Philosophy of Law in Medieval Judaism and Islam

For philosophers belonging to the medieval Jewish tradition, only divine law is deemed worthy of investigation and commentary. Dispersed throughout the different lands of medieval Islam and tolerated, along with Christians and other peoples whose beliefs approximated those of the monotheistic or Abrahamic faiths,² Jewish thinkers in medieval times had no reason to dwell on questions related to secular or day-to-day political law. Except in rare circumstances, it was not their task to make such law or pronounce on its administration. Here, too, Maimonides provides an extraordinarily apt account of the world around him.

Political science is divided into four parts. The first is the individual’s governance of himself; the second is the governance of the household; the third is the governance of the city; and the fourth is the governance of the large nation or of the nations […]. The governance of the city is a science which provides its inhabitants with the knowledge of true happiness along with the way of striving to attain it; the knowledge of true misery along with the way of striving to keep it away; and the way of training their moral habits to reject the presumed kinds of happiness so that they do not take delight in them or covet them. It explains the presumed kinds of misery to them so that they do not suffer from them or dread them. Similarly, it prescribes laws of justice for them by which they can order their communities. The learned men of past communities, each according to his perfection, used to fashion regimes and rules³ by which their kings would govern the subjects. They called them nomoi, and the nations used to be governed by those nomoi. The philosophers have many books about all of these things which have already been translated into Arabic. Those that have not been translated are perhaps even more numerous. In these times all that—I mean, the regimes and the nomoi—has been dispensed with, and people are governed by divine commands. (Treatise on the Art of Logic, XIV)

Maimonides’ use of the term “divine commandments” (al-awāmir al-ilāhiyya) here is a deliciously indirect way of pointing to the Islamic sharī‘a as sole law (or, more accurately perhaps, Law) of the land. Lest the indirectness be missed, he reminds the reader that Arabic culture and language so dominate the thought and learning of his age that almost all of the important learning from the past has been translated into Arabic. Moreover, the learned Jews to whom Maimonides addresses himself here would have been all too aware of this cultural domination because they would have read these words of his first in Arabic—Arabic written in Hebrew script.

Two other aspects of this succinct statement are also deserving of further reflection. First, its whole tone is reminiscent of Maimonides’ famous Arab predecessor Alfarabi (see Section 9.​3 below), whom Maimonides held in such high esteem as to claim that his thoughts were finer than finely sifted flour (see Marx 1935, 378–80).⁴ In Selected Aphorisms, for example, Alfarabi moves from a discussion of the way the individual soul is to be disciplined to reflection on the household and its governance, then the city and its governance, and ultimately arrives at the regime and its governance. When speaking of the latter, he notes that it can be a city, a nation, or a group of nations (aph. 95; see also aphs. 25, 26, 28, 38, 39, 42). Similarly, in Political Regime, Alfarabi distinguishes between perfect and imperfect political associations:

Human beings are of the species that cannot complete its necessary affairs nor gain its most excellent state except by coming together as many associations in a single dwelling-place. Some human associations are large, some medium, and some small. The large association is an association of many nations coming together and helping one another. The medium is the nation. And the small are those the city has mastery over. These three are the perfect associations.

Thus the city is first in the rankings of perfections. Associations in villages, quarters, streets, and houses are defective associations. Of these, one is very defective, namely, the household association. It is part of the association in the street, and the association in the street is part of the association in the quarter. And this latter association is part of the civic association. The associations in quarters and the associations in villages are both for the sake of the city. However, the difference between them is that quarters are parts of the city, while villages serve the city. The civic association is part of the nation, and the nation is divided into cities. The unqualifiedly perfect human association is divided into nations. (Political Regime, sec. 64)

Imperfect political associations are those smaller than the city, namely, households, associations comprised of those dwelling on particular streets or in a particular residential quarter, and villages. Perfect political associations, on the other hand, are those that are at least the size of the city. It, as well as the nation and even a group of nations that come together and assist one another, constitute the best or most complete—and, in this sense, the most perfect— kind of political association. They are complete or perfect in that they are self-sufficient and able to guide their inhabitants toward happiness.

In both treatises, Alfarabi does speak of law. Indeed, in Selected Aphorisms, he speaks of traditional law (sunna), conventional law or nomos (nāmūs), and divine law (sharī‘a). The existence of the first two in cities is assumed, and Alfarabi is more concerned with the standards for conduct they provide or how they are misused by some rulers in order to achieve their own base goals than with explaining how they come about (see Aphorisms, aphs. 14, 15, 31, 58, 92). That is to say, traditional, conventional, and divine laws are spoken of as though their presence were clearly to be expected, but not as anything to whose elaboration attention ought to be given. The emphasis, rather, is on inculcating opinions—especially correct ones—about the soul, virtues, and non-legal constituents of the well-governed city or regime.

