 Hi, I'm Peter Adamson and you're listening to the History of Philosophy podcast, brought to you with the support of the LMU in Munich, online at www.historyoffilosophy.net. Today's episode, Laying Down the Law, Ibn Hazm and Islamic Legal Theory. We're almost 150 episodes into this series of podcasts, so you'd think that by now we would have covered pretty much every branch of philosophy, from aesthetics to zoology. But there's at least one that I haven't discussed much yet, philosophy of law. We have touched on the subject of law now and again, for instance when talking about courtroom rhetoric in ancient Athens, or more recently, when we looked at the sources of law in Judaism, and then again in Al-Farabi's political philosophy. As you might remember, he gave jurisprudence the role of extrapolating from laws laid down by an original legislator who should be a prophet-philosopher-king. Al-Farabi was there alluding to the practices and function of Islamic jurisprudence, which in Arabic is called fiqh. Now we're going to take a closer look at Islamic law, which is more relevant to the history of philosophy than you might think. Some of the figures we've already examined, and some who are yet to come, were trained in and contributed to the legal tradition, alongside their philosophical accomplishments. Besides, Islamic legal theory itself is philosophically interesting. A genre of literature devoted to the principles of jurisprudence, or usul al-fiqh, explores the sources of legal obligation and the epistemological question of how a jurist can arrive at principled decisions. And, most importantly, the topic is a rich potential source of puns. So in this episode, which is available on a free trial basis, we're going courting. I plead guilty to a weakness for this sort of humor, so sue me. Towards the end of the episode, I will call our first witness for the intellectual history of Andalusia, Ibn Hazm. He was, among other things, the major author of a minor legal school, called zahirism. But my opening statement will concern the gradual emergence of the four most successful legal schools in Islam. Despite their differences, these schools attained a broad consensus on the sources and methods of Islamic law, a consensus that was rejected by Ibn Hazm and his fellow zahirites. The fundamental issues of legal methodology and legitimacy that confronted Islam are familiar to us from our look at the Jewish tradition. Both faiths possessed revealed books containing a great deal of law, so that there was at best a blurry distinction between a religious scholar and a legal scholar. Indeed, as we saw, the rabbis of ancient Judaism were basically interpreters and makers of law, whose achievements are recorded in the Mishnah, Talmud, and Midrash. We also saw how rabbinic texts claimed to draw on an uninterrupted tradition of religious wisdom, going back to the original revelation at the time of Moses. Finally, we mentioned the Karaites, who rejected this development in favor of a return to the less abundant, but divinely sent, resource of the Torah itself. I don't want to make any claims here about the historical connection, if any, between Jewish and Islamic law. I just want to observe that the way Islamic jurisprudence developed is bound to remind us of the situation with late ancient Judaism. The parallel is recognized by the Quran itself, which contains a verse stating that God has laid down a separate law for the Jews, for the Christians, and for the Muslims. Such verses helped to foster a multi-faith society and a multi-faith development of law in the Islamic world. I've already mentioned that Jews and Christians could usually practice their own faiths with little obstruction or harassment from their Muslim neighbors. And of course, for the Jews there was no real distinction between religious observance and carrying out the law. As the Muslim armies conquered their empire, they were under instructions to let the conquered peoples continue their social and legal customs unmolested, though it was also known for Muslim judges to decide cases involving Jewish or Christian litigants if the need arose. As with Jewish law, the defining feature of Islamic law is the religious foundation on which it is built. First and foremost, that foundation was provided by the Quran. The holy book contains hundreds of verses giving specific legal injunctions covering everything from divorce and orphans to prayer, dietary laws, and taxation. Many of the legal prescriptions appear in the chapters of the Quran revealed in Medina after Muhammad led his followers there away from Mecca. The Medinan chapters are on average longer than those revealed in Mecca, and make more detailed provisions for the new community led by the Prophet. One famous example of a legal provision is a verse that identifies gambling and wine as the work of Satan. Such declarations seem to be so explicit as to leave little for the legal theorist to theorize about. So why did Islam need not just one, but four major schools of legal theory? Well, it didn't, at least not at first. It was only in about the 10th century, the 4th century of the Islamic calendar, that the schools were clearly defined. And here I should mention that I'm going to be talking only about the schools of Sunni Islam in this episode, not the legal tradition within Shiite Islam. Not unlike the Hellenistic philosophical schools, they were distinguished by allegiance to various founding figures and by opposition to one another. Yet it had never been the case that all legal questions could be answered by recourse to the Quran. Specific though it is about many issues, it leaves many others unaddressed. Even when it does pronounce on a certain topic, the pronouncement may stand in need of subtle interpretation. Consider for instance this forbidding of gambling and wine. To apply the rule, you need to decide what counts as gambling, and for that matter, what