Abstract
This study has three aims. Firstly, to apply concepts of natural law theory of law and its constitutional conditions to the Qur’an and its Covenant. Secondly, to apply this approach to the jurist al-Ṭabarı̄’s (d. 310/923) exegesis of Q. 4:1 and Q. 3:79, and to sections of his history, and assess his methodology. Thirdly, to connect al-Ṭabarı̄’s case with the constitutional separation of powers and the development of ‘common good’ objectives for lawmaking from the late 100s/700s to the 400s/1000s. I conclude that in line with Himma’s and Finnis’ concepts of natural law theory of law, al-Ṭabarı̄ employed the Qur’an and Covenant as the universally valid moral standard for a rights-based law, which he defined as part of ‘human nature’ as divine creatures. In fact, he even formulated a concept of ‘universal human rights’. His inductive methodology aligns with Emon’s ‘soft naturalist’ category, and appears to represent an important stage in the development of common good-principles as moral standard in legal methodology.
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Notes
- 1.
Felicitas Opwis has questioned Emon’s thesis (2004–2005) as applied specifically to the Muʿtazilī-Ḥanafī jurist al-Jaṣṣās (d. 370/980). Opwis focuses on whether al-Jaṣṣās assumes that the divine moral intention behind legal reasons can be known and argues that because he does not claim to fully know the divine intention, that is, the moral standard for the law, he does not meet the criterion for natural law theory (Opwis 2010: 17–26).
- 2.
On Qur’anic argumentation and syllogistic proof of Covenant, though without the natural law and social contract aspect, see Gwynne (2004).
- 3.
Here the verb ʾāmana , usually translated as ‘to believe’ or ‘to have faith’, means ‘to secure s.o.’, in accordance with one of the senses of ʾāmana listed in Ibn Manẓūr’s (d. c. 711/1312) dictionary, Lisān al-ʿarab, under the root ʾ-m-n; cf. Mårtensson (2008: 379); Eggen (2011). Given that ʾāmana , and the active participle muʾmin, pl. muʾminūna, has this transitive sense of ‘enacting security’ for others, I have chosen to translate it accordingly in all citations, since it conveys important connotations related to social contract. Consequently, kafara, which serves as the opposite to ʾāmana, is translated here as ‘to reject security’.
- 4.
Interestingly, the late Mecca period is when the Prophet started entering voluntary compacts (First and Second ʿAqaba ) with some of the Arab tribes from Medina , preparing for his migration; Guillaume (1995: 198–213).
- 5.
- 6.
Q. 7: 172 may thus serve as the Covenant model for the compacts that the Prophet entered at ʿAqaba and in Medina .
- 7.
Cf. Gramlich (1983: 229): “Because of the recognition of a Lord that is immersed in this Creation of original Nature, it is a kind of Natural Compact (Naturvertrag), in which a natural law-related obligation to acknowledge and honour the One God is justified”.
- 8.
See entry ḥ-q-q, Lisān al-ʿarab; on polysemy as applied to Qur’anic terms, Eggen (2011).
- 9.
Note that the ‘Medina Constitution’ is also referred to as a kitāb , ‘written contract’ ; Guillaume (1995: 231); cf. note 5 above.
- 10.
See Rosenthal (1989)/HTI for a full compilation of biographical and bibliographical references; also Gilliot (1990).
- 11.
- 12.
For this translation of bayān, see Lisān al-ʿarab , entry b-y-n: the root signifies separating (farq) and bringing together (waṣl), in the Qur’an applied to distinguishing between divine guidance (hudā) and erring (ḍalāl).
- 13.
In this translation, in addition to al-Ṭabarī’s exegesis, I have used Ibn Manẓūr’s Lisān al-ʿarab in order to bring out the ‘contractual ethics’ that al-Ṭabarī associated with Qur’anic concepts ; see below, and also Mårtensson 2011, 2016. Thus, I translate the verb ittaqā not as is common ‘to fear’, but as ‘to fulfil one’s obligations towards someone’. In the Qur’an ittaqā occurs in contexts of fulfilling contractual and legal obligations, toward fellow human and toward God, and God obliges men to fulfill their contractual obligations in general. By doing so, humans protect themselves from God’s punishment on the Day of Judgment, when they are held to account. I translate nafs as ‘person’, rather than ‘soul’, since the point in Q. 4 is that the men and women who God created are legal persons, that is, bearers of rights and obligations. Finally, in my translation of the verb khalaqa , ‘to create’, I have emphasized the aspect that the creative act involves separating and distinguishing things from one another, which fits the general meaning of God creating legally responsible and accountable individual persons.
- 14.
Several other exegetes after al-Ṭabarī followed his rights-oriented interpretation of 4:1, including the sunnīs al-Zamakhsharī (d. 539/1144), al-Rāzī (d. 606/1209), and the twelver shīʿī al-Ṭūsī (d. 460/1067). See also my forthcoming book, Divine Covenant: Science and Natural Law in the Qur’an and Islamic Disciplines (Sheffield: Equinox, 2021).
- 15.
For this rendering of ‘close or distant neighbour’ (jār dhū al-qurbā and jār dhū al-junub) in the sense of any neighbour regardless of kinship or religion, see al-Ṭabarī’s argumentation, Jāmiʿ al-bayān , 5:5, pp. 109–113; here al-Ṭabarī refutes those who understand qurbā as closeness in terms of kinship or religion.
- 16.
See Gilliot (2014) for a recent survey of the origins of Mujāhid’s exegesis, its sources, and transmissions.
