El-Awa - Approaches To Sharia

Journal of Islamic Studies 2-2 (1991) pp.
143-179
APPROACHES TO SHARl'A:
A RESPONSE TO N. J. COULSON'S
A HISTORY OF ISLAMIC LAW
MUHAMMED SELIM EL-AWA
Attorney at Law, Cairo
Though almost all major studies of Islam by Western scholars touch

upon some aspect of Shari'a, few deal specifically with that subject, and
of those few an even smaller proportion deal with Islamic legal thought.
The works of the late N. J. Coulson, for many years Professor of
Islamic Law at the School of Oriental and African Studies in London,
are among that small number. Beside several articles in learned journals,
Coulson wrote four book-length studies of which two will be discussed
in this paper: A History of Islamic Law (1964) and Conflicts and
Tensions in Islamic Jurisprudence (1969).1
Coulson taught for many years in one of the bastions of traditional
'Orientalist' scholarship. Nevertheless, he cannot be considered a pro-
ponent of that tradition. Coulson's primary interest in the Shari'a is
that of a legal scholar, a specialist in civil law, seeking to compare
different legal systems, rather than that of an 'Orientalist' concerned
with the history, culture, and traditions of the 'Orient'. His comparisons
are mostly free of the manipulative intent that marks the work of so
many of his 'Orientalist' predecessors and colleagues.1 Further, he does
not share their premiss that Islamic law is obsolete. On the contrary,
he believes it to be alive both in the consciences of individual Muslims
1
Of the articles, perhaps the most important are: 'The State and the Individual in
Islamic Law', International and Comparative Law Quarterly (Jan. 1957), and 'Doctrine
and Practice in Islamic Law', Bulletin of the School of Oriental and African Studies, 18
(1956). The four books are: A History of Islamic Law (Edinburgh, 1964), hereafter
referred to as History, Conflicts and Tensions in Islamic jurisprudence (Chicago and
London, 1969), hereafter referred to as Conflicts; Succession in the Muslim family
(Cambridge, 1971); and Commercial Law in the Gulf States: The Islamic Legal Tradition
(London, 1984).
1
For a full treatment of the political and religious element in Western scholarship of
the 'Orient', see Edward Said's Orientalism (London, 1978).
144 MUHAMMED SELIM EL-AWA
and as an applied system in Muslim societies. Since 'law, to be a living

force, must reflect the soul of a society',3 the legal system of a Muslim
society should, Coulson feels, remain essentially Islamic.
He fully appreciates that the binding force of Islamic law derives
from its being the expression of God's will and so an integral part of
Muslim belief.* Given some acceptance of the Shared as an active legal
system valid for Muslims, the aim of Coulson's history is to discover
how it was built and thus show how its application may be carried
forward. While affirming that the basis of the law must remain the
same, Coulson argues for the doors of ijtihdd (independent reasoning)
to be reopened and Islamic law reconsidered, particularly in the area
of economic, social, and political relations. In this respect Coulson is a
pioneer, the first of a new generation of scholars whose broadly positive
attitude may have far-reaching consequences for the way Islamic law
and jurisprudence, and indeed Islamic studies as a whole, are taught
and studied in the West.
This does not mean that we agree with everything Coulson says. We
do not. Our aim in this paper is to assess, from a Muslim viewpoint,
the validity of Coulson's overall approach to Islamic law. We shall
consider and respond to (I) his comments on the sources of SharFa;
then (II) some examples of his treatment of the Islamic criminal code.
Finally (III), following a summary of the narrative and theme of History,
we shall return to the general question of how Islamic law was built,
and what it means to say that the law in Muslim societies should remain
essentially Islamic.
(I) COULSON ON THE SOURCES OF THE

