism insists”. (Dworkin 1978, 47)

From a certain perspective, it is to the credit of the Mu‘tazilites that they were

able to maintain a distinction between divine commands and moral grounds, between
 24

the obligatory and the good. But as we shall see in the next section, the Ash‘arite

position may have had a logic of its own, a logic embedded in the concrete life of a

community of Faith, where no distinction was made between leading a good life and

obeying divine commands.

4. A Re-assessment of the Ash‘arite-Mu‘tazilite Debate

The claim which Dworkin makes of there being no ultimate distinction between legal

rules and moral standards is precisely what John Austin denies in these famous words:

The existence of law is one thing; its merit or demerit is another. Whether it be
or be not is one enquiry; whether it be or be not conformable to an assumed
standard, is a different enquiry. A law, which actually exists, is a law, though
we happen to dislike it, or though it may vary from the text by which we
regulate our approbation and disapprobation. (Austin 1995, 157)

In the remainder of this paper an attempt will be made to determine whether there

is a way to make sense of the positivist view of obligation after due allowance is make

for the moral considerations which critics adduce. This will pave the way for looking

at the Ash‘arite-Mu‘tazilite debate in a new light.

The following examples may serve to illustrate how consonant it is with ordinary

understanding of legal terms to make a distinction between morality, rights and

obligations on the on the one hand, and the law as such on the other. Suppose

someone makes a lie in the presence of other people, so there is no doubt about its

being a lie. We can say: “he ought not to have lied”, or “he had a moral obligation not

to lie”. In many cases, this is the end of the matter. But suppose, on the other hand

that the same lie was made under oath, in a court of law. The lie is the same, but the

situation is vastly different. Here the person clearly acts under a legal obligation to
 25

tell the truth. Lying is called “perjury” and it is subject to sanction. By comparison,

telling the truth, outside of a law-governed context, seems more like something which

is morally desirable. We can speak as much awe as we want, especially if we are

Kantians, of “the moral law within,” and our obligation to obey “the moral law”. But

this “moral law” does not have the reality, the bite, which legal obligation has.

The same applies to breaking promises. You promise someone you will sell him

your car; later, you change your mind, and break your promise. This is morally wrong,

we say. You may or may not be able to find an explanation for what you did, and your

explanation may or may not be convincing to this or that person. As long as the matter

remains in the realm of the moral, no definite decision may be reached. On the other

hand, had your promise been legally witnessed, signed and attested, your obligation to

sell the car assumes a different shape. Now it is a legal obligation, whose breaking

may incur sanction.

We can add a final illustration of a different kind. A historian, even an ordinary

person, reflecting on life in ancient Greece may say the following: “In ancient Greece,

people owned slaves, and had a right to buy and sell as many slaves as they wanted. A

slave, on the other hand, did not have a right to leave the service of his master.” Some

may say that we must not talk like this; that we should place the words “rights” and

“obligations” between scare-quotes to indicate that, in reality, the slave owners did

not have a right to sell slaves, and that the slaves did not have an obligation to obey

their masters. But then we may as well place scare-quote around “owned”, because,

after all, what does ownership mean, if it does not mean that you have right to sell

that which you own?

 26

But clearly, there is no call for us to sprinkle a historical discourse about ancient

Greece with scare quotes in order to reveal our moral standpoint on slavery. Talk of

slave ownership, and the rights and obligations that go with owning slaves is perfectly

understandable as it stands. As Austin’s statement suggests, we may have all kinds of

objections to the laws, but to think that we are not dealing with rights and obligations

“under the law” is simply not true.

According to G.E.M. Anscombe’s famous essay of 1958, the idea of there being

an obligation not to lie, or kill, or do any number of things which we consider

immoral, was once , and for a long time, at home within the framework a divine law

conception of ethics. Such a conception of ethics is explained thus:

To have a law conception of ethics is to hold that what is needed for

conformity with the virtues failure in which is the mark of being bad qua man
…that what is needed for this, is required by divine law’ (Anscombe 1958,
30).

Anscombe’s examples of the law conception of ethics are Judaism and

Christianity. But, of course, one must add Islam. The law conception of ethics was

evident in the Ash‘arites’ willingness, nay, their anxiety, one may say, to put good and

evil, the right and wrong, the forbidden and the obligatory, all in one basket: the

basket of divine law. They did this by one simple move: they said that all these

notions are definable by reference to divine law. In plainer, less theological (therefore

less contentious) language they could have said: “to live a good life, where one

always does right, and fulfills one’s obligations is simply to live in accordance with

divine law.”

According to Anscombe, obligation, in the context of a society whose life is

organized by application of divine law, had a clear meaning. In such a context,

 27

… it really does add something to the description ‘unjust’ to say there is an

obligation not to do it; for what obliges is the divine law-as rules oblige in a
game. (Anscombe 1958, 15). (Emphasis added.)

By saying that divine law obliges “as rules oblige in a game”, Anscombe does not

imply that the rules of divine law are the same as the rules of a game. Divine rules and

moral laws differ from the rules of a game (such as chess) in that they are

…instrument[s] whose use is part and parcel of an enormous amount of human

activity and hence of human good; of the supplying both of human needs and
of human wants so far as the satisfactions of these are compossible. It is
scarcely possible to live in a society without encountering [them] and even
actually being involved in [them]. (Anscombe 1981, 18)

This, of course, cannot be said for the laws of a game, such as chess. It cannot be

said that an enormous amount of human good hangs on it. So it does not attain the

status of being a moral rule. But insofar as it is a rule, the chess rule which says “You

cannot make two moves in a row” is not different from the rule which says “You

cannot kill innocent persons”. A command, rule, or law, be it of the religious- divine

type, or the game type, has meaning precisely because it can be complied with. The

cynical saying that “laws are made to be broken” has a grain of truth in it, precisely

because it is also true to say that rules are made to be obeyed. If no obeying ever took

place, no rules would exist either.

These considerations enable us to make sense of a further similarity between

divine/legal rules on the one hand, and those of chess, on the other. In all these cases,

final answers to a certain type of question can be given. To the question of why I, a

driver, had an obligation to stop I can say: “because the traffic light was red, and the

law says to stop at a red light”. To the question of why I had to move a chess piece, I

can say: “my King was in check, and the rule says to move or resign”. To the question
 28

of why I had to reject this drink I, a Muslim, can say: “it is an intoxicating drink, and

divine law prohibit this”. In all these cases justification comes to an end by reference

to a rule. In many cases of this type, this is a perfectly acceptable stopping-point and

explanation of obligation.

In many cases, yes, but the “conversations” of the last paragraph can be

continued. One can be challenged to say why one ought to obey the (divine) law. But

to see what is at stake in such a challenge consider a similar challenge to say why one

should obey the laws of chess. A question such as this last one can only mean “what

good is to be found in this activity of obeying chess laws?” Perhaps one should not

engage in chess-playing at all, because it invariably causes headaches. The challenge

can then be construed as a call for abandoning the game of chess altogether. Or

perhaps the challenger could be satisfied with an answer such as: “because chess

playing develops mental skills”.

The important thing to realize is that what is stake in the “ought” involved in

these challenges is not the same as the “ought” involved in “You ought to move your

King”, or “Thou shalt not kill”. Rather, it is the same as the “ought” we employ in

statements such as “the plant is dry; it ought to be watered”, or “He is an athlete; he

ought to be exercising more”. Here the “ought” refers to what is needed for the good

of the plant and the athlete to be achieved – watering in one case, exercising in the

other. Anscombe refers to this as “Aristotelian necessity,” (Teichman 2008, 96), in

reference to Aristotle’s definition of the necessary as that “without which the good

cannot be or come to be.” (Aristotle 1984, 1015a20–5.) It is not the “ought” of

obligation which the Ash‘arites and legal positivists are interested in.

Now the Mu‘tazilites regularly bring in considerations of “the good” to bear on

the question of what is obligatory and what is forbidden. As said before, they
 29

ultimately define the obligatory act as one whose omission leads to corruption or

harm. On the other hand, the tradition to which the Mu‘tazilites were opposed was at

no point prepared to think about the divine law in term of Aristotelian necessity. For

in defining the obligatory and the forbidden, as well as good and evil in terms of

divine law, it ruled out the possibility of there being any notion that could be used to

pass value judgment on laws and legal norms. Human reason, which could be counted

on to know something about good and evil, was rendered useless, at least as far as

some basic issues of legal philosophy were concerned.

Nevertheless, it could be said the Mu‘tazilites, at least in one important respect,

were simple-minded in comparison with the Ash‘arites. At one point ‘Abd al-Jabbar

makes a rather implausible claim that

The divine prohibition of something in effect says: “such and such is evil.” In
reality, there is no distinction between someone saying “this is evil” and
saying “Do not do this.” (‘Abd al-Jabbar 1958-65, 105)

But to think that a (divine) command such as e.g. “Thou shalt not kill” is

equivalent to statement such as “Killing is evil” is tantamount to abolishing the whole

category of “rule”, or “law” altogether. For saying that killing is evil may be no more

than a moral truth, or a report of moral fact. In no way can it play the role which it is

the nature of laws and rules to play: to make it possible for there to be acts of

obedience, (compliance) and disobedience. The Ash‘arites, for their part, were aware

of this. For there to be such thing as obligation, there has to be “obliger”, and an

“obligee”, and something which one is obliged to do. This holds regardless of the

prescribed content, and why it is prescribed.

The Ash‘arites were not willing (or able) to think philosophically about the

prescribed content of divine law. What figured prominently in their thinking was the
 30

existence of rules that were laid down by the recognized authority of the All-mighty

God. Pressed to say why one should not lie, they could say: “because God says not

to,” which is a good answer in the framework of a way of life that accepts Divine

government, just as it a good answer to say, in the context of a game of chess,

“because the laws of chess say to.” What the Ashcarites omitted to do is raise the

question of why it was worth one’s while to engage in the whole practice of obeying

divine law. The Mu‘tazilites implicitly raised the question and answered by saying, in

effect, “because it is good (objectively good) to do so.”6 But then we must remember

that this questioning attitude of the Mu‘tazilites behooves people who choose to

follow the path of Reason rather than Faith. The latter may lump the notion of the

good with the obligatory, and thus fail, as the Ash‘arites apparently did, to distinguish

between the legal and the moral.

Implicit in what we have said in this section is a suggestion that that the

Mu‘tazilites and the Ash‘arites are not opposed to each other in the way it has hitherto

been supposed. If we are right, then it would appear the former were on the whole

preoccupied with a rule-theoretic notion of what one “must” do: there are rules, and

rules must be obeyed. As to the latter, it would then appear that they were mostly

preoccupied with goodness-theoretic notion of what one “must” do: one must do that

without which the good cannot be or come to be.

There is no conflict between these two types of preoccupation. On the contrary,

they draw attention to two complementary aspects of law-making, or law-giving: law

(not mere moral advice) is needed, but we would like the law to serve what is good

and what is right. Perhaps something along these lines can be developed in order to

6
It would not make a difference if the Mu‘tazilites were to be taken as saying that keeping promises,
returning deposits, etc. are good in themselves, and not because of their consequences. For the notion
of “Aristotelian necessity” makes no reference to the nature of the good, i.e. whether it defined in a
consequentialist-utilitarian or a deontological manner.
 31

reconcile Legal Positivism and Natural Law Theory. But this undertaking is beyond

the scope of this paper.

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