ASAD Q. AHMAD
Islamic legal theory in the postclassical period (c. 1200–1900) bears a heavy influence from the philosophical tradition. In these later texts, a number of canonical issues are problematized anew and receive novel treatments and resolutions. Often the reinvestigation of old topics is driven by a consideration of some fine and technical point of philosophy that is brought into conversation with an existing set of concerns and principles of legal theory. The truth and value of the philosophical points often are taken for granted on the basis of their investigation in their separate and disciplinary venue; thus the influence is usually unidirectional, moving from philosophical texts to legal theoretical ones. Consequently and generally, the lens of philosophy does not seem to lead to new growth in the discipline of philosophy within the ambit of the text of legal theory; nor are issues of legal theory generally imported and considered within the discipline of philosophy. The complication for issues of legal theory that are posed by the importation of philosophy are usually resolved by the rearticulation of the original topic of legal theory or by appeal to the specificity of the legal issue such that it is taken to stand as an exception to the philosophical point, or by the deployment of other philosophical stratagems that neutralize the problem. The resolution is generally not achieved by appeal to scriptural source bases.
THE CONTENTS OF THE TEXTS
The texts presented here—a base text and its commentary—are fine examples of the aforementioned state of affairs (moving forward in the analysis, I shall not distinguish between the base text and the commentary or between their respective authors). The text concerns the well-known legal-theological issue of disobedience to divine commands. At its base, the question was whether, given divine foreknowledge and the concomitant and determined outcome of events, a person could be meaningfully expected to obey a divine command. Put differently, if God already knows the outcome, does the demand to obey His command make any sense? In assessing this matter, a foundational scriptural-based principle that the tradition of legal theory appealed to was that God would not burden a soul with that which lies outside its capacity. Thus, if a command in a system that grants divine foreknowledge produces a burden upon the subject that lies outside his capacity, such a command cannot be obeyed. Consequently, a person cannot be burdened with its injunctions.
The elements of this problem constitute the starting point of the discussion. The underlying assumption here is that what lies outside the capacity of the subject is impossible in some way with respect to him. This act of assessing incapacity via the concept of impossibility is rather deliberate. It allows the author to launch directly into the central discussion of the modality of impossibility as gleaned from philosophical texts: something may be impossible in itself or possible in itself, but impossible through some other cause. An example of the former is the joining of two contradictories and, of the latter, that the sun should go around the earth. For whereas the former is a logical impossibility and not so due to something other than itself, the latter is an impossibility given the attendant set of causes and effects and the concomitant existential state of affairs. In other words, there is nothing impossible in itself (per se) about the sun going around the earth; it is only a set and series of causes that precludes this possibility from actually being realized.
Now the author is not so much troubled should a divine command be impossible to obey due to something other than itself. This would be like the case of obligating someone to carry a mountain; this is not an impossibility in itself, either with respect to any power or with respect to the power of the obligated (the latter two would be like the joining of two contradictories and the creation of atoms by humans, respectively). The claim seems to rest on the idea that, in itself, there is nothing in the nature of human capacity as such that precludes the possibility of his lifting a mountain, though it so happens that God’s regular habit precludes such things from happening. Such a concession to an impossible obligation is granted on a merely rational basis, that is, on the basis of the consideration of the modalities in question, but it is also precluded by the author on the basis of the scriptural guarantee that a person would not be obligated with that of which he is incapable.
This brings one to the more fundamental issue of that which is impossible in itself. Can a command demanding the actualization of such impossibilities be materially or formally correct? The author precludes such impossibilities from the domain of divine commands on both counts. In material terms, this would require the impossible to be something that can be conceptualized, a position that is generally rejected in the philosophical literature (but one that also led to a long tradition of disquisitions about impossible subject terms and absurd statements in the field of logic). Surely one cannot conceptualize a square circle. As a mere formal articulation, one could certainly give an impossible command. However, given that materially such a command is nonsensical (though its meaning can be apprehended), God would not give it; otherwise, he would be deficient.