counts as wine. The word used here, khamr, can be taken to refer specifically to wine made from grapes. So perhaps it is okay to drink wine made from dates. Not to be confused with a romantic night out in Paris, that would be a date made from wine. Or perhaps the injunction is laid down against all intoxicating beverages, or even all intoxicants period. How to decide such issues? In the generations after Muhammad's death, there was as yet no attempt to give a systematic answer to this question. But several answers were implied by legal practice. To some extent, this practice grew out of pre-Islamic Arab society. The Arabian Peninsula had sophisticated trading networks and settlements, so there were formal and less formal legal arrangements already in place. Many such arrangements were revised in the Quran. For instance, the revelation laid down various improvements concerning the property rights of women, while taxation was codified as a required charitable donation, one of the five pillars of Islam. The legal culture of the pre-Islamic society had depended heavily on custom, and early Muslims looked especially to the customs of especially pious or blessed men for an indication of their legal obligations. These included the Prophet himself, of course, but also the first rightly guided caliphs and pre-Islamic prophets recognized as genuine by the new faith. A further potential source of legal judgment was, well, judgment. In Arabic, the term is ra'i, which can also be translated as opinion. The idea is that a judge might, in the absence of any customary consensus, simply make up his own mind by applying common sense. That may seem innocuous enough, but the use of independent judgment would become the central debating point of Islamic jurisprudence over the coming centuries. On the one hand, it might seem that there is no avoiding the use of independent judgment. If the Quran does not answer a legal question, and there is no consensus on the question either, isn't the jurist simply forced to find the best solution he can? Such decisions, if accepted by other jurists, could then extend the existing body of consensus, like legal precedents being cited in court cases nowadays. The problem was the potentially arbitrary nature of the legal decisions, and of course their lack of any grounding in a religious source. What seemed to one jurist to be an obvious application of common sense might seem to another to be a case of making it up as you go along. Here there were two options, and the Muslim community tried both. On the one hand, you might try to build up the resources offered by authoritative religion. On the other, you might defend the practice of judgment from the charge of arbitrariness. The first strategy was practiced by scholars who made an effort to collect reliable reports of things the Prophet had said and done. Since it says in the Quran itself that the Prophet is to be emulated, even the smallest fact about his life could potentially have consequences for correct behavior and law. A report about his deeds or remarks is called a hadith, and the collectors and verifiers of these traditions are known as hadith scholars. As such reports acquired importance and authority, many thousands were fabricated and disseminated, for instance to support controversial theological positions. The scholars intervened in order to sort out the genuine from the bogus. They did so by establishing chains of transmission. Ideally, the scholar would write down a report received from a trustworthy source, who in turn got it from a trustworthy source, and so on all the way back to a companion of the Prophet who witnessed the deeds and sayings of Muhammad at first hand. Traditions transmitted through multiple chains were considered especially reliable. The scholars were rigorous with their methods. One statistic I've seen is that of half a million circulating traditions, only about 4-5,000 were retained as sound, which means that 99% were labeled untrustworthy. Obviously this development made it possible to answer many more questions about law and practice without the use of independent judgment. This was stressed by one of the great founders of Islamic legal theory, Ash-Shafi'i, who died in the year 819. His groundbreaking Epistle on Legal Theory attempted to show how apparent conflicts in the sources of the law can be resolved. Once this consistency was discovered, and once a body of sound hadith had been verified as supplementing the Quran, it would be possible to get by with a minimal and carefully restricted use of judgment. In fact, Ash-Shafi'i disdained the independent decisions that went under the name of Ra'i, and allowed only what he referred to as reasoning, in Arabic qiyas. This represents the second strategy mentioned above, where the jurist does exercise judgment but in a constrained and cautious fashion. One important type of reasoning was analogy. In fact, in some contexts the word qiyas can simply be translated as analogy. This method could be used, for instance, to deal with our problem about wine made from grapes. The key would be to determine the reason, in Arabic ʿilāh, why wine is forbidden. If the reason is that it intoxicates, then by analogy all other intoxicants would also be forbidden. More controversial was reasoning in light of the general welfare of the community. Some jurists thought it would be acceptable to exercise judgment to avoid obviously unwelcome results. Others, while perhaps agreeing about the right conclusion, thought that it was absolutely necessary to reach it by invoking a religious text. It will, I hope, be obvious that all of this is interesting, not just for the history of law, but also for the history of philosophy. Effectively, these theorists were setting out a legal epistemology, and in some cases doing so before most Greek philosophical texts were available in Arabic translation. It's interesting to note that