SHARFA
The role of the Qur'an

Coulson affirms that one consequence of the establishment of a Muslim
polity in Madina was that 'the Qur'anic revelations came to supersede
tribal custom in various respects'/ At the same time, he holds that
'[during] the first 150 years of Islam ... the existing customary law ...
remained the accepted standard of conduct unless it was expressly
J
History, 225.
4
See Conflicts, 1: '... the fundamental question of the nature of law it answered for
Muslim jurisprudence, in term* that admit of no compromise, by the religious faith
itself. Law is the divinely ordained system of God's commands. To deny this principle
would be, in effect, to renounce the religious faith of Islam.'
' Ibid. 11.
APPROACHES TO SHART'A 145
superseded in some particular by the dictates of divine revelation',' and,

elsewhere, that 'the legal matter of the Qur'an ... is essentially the bare
formulation of the Islamic religious ethic';7 the Qur'an 'does not attempt
to cover, in however rudimentary a form, all the basic elements of a
given legal relationship',1 this being seen as a want in Qur'anic legisla-
tion from which, for example, the Twelve Tables of Roman Law are
free. Similarly, while Coulson affirms that 'the principle that God was
the only lawgiver and that His command was to have supreme control
over all aspects of life was clearly established',' he says elsewhere that
it was only 150 years later that a group of scholars 'attempting to
explain the essence of their faith ... took their stand on the principle
that every aspect of human behaviour must of necessity be regulated
by the divine will', and in whose philosophy of law 'the legal sovereignty
of God was all-embracing.'10 The contradictions are easy enough to
see, but how do they arise?
To begin with, Coulson is obviously uncomfortable about using the
term 'legal system' except in reference to those systems of law in which
every legal relationship is given a precise, technical, definition, such as
the types of system now dominant in the West. Thus we find him
making the literally outlandish comparison with the Twelve Tables of
Roman Law, with whose legal comprehensiveness the lad hoc solutions'
of the Qur'an arc unfavourably contrasted." He even seeks to attribute
this characteristic of the Qur'anic legislation to its piecemeal revelation,
though, of itself, this has no bearing at all on whether or not legislation
should cover 'all the basic elements of a given legal relationship'.
Coulson's premiss that all legislation must be in some particular
format to qualify for description as law is highly questionable. A far
more important consideration is that the legislation be understood as
legislation by those who choose to live by it, capable of effective
application, and responsive to their changing needs. Without offering a
single example of the Qur'anic legislation failing in this respect, Coulson
asserts that 'For those who were pledged to conduct their lives in
accordance with the will of God, the Qur'an itself did not provide a
simple and straightforward code of law.'11 If that be so, then from
where do the countless books on ahkam al-Qur'an (the legal judge-
ments) and their interpretation derive?
The 'problems' that, in Coulson's view, the Qur'an raises 'as a
legislative document',11 are in fact a consequence of his misunderstand-
ing of the nature of Qur'anic legislation. Coulson looks at the Qur'an
as if it were any corpus of laws, requires of it that it 'cover ... all the
• Conflicts, 4. ' History, 11. • Ibid. 13. ' Ibid. 20.
u
" Conflicts, 5. " History, 13. " Ibid. 17. Ibid.
basic elements of a given legal relationship', and concludes: 'the basic

