Philosophy and Jurisprudence in the Islamic World

Peter Adamson

• Publisher: De Gruyter
• Year: 2019
• Print ISBN: 9783110551976
• eBook ISBN: 9783110552188
• Edition: 1
• Topic: Philosophy
• Subtopic: Ethics & Moral Philosophy

This book brings together the study of two great disciplines of the Islamic world: law and philosophy. In both sunni and shiite Islam, it became the norm for scholars to acquire a high level of expertise in the legal tradition. Thus some of the greatest names in the history of Aristotelianism were trained jurists, like Averroes, or commented on the status and nature of law, like al-F?r?b?. While such authors sought to put law in its place relative to the philosophical disciplines, others criticized philosophy from a legal viewpoint, like al-Ghaz?l? and Ibn Taymiyya.

But this collection of papers does not only explore the relative standing of law and philosophy. It also looks at how philosophers, theologians, and jurists answered philosophical questions that arise from jurisprudence itself. What is the logical structure of a well-formed legal argument? What standard of certainty needs to be attained in passing down judgments, and how is that standard reached? What are the sources of valid legal judgment and what makes these sources authoritative? May a believer be excused on grounds of ignorance?

Together the contributions provide an unprecedented demonstration of the close connections between philosophy and law in Islamic society, while also highlighting the philosophical interest of texts normally studied only by legal historians.

Concomitance to Causation: Arguing Dawarān in the Proto-Ādāb al-baḥth

Walter Edward Young

1 Introduction

In what follows we will examine a snapshot taken from an enduring debate in Islamic legal theory and dialectic.¹ The point of contention is the epistemic capability of dawarān, a test for causation via concomitance, defined in our focal grundtext as: “the following of the effect from something which has rightness of causation, time after time.”² The snapshot texts consist of a short section on dawarān from an influential treatise on juristic dialectic (jadal), the Fuṣūl of Burhān al-Dīn al-Nasafī (d. 687/1288) – our grundtext – along with (1) his self-commentary on that section, (2) the commentary of one of his most important students, Shams al-Dīn al-Samarqandī (d. 722/1322), and (3) the refutation commentary of an as-yet-unidentified contemporary (fl. before 759/1357), whom we will call al-Muntaqid, “the Critic,” and who may or may not have been Ibn Taymiyya (d. 728/1328). Al-Nasafī and al-Samarqandī (and certainly al-Muntaqid, if he is Ibn Taymiyya) were important in their own day, and had lasting impact long after; and their time was a critical one. Their societal and scholarly contexts and negotiations were inevitably affected by “The Mongol Moment” – the rapid eruption westward, and the establishment of the Īlkhānate (656/1258‒756/1355).³ Most importantly, the broader discipline in which they discussed dawarān was soon to undergo – due to the success of al-Samarqandī’s method, and despite resistance by such as al-Muntaqid – a sweeping transformation. Starting with al-Samarqandī, a new set of streamlined and universalised theories, evolving in succeeding centuries under the rubric ādāb al-baḥth wa’l-munāẓara, “the protocol for dialectical inquiry and disputation,” expanded into a discipline of some two hundred treatises and commentaries. Due to the substantive contribution of al-Nasafī and his immediate intellectual predecessors in juristic dialectic, I will sometimes refer to their works and those of their commentators as belonging to the “proto-ādāb al-baḥth,” with those of al-Samarqandī and early commentators belonging to the “early ādāb al-baḥth.”

The objectives of this study are first to publish this snapshot of dawarān discourse which, by virtue of its insights, eminent authors, and critical moment, is worthy of greater attention in its own right; second, to begin exploring certain of its implications, as I currently perceive them, for both Islamicate and World inquiries into causality. Al-Nasafī’s section on dawarān from the Fuṣūl, divided into fourteen lemmata, will first be presented in parallel translation, with little comment. The commentators – al-Nasafī himself, al-Samarqandī, and al-Muntaqid – will follow in summary and paraphrase, along with my own interpretations.⁴ Certain implications will then be further explored, with special attention paid to: (1) connected concepts such as “experience” (tajriba), and dawarān-relevant discussions in texts by Ibn Sīnā (d. 428/1037), Fakhr al-Dīn al-Rāzī (d. 606/1210), and others; (2) the longstanding distinction between the intellective cause (ʿilla ʿaqliyya) and the legal cause (ʿilla sharʿiyya); (3) the transition of dawarān discourse into the early ādāb al-baḥth; and (4) certain modern parallels in terms of regularity theories of causation and falsification schemes.