- 17.
Jāmiʿ al-bayān , 5:5, p. 117.
- 18.
In the exegesis of Q. 2:177 (cf. Q. 90:13; 5:89), al-Ṭabarī comments that ‘for the slaves’ means freeing them by paying ransom in accordance with the written deed that binds them in servitude to their lords; Jāmiʿ al-bayān , 2:2, p. 133.
- 19.
For the view that there was a temporal legal development from the first model to the second over the course of the late 700s and early 900s, see Heck (2004). However , Lowry (2008) argues that both the first and the second models coexist because they are theoretical and that the second one was the one that was implemented in practice from the 700s onward. I am here following Lowry’s approach, which implies that several competing theories can coexist in time, rather than succeed one another; for such an approach applied in detail to al-Ṭabarī’s legal methodology, see Mårtensson (2016); and applied to competing social contract theories in early medieval Maghrib, see Bennison (2014).
- 20.
Deina Abdelkader (2003, 2011) argues that maṣlaḥa and maqāṣid were used both by early and medieval legal theorists, and by modern ‘Islamist’ political thinkers, as tools for rationalizing, systematizing, and continuously reforming the law. Her analysis also points in the direction that maṣlaḥa and maqāṣid served the procedural purposes of consistency, predictability, and transparency. In particular, Abdelkader criticizes analysts who apply the Weberian ideal-type of ‘charismatic authority’ to modern ‘Islamists’; rather, Abdelkader argues, the authority they seek conforms to Weber’s type ‘rational authority’ , because they apply the methodology pertaining to maṣlaḥa and maqāṣid .
- 21.
I am pursuing this topic and these genres further in the forthcoming monograph entitled Al-Ṭabarī and the madhhab jarīrī: A Paradigm of Natural Law and Natural Rights for the ʿAbbasid Caliphate , forthcoming with Gorgias Press (2020).
- 22.
See Franz Rosenthal’s General Introduction to HTI, for the History’s place in al-Ṭabarī’s oeuvre, and the remark by the biographer Ibn al-Nadīm, that it was so exceptionally reliable and useful because of the author’s connections with the state; pp. 133–134.
- 23.
On the scribal policies on the land tax , see Sourdel (1960).
- 24.
Cf. Khalidi (1994: 79), for the point that al-Ṭabarī in his History defined the Islamic ʾumma (community ) as ‘the prophetic heir of Biblical tradition and the temporal heir of Persian dominion’.
- 25.
The sentence within square brackets is missing from Rosenthal’s translation HT I: 342; cf. TT I: 106.
- 26.
This translation of istiqāma follows al-Ṭabarī’s translation of mustaqīm in Q. 1:6 (ṣirāṭ al-mustaqīm) as ‘upright in speech and action’ (qawl wa ʿamal); Jāmiʿ al-bayān , 1:1, p. 110.
- 27.
- 28.
‘Ibn Isḥāq’s and al-Ṭabarī’s Historical Contexts for the Quran: Implications for Contemporary Research’, in Sebastian Günther (ed.), Knowledge and Education in Classical Islam, Vol. 1, pp. 315–353; the article is based on a paper presented at the conference ‘Knowledge and Education in Classical Islam: Historical Foundations and Contemporary Impact’, October 1–5, 2011, University of Göttingen. Cf. Mårtensson (2005: 327–329).
- 29.
I am exploring this issue further in my monograph on al-Ṭabarī’s natural law and social contract theory; see note 21 (above).
Bibliography
I. Primary Sources
A. al-Ṭabarī’s Works
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TT: Arabic edition of the History. Taʾrīkh al-Ṭabarī: Taʾrīkh al-ʾumam wa’l-mulūk li-Abī Jaʿfar Muḥammad b. Jarīr al-Ṭabarī 224–310 H. Vol. 1-6. Beirut: Dār al-Kutub al-ʿIlmiyya, 1997.
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Acknowledgements
Several colleagues have contributed to this article. Charles Weller’s suggestions regarding the ‘constitutional’ frame of my study of al-Ṭabarī’s concepts have been decisive for any contribution that my article makes to the field. In addition to the two anonymous reviewers’ helpful criticism, I have benefited greatly from discussions with Deina Abdelkader and from her works. At an early stage in the writing process, I also received valuable comments from Zeshan Qureshi.
Al-Ṭabarī, late 800s | UDHR, 1948 |
|---|---|
Exegesis of al-Nisāʾ, (4) 1 God means by His speech “O people, fulfil your obligations towards your Lord Who created you by dividing one person”: (…) He (…) described Himself as the One Who has created humankind as a whole from one individual, and He lets His servants know how the beginning was when He issued that forth from one person, making them aware by that, that all of them are descendants of one man and one mother, so that they are from one another, and that the right of some of them over others is the obligation that one brother has to the right of his brother, because of their common descent from one father and one mother. What obligates them to guard over each others’ right after the coming together of the descent from the father who is common to them, is like what obligates them of that concerning the closest descent. By that they feel affection for each other so that they seek justice for each other, and do not oppress each other, and so that the strong exerts himself to protect the right of the weak, according to what God has obligated him to do. | Preamble: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world; (…) Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law (…). Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. |
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Mårtensson, U. (2021). Through the Lens of the Qur’anic Covenant: Theories of Natural Law and Social Contract in al-Ṭabarī’s Exegesis and History. In: Weller, R.C., Emon, A.M. (eds) Reason, Revelation and Law in Islamic and Western Theory and History. Islam and Global Studies. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-15-6245-7_3
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