However, this excision of impossible commands from the purview of the obligated human now leads to a host of other problems. For example, if one were to grant divine omniscience, then surely commands would have no meaning with respect to the disobedient human being. For God already knows that the disobedient person will not bring about what he is commanded, so that the command is impossible with respect to him. If it is possible with respect to him, then such obedience is contrary to God’s knowledge; but what is contrary to His knowledge is impossible. Hence no disobedient person can be commanded to obey a divine injunction, as this would be to command the impossible. Alternatively, the author would have to side with those who hold that one can be commanded to obey the impossible; this is a concession he is not willing to make. Given the divisions of the impossible outlined above, the solution offered is rather straightforward: the impossibility in question is not per se. As such, the command demands something that is possible on rational grounds, impossible only on the grounds that God will not actualize this possibility. In modal terms then, such a command pertains to that which is possible in itself, impossible through another.
It seems then that only commands of bringing about that which is impossible per se are problematic. Are there such commands given to those who will be disobedient? In this case, the example of the prototypical disobedient human, Abu Jahl, is mentioned. Abu Jahl was commanded by God to believe. To do so would be to grant assent to the truth of all of what Muhammad brought forth. However, one of the things that Muhammad declared was that Abu Jahl would never believe. Thus for Abu Jahl to grant assent to all of what Muhammad stated would include believing that he would never believe. In other words, granting assent to the truth of the message would entail not granting assent to it. This is an absurdity, much in the manner of those propositions in the field of logic whose truth value oscillates indefinitely. (Indeed there is little doubt that the treatment of the question of Abu Jahl’s belief in this manner is guided by concerns of propositional truth conditions in the case of paradoxes.) The solution offered by the author is inspired by a tool from the field of logic: Abu Jahl can be said to grant assent to the truth of Muhammad’s claims insofar as these claims are compressed, not insofar as they are expressed. He may state that the whole series of claims Muhammad made are true insofar as they can be represented by one proposition p (“Muhammad’s claims are true,” where “Muhammad’s claims” are the subject and “true” the predicate), but not with respect to the content of each instance of the subject of the proposition (“God is one,” “Muhammad is his prophet,” “Abu Jahl will never believe”). In this way, Abu Jahl can indeed grant assent to Muhammad’s claims without falling into an absurd impossibility. This is one way to offer a philosophical-logical solution to a legal-theological problem that is problematized in philosophical terms.
THE WRITERS AND THE WORKS
The translated text is from the field of legal theory (usul al-fiqh) and was written by a celebrated seventeenth-century scholar, Muhibballah al-Bihari. The lines in italics are the base text (matn), called Musallam al-thubut; those in roman are the commentary, Fawatih al-rahamut, by a well-known scholar of the eighteenth century, ʿAbd al-ʿAli Bahr al-ʿUlum.
Muhibballah b. ʿAbd Shakur al-Bihari was born and raised in Kara in Bihar, India. He was a Hanafi scholar who began to gain fame for his legal scholarship in the reign of the Mughal emperor Awrangzib (r. 1658–1707). Under the Awrangzib’s patronage, al-Bihari served as the qadi of Lucknow and Hyderabad; he was also appointed as a private tutor for the emperor’s grandson Rafi‘ al-Qadr (d. 1712). Toward the end of his life, al-Bihari was also appointed by Shah ʿAlam (r. 1707–1712) to the central ministry and given the title Fadil Khan. Little more has been communicated in the sources about al-Bihari’s life. He was a student of Qutb al-Din Sihalavi (d. 1692), the fountainhead of the Farangi Mahalli tradition of scholars, and by Qutb al-Din Shamsabadi (d. 1709). His scholarly work seems to be limited to legal theory (usul al-fiqh), logic, and philosophy. The legal theory work presented here and his logic work, Sullam al-ʿulum, were both included in the madrasa tradition of South Asia as advanced textbooks. The Musallam was written in 1698 and is a detailed and technical exposition of Hanafi usul presented in comparison to the Shafiʿi tradition.