notions underlying civilised society ... [such as] compassion for the
weaker members of society, fairness and good faith in commercial
dealings, incorruptibility in the administration of justice are all enjoined
as desirable norms of behaviour without being translated into any legal
structure of rights and duties.' 14 Similarly, he claims that 'the primary
purpose of the Qur'an is to regulate not the relationships of man with
his fellows but his relationship with his Creator', and he frequently
describes the injunctions of the Qur'an as 'predominantly ethical'."
That the Qur'an is primarily a book of guidance, not a book of
jurisprudence, or law, or history, or any other specialization, is explicit
from the Qur'an itself:
A book that We have sent down to you for you to bring people out of the
darkness into the light by the permission of their Lord to the path of the
Mighty and Praiseworthy. [14:1 ]
This Qur'an guides to what is more correct (aqwam) and gives to the believers
who do good actions the good news that for them is a great reward. [17: 9]
And We have sent down the Book on you as a clarification of everything
(tibyanan li-kulli shay') and as a guidance and a mercy and as good news for
those who submit. [16: 89]
The uniqueness and inimitability of the Qur'an's eloquence are facts
of Muslim experience as well as doctrine. The reader finds himself, for
instance, moving in the space of a few verses from straightforward
narrative to exposition of the signs in the universe, to a passage of
promise and warning, the statement of a legal rule, a description of the
Garden or the Fire, and so on, without being conscious of any break
in the flow of the language except as the differences in subject-matter
dictate. It is absurd to expect that a book whose purpose is guidance
and whose means is inimitable eloquence should use the language of a
textbook of law. Muslim jurisprudents have long recognized that the
Qur'an does not deal with every legal subject in some one particular
style as ordinary legal textbooks do. Not only the style of the legislation
is varied, but also its immediate context: thus legal verses may occur
alongside verses about belief, or general behaviour, or the nature of
existence, or the history of bygone peoples. Also, a particular judgement
may occur in a number of different places in a number of different
styles, thus 'reminding' the Muslims in a manner that varies, deepens,
and broadens understanding. In short, it is possible to regard as a
positive merit what Coulson presents as a failing.
The verses that describe the Qur'an as a clarification of everything
14
Ibid. 11. " e.g. ibid. 12.
have to be understood alongside the verses that give the Prophet the
authority to make legal decisions in response to the developments
constantly taking place in the new Muslim community, and alongside
those that delegate to the Prophet the task of explaining the judgements
of the Qur'an:
Judge between them according to what God has revealed, and do not follow
them in their vain desires. [5: 49 ]
No, by your Lord, they are not [truly] believers until they make you the judge
of the disputes that arise among them, and find no resistance in their selves to
what you decide but accept [it] with complete submission. [4: 65 ]
And We have sent down to you the Reminder, in order for you to explain
clearly to people (Ii-tubayyina li'I-nas) what has been sent down to them, and
that they may give thought. [16: 44 ]
To say that the Qur'an is a book of guidance, that its language differs
from that of any professional or professorial language, and is, moreover,
sometimes ambiguous and allusive, is not to concede Coulson's point.
The 'ulama' have never been in any doubt as to its legal content or its
primacy as a source of the SharFa, all other sources being derivative.
But the full import of that legal content cannot be understood without
knowledge of how it was received and put into practice during the time
of the Prophet. In short, the Qur'anic legislation cannot be understood
without taking into account the Sunna (practice, or precedents) of the
Prophet, as well as the occasions of revelation (asbab al-nuziil) of the
relevant verses, and the traditional tafstr (commentary) about them.
The Sunna and its relation to the Qur'an

The Sunna relates to the Qur'an in three different ways:
(i) It may emphasize and affirm a Qur'anic injunction, as with the
ahadtth (sing, hadtth) which prohibit false testimony, murder, disobedi-
ence to one's parents, and the usurpation of others' property.
(ii) It may explain what is expressed in the Qur'an in general terms.
This may involve explaining the concepts and practice of such essentials
as the prayer, zakat, the t?a)j and lumra. It may involve indicating
exceptions possible to a general Qur'anic rule, such as the ahadtth
which forbid marriage to a woman and her aunt or niece at the same
time, although these are not specifically mentioned in the Qur'an,1* or
the ahadtth which, by specifying the conditions under which the penalty
" These are thus exceptions to the general permission given in the Qur'an, following
mention of a number of specifically prohibited degrees of marriage, in the words: And
permitted for you is what is beyond that, seeking [them] with your wealth, m the
virtuous manner of marriage [muhsinln] and not in fornication [4: 24].
for theft can be applied (such as the minimum value of the stolen
property and its degree of inaccessibility, etc.), allow certain exceptions
to the Qur'anic injunction—Cut off the hands of men and women who
steal [5: 38 ]. Or again, the Sunna may qualify an unqualified Qur'anic
judgement, such as the ahadith that specify that testamentary bequests
must not exceed a third of a man's estate, this being a qualification of
the Qur'anic phrase after a bequest that is bequeathed, or a debt [4: 12].
(iii) It may contain a judgement not mentioned in the Qur'an, such
as the ahadith that specify the inheritance due to the grandmother, or
that due to a grand-daughter through a son if there is also a daughter,
or that due to sisters when there arc also daughters; or the ahadith that
specify the amount of the zakat al-fitr, or the degrees of marriage
prohibited by suckling other than those mentioned in the Qur'an, or
the prohibition of a murderer receiving any inheritance from the man
murdered, or of Muslims inheriting from non-Muslims and vice versa.
Imam al-Shafil sums up the three kinds of relation between Sunna
and Qur'an in this way: '... firstly, those [matters] about which Allah
has revealed a [piece of the] Qur'an, and where the Prophet lays down
a sunna in accordance with it; secondly, where Allah has revealed a
general statement, and [the Prophet] clarifies what is meant; ... and
thirdly, where the Prophet lays down a sunna about which no [piece
of the] Qur'an has been revealed'.17
No less relevant for understanding Qur'anic legislation is a considera-
tion of the actual circumstances of a particular revelation (the asbab
al-nuziil), and the traditional passages of commentary {tafstr) that have
come down to us. To consider the Qur'anic texts in isolation, as one
might an ordinary law book, is bound to be, at the least, highly
misleading. When the Qur'anic legislation is considered, as within Islam
it always has been, in the light of the Sunna, the occasions of revelation,
and the tafsir of the Prophet and the Companions, it can be seen to
satisfy very well the legal needs of Muslim society.
Positive laws, in whatever system, consist of two elements—a com-
mand or mandatory element, and some specified sanction for non-
compliance. In Islamic law it is true that command and corresponding
sanction sometimes occur in the same and sometimes in different places,
but this is also true to some degree of every legal system and therefore
not a serious criticism. Coulson, though well aware that legal rules need
to contain both command and sanction,1' quite fails to appreciate that
both these elements do exist also for every ruling of Islamic law. The
17
See Im3m al-Shinl, al-Kitala, ed. Ahmad Shakir, 91ff.
'* See, for example, History, 11: 'the technical process of legislation ... reducing into
terms of rights and obligations an accepted standard of conduct and providing remedies
in the event of its infringement.'
Qur'anic commands are often associated with warnings to 'fear Allah'

