Compassionate Justice: Source of Convergence between Science and Religion - Part 8

by Dr. Robert Dickson Crane

TABLE OF CONTENTS Due to limitations on the length of articles in our site hardware, this important article has been put online in a serialized format.  Links to all the chapters will be found in the Table of Contents.

Chapter Fifteen

The Marriage of Science and Religion:  ‘Ilm al ‘Adl

In Euro-American thought of recent centuries the philosophy of science and the science of religion and their possibly reinforcing roles in a holistic paradigm of thought have been pursued usually as an academic branch of philosophy. 

In classical Islamic thought the interrelationship of science and religion has been studied under the rubric of law.  Although extremists on either side deny any relationship, the core question in the mainstream has been not whether they are related but how. 

The question that has kept Islamic thought in turmoil is whether and how reason and revelation impact each other.  This is merely a different arena for the broader issue of science versus religion.  Despite Muslim disclaimers, for more than a thousand years almost every issue in every field of Islamic thought has been framed within the overall context of science versus religion but with a different vocabulary.

The two governing terms in classical Islamic thought are ‘ilm al ‘adl, which means the search for transcendent justice, and ‘ilm al taqwa, which may be translated as the search for transcendent love.  When I first invented the term ‘ilm al ‘adl, I considered that taqwa is the core of ‘adl, but subsequently I concluded that they should be distinguished, as do the Shi’a in their five-part creed, of taqwa, ‘adl, nubuwiyah, imamat, and qadir.

‘Ilm al ‘adl is the science of normative law.  It assumes, as have always all Muslims and as did also the Founders of America, that its opposite, positivist law, is not ultimately authoritative.  Positivist law reflects the belief that humans can rely on the material sciences as the ultimate guide to ethics without resort to religion, and asserts that therefore human arbitrary will must serve as the only source of authority.  The conflict between these two paradigms of jurisprudence boils down to the question whether law is instrumentally created and sustained by human command or is a system of heuristic norms that always wait to be discovered?

This question is central to Western jurisprudence, political science, economics, and sociology.  According to Black’s Law Dictionary, which has been authoritative at Harvard Law School ever since I earned a J.D. there in comparative jurisprudence half a century ago, positive law is “law actually and specifically enacted or adopted by proper authority for the government of an organized jural society. … Positive laws are those enforced by a sovereign political authority.  They are distinguished from rules like the principles of morality … enforced by an indeterminate authority that is either superhuman or politically subordinate and therefore not authoritative.”

Legal positivism rejects the existence of natural law, which reigned at Harvard prior to the Civil War, whether it is derived from divine revelation through prophets or from human nature and the de facto laws of the physical universe, known in Islamic law as the sunnat Allah, which is considered to be equally valid as a form of revelation.

Legal positivism also rejects the basic nature of Islamic law as primarily educational, because law exists for the positivist only to the extent that it is enforced.  In Islam, the need to enforce any provision means that the law has failed to fulfill its purpose, which is to inspire, instruct, and deter.

From the traditionalist perspective of classical Islam, the underlying jurisprudential issue in the world today is whether the ultimate reality is man’s autistic pursuit of unlimited power through the modern state with its monopoly of coercion as a substitute for God, or whether a higher reality of universal truth is accessible to persons and communities as guidance for a normative system of compassionate justice.

Classical Islamic jurisprudents have always recognized the validity of non-Islamic law in the countries where it governs, but only to the extent that it is not un-Islamic.  This law is called ‘urf, which is the same as what Western scholars call customary law. 

But the determination of what is Islamic is determined at least in theory by a higher authority.  In Sunni Islam, the authority is either exclusively the text of the Qur’an, with a few hadith thrown in, or else the text as interpreted by human reason.  The “or else” has been the subject of interminable debate and even violent wars, because the underlying issue is remarkably similar to the Western dichotomy between Church and State.

The various Shi’a schools of thought, especially the majority school, known as the Ithna’ashari Imamiyya madhhab, appeal to authority but not exclusively to either reason or revelation, and specifically not to any political authority.  Perhaps the two major differences between Shi’a and Sunni jurisprudence are the Shi’a emphasis on gender equity and the Shi’a condemnation of any moves to combine religious with political authority, Imam Khomeini’s doctrine of wilayat al faqih being a bizarre modern anomaly.

