NATURAL JUSTICE UNDER THE SCOPE OF RHETORIC : THE WRITTEN AND THE UNWRITTEN LAWS IN IBN RUSHD ’S POLITICAL AND LEGAL PHILOSOPHY A Dissertation Submitted to the Faculty of the Graduate School of Arts and Sciences of Georgetown University in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Islamic studies By Feriel Bouhafa, M.A. Washington, D.C. July 8, 2016 Copyright 2016 by Feriel Bouhafa All Right Reserved ii To the memory of M. Chaker Bouhafa iii NATURAL JUSTICE UNDER THE SCOPE OF RHETORIC : THE WRITTEN AND THE UNWRITTEN LAWS IN IBN RUSHD ’S POLITICAL AND LEGAL PHILOSOPHY Feriel Bouhafa, M.A. Thesis Adviser: Emma Gannagé, Ph.D. ABSTRACT This dissertation explores the works of Ibn Rushd and identifies an appropriation of Aristotle’s concept of natural justice, paying attention to the distinction he makes between the written laws ( al-sunan al-maktūba ) and the unwritten laws ( al-sunan ghayr al-maktūba ) in his Middle Commentary on Aristotle’s Rhetoric (Talkhīṣ al-khaṭāba ), and parallel views in his legal works. My study argues that Ibn Rushd’s legal and political philosophy advances a concrete view of Aristotle‘s natural justice, which anchors ethic in the normative framework of sharī‘a . Ibn Rushd’s conception of natural justice, I propose, is best evidenced in his view on the political and epistemological value of rhetoric and its relation to law. I further argue that Ibn Rushd asserts the necessity of rhetoric to ensure justice—which he considers key to political stability. Ibn Rushd, therefore, constructs his conception of natural justice under the epistemological scope of rhetoric, through the prism of the unexamined opinion ( bādi’ al-ra’y al- mushtarak ), a quasi-rational view of instinct opinion shared among people. I locate this discussion within Ibn Rushd’s views of the written laws and the unwritten laws and their relation to natural justice. The thesis proposes that Ibn Rushd identifies two modes for natural justice: in potentiality , based on natural human inclination, accessible to the masses; and in actuality , linked to the elite, and only accessible to qualified jurists, through ijtihād. Ibn iv Rushd successfully bridges this proposed divide between the masses and the elite, through setting public approval as a condition: he grounds the concept of natural justice in the unexamined opinion, thus providing the epistemological criteria for the qualified jurist to frame arguments curated to garner public approval. Finally, I show how Ibn Rushd contextualizes his conception of the Stagirite’s natural justice within sharī‘a, which, he contends, encompasses both the written laws and the unwritten laws: the written, such as the ḥudūd punishment; and the unwritten associated with the Qur’anic ethical concepts and the objectives of the law grounded in the different legal precepts ( al- qawā‘id al-fiqhiyya ). The importance of my contribution lies in challenging the dominant position, which has long held that Ibn Rushd equates sharī‘a with truth, instead I underline how Ibn Rushd presents the practical efficiency of sharī‘a as the sole ground to its evidence. In advancing novel discussions and unfolding unexamined connections, the thesis of my work revisits this correlation to underline the connection between sharī‘a and practical philosophy. v ACKNOWLEDGEMENT Working toward the completion of the present dissertation has been a stimulating journey through which I landed in several places, Washington, D.C., Cambridge MA, Beirut, Doha, Bern, and finally Freiburg im Breisgau. This also meant that all along this journey, I was fortunate to meet many people who have been a major source of support and to whom I owe much appreciation and gratitude. In Washington D.C, I would like to first express the deepest gratitude to my co- advisors Professor Emma Gannagé and Professor Felicitas Opwis. I consider myself immensely privileged to have had such an excellent team, which not only helped me tackle the complex interdisciplinary nature of my research between philosophy and the study of Islamic jurisprudence, but also provided me with inspiration, patience, and steadfast encouragement as I hurdled all the obstacles in the completion this research work. I would also like to thank the family in the Arabic Islamic Studies Department at Georgetown for being such a great support through the years, with a special thank to Meriem Tikue. I would also take the opportunity to thank Professor Ahmad Dallal for his inspiration. I remain indebted to two members we have lost, Professor Barbara Stowasser, a great scholar and mentor, and Nancy Farley, a true friend. I would like to extend my gratitude to Prince Alwaleed bin Talal Center for Muslim Christian understanding for their financial support to this project. In Cambridge, I would like to thank the Center for Middle Eastern Studies at Harvard for hosting me as a visiting fellow in 2012-2013. I specially would like to thank Professor Baber Johansen for being part of my advisory committee, and for offering me valuable insight and guidance. I would like