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From God's Nature to God's Law: Theology Law and Legal Theory in Islam

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From God's Nature to God's Law: Theology Law and Legal Theory in Islam FROM GOD'S NATURE TO GOD'S LAW: THEOLOGY LAW AND LEGAL THEORY IN ISLAM A Dissertation Submitted to the Faculty of the Graduate School of Arts and Sciences of Georgetown University in partial fulfilment of the requirements for the Degree of Doctor of Philosophy in Arabic and Islamic Studies By Abdul-Rahman Mustafa, M.St. Washington DC April 11, 2016 Copyright 2016 by Abdul-Rahman Mustafa All rights reserved. ii FROM GOD'S NATURE TO GOD'S LAW: TEHOLOGY, LAW AND LEGAL THEORY IN ISLAM Abdul-Rahman Mustafa, M.St. Thesis Advisor: Felicitas MM Opwis, Ph.D. ABSTRACT This study explores the ways in which theological ideas regarding the nature of God shaped the jurisprudential and legal landscape of Islam in the classical period. Focusing on the traditionalist theological and jurisprudential thought of the Ḥanbalī intellectuals Ibn Taymiyyah (d. 728/1328) and Ibn Qayyim al-Jawziyyah (also known as Ibn al-Qayyim) (d. 751/1350) this study traces the way in which these two scholars developed a critique of the dominant theological- jurisprudential tradition of their day, which was influenced by dialectical theology. Against the dialectical theologians, Ibn Taymiyyah and Ibn al-Qayyim argued that an authentically fideist, consistent and rational theory of Islamic law could only emerge from an acceptance of the reality of God’s voluntary attributes. The study situates these debates on the influence of theology on law and legal theory in Islamic history within an overall account of the influence of iii theology on modern Anglo-American law and secularism. It concludes by remarking upon the ways in which classical discussions on the relationship between Islamic theology and legal theory have been appropriated and utilized in the modern period to ground disparate theories of Islamic legal reform, ranging from Islamic secularism and liberalism to neo-traditionalism. iv This work is dedicated to my parents. v Table of Contents INTRODUCTION ........................................................................................................................................... 1 CHAPTER I. WORD OF GOD ...................................................................................................................... 34 CHAPTER II. MIND OF GOD .................................................................................................................... 146 CHAPTER III. LOVE OF GOD ................................................................................................................... 247 CONCLUSION……………. ............................................................................................................................ 321 BIBLIOGRAPHY…………………………………………………………………………………………………………………………..332 vi Introduction This book explores the ways in which theological ideas – particularly those relating to the nature of God – influence and shape legal concepts. More specifically, it explores the way two significant Muslim intellectuals of the fourteenth century, Ibn Taymiyyah (d. 728/1328) and Ibn al-Qayyim (d. 751/1350) attempted to articulate a legal theory that grew out of their understanding of what the author of the law – God – was like.1 While the main body of this work casts a light on the relationship between theology and law in classical Islam, the first part of this section situates that discussion by recalling the many ways in which the modern Anglo-American legal tradition which now governs most of the world has, despite its professed secularism, itself been hewn out of theological ideas about the nature of God and man. The second part provides some introductory remarks on the main contours of Islamic traditionalist and theological thought on legal theory. That secular modernity continues to be haunted by the ghost of the God whose death it announced rather prematurely should not surprise us. For as the Christian theologian Jürgen Moltmann argues, the modern world itself is a child of religious hope. The very events which herald the birth of modern time – events such as the European discovery of America – simply cannot be understood, according to Moltmann, without appreciating the messianic and 1 For a list of sources on Ibn Taymiyyah’s biographical, social and political context, see Rapoport, Ibn Taymiyya; El- Tobugi, Reason, 78-79. For details of Ibn al-Qayyim’s biography, see al-Sayyid, Ibn Qayyim; Abū Zayd, Ibn Qayyim; Bori, “Scholar”; Holtzman, “Ibn Qayyim”; Krawietz, “Ibn Qayyim.” On the ways in which to approach the question of Ibn al-Qayyim’s legacy in relation to that of Ibn Taymiyyah, see Krawietz and Tamer, Islamic Theology, 2. On the general lack of interest in Western academia in Ibn al-Qayyim and Ḥanbalism, see ibid., 5, and Bori, Scholar, 36. On the popular and scholarly presentation of Ibn Taymiyyah as an extremist dogmatic, see Krawietz and Tamer, Islamic Theology, 11-14. All references to MF in the notes refer to the Majmūʿ al-fatāwā of Ibn Taymiyyah. All references to FK are to the Fatāwā al-Kubrā of Ibn Taymiyyah. All other works have been cited in short form in the notes and with their bibliograpical details in the bibliography. 