In Political Regime, Alfarabi speaks of divine law, traditional law, and a lawgiver who posits traditional law (wāḍi‘ al-sunna). But the term nomos never occurs (see secs. 82, 102, 106, 113, 122). As in Selected Aphorisms, so here the assumption is that laws exist and that people guide themselves more or less with respect to them. But Alfarabi does not dwell on—indeed, he never turns his attention to—what makes laws or Laws good nor to how they come about. His perspective is more limited: His discussion of the best or virtuous city emphasizes that it alone aspires to bring about true happiness for its citizens, whereas his discussion of the other cities—the ignorant cities, of which he enumerates and explores six kinds—focuses on the goals they pursue that keep them from being virtuous. Not laws or Laws, but ends, are Alfarabi’s sole focus in this work.

Second, the term translated as “communities” at the beginning of the above cited passage by Maimonides should properly be understood as “religious communities,” the Arabic term being milal (sing. milla). For Maimonides, as for Alfarabi, political communities work best when they are organized around a religion common to the citizens. Maimonides does not dwell on the question here, but it is clearly central to the way he analyzes politics.

While those representative of medieval Jewish thought dwell on the religious law simply because they have access to no other law or can influence and interpret no other law, another consideration prompts thinkers within the medieval Islamic tradition to do the same. Though freer to explore other avenues as members of the dominant class, they are equally subject to the central tenet of the medieval Islamic tradition which holds that there is no law other than the Islamic sharī‘a. Everything within that tradition points to the idea that rule can be exercised only by God’s vicegerent, the caliph (khalīfa), and his designated subordinates.⁵ The prophet Muhammad (ca. 570–632) was the first legitimate ruler of the Islamic community, and all subsequent rulers are legitimate only insofar as they are his genuine successors.⁶ More important, their exercise of rulership is legitimate only to the extent that their decrees conform to the letter of the Islamic sharī‘a. Such, at least, is the theory, however much actual practice may have differed.

As a result, attention is focused on how to understand and apply the divine law, and political inquiry is limited to the study of this law, that is, to jurisprudence. Alfarabi explains the situation succinctly:

The art of jurisprudence is that by which a human being is able to infer, from the things the lawgiver declared specifically and determinately, the determination of each of the things he did not specifically declare. And he is able to aspire to a verification of that on the basis of the purpose of the lawgiver in the religion he legislated with respect to the nation for which it was legislated.

Every religion has opinions and actions. The opinions are like the opinions that are legislated with respect to God, how He is to be described, the world, and other things. The actions are like the actions by which God is praised and the actions by which there are mutual dealings in cities. Therefore the science of jurisprudence has two parts: a part with respect to opinions and a part with respect to actions. (Enumeration of the Sciences, V.4)

Yet differences about these opinions and actions arise, and they sometimes become so fixed as to be insurmountable. In medieval Islam, this phenomenon gave rise to schools or disciplines of law; these have prevailed through the ages and remain vibrant even now.

The differences concerning opinions and actions have to do, above all, with the way the Quran should be interpreted, that is, the extent to which it is permissible to rely upon analogical reasoning (qiyās) and independent or personal opinion (ra’y), as well as about how much authority is to be accorded to the sayings and deeds of the prophet—the ḥadīth and sunna ⁷—as opposed to the Quran itself. In Sunni (sometimes called Orthodox) Islam, there are four schools. The Ḥanīfī school, named after Abū Ḥanīfa al-Nu‘mān ibn Thābit (d. 767), is and always was most open both to analogical and independent reasoning. Indeed, the procedure of thinking through and interpreting the divine law in order to reach juridical decisions—what later came to be known as ijtihād— was especially developed in the Ḥanīfi school. By contrast, the Mālikī school founded by Mālik ibn Anas (d. 795), gives greater weight to the deeds and sayings of the Prophet, especially to Mālik’s own collection of them. The writings of Muḥammad Ibn Idrīs al-Shāfi‘ī (767–820) testify to his great reliance on analogical reasoning, and the school that bears his name (Shāfi‘ī) promotes that tendency. Finally, Aḥmad ibn Ḥanbal (d. 855) and the school named after him (Ḥanbalī) allow little leeway in interpreting the Quran. It is the most literalist of these schools and frowns upon any kind of analogical or personal reasoning, preferring to privilege the deeds and sayings of the Prophet. In all important respects, the Wahhābī school, named after Muḥammad Ibn ‘Abd al-Wahhāb (1703–1792) and dominant in contemporary Saudi Arabia, is the modern successor of Ḥanbalī doctrine.