and to be mindful of His pleasure and His wrath, as well as recurrent
mention of the Garden and the Fire. Coulson infers that these are
predominantly ethical injunctions addressed to conscience, expressive
of the 'Islamic religious ethic' but providing no basis for any compre-
hensive legal structure. As examples of this, Coulson says:
Drinking of wine and usury (riba) arc both simply declared to be forbidden
(baram) in practically the same terms. But no indication of the legal incidents
of the practices is contained in the Qur'an. In fact wine-drinking later became
a criminal offence punishable by flogging while usury was a purely civil matter,
the transaction being a type of invalid or unenforceable contract.1'
As a further example, Coulson mentions the prohibition against wrong-
fully exploiting the property of orphans, for which the sanction in the
words of the Qur'an is that those guilty of so doing shall swallow down
the fires of Hell into their stomachs and shall burn in the flame [4:10]."
The legislation of the Qur'an—complemented in the Sunna—com-
prehends all the obligations which Allah has made binding on man.
Two types of ruling are distinguished in Islamic law: those that refer
to details, and those that refer to general principles. The fuqahc? express
the interrelationship between the two in the familiar saying that Islamic
legislation is based upon 'details about what does not change and
general statements about what does change'.
The fact that certain obligations are not accompanied by defined
punishments for infringement only means that Muslims are required to
define the appropriate punishments according to differing circumstances
through the exercise of ijtihad. Contemporary legal systems differ only
in that the penalty is specified at the same time as the infraction it
punishes. The ijtihad required in Islamic law is necessarily influenced
by place and time, but in all cases the basic source for it is one of the
principles of the SharFa, whether a recognized method of interpreting
the texts on which the judgement is directly based, or a recognized
principle for deriving subsidiary judgements from the texts, such as
analogy (qiyas), equity {istihsan), the public interest {maslaha), etc. In
purely civil matters the penalty includes automatic annulment of the
transaction or contract and/or recompense for the harm caused. In
criminal matters the system of discretionary punishment {ta'ur) is
effective in cases where no fixed punishment (hadd) or act of expiation
(kaffara) is laid down in the Qur'an or Sunna. The need for this system
did not, as Coulson thinks, arise with the acquisition of a political
empire: it is confirmed by the Qur'an and numerous examples in
" Ibid. 11-1Z » Chcd ibid. 12.