Authority in the Imamiya and related madhhabs includes the hadith or sayings not only of the Prophet Muhammad but of the inspired successors to the spiritual successor of the Prophet Muhammad, namely, ‘Ali.  It includes also two tiers of scholarly interpretation.  The first tier is known as the ihktilaf generation of scholars who laid out the range of acceptable diversity of opinion.  The second tier consists of the later jurists who summarize and restate the earlier scholarship with explanatory notes.  I have compared this with the Jewish concept of the Talmud and Midrash as successive levels of understanding the Torah.

The key to this process is how to “reveal the opinion of the Imam,” whether living as in earlier times or later “in occultation (ghraib).”  The task is to reach a constructed consensus (ijma’ murakab) on possible answers to a legal problem, beyond which further answers are considered to be out of the ball park.  The opinion of the Imam by definition supports this range of answers.  If further scholarship and ijtihad produce a consensus on one of these answers, this then reveals the opinion of the Imam. 

The Shi’a concept of authority therefore reflects a body of scholarly opinion that develops over time in response to changing conditions.  Since this required continual ijtihad or intellectual effort, the Sunni reliance on analogy (qiyas) was unnecessary.  Instead, reliance was required on the formulation of basic normative principles from which every hukm or regulatory rule must derive its meaning. 

Although it may seem rather arcane to a Westerner, and even to most Muslims, the nub of the issue both between Shi’a and Sunnis, as well as within each group, is whether or not to accept qiyas as a source of law.

The Sunnis were divided among themselves between the Hanafis, who believed in the use of analogy to derive a decision from a similar case already decided in the past, and those who opposed its use as allegedly mere speculation.  This is similar to case law relying on similar precedents in Western law, which has led to the abolition of courts of equity, the growth of positivist statutory law, and the gradual elimination of independent reasoning based on abstract justice.  The Hanafis, however, used this practice precisely, as they claimed, for the opposite purpose of introducing human reason into the law. 

The leaders of this school, the Mu’tazilah, who were predominantly Hanafis, believed that the system of Creation is established on the foundation of justice and that knowledge of the unalterable criteria of justice is within the province of human reason.  As perhaps the leading Shi’i scholar of recent times has explained it, “It is not possible that God should will anything that is not according to these definite rational criteria. … According to the Mu’tazilite doctrine, there is a purpose and aim in every Divine Act, whether it relates to creation [natural law] or legislation [revelation].” 

This “liberal” view contrasts with the “right-wing” view of the Asharites, who insisted that Divine Acts are not subject to any aims and purposes or to any concept of human utility, because any principle of justice contradicts the principle of tawhid and the idea that God has absolute freedom.  Any normative principles of justice, according to the Asharites,  necessarily place limits on God.  According to Asharite fatalism, if justice were a principle of ultimate reality, there would be no social inequality, no class distinctions, no corruption, and no wars.  Whatever justice one can find is subservient not to reason but to the text of the Qur’an.  As Mutahari puts it, this means that, “Whatever God does is just, not that God does what is just, good and beneficial.” 

Mutahari notes that this approach to reality is similar to the ancient Greek sophists who questioned whether reality exists, so that our ideas in order to be valid should correspond to it, or whether reality is merely a product of our minds.  In modern philosophy this smacks of phenomenology and the concept that truth is relative, for which Mutahari employs the term taswib.  Such relativity would eliminate every question about the validity of either science or religion, as well as any possible relationship between them.

This issue is not merely of historical importance, but is central today for the future of the world.  As Mutahari writes, “The problem of Divine Justice and belief in rational criteria of moral and legal judgments occupies the most important position in Islamic thought due to its great influence on the intellectual and scientific history and behavior of Muslims.  It is a fact that those who discussed and studied this issue soon arrived at a crossroads, where they had either to accept religious laws as based on a reality discoverable by reason, to try as far as possible to discover that rational basis, to acknowledge a purpose and meaning of religion, to try to discover those purposes and objectives, and to recognize reason as an ‘inner proof’ and an ‘internal prophet’ and to accept the definite judgments of reason as enjoying the approval of the divine Lawgiver; or else to consider the aim and purpose of the Shari’ah as entailing mere obligation and acts of absolute servility devoid of any objective, and thereby close all the doors on research and intellectual inquiry.”