Disagreement over who should succeed the fourth caliph ‘Alī following his murder in 661 prompted a major rupture within the fledgling Muslim community. Demands that the caliphate pass to the heirs of ‘Alī rather than to Mu‘āwiyya, who became the first caliph of the Umayyad dynasty (and reigned from 661–680), led the partisans of ‘Alī to form their own distinct group. Their eventual repudiation of the first three successors to Muhammad as usurpers formed part of other doctrinal differences with the now-dominant Sunni group, and the original designation of them as adherents or partisans of ‘Alī (shī‘at ‘Alī) took on a life of its own insofar as they became known simply as the Shi’a, as opposed to the Sunni branch of Islam (or as Shi’i as opposed to Sunni Muslims). Almost eleven hundred years later (that is, around the middle of the eighteenth century), in order to work out a compromise of sorts, the legal school devoted to Ja‘far al-Ṣādiq (d. 765) was recognized by Sunni Islam as comprising the fifth acceptable school of Islamic jurisprudence. It stands today as the school representative of Shi’i Islam.⁸

The salient point with respect to these distinctions is that they concern various schools of jurisprudence, which differ over particular approaches to the interpretation of the law. The schools, their adherents, and their doctrines start from the premise that the law is to be accepted as it has come down. No question is to be raised about the status of revealed law or its relationship to conventional and natural law. In fact, there is no discussion of such topics. Nor is any attempt made to inquire into revelation, that is, its character and genesis or its relation to the imaginative faculty of the soul. These are schools of law whose goal is, as Alfarabi so aptly puts it, “to infer, from the things the lawgiver declared specifically and determinately, the determination of each of the things he did not specifically declare.” By privileging one approach to the divine law or another, the schools “aspire to a verification of that [determination] on the basis of the purpose of the lawgiver in the religion he legislated with respect to the nation for which it was legislated.” They are not schools of philosophy.

To be sure, it is sorely tempting to collapse the two and seek in the legal speculations and “mirror of princes” treatises of the jurists some insight into the political theory and political philosophy of medieval Islam. The problem is that inquiries into the principles that explain and justify the imamate, caliphate, sultanate, and wizirate and into how the divine law provides criteria for distinguishing good ones from bad do little to sharpen our understanding of state and government, not to speak of law as a subject of inquiry.⁹ One way to illustrate how misleading reliance on the jurists can be is to turn to one, for example, the highly respected Takī al-Dīn Aḥmad Ibn Taimiyya (1263–1328). He has an especially compelling claim to our attention because he is the jurist who most influenced Muḥammad Ibn ‘Abd al-Wahhāb. In Ibn Taimiyya’s famous attack upon the Greek philosophers, he strives mightily to show that the divine law is sufficient for all the needs of the community. Basically, his argument is that nothing is to be learned either from the logical teaching set forth by the philosophers and logicians or from those jurists and theologians who have been misguided enough to seek to appropriate that teaching. All that an observant Muslim needs to know about logic or about the rules for thinking is clearly expounded in the Quran. Moreover, the teaching of the philosophers and logicians is unduly complicated and involved; the Quran is more direct. Nor is that all. Aware that individuals he deems intelligent, not to mention the philosophers, differ among themselves about the principles of logic, Ibn Taimiyya sees no reason for entering into their debates. Most important, the logic of the philosophers and logicians, in particular the syllogism they praise so highly, adds nothing to human knowledge of the beings or of the creator and the prophets; only the signs or verses (āyāt) of the Quran provide such knowledge.¹⁰

Three individuals stand out in the tradition of medieval Islamic philosophy for the light they shed on what constitutes a well-ordered polity: Alfarabi, Avicenna (Ibn Sīnā), and Averroes (Ibn Rushd). Alkindi (d. 866), known as the philosopher of the Arabs, focused his attention primarily on metaphysics and had nothing to say about politics. Alfarabi’s near contemporary and sometime fellow resident of Baghdad, Alrazi (864–925), was especially concerned with ethics and medicine, but sometimes also delved into metaphysical speculations. A book on the philosophic life, in which he compares himself to Socrates and speaks of something resembling Socrates’ second sailing notwithstanding, he is quite similar to Alkindi in the way he ignores political subjects. Averroes’ two illustrious predecessors and fellow Andalusians, Ibn Bājjah (d. 1138) and Ibn Ṭufayl (ca. 1110–1185), did turn their thoughts to political matters from time to time; in their writings, however, they say nothing with respect to law. Although Alfarabi is for the most part also silent about the law, even his silences prompt further reflection.