the Sunna so that subsequent generations of Muslims have always

applied it.
Examples include the very ones that Coulson mentions. Drinking
wine is a crime liable to discretionary punishment, the definition of
which was achieved during the lifetime of the Prophet (not afterwards
as Coulson assumes).11 Taking usury is similarly liable to discretionary
" Four different verses of the Qur*an prepared for and led up to the clear, final
prohibition of wine. There is much that might be said of these verses, but it is of
immediate relevance here to note that Muslims have no difficulty distinguishing the
verses that exhort from those that command:
And from the fruits of palms and vines you get wine and good provision. [16: 67]
They will ask you about wine and gambling (maysir). Say, 'In both there is great
harm and some benefits for people, but their harm is greater than their benefit.' [2: 219]
O you who believe! Do not come to the prayer while you are drunk, so that you
know what you are saying. [4:43 ]
... so ovoid it [i.e. wine] so that you may prosper. Satan wants only to sow enmity
and hatred among you through wine and gambling (maysir) and to keep you from
remembering Allah and doing the prayer. So will you stopi [5: 90-1 ]
In none of these four verses is there a suggestion, let alone explicit mention, of any
worldly penalty for drinking wine. There are, however, many ahadith which confirm
the prohibition and also tell of the Prophet either carrying out a punishment for the
offence, or ordering that such a punishment be carried out.
Al-Bukhari, Ahmad, and Abu Dawud all trasmit from Abu Hurayra that a man who
had drunk wine was brought before the Prophet and the Prophet told those present to
beat the man. Some did so with their hands, some with their sandals, and some with
their clothes. As the man was leaving, some people said, 'May God abase you!',
whereupon the Prophet said, 'Do not say such things. Do not help Satan against him.'
In another authentic transmission we find that the Prophet told his Companions to
censure a wine-drinker after they had beaten him. It would thus appear—and, as
Muslims are right to say, Allah knows best—that the difference in judgement reflects
the difference in the circumstances of each case. Both judgements, however, were intended
to achieve the same deterrent effect. In a variation of this punishment (in a hadith
recorded by Abu Dawud) the Prophet had dust thrown in a man's face after he had
been beaten for drinking wine. From that we can infer that punishment should not only
fit the nature of the crime but also the character of the offender, and that this rule was
true also in the rime of the Prophet.
What is clear from these texts is that the Prophet himself was the first to specify a
punishment for drinking and that regarding it as a crime was not, as Coulson believes,
a later development. They also clarify the nature of discretionary punishment in Islam.
In all matters prohibited by the Qur'in it is possible for the appropriate authorities to
fix and carry out discretionary punishment whenever they deem it necessary. To consider
this (as some do) to be flouting the SharTa because the Qur'in, the Shart'a's main source,
only mentions the prohibition and does not indicate any punishment, is a grave error.
In systems other than the SharVa, an action generally considered within the legal
community to be a sin is not necessarily legally defined as a crime and may indeed be
legally permissible. Only if a sin is also legally a crime may the action concerned be
punishable in law. Such a distinction does not enter into the SharVa: the commission of
APPROACHES TO SHARl'A 151
punishment, in accordance with the general rules of such punishment,

with any usurious transactions being also automatically invalidated.
Wrongful exploitation of the property of orphans is likewise liable to
discretionary punishment, with the offender being obliged to render due
compensation to the wronged party.
It should be clear that the role of the Qur*an in Islamic legislation is
much more than the provision of ethical directives, as Coulson seems
to imagine. There is a very high degree of intercomplementarity among
the different elements that make up Islamic law. The essential principles
of that law, grounded both on the text of the Qur'an and on the
precepts and actions of the Prophet who showed how Qur'anic injunc-
tions should be practised as law, include the principle of flexibility. The
Quranic injunctions are legal rules in the full sense of the word, the
appropriate penalties for their infringement not necessarily being spelt
out alongside them. The general principles of Islamic law allow that,
in those cases, the appropriate penalties be elaborated separately. This
non-specification of penalties is an aspect of the universal applicability
of Islamic law, its anticipation of the need to provide for the social,
economic, and political developments that necessarily happen over time,
and to adapt individual legal judgements to the circumstances of indi-
vidual cases (see note 21 above). Certainly, the Qur'an does, when
stating a legal obligation, appeal to the individual's conscience and
recall him to his connection with his Lord, to his answerability here
and hereafter. This is no argument against the worldly practicability of
the SharVa: it is, on the contrary, a deepening of its legitimacy and
authority which, in turn, strengthens its individual observance and the
collective commitment to its application.12
Coulson and the Sunna

