Abstract
Properly speaking, there is no philosophy of law in medieval Judaism and Islam. In its place is jurisprudence, that is, the art or science that seeks to explain what the revealed law of either tradition means with respect to one particular situation or another and how it is to be applied. Similarly, jurisprudence entails moving from what is explicitly spoken of by the particular revealed law to what is not—extending that law to new phenomena or new applications. But philosophy of law understood as “philosophical reflections upon the general foundation of law […] derived from an existing philosophical position” or leading “to such a position” (Friedrich 1958, 3) is not to be found in either one of these traditions; nor is it desired. The reason is quite simple: Law in medieval (and contemporary) Judaism and Islam is Law with a capital “L.” It is divine law handed down to a particular religious community by a divinely inspired lawgiver, a prophet or a messenger of the Almighty.
All translations are by the author unless otherwise indicated.
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- 1.
Even less to be embraced is philosophy of law as a pursuit that helps the individual become more aware of how human opinions affect law or as something that “provides clarity, intellectual order and structure, and standards of rational (often moral) criticism and evaluation”; see Murphy and Coleman 1990, xi.
- 2.
See Quran 2:62: “Indeed, those who believe, and those who are Jewish, and the Christians and the Sabians, anyone who believes in God and the last day and does what is correct, they will have their reward from their Lord; they have nothing to fear, nor are they to be sad.”
- 3.
The Arabic term translated here as “rules” might more literally be rendered as “canons,” for it is qawānīn (sing. qānūn).
- 4.
The additional judgments by Maimonides on figures in the history of philosophy, especially as they reflect on Alfarabi, Avicenna, and Averroes, as cited by Pines in Maimonides, The Guide of the Perplexed (1963), lix-lx, are worth considering.
- 5.
The idea of a vicegerent or representative of God on earth goes back to the Quranic account of God first honoring Adam with this role, then David, and—by inference—Muhammad as well as his successors; see Quran 2:30–34, 38:26; see also 6:165; 7:69, 74; 10:14, 73; 27:62; and 35:39.
- 6.
Quranic verses that confirm this judgment abound, but note these from 2:2–4: “This is the book; there is no doubt about its being a guide for those in awe [of God]; those who believe in what is absent, stand fast in prayer, and spend from what We have provided them; those who believe in what was sent down to thee.” The addressee (“thee”) is the prophet Muhammad.
- 7.
A ḥadīth is a report or record about one of the Prophet’s deeds or sayings; sunna is the traditional or customary law based upon these deeds and sayings.
- 8.
Further details may be found in Gibb 1955, 72–98; Rahman 1968, 75–95, 203–19; and al- Shāfi‘ī 1961, 3–16. See also Corbin 1964, 13–30; and Lewis 1960, 36–98.
- 9.
For recent examples of such attempts, see Black 2001 and Lambton 1981. Black’s book is far more ambitious than Lambton’s, both in its historical scope and its geographic purview, but, by his own admission, it suffers from his having no grasp of any of the languages in which these authors wrote.
- 10.
See Ibn Taimiyya, Abridgement of the Counsel to the People of the Faith Concerning the Response to the Logic of the Greeks, 94:17–96:6, 153:4–14, 194:13–195:12, 217:5–218:8, 234:12– 235:18; see also Ibn Taimiyya, Against the Greek Logicians, secs. 29–30, 125, 207–8, 253–5, 286–9.
- 11.
All of the other passages cited in this and the preceding two paragraphs are from sec. 99. In three places, I have altered the published translation slightly so as to achieve greater clarity.
- 12.
To highlight the nuances in Avicenna’s explanation here, I have translated the Arabic term nāmūs as nomos throughout the passage instead of as “law”; the Arabic term translated as “traditional law” is sunna.
- 13.
See also Aphorisms, aph. 32, for a similar, albeit slightly stronger, account.
- 14.
In sections 9 and 10, Alfarabi’s discussion of the art of jurisprudence and explanation of how the jurist approaches the law (sharī‘a) set down by the lawgiver (wāḍi‘ al-sharī‘a) are in perfect harmony with what he says about the subject in Enumeration of the Sciences V.
- 15.
The rest of this section reads: “The first virtuous kingly craft consists of cognizance of all the actions that facilitate establishing the virtuous ways of life and dispositions in cities and na-tions, preserving them for the people, and guarding and keeping them from the inroad of some-thing from the ignorant ways of life—all of those being sicknesses that befall the virtuous cities. In this sense, it is like the medical craft; for the latter consists of cognizance of all the actions that establish health in a human being, preserve it for him, and guard it from any sickness that might occur.” Similarly, in Section 18, when setting forth “political science that is a part of philosophy” and its features (as distinct from political science that is not a part of philosophy, discussed in Sections 11–14d), Alfarabi explains the account it gives of “the first virtuous kingly craft,” then adds: “The one dependent on it, whose rulership is based on tradition, does not by nature need philosophy.”
- 16.
The Arabic term translated here as “lawgiver” is wāḍi‘ al-nawāmīs, as distinct from wāḍi‘ al-sharī‘a or wāḍi‘ al-sunna.
- 17.
What Aristotle denotes here as nomos, Averroes refers to as sunna. This is in keeping with the way the Arabic translation of Aristotle’s Rhetoric renders the Greek nomos; see Aristotle, Rhetoric, ed. Badawī 1959, 36–8.
- 18.
Page and line references are to the edition of the Hebrew text, the Arabic not being extant; see the translation by Rosenthal 1956.
- 19.
In his justly famous manual of law, Averroes explains that the jurists acknowledge the judgments of the divine Law to fall into five categories: obligatory (wājib), recommended (mandūb), prohibited (maḥẓūr), reprehensible (makrūh), and permitted (mubāḥ). Here, however, he groups the first two under a more comprehensive category of “commanded” (ma’mūr) and— perhaps since it is not applicable to the present question—passes over “reprehensible” in silence; see Bidāyat al-Mujtahid, 1: 17–18.
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Butterworth, C.E. (2015). Philosophy of Law in Medieval Judaism and Islam. In: Miller, F.D., Biondi, CA. (eds) A Treatise of Legal Philosophy and General Jurisprudence. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9885-3_9
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