Widely referred to as “the second teacher,” that is, second after Aristotle, Alfarabi (Abū Naṣr Muḥammad Ibn Muḥammad Ibn Ṭarkhān Ibn Awzalagh al-Fārābī) (ca. 870–950) is widely recognized as the most important philosopher within the medieval Islamic tradition. Born in the village of Farab in Turkestan, he resided in Bukhara, Marv, Ḥarrān, Baghdad, and perhaps in Constantinople, as well as in Aleppo, Cairo, and finally Damascus, where he died. Alfarabi first studied Islamic jurisprudence and music in Bukhara, then moved to Marv, where he began to study logic with a Nestorian Christian monk. While in his early twenties, Alfarabi left for Baghdad, where he continued to study logic and philosophy as well as to improve his grasp of Arabic. After a decade or so in Baghdad, Alfarabi went to Byzantium for about eight years to study Greek sciences and philosophy, then returned to Baghdad and concentrated on teaching and writing for the next quarter of a century when the political upheavals of 942 forced him to seek refuge in Damascus. Two or three years later, political turmoil there drove him to Egypt, where he stayed until returning to Damascus in 948 or 949, a little over a year before his death.

Alfarabi’s writings address all of the sciences and embrace every part of philosophy. He composed commentaries on Euclid’s Elements, Ptolemy’s Almagest, and Plato’s Laws; wrote several pieces on the history and theory of music; and provided an account of Plato’s and Aristotle’s philosophy. Alfarabi also wrote numerous commentaries on Aristotle’s logical writings and an extensive commentary on the Nicomachean Ethics, but the latter is no longer extant. His inquiries into the challenge to traditional philosophy presented by revealed religion, especially its claims that the creator provides for human well-being by means of an inspired prophet-legislator, are central to his attempts to formulate a new political science that combines theoretical and practical sciences along with prudence and thus to political philosophy within Islam. All this has come to light only in recent years as heretofore unknown writings have been recovered.

In Selected Aphorisms and the trilogy known as Philosophy of Plato and Aristotle, especially in its first part, Attainment of Happiness, Alfarabi constantly points to knowledge as the key to sound rulership. Neither Alfarabi’s Plato nor his Socrates looks to law when investigating political matters. Rather, they focus on cities and their ways of life, as well as on how different civic regimes lead their citizens to happiness or fail to do so. For Alfarabi, Plato “presented in the Laws the virtuous ways of life that the inhabitants of this city [i.e., the city that ‘had been rendered perfect in speech’ in the Republic] should be made to follow.” Paying no attention whatsoever to the speeches of the Athenian Stranger about laws and their preludes or to the efforts of Clinias to lead the Athenian Stranger and Megillus to set down a body of law for the colony that Clinias has been charged by his own city with establishing, Alfarabi’s Plato focuses solely on virtuous ways of life. Then, after explaining “what distinguishes the human perfection achieved by him who combines the theoretical sciences and the political and practical sciences, and what ought to be his rank in this city,” in the Critias, Timaeus, and Laws, his Plato focuses on what is needed “to have this city realized in deed.” Though this brings him closer to laws and lawmaking, insofar as he recognizes that “this is accomplished only by the legislator of this city,” Alfarabi’s Plato does not go further. As Alfarabi notes, “therefore he afterwards investigated how the legislator ought to be” and “that is to be found in his book that he called the Epinomis” (Philosophy of Plato, secs. 30–35).

Alfarabi’s account of Aristotle’s subsequent investigations says nothing, however, of what the Stagirite learned about practical science. Indeed, it focuses exclusively on the way Aristotle founds the logical arts or sciences so as to gain a better understanding of what wisdom is and how it is acquired, as well as to discern the order of the theoretical arts. This shows him why wisdom is prior in rank and provides him with awareness of the way first premises are used in each of the arts of logic. Along the way Aristotle learns, moreover, what theoretical argument is and how it is to be carried out soundly (Philosophy of Aristotle, secs. 4, 7–11). After working his way through such inquiries and pausing momentarily to reflect on how rhetoric and poetics provide a means of instructing those not competent to engage in the other logical arts and of giving persuasive images in speech of things discerned through stringent reasoning, his Aristotle sets about investigating the world around him— the things perceived by the senses and their distinctions with respect to essence and accident, true and false reasoning about being and change, the relationship between matter and form, and the way things both come into being through an agent as well as have specific ends or goals (Philosophy of Aristotle, secs. 15–16, 17–23). This investigation of nature leads Alfarabi’s Aristotle to recognize that such inquiry is inadequate for his purposes, that he must go beyond the study of nature to what is beyond nature. His metaphysical investigations permit Alfarabi’s Aristotle to arrive at a correct understanding of human existence, especially of the human soul’s longings.