Many people have supposed that Coulson's attitude to the Sunna, given
some divergence from the opinions of his teacher, Joseph Schacht,
represents a major shift of position in Western scholarship on this
subject. Coulson begins by saying that the Prophet 'must have been
faced during his rule at Madina with a variety of legal problems,
particularly those which ... arose out of the terms of the Qur'an itself',
especially in view of his position as 'judge supreme, with the function
any action that u prohibited in Iilam is a punishable crime. If the prohibition is not (as
with the hadd offences) accompanied by mention of a specific punishment and/or act of
expiation it will be subject to ta'ar punishment.
u
The importance of legitimacy to the practicability of law can be easily understood
by comparing, for example, the prohibition on alcohol within Islam where such a
prohibition has legitimacy, and outside Islam where, because lacking in legitimacy, any
such prohibition is bound to become a law 'honoured only in the breach'.
of interpreting and explaining the general provisions of the divine

revelation'.13 Such regulations, Coulson goes on, 'marked the beginnings
of the growth of a legal structure out of the ethical principles contained
in the Qur'an'."
However, Coulson goes on to say that 'surma' in the second century
AH meant the consensus of a particular legal school—'the ideal doctrine
established in the school and expounded by its current representatives'."
To consolidate the idea of tradition, this 'ideal doctrine' was represented
as stretching back into the past, and the names of pious personages
were attached to it in order to claim the authority of their generation
for the school's current expression:"
Thus TJmar, for example, was frequently represented as the originator of
Medinan sunna, and Ibn Mas'ud held a similar position in Kufa. Eventually
and inevitably the process ended in claiming the authority of the Prophet
himself for the doctrine.17
Coulson then explains those asanld (sing, isndd, chain of transmis-
sion) which attribute ahadith to the Prophet as the result of the insistence
of the new opposition party, 'the people of the fpadith' (ahl al-hadtth),
that the precedents of the Prophet had 'supreme and overriding authority
as law'. In effect, Coulson claims, 'many rulings and decisions were
falsely ascribed to the Prophet', and 'these are contained in stories or
reports of what [He] said or did on a particular occasion.'1' To avoid
inconsistency with his prior affirmation of the Prophet's role in legisla-
tion, Coulson aims for some sort of middle ground: 'While certain of
the legal Traditions may preserve the substance of the actions and
words of Muhammad, particularly in non-controversial matters, this
genuine core became overlaid by a mass of fictitious material.'1'
The inconsistencies re-emerge, however, in Coulson's subsequent
development of this idea in the argument that 'sunna' came to take on
the technical meaning of 'sunna of the Prophet' rather than the 'sunna
of the local school'. He says:
The recognition of the Traditions (fpaditb, precedents of the Prophet) as a
source of the divine will complementary to the Qur'Sn is the supreme contribu-
tion of ash-Shafil to Islamic jurisprudence ...
Sunna, therefore—in the sense of the divinely inspired behaviour of [the
Prophet]—is the second source of law in ash-ShafiTs scheme. In the early
schools, as we have seen, sunna had signified essentially the local tradition of
the individual school. By replacing this concept of tradition, which had, for
Islam as a whole, a multiplicity of starting-points, with that of a tradition
which stemmed from one single origin—the actions of Muhammad—
" History, 22. ** Ibid. 22. " Ibid. 39. » Ibid. 40.
17
Ibid. 41. " Ibid. 42. " Ibid. 42f.
ash-Shafi? aspired to eradicate a root cause of diversity between the several