The commentator of the Musallam, ʿAbd al-ʿAli b. Nizam al-Din Bahr al-ʿUlum, was the grandson of Qutb al-Din Sihalavi, the aforementioned teacher of al-Bihari. A leading scholar of the eighteenth century, he was a specialist in law, legal theory, logic, philosophy, and theology. Bahr al-ʿUlum was born in Lucknow (c. 1723) and received his early training from his father. He was also a renowned Sufi of the Qadiri order and was considered a mujtahid by Hanafi scholars of his time. As a leading light of his generation from a prominent scholarly family, he enjoyed the patronage of a number of princely states of India throughout his life; some of his financial support came from the British East India Company. Bahr al-ʿUlum wrote mainly in Arabic and Persian, including several commentaries and glosses on influential madrasa books on philosophy and logic.
TRANSLATION
BEGINNING OF NEW SECTION (PAGE 99)
It is not possible for one to be obligated of that which is impossible in itself in an absolute sense, [that is,] in itself, not with respect to a power to the exclusion of another. [An example is] the union of two opposites. Or [obligation is not possible with respect to] that which cannot issue due to itself from the one obligated, though it may be possible in relation to the power of God, such as the creation of a substance/atom by a temporally created power.
The Asharites allowed one to be obligated with that which is impossible in itself in both the aforementioned ways. However, they differed [on the question] of its actual coming about [that is, on the question when such obligation will actually befall people]. For among them there are those who say that [such an obligation] does actually occur; and there are those who say that it does not. As for that which is impossible as a [mere] regularity, that is, that which is possible in itself and with a view to the power of the one obligated, but which does not issue from the one obligated as [a fact of mere] regularity, such as someone’s carrying a mountain, well obligating one [of something like this] is allowed, as far as we are concerned. [This is allowed by us on the basis of] rational [consideration], as opposed to [the position] of the Mutazilites. For the latter do not hold it to be allowed on the basis of rational [consideration]. [However,] for us, on the basis of a scriptural proof, it is not allowed [that this last type of impossibility should be someone’s obligation]. This is due to God the High’s statement, “God will only obligate a soul [with something] that is within its capacity.” Now consensus is formed that one can soundly be obligated by that which God knows will not actually occur, although this [thing] that will not occur should be impossible due to something other than itself. Indeed in the Sharh al-sharh [one finds the claim that the consensus is that such an obligation is not only soundly possible,] but also that it [has already] actually occurred. Our position is that if it is sound that one should be obligated with that which is impossible, then it is also something that is called for/sought. [This is so] because this is the meaning of obligating someone. Calling for/seeking something depends on the conceptualization of its actual occurrence, just as it is called for/sought. Otherwise, that is, if this [thing] that is called for/sought is not conceptualized, that [thing] would not be conceptualized; rather something else would be. And this is necessary. Thus the claim that “if obligating someone with what is impossible is allowed, then [the impossible] would be conceptualized as it is called for/sought, that is, insofar as it occurs actually” has been excluded [as a possibility]. The conceptualization of the actual occurrence of that which is absurd, insofar as it is absurd,] and is known as absurd/impossible, in the extramental [world] is incorrect/false by necessity. So allowing that one can be obligated with that which is absurd/impossible is incorrect. If you were to say that this proof is [set up] in opposition to necessity, since there is no absurdity if one were to say to the obligated, “Bring about the union of two contraries or the absurd!”—then [the author] would say that this, which we mentioned, pertains to obligating and calling for [something] in the real [sense].