to extend my thanks to members of the Harvard community, especially Professor Noah Feldman and Professor Khaled El- Rouayheb for their support and engagement. From my stay in Beirut, I would like to thank the Orient Institut Beirut for hosting me and providing me with both accommodation and financial support during the summer of 2013. I would like to thank Professor Stefan Leder for his encouragement and his fruitful engagement with my research. My time in Beirut was also valuable, as I was fortunate to have the opportunity to meet with Professor Maroun Aouad, whose expertise and work on Ibn Rushd have been crucial for my own dissertation and to whom I owe my deepest thank. From my time in Qatar, I would like to take the chance to thank the School of Foreign Service in Qatar for all the support and encouragement. A special thank goes to my friend and colleague Abdul Rahman Chameseddine. As to Bern, I would like to thank the Institut für Islamwissenschaft und Neuere Orientalische Philologie and specially Professor Reinhard Schulze and Professor Anke von Kügelgen for their help and support mainly in providing me with working space and access to Library during my several visits, and also Almuth Lahmann for her fruitful exchanges and friendly support . I would like to thank the Open Society whose grant helped me travel to Florence and Istanbul to consult Averroes’ manuscripts. vii Lastly, in Freiburg, my new home, I would like to express my deepest gratitude to Professor Nadja Germann, for her support and for being part of my advisory committee as well her constant encouragement during the last phase of writing my dissertation. A special thank also to my friend and colleague Professor Zied Bou Akl for his valuable support and his generosity sharing his works and ideas. Also I would like to thank the whole Research Lidiac team at Freiburg University, especially my friends and colleagues Noel Rivera and Mostafa Najafi for all the support during my relocation to Freiburg. My deepest appreciation goes to my many friends scattered around the globe: Enass Khanssa who have been a great source of inspiration, support and friendship. Salam for being a great friend in good and dire times. Delphine, Edouard, Stanislas, Samarcande and Solenn for letting me be part of their family through my years in Washington. A special thank to my friend Adrien for his patient and compassion. Emre Cicek, Teymour Morel, Jawdath Jabbour, Dina K. Hussein, Pegah Zohouri, Anas Abdennadher and Till Grallert, to all of you goes my gratitude. Finally, I hope to extend my thank to my family for their love, my beloved deceased father Chacker to whom I dedicate this dissertation, my mother Fatma, and to Kadem, Olfa, Rym, Khelil, Emna and my uncle Okba. And to my new family Susanne, Wolfgang, and Jakob, thank you. My utmost gratitude and love goes to my friend and partner Johannes. viii TABLE OF CONTENTS Introduction 1 Chapter One: Revisiting the appropriation of Aristotle’s natural justice in Ibn Rushd’s thought 11 Overview of Aristotle’s ethical views 13 Aristotle’s ethical views in Rhetoric , Nichomachean Ethics , and Politics 14 Natural right or natural justice? 23 Ibn Rushd ‘s appropriation of Aristotelian ethical views 27 Earlier approaches to Ibn Rushd’s ethical views in his political philosophy 34 The Straussian Platonic view on sharī‘a in Ibn Rushd’s political views 35 Claims on Ibn Rushd’s “Platonization” of Aristotle’s Rhetoric 40 On Plato’s and Aristotle’s view on Rhetoric 41 The ground for Ibn Rushd’s “Platonization” of Aristotle’s Rhetoric and its ramification for his view of ethics 44 My approach 51 Chapter Two: Rhetoric as a meta-discourse on law, opinion, and Islamic modes of argumentation 57 Overview of rhetoric in the Arabic context 58 The reception of Aristotle’s Rhetoric under the Organon 59 Khaṭāba and Arabic sciences 63 A synopsis of Ibn Rushd’s Short Commentary to Rhetoric and Middle Commentary to Rhetoric 66 The politico-legal role of rhetoric 69 Ibn Rushd’s definition of rhetoric 69 The political utility of rhetoric 73 The necessity of rhetoric for the purpose of justice 83 The logical aim of rhetoric and its expansive scope 90 The logical aim of rhetoric and its expansion 91 Ibn Rushd’s conception of assent 92 The expansion of the scope of assent 97 The social epistemological criteria of the rhetorical material 107 Defining the unexamined opinion (bādi’al-ra’y al-mushtarak ) 108 The acceptance of maḥmūdāt under rhetoric 112 Topics: Arguing for contraries 116 Relation to logical arts 120 Concluding remarks: Rhetoric as a meta-discourse on opinion, islamic modes of argumentation, politics, and justice 125 Chapter Three: Natural justice under rhetoric 127 The challenge to justice 128 x The fallibility of human reasoning 128 The lawgiver’s undue generalization 132 The contingency of matter 135 Ibn Rushd’s conception of natural justice 140 The written and the unwritten laws 140 Justice under the written and the unwritten laws 146 Ibn Rushd’s construal of Aristotle’s natural justice 151 Natural justice: Masses vs.