centres and instil uniformity into the doctrine. In short, he argued, there could
only be one genuine Islamic 'tradition'. And yet ash-Shafil was not propounding
any completely novel idea. There had been a growing tendency for the early
schools, through the projection backwards of the doctrine, loosely to represent
their sunna as rooted in the practice of the Prophet. Ash-Shafi*! exploited this
tendency, confirming its correctness as a matter of principle, by his thesis of
the divine nature of the Prophet's authority, and arguing, as a matter of form,
that the Prophet's practice could be properly ascertained and established only
by a tradition."
But the idea that the Sunna of the Prophet is complementary to the
Qur^an as a source for knowing the divine will is quite explicit in the
Qur'an itself, and would therefore have been widely known:
And what the Messenger gives you, take; and what he has forbidden you, leave
alone. [59:7]
Let those who oppose his command beware lest a trial befall them, or a painful
torment. [24: 63 ]
Say, if you love Allah, then follow me and Allah will love you and forgive you
your wrong actions, and Allah is Forgiving and Merciful. [3: 31 ]
Similarly, while it is true that al-Shafil did place the Sunna as the
second source of Islamic law, this too was not an innovation. This had
been the common understanding of the scholars among the Compan-
ions—indeed of all the Muslims everywhere—from the earliest times,
as is evident from any perusal of the works of fiqh, uftil, and hadith.
The only means of sustaining the opposite view is the wholly negative
hypothesis that these works are all fabrications.
If, as Coulson claims, 'sunna' for the early schools had meant merely
their own 'local tradition' of Islamic law, from whom did they receive
this tradition? What was the authority for 'the multiplicity of starting-
points' (see quotation above, p. 152)? How, in sum, do we get from the
Islamic law established and practised in the Prophet's lifetime to the
'local tradition' of the different schools? And if the Sunna of the Prophet
had not already had legislative authority why should the fuqaba' have
striven to attribute their traditions to it?
Coulson's reasoning simply does not hold up. Finally, there is his
claim that al-ShafiT originated the view that the Sunna can be properly
ascertained only from ahadith coming down directly from the Prophet.
Leaving aside the ignorance that this implies of recent work on the
transmission and recording of the ahadith of the Prophet from the time
" Ibid. 56f.
of the Companions onwards,31 we must ask this question: if the early

schools exhibited a growing tendency to support their doctrines by
traditions ascribed to the Prophet, where were these traditions if not
already among the traditions related from him (unless, that is, we accept
the hypothesis that all Muslim scholars were continuously and continu-
ally forging traditions)? And where did al-Shafil find the hundreds of
afpadtth, scattered throughout his work, if they were not already well
known and current in the circles of the 'ulanta'? Indeed, had it been
otherwise, how could he have argued so decisively against his opponents
for the correctness of his view?
We do not wish to understate al-ShafiTs achievements in jurispru-
dence, but his genius was in organizing and reformulating already
existing material in an arrangement already sufficiently familiar to gain
acceptance. He did not invent any new source of Islamic law, nor
contrive for any source a greater authority than it already had. Rather,
his formidable intellect and knowledge of fiqh enabled him to gather
the theoretical bases of Islamic jurisprudence into a single, coherent
form such that later scholars attributed to him the foundation of the
science of jurisprudence (ufiil al-fiqh). To exaggerate al-ShafiTs role,
as Coulson does (following Goldziher and Schacht), is to deny the
existence of any mutual understanding or agreement among the fuqaha0
before al-Shafil on how to derive judgements from the sources. In fact,
worthwhile discussions and exchange of opinions between them on this
subject are amply recorded in the literature, which testifies that the
fuqaha' were aware of these ufiil and had arrived at numerous judge-
ments on the basis of them. They differed in their interpretation and
particular use of these sources, but they never doubted or denied their
existence.
There is, unfortunately, little new in Coulson's critique of the Sunna
other than his acceptance that some of the legal ahadtth are in fact
genuine and represent the legal problems with which the Prophet, in
his role as supreme political and legal authority in Madina, had to
deal.31 Consequently, Coulson is prepared to accept that
the substance of many Traditions, particularly those which deal with the
obvious day-to-day problems arising from Quranic laws, may well represent
at least an approximation to a decision of the Prophet which has been preserved
initially by general oral tradition."
What is new here only becomes apparent from comparison with, for
example, Schacht, who says: 'we shall not meet any legal traditions
11
See ibid. 62ff. For the most reliable account to date of the recording of Prophetic
abaditb the reader is urged to read Muhammad Muffafa al-Ac$ami'« Studies in Early
Hadlth Literature (Beirut, 1968).
" History, 64; also 22 and 42f. " Ibid. 65.
14
from the Prophet which can positively be considered authentic', and:
'the evidence of legal traditions carries us back to the year 100 AH
only.'M Schacht holds that 'every legal tradition from the Prophet, until
the contrary is proved, must be taken not as an authentic or essentially
authentic, even if slightly obscured, statement valid for his time or the
time of the Companions, but as the fictitious expression of a legal
doctrine formulated at a later date'." Coulson, by contrast, holds that
'it is a reasonable principle of historical enquiry that an alleged ruling
of the Prophet should be tentatively accepted as