As for obligating someone in the [merely] formal sense—which is something other than a real calling for something—such that one articulates [something verbally] in the form of the command and states, “Bring about the absurd!” or “Bring forth the union of contradictories!” well this is nothing other than like your saying, “The union of two contradictories actually exists!” For as a content-bearing statement in reality this [statement] is incorrect, although its verbal articulation is correct. Similarly, in this case, the calling for [the impossible] is incorrect, although the verbal articulation in the form of a command is correct. We do not hold that this verbal articulation is impossible, given this proof. In the discourse of the people of truth one adheres to the position of the impossibility [of this articulation] due to some other thing that is apprehended that indicates [its impossibility]. If this thing that is apprehended is granted, so is granted the impossibility of this articulation. This other thing that is apprehended is that the articulation of that whole meaning is not intended is stupidity and jest. And this is impossible with respect to God. [Thus] obligating someone with that which is impossible/absurd is an impossible deficiency with respect to God. And this thing that is apprehended [and that leads to the aforementioned conclusion] includes both the formal and real [obligation], except that it is specific to God’s obligating someone. So reflect on this!
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They say first that if obligating someone with that which is impossible were not correct, [such an obligation] would not actually occur. But it has already occurred, because the disobedient person is commanded [with obligations]. Carrying out the act is impossible [for him]. How would this not be so, given that God knows that the act will not actually come about [through his agency]? So [the disobedient person’s] bringing about the act is contrary to [His] knowledge. That which is contrary to the knowledge of Him Most high is impossible. So the act from [such a disobedient person] is impossible. Likewise is the knowledge of God Most High of [the disobedient person’s] death and of the abrogation [of the command] from him before he is capable of it, since his non-existence is known [to God] and that which is contrary to what is known [by Him] is absurd/impossible. The response is that impossibility per se does not follow from this [consideration]. Nor is the conceptualization of [the act’s] actual coming about from [the disobedient person] impossible. Rather [the aforementioned objection only] supplies the point that what is actual is the non-existence of its actual occurrence. It is allowed that its actual occurrence be possible, [but] not actual. Knowledge [itself] does not change anything or endows [it] with possibility. For the knowledge of the possibility of that which is known or of its impossibility is posterior to the thing that is known and is not its cause.
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Know that al-Ashari held the doctrine that the power [of the agent to act] exists with the act [and not prior to it] and that the acts of the servants are created by God Most High. So they attributed to Him that He obligates [his creation] with that which is impossible/absurd. As for the first [reason,] well it is because, since the power does not exist in the state of the obligation—which is prior to the act—the act becomes as undetermined [to exist] and [so it becomes] impossible in relation to the obligated person. As for the second [reason,] well it is because, since the acts of the servants are created by God Most High, they are not determined [to exist] for the servant. So they are impossible with respect to him. Indeed the Asharites take obligating someone of the impossible as an entailed consequence. The truth is that it is not entailed; the inference does not entail [its consequence]. As for the absence of entailment [of the consequence] in the first case, well it is because the power [of the agent] is necessary only at the time of generating, that is, generating the act, so that the obedience may come about; [the power is not necessary] at the time when something is obligated. So with respect to the state of the generation [of the act] one is not obligated with that which is not determined [to exist]. As for the absence of the entailment in the second case, well it is because, for him, that is, al-Ashari, obligating someone is only related to acquisition, as it is also the case for us. And this is an act that is determined [by God] for the servant. [The obligation] is not related to [the servant] bringing something about that is not determined [by God] for him. On this issue, there is a great discourse in the discipline of kalam, mentioning which will extend our discourse. However, one must point out that there is no way out of [this problem] for al-Ashari; [he would be forced] to hold the doctrine that [God can] obligate someone with something that He has not determined [to exist]. For [the servant’s] acquisition [of the act] for [al-Ashari] is also from God the High and the servant’s power is only imagined. It has no bearing on any of the acts. So reflect on this and judge fairly.