Although Alfarabi’s explanation of Aristotle’s philosophical quest ends without any account of how he views practical science, he now speaks in his own voice to emphasize what became apparent to Aristotle “from the preceding,” that is, from the inquiry as a whole and not simply from metaphysics. According to Alfarabi, “it has become evident from the preceding that it is necessary to investigate, and to inquire into, the intelligibles that cannot be utilized for the soundness of human bodies and the soundness of the senses.” Such necessary knowledge stands in opposition to another, more human, kind of knowledge, namely, awareness of “the causes of visible things.” Though the soul longs for or desires the latter, the former is necessary.

But Alfarabi has also learned that it is necessary precisely to obtain the latter. We seek the former “for the sake of” (li-ajl) the latter. Indeed, “the awareness we formerly supposed to be superfluous is not so, but is what is necessary for a human being to become substantial or to reach his ultimate perfection.” This is a reversal so striking that Alfarabi adds immediately:

And it has become evident that the knowledge he [Aristotle] investigated at the outset just because he loved to and inspected so as to settle upon the truth about the above-mentioned pursuits has turned out to be necessary for attaining the political activity for the sake of which the human being has come into being. (Philosophy of Aristotle, sec. 99)

Now, then, it is imperative that Aristotle or those who have grasped what Alfarabi has said of his pursuits turn to practical science. To remove any doubt about its importance, Alfarabi goes on to explain—still in his own name—how the knowledge or science “that comes next is investigated for two purposes, one is to perfect the human activity for the sake of which the human being has come into being and the other is to perfect what we lack with respect to natural science.” The reason for such a lack or deficit is that “we do not possess metaphysical science.”

If this is Alfarabi’s final word, it would appear that all of Aristotle’s investigations have come to nought. Everything we learned about knowledge and the ways to it, plus the many things we learned about the world around us, seem inconsequential and petty so long as we cannot attain the knowledge we now discern to be “necessary for a human being to become substantial or to reach his ultimate perfection.” At this point, namely, the conclusion of Alfarabi’s Philosophy of Aristotle, it is worth recalling its opening words with their sense of promise:

Aristotle sees the perfection of man as Plato sees it and more. However, because man’s perfection is not self-evident or easy to explain by a demonstration leading to certainty, he saw fit to start from a position anterior to that from which Plato had started. (Philosophy of Aristotle, sec. 1)¹¹

The point is that while we are aware of what we need to know and of its importance, we are equally aware that we do not have this requisite knowledge. This is precisely why Alfarabi notes in conclusion “therefore philosophy must necessarily come into being in every man in the way possible for him.” Having admitted to a lacuna or deficiency in our knowledge of metaphysics, we are now obliged to wonder about the sufficiency of law, even revealed law, and to take it upon ourselves to consider lawgiving from the beginning.

Before turning to Alfarabi’s otherwise questionable attempts to identify knowledge as virtue and as what alone permits sound rule in Selected Aphorisms, it is important to return momentarily to the discussion of philosophy that launched him on his curious account of Plato’s and Aristotle’s philosophy, that is, to the closing words of the Attainment of Happiness. The reason is quite simple: Alfarabi’s attempt there, first to identify and then to explain “the human things through which nations and citizens of cities attain earthly happiness in this life and supreme happiness in the life beyond,” brought him to discern the intimate relationship between philosophy and religion. As he puts it, “according to the ancients,” both philosophy and religion

comprise the same subjects and both give an account of the ultimate principles of the beings. For both supply knowledge about the first principle and cause of the beings, and both give an account of the ultimate end for the sake of which man is made—that is, supreme happiness— and the ultimate end of every one of the other beings. In everything of which philosophy gives an account based on intellectual perception or conception, religion gives an account based on imagination […]. Also, in everything of which philosophy gives an account that is demonstrative and certain, religion gives an account based on persuasive arguments. (Attainment of Happiness, secs. 1, 55)