some of their terminology matches technical terms found in philosophy. For instance, their word for reasoning or analogy, qiyas, was used by philosophers to refer to syllogistic arguments and even used as the Arabic title of Aristotle's logical work The Prior Analytics. Another example is illa, the rationale or basis for an analogy. For instance, that grape wine is outlawed on the basis of its being intoxicating, so anything else intoxicating is also outlawed. This same word, illa, was one term used for the notion of a cause, for instance in Aristotle's theory of the four kinds of cause. But the resonances between legal theory and philosophy were not just terminological. The legal schools had to develop sophisticated ideas about language in order to determine which objects a given Quranic word might refer to, and about epistemology. The method of establishing authoritative chains for the reports of hadith was an attempt to lay down conditions for certain knowledge on the basis of testimony. It may not be coincidental that, as we saw in the interview with Deborah Black, thinkers like Al-Farabi and Avicenna gave more attention to this sort of knowledge than had been the case in the previous tradition of Aristotelian philosophy. Some legal views also imply or presuppose moral principles. For instance, the idea that a good outcome can justify a legal judgment implicitly assumes a consequentialist approach to the law. These sorts of methodological and philosophical issues were precisely the ones at stake in debates between the schools of Islamic law. To oversimplify, there were three schools which contended for dominance in the Eastern Empire. The school of Ash-Shafi'i, a second school known as the Hanafis after their founder Abu Hanifa, which tended to be somewhat more open to the use of independent judgment, and finally the rather stricter Hanbalis. They took their name from a widely admired religious figure who was not really a legal scholar named Ibn Hanbal. He was famous for resisting the mihnah, or inquisition, imposed by the Abbasid caliphs when they tried to compel acceptance of the mohtazilite claim that the Qur'an is created. Meanwhile, a fourth school flourished further west in northern Africa and Muslim-controlled Spain. These were the Maliki's, named for the late 8th century jurist of Medina, Malik ibn Anas. Though it would be nice to say that the four schools are clearly differentiated in terms of method or legal doctrine, it would be closer to the truth to say that these four survived because they adopted some version of the moderate line pioneered by Ash-Shafi'i. Some degree of reasoning was allowed, albeit that debates continued about the details of how to apply reason, and the preeminence of hadith, along of course with the Qur'an, was accepted by all the schools. Thus, the differentiation between them is less about doctrine and more about geography and political affiliation. By the end of our formative period, we have the Maliki school, dominating in the west including in Spain, while the Hanafi's did well in Iraq and Central Asia, eventually being adopted by the Turkish Seljuk rulers. The Shafi'is meanwhile flourished in Egypt and also Persia, with many Ash'arite theologians belonging to this legal school. The division between the schools continues down to the present day. But of course, there were other approaches to law which did not accept this moderate orthodoxy. For the rest of this episode, I'd like to concentrate on one of them, the aforementioned Tha'heres, and on an author who wrote in its defense Ibn Hazm. In this case, the name of the school does not come from a founder's name, but from his nickname. A student of Ash'afi'i by the name of Dawud ibn Khalaf was dubbed a Zahiri because of his robust insistence on using the surface meaning of the Qur'an and hadith as the sole source of law. Zahir means evident or manifest. So this nickname could be translated as Mr. Manifest, if we were in a somewhat frivolous mood. If we were in a very frivolous mood indeed, we might even be inspired to imagine a superhero named Mr. Manifest. He could fight crime by keeping careful track of the cargo on boats. Much of what we know about the doctrine of his school, the Tha'heres, or manifest men, is derived from the Andalusian thinker Ibn Hazm, who lived quite a bit later, in the 11th century. His life spanned the transition I mentioned in the last episode, when the surviving western romp of the Umayyad Caliphate fell and was replaced by the regional Taifa kings. Ibn Hazm's eventful life story was bound up with this transition, as he tried several times to support claimants to the Umayyad throne in Spain. For his trouble, he sometimes found himself in prison, while at other points he rose to the level of vizier. Ultimately though, Ibn Hazm's political ambitions came to nothing, and the latter part of his life was spent in relative seclusion devoted to scholarship. Ibn Hazm first developed an interest in law out of embarrassment. He failed to follow the correct rituals of prayer at a funeral. Stung by this humiliation, he sought out a teacher and began with the writings of Al-Malik, founder of the fourth major school, the Maliki's, who as I've said were dominant in Andalusia. After a flirtation with the Shafi'is, he eventually became a staunch advocate of the Zahiri legal theory. This made him an equally staunch critic of the leading legal schools. As a Zahiri jurist, Ibn Hazm rejected even the moderate use of reasoning and independent judgment embraced by a Shafi'i. Instead, all legal reasoning must be based explicitly on the evident, or manifest, meaning of a religious proof text. There is no recourse to legal consensus, apart from unanimous judgments of the immediate companions of the prophet. Thus Ibn Hazm's legal manifesto recognizes no system of legal precedent, only the explicit injunctions of the Qur'an and the Hadith. And, by the way, he