They say, secondly, that God obligated Abu Jahl with belief, that is, with granting assent to all of what the Prophet came with. And among it, that is, some of what he came with, is that he will not grant assent to the truth [of Muhammad]. So He obligated him to grant assent to him in that he will not grant assent to him. And this is absurd. How could it not be so, [given that] it, that is, granting assent to the [very] granting of assent, only comes about by means of the denial of granting assent, since if granting the assent existed, the granting of the assent would be known. [Thus] he would grant assent to it. So how could he grant assent to the absence [of such an assent]. So the granting of assent would entail the absence of the granting of assent; and that which entails [its own] contradictory is absurd in itself. So Abu Jahl is obligated with that which is absurd/impossible in itself.
The response is that Abu Jahl is not obligated except to grant assent to the precepts of divine legislation/narration—that [the Qurʾan] is from God, the reports about [Muhammad’s] mission, Resurrection, paradise, hell, torments of the grave, intercession, and other things. The absence of [Abu Jahl’s] granting assenting is a report from God to him, may the blessings of God be upon him, his family, and companions. Abu Jahl is not obligated to grant assent to this report. So he is not obligated to grant assent to the absence of granting assent, so that there is no impossibility [that is entailed].
If you were to say that granting assent to the truth of the legal/divinely ordained reports is also impossible with respect to [Abu Jahl] because it runs contrary to His report; and that which is contrary [to his report] is impossible/absurd, [the author] would respond: that which is possible does not fall out of [the category of] possibility due to [someone’s] knowledge or report. For these latter two only require that that which relates to them should be actually existent, not that it should be necessary. With this extent [of exploration,] the response is complete.
One of them adds that if Abu Jahl knows that he will not believe, then the obligation [to adopt Islam/to believe] falls by the wayside. [This is so] because [otherwise the report about him not believing] does not communicate anything useful. The author is not in agreement with this and states, that which is said, [namely,] that if he knew that he will not grant assent, the obligation will fall by the wayside—this is impossible, that is, false. For man is not left futilely in a state; so the obligation would not fall by the wayside forever. He stated in the gloss, “How could [the obligation] fall by the wayside? Even the knowledge of God Most High does not preclude [the obligation] from being something determined [to be so]. So it is more suitable that His informing him of it and the knowledge of the one obligated should not preclude it. So reflect [on this]! Against this [is the objection] that the one who holds the position that the obligation falls by the wayside does not hold the doctrine of the absence of human power [to act]. Rather, he says that the point [of obligating someone] is to test and to [see his] compliance and this does not remain after the one obligated knows that [the obligation will] not be actually [fulfilled]. The author will point to this in the investigations of the fourth section, but the truth is what he mentions here.
NOTES
1. Bahr al-ʿulum, ʿAbd al-ʿAli Muhammad b. Nizam al-Din. Fawatih al-rahamut bi-sharḥ Musallam al-thubut li-l-Imam al-Qadi Muhibballah b. ʿAbd al-Shukur al-Bihari, ed. ʿAbdallah Mahmud Muhammad ʿUmar (Beirut: Dar al-Kutub al-ʿIlmiyya, 2002).
FURTHER READING
Ahmed, Asad Q. “Bahr al-ʿUlum, ʿAbd al-ʿAli.” In Encyclopedia of Islam, 3rd ed., ed. Kate Fleet, Gudrun Kramer, Denis Matringe, John Nawas, and Everett Rowson.
——. “Post-Classical Philosophical Commentaries: Innovation in the Margins.” Oriens 41, nos. 3–4 (2013): 317–48.
——. “The Sullam al-ʿulum of Muhibballah al-Bihari.” In The Oxford Handbook of Islamic Philosophy, ed. Khaled El-Rouayheb and Sabine Schmidtke. Oxford: Oxford University Press, 2016.
McGinnis, Jon. Avicenna. Oxford: Oxford University Press, 2010.
Weiss, Bernard. The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi. Salt Lake City: University of Utah Press, 1992.