As for broader contexts, the teaching and practice of dialectic among Muslim jurists hearkens back at least to the first half of the second/eighth century, with theories and methods first systematically compiled in special treatises at the start of the fourth/tenth century, and developing steadily thereafter as a distinct discipline (jadal / khilāf).⁵ In sixth-/twelfth-century Transoxiana there arose, through the teachings of Raḍī ’l-Dīn al-Nīsābūrī (d. 544/1149), and, especially, his student Rukn al-Dīn al-ʿAmīdī (d. 615/1218), a much streamlined and syllogistic dialectical method, at whose heart stood a trio of logical-dialectical concepts; viz. talāzum / mulāzama (implication), tanāfin / munāfā (negation), and dawarān (concomitance).⁶ This method was taken up and further developed by the Ḥanafī theologian, philosopher, and logician Burhān al-Dīn al-Nasafī, and promulgated in such works as his Fuṣūl (also known as the Muqaddima) – whose section on dawarān is our grundtext.⁷

The Fuṣūl was likely a curricular text; it gained interest in its day and after, with a handful of commentaries besides al-Nasafī’s own,⁸ and including those of such polymath luminaries as Shams al-Dīn al-Iṣfahānī (d. 688/1289),⁹ Shams al-Dīn al-Samarqandī,¹⁰ our unknown critic, al-Muntaqid,¹¹ and others.¹² Al-Samarqandī further developed the trio of logical-dialectical concepts learned from his teacher, al-Nasafī, in a short treatise entitled the ʿAyn al-Naẓar, and in his commentary on the Fuṣūl, and elsewhere; and his discipline-founding Risāla fī Ādāb al-baḥth owes much to the tradition al-Nasafī carried forward.

But the Risāla was unique in its universal, trans-disciplinary application. Al-Nasafī’s logicised juristic dialectic was extended to govern disputation in any field – which al-Samarqandī demonstrates himself with illustrations drawn from theology (kalām), philosophy (ḥikma), and juristic disagreement (khilāf). And from this point forward, Islamic dialectics entered the era of the ādāb al-baḥth.¹³ The texts of this study thus stand at a pivotal moment in the history of Islamicate dialectical theories. The commentaries of al-Nasafī and al-Samarqandī expand on and further refine the grundtext in ways which anticipate a new universalism. But despite the later success of the ādāb al-baḥth, this predecessor style of syllogistical, “Eastern” jadal was not universally well-received, as our more critical commentator al-Muntaqid will prove.

To be certain, our dawarān discourse unfolded in a legal-theoretical tradition fully immersed in, and engaged with, post-Avicennan, post-Rāzīan logical-philosophical concepts. This is obvious in much of the technical vocabulary, definitions, and illustrations encountered in the texts. It is a truly rich, “post-classical” legal-theoretical tradition, in this sense, and was to have lasting impact throughout much of the Islamic world. But it was also – from certain perspectives – “innovative,” emerging from Transoxanian traditions driven or carried westwards with the Mongol expansion, along with other changes against which certain, more westerly critics militated. Ibn Taymiyya, of course is most famous among these.¹⁴

The editors of a Rampur Library manuscript, which they believe to contain Ibn Taymiyya’s refutation of al-Nasafī,¹⁵ quote something typical of his attitude.^16...

Table of contents

• Title Page
• Copyright
• Contents
• Preface
• Philosophical Reflections in the Poetry of al-Shāfiʿī
• Ethics and Fiqh in al-Fārābī’s Philosophy
• Ibn Sīnā’s Moral Ontology and Theory of Law
• In the Footsteps of Ibn Sīnā? The Uṣūlī Debate on the Argumentum e Contrario
• Al-Ghazālī on Philosophy and Jurisprudence
• Syllogistic Logic in Islamic Legal Theory: al-Ghazālī’s Arguments for the Certainty of Legal Analogy (Qiyās)
• Deontic Modalities in Ibn Ḥazm
• Splitting the Process and the Result: Philosophy from a Legal Perspective in Averroes’ Decisive Treatise
• Foundations of Ibn Taymiyya’s Religious Utilitarianism
• Value Ontology and the Assumption of Non-Assessment in Postclassical Shīʿī Legal Theory
• Tajarrī as Religious Luck
• Concomitance to Causation: Arguing Dawarān in the Proto-Ādāb al-baḥth
• Bibliography
• Index of Names
• Index of Subjects