has very stringent requirements for the soundness of Hadith. This might make Ibn Hazm sound like a rather extreme fundamentalist, and indeed, mainstream legal scholars at the time saw the Zahiri movement as extreme. But it's worth noting the overall effect of the theory, which could in fact be a sort of liberalism. This is because the theory restricts the scope of Islamic law. If you can't find a straightforward command or prohibition of something in a proof text, declares Ibn Hazm, then you can infer that it is allowed but not required. After all, if God did want us to do something in particular or want us to avoid doing it, he would have set it down in Revelation. Ibn Hazm supports this with Qur'anic verses, which state that the book is complete or comprehensive, no command or prohibition is left out. An interesting example of how Ibn Hazm applied his principles to specific cases is homosexuality. Homosexual acts are the subject of disapproving remarks in both the Qur'an and Hadith, and most legal scholars had said that such acts are punishable by death, for instance by stoning. But in one of his legal works, Ibn Hazm reviews the proof texts for this view and finds them baseless. The explicit texts that list acts punishable by death make no mention of homosexuality. Also, of course, as an opponent of analogical reasoning, Ibn Hazm has no sympathy with attempts to see homosexual activity as analogous to some other sin that is punishable by death, for instance adultery. Thus, homosexuality cannot be a capital offense, though Ibn Hazm does think it is sinful and should be punished in some way, to encourage the sinner not to repeat the offense. Though these sorts of arguments are rather, well, legalistic, Ibn Hazm also deploys rather more philosophical considerations in defense of zahirism. For instance, he says that once we open the door to metaphorical or extended meaning of the language found in the Qur'an and Hadith, we will end up in skepticism. Taking words at face value whenever possible is the only way to be absolutely certain of the deliverances of the law. So, within a legal context, Ibn Hazm provides us with an example of the obsessive interest in certainty that also characterized theologians like Al-Ghazali and Aristotelian philosophers like Al-Farabi. In future episodes, we'll be seeing how the high standards placed on certain knowledge in philosophy, theology, and law did indeed lead to skepticism, or at least modesty concerning the possibility of knowledge. For now, I want to note that the link I just suggested between Ibn Hazm and Al-Farabi may be a historical one. Ibn Hazm himself tells us that he studied with teachers of logic who had learned this art at the feet of masters of the Baghdad Peripatetic school. There is no direct link here to Al-Farabi, but it seems that Ibn Hazm studied with students of Ibn Adi and perhaps Abu Bishr Matah. Ibn Hazm's speech speaks of this educational background in a work of his own on logic, which is based on a probably indirect acquaintance with Aristotle's logical writings. Logic and law are only two of the many topics to which Ibn Hazm devoted himself. His most famous work is on another subject beginning with L, love. Entitled Ring-Collar of the Dove, it is a literary tour de force about the nature, perils, and virtues of love, drawing attractively on Ibn Hazm's own experiences. He also tried his hand at poetry, notably on an occasion when a political enemy had his books burned. His verses state that, though the paper might burn, the ideas written on the paper would live on in his soul. Many of his other writings are polemical in nature, Ibn Hazm apparently having been a rather ornery and contentious man. He composed a refutation of Al-Kindi's ideas as found in Anfer's philosophy, and also engaged in a good deal of interfaith dispute. He was disdainful of the other Abrahamic faiths, Christianity and Judaism, taking an unusually severe view concerning the falsehood and inauthenticity of their scriptures. Early in his career, he debated religion with a Jewish thinker. Later, he wrote a response to a set of criticisms of the Qur'an, supposedly written by a Jewish contemporary from Andalusia. In yet another famous work, called On the Sex of Religion, he discusses the mistaken views of Jews and Christians, as well as Muslim theologians and just about whoever else he can think of. With his many-sided activity, Ibn Hazm serves as a good introduction to what we'll be seeing in Andalusian philosophy. To start with the last point, there is the uneasy rivalry and interchange between Muslims and Jews. Ibn Hazm was quite firm in his criticisms of Judaism, and was also known to complain of their ability to acquire high social status in the Andalusia of his day. But of course, the very fact that Jews were attaining such status is significant. As I promised in the last episode, we'll soon be seeing how Jewish philosophy blossomed in the soil of Andalusia, with its multi-faith culture and social opportunities for Jews. Ibn Hazm also provides us with our first glimpse of the influence of the Baghdad Aristotelian school in Andalusia, something that will be very striking in other authors further down the line, including the two greats, Averroes and Maimonides. The fusion of legal and philosophical interests we see with Ibn Hazm is another taste of things to come, especially with Averroes. And finally, the literary side of Ibn Hazm's output is typically Andalusian. Many of the authors we'll be examining, especially among the Jews, were poets like him. And one of the most memorable works of Andalusian philosophy is also a literary creation, a kind of philosophical novel whose main character finds himself growing up alone on a desert island. This will be our main topic next time. It's manifest that you should join me for some island hopping with Ibn Bajja and Ibn Tufayl, here on The History of Philosophy Without Any Gaps.