1 millenarist impulses of Christian theology and culture.2 Paradoxically then, the influence of religion has not diminished with the coming of the secular age. On the contrary, the most visible artifacts of secular culture – the arts, law and politics, for instance – continue to be shaped by the interplay of religious and secular ideas on the nature of God and religion.3 If, however, we were to choose one aspect of cultural life which, from the classical period all the way down to the advent of Christianity and beyond, has been most influenced by theological ideas about the nature of God, it would have to be the law.4 One reason for this is simply the many conceptual, structural and functional similarities between the two disciplines. As one scholar remarks, religion and law are engaged in a mutual dialectic. They deal with overlapping concepts of sin and crime, covenant and contract, righteousness and justice. Both disciplines uphold comparable liturgical and ritual practices, habits, traditions and precedents as well as shared sources of authority and power. Methodologically too, law and religion champion homogenous methods of interpretation, argument and instruction. Finally, law and religion both create officials charged with the formulation, implementation and demonstration of the norms and habits of their respective fields.5 Of course, the great monotheistic religious traditions of Judaism, Christianity and Islam have played a very explicit role in fostering unique legal cultures shaped by their distinct yet related ideas on the nature of God – ideas whose influence continue to reverberate in modern nation states. Christianity for instance, explicitly rejects many aspects of the Jewish legal tradition and does so because of the Christian view that God’s true nature, as revealed in the person of Christ, 2 Moltmann, God, 5, 7. 3 Fletcher, Disciplining the Divine, 98. Young, Biblical Exegesis, Chapter 5 (passim), 97; Ward Transcendence, 127-148 in Schwartz, Transcendence; Susanna Lee, A World, 11. 4 For a survey of the relationship between religion and law in the classical period, see Ando, Religion. 5 Witte, Jr. “God’s Joust.” 2 compels a very different understanding of divine law from that upheld in the Jewish tradition. “For the letter kills, but the spirit gives life,” says Paul, signaling a conscious departure from the Jewish legal tradition, which treasured the written law of God as its greatest link with the divine. For Paul and his followers, however, the word of God is “written not with ink but with the Spirit of the living God, not on tablets of stone but on tablets of human hearts” (2 Corinthians 3:3-6). For some Christians, then, the figure of Christ is arguably the teleological termination of the law of the Israelites.6 The Qurʾān, in turn, criticizes aspects of Jewish and Christian legal culture, and makes it clear that the distorted understanding of God’s law (and the consequences of disobeying it) in both communities stems from their misconceptions about the nature of God (Q. al-Baqarah, 2:80-83). Religious and Common Law Christian theology in turn is responsible for shaping some of the most foundational doctrines of the Western, particularly the Anglo-American, legal tradition. And because of the legacy of colonialism and the cultural dominance of the West, the influence of this tradition extends well beyond the borders of Europe and America. In his classic study of the subject, Ernst Kantorowicz showed that many of the ‘mystic fictions’ of what might be termed medieval political law, particulary its doctrines on kingship, such as the two bodies of the king and of the king never dying, etc. have a clear parallel in Christian theological thought about the dual nature of Christ and the eternity of God.7 Christian ideas on retribution – particularly the notion that a tribute or atonement (such as that offered by Christ) must be paid to vindicate the law – also exerted a 6 Cunningham, Christian; Bradley, “Natural Law,” 278. For a discussion of early Christian and Jewish debates on the role of the law, see Richardson and Westerholm, Law. 7 Kantorowicz, The King’s Two Bodies. 3 strong influence on theories of punishment in Western jurisprudence.8 Another striking example of the influence of theology on law comes from the rules relating to natural justice and due process. Let us take the rule that requires an accused party, even one whose guilt is not in doubt,
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