An Islamic Notion of Natural Law: On Teleological Natural Law Thinking in usūl al-fiqh

Abstract

For several decades, scholars have engaged in a debate on the question of (the existence of) an Islamic natural law tradition. However, the debate lacks reflection of its very premises: Hardly a participant discloses his or her particular understanding of what natural law is. If ever they do so, it is a rational-hierarchical notion of natural law as it was most famously outlined by Thomas Aquinas. This article contrasts the Thomistic natural law with an Aristotelian notion thereof. It argues that the natural law tradition discernible in usūl al-fiqh is reminiscent rather of an Aristotelian-teleological natural law theory than it is of a Thomistic-hierarchical one. This becomes particularly clear when analysing istihsan. Istihsan is rather more closely related to Aristotle's epieikeia than it is to Thomas' aequitas. It functions not as an extra-legal (rationality-)standard to be pursued but as an inner-legal means of systematisation.