Mutahari condemns the most extreme proponent of the Asharite view, the Andalucian, Ibn Hazm, who developed a now extinct school of law, the Dhafari Fiqh.  Lamentably, Pope Benedict XVI in his elocution to the theology faculty of Regensberg University shortly after his elevation to the Papacy cited Ibn Hazm’s school of literalist law as representative of mainline or moderate Islamic jurisprudence, when, in fact, Ibn Hazm is always cited by Muslims as the most “far right” of all the literalists.

Mutahari maintains that one must distinguish between the externalities of religion and its essence in order to admit that human rights are innate and that they are valid whether they are derived from the Qur’an or in some other way, though divine revelation should be regarded as the best guidance.

The Shi’a oppose the use of analogy or qiyas not because it facilitates the use of reason but because it does not do so enough and in fact is not necessary.  The Shi’a scholars almost uniformly considered that exclusive consideration of what had been would conflict in principle with what should be both in the present and the future.  Reasoning by analogy with past judicial decisions, in turn based on judges who did the same in their day, would eliminate the very possibility of justice as the link between the immanent and the transcendent, between science and religion. 

The greatest of Islamic jurisprudents in both Shi’a and Sunni Islam recognized what became evident to me as a beginning first-year law student at Harvard.  I went to Harvard in order to learn about justice, but in three years I never once even heard the word.  The grading system was designed to weed out the naïve who tried to reason from principle on the final exams.  The classical Islamic scholars have always recognized that such an amoral mindset inevitably would lead to a culture of immorality. 

The elite law firms in America like to hire Harvard Law School grads because they are happy to argue a case regardless of whether their client ethically and morally is right or wrong.  Upon graduation, I became the newest hire in such a firm, which recruited exclusively from members of the Order of the Coif, an elite confraternity restricted to the top five percent of their class.  I was the only exception, because I spent my time at Harvard Law founding the Harvard International Law Society in order to recover the early natural law principles of Vittorio and Suarez, who, in turn, borrowed from classical Islamic law.  When I was assigned a case in which our client did not have a leg to stand on, the big boss, Andrew Haley, ordered me to simply intimidate the opposing lawyer.  I put together a long brief of total nonsense citing cases of little relevance and concluded with the admonition, “And, by the way, how dare you challenge Haley, Wollenberg, and Bader!”  The other lawyer quit on the spot, our client won by default, and I quit the firm the next day to join Arthur Larson’s World Rule of Law Research Center at Duke University.  When this appeared to be too academic, I went on to co-found the Center for Strategic Studies at Georgetown University, which subsequently as the Center for Strategic and International Studies became the world’s premiere foreign policy think-tank.

Murtada Mutahari rejected qiyas as a matter of principle, but also by reference to the express texts (nusus) of the Shi’a imams.  Born in Khorassan in Central Asia in 1920, he studied at Qom during the 1940s under Ayatollah Tabatabai, one of Islam’s greatest philosophers, whose five-volume Fundamental Principles of Philosophy is said to rank with the greatest of the traditionalist philosophers a thousand years earlier, Abdul Hamid al Ghazali.  His other principal mentor was Ayatollah Khomeini, who appointed him to the Revolutionary Council that governed Iran after Khomeini liberated Iran from the Shah on February 11, 1979.

Mutahari is famous in modern Persian history as the principal leader of a jihad against the radical young Islamists who fraudulently appealed to the Qur’an and hadith in order to outdo the Communists in their materialistic extremism and in their destructive hatred of all opponents.  Ten weeks after the Revolution, on May 1, 1979, Mutahari was assassinated by these extremists, who managed to co-opt the revolution and eliminate almost an entire generation of Persia’s greatest Islamic scholars.

The Shi’a Imams opposed the Sunni rationale for resort to qiyas, which was based on the false premise that the rulings of the shari’ah are limited, whereas the problems to be solved are unlimited, thereby allegedly necessitating innovation by comparing a current case with an earlier case that was covered by a specific hukm or specific regulation in the Qur’an and hadith.  The founder of Imamiya jurisprudence, the sixth Shi’a imam, Jafar al Saddiq, emphasized that the shari’ah consists not only of particulars but of general principles from which the particulars derive their meaning.  The key then is to use human reason as a means to derive the particular from the general.  The task of jurisprudence, he taught, is to develop and apply justice as a divine code of human responsibilities and rights. 

More than any other of the Prophet Muhammad’s followers, his son-in-law, ‘Ali, ‘alayhi salam, made all decisions on the basis of higher principle.  This is verified by Shaykh Taha Jabir al Alwani, who heads the North American Fiqh Council and for decades has been a member of the World Fiqh Council in Makkah and the lead scholar in the International Institute of Islamic Thought.  The Prophet used to gather his leading followers and pose cases to them for judgment, both actual and hypothetical.  After each would give his answer, he replied, “I do not want to know your conclusions, I want to know what principles you used in reaching them.”  In this ‘Ali excelled because he always started juristic reasoning at the holistic level of ta’wil that lies at the basis of the entire Qur’an. 

The failure of Islamic civilization to build on its early holistic roots, according to Mutahari, explains why it collapsed and became subject to colonial exploitation.  “Had the [holistic] way of the past been followed,” he writes, “it would have been the source of the origination of many of the social sciences among Muslims – the sciences whose fountainhead was discovered by the Europeans gradually one thousand years after the Muslims’ discovery of it.  The interest in truth and justice as independent realities, on the part of the Europeans, gave rise to social, political, and economic philosophies and scientific and judicial disciplines on the one hand, and on the other served as the source of awakening of nations and infused in them the feeling of life’s worthiness.  The Muslims could not continue their journey on the path that was discovered by them and recognize the source and origin of human rights as being inherent in nature.  They failed to discover the primary bases of the Islamic legal system and the social philosophy of Islam and to explain it to others and make use of that basis in the deduction of the laws of the shari’ah.”

Ironically, notes Mutahari, the Islamic civilization began by stressing the role of ethics in human concepts of right and wrong, rather than the role of law, whereas in Europe the civilization began by stressing the role of religious law and shifted later to ethics as a substitute for it.  The genius of classical Islamic thought, however, lies in equal stress on both.  He writes, “Islamic laws and precepts, whether they concern civil rights, penal laws, social relations, or some other aspect, are based on a series of truths and facts through a scientific method appropriate to their study whose principles have been mostly discovered in our present day world.  [Using them] we will be able to understand in a better way the meaning of and rationale behind Islamic laws that have reached us through revelation.”

Perhaps in reference to the supposedly great Ottoman “code of law,” which is nothing but a hodgepodge of clever aphorisms without any methodology for their application, Mutahari writes, “Great aphorisms and ethical rules have reached us, … but unless one has complete knowledge of the scientific fundamentals of ethics and psychology, it is not possible for one to grasp the spirit of those words of wisdom, which appear to be simple at first sight.  The real value and sublimity of these sayings become clearer if one studies the various ethical systems of the world with their occasionally divergent aims and principles.”

Mutahari, like all the great ayatollahs of his generation, valued the physical sciences as the key to understanding the ayat or signs of God in the universe, and, as the Qur’an emphasizes, even in our own human nature.  He writes, “Since knowledge is the key to revelation, whatever has been received through revelation, despite its simplicity and universal utility, is an extract of reality which can be arrived at only through science. … If any aspect of nature is illuminated by means of science, it not only does not make obsolete the teachings of Islam but makes them brighter and clearer.”

Mutahari quotes Imam ‘Ali’s wise statement, “In short, knowledge is the key to religion. … The more we come to know about a sphere of human life and scientific principles related to it, the greater the benefit we shall be able to draw from the bounty of Divine Revelation.”

Mutahari adds, “The bases of human rights, also, are not an exception to this general rule.  Like ethics and theology, such rights are also based upon a series of natural truths. … Islam, according to the express text of the Qur’an, is the religion of nature. … Some of the acknowledged human rights are natural and inborn, hence permanent and fixed, general and universal, and are prior to all other positive rights. … Things like freedom of the individual, equality, the right to private property and ownership, freedom of belief, freedom of expression, and the like, are rooted in human nature and are laws prescribed by nature itself.”  His final words are that recognition of this ultimate truth in traditionalist, classical Islam “is the only lasting miraculous aspect of this monotheistic faith.”

Notes:

42.  Mutahhari, Morteza, “The Role of Reason in Ijtihad,” which is now available in English online in the magazine of the Universal Muslim Association of America, a Shi’a umbrella group, at http://www.umaamerica.net.

43.  Among his many publications, see especially Source Methodology in Islamic Jurisprudence: Usul al-Fiqh al-Islami, 3rd edition, International Institute of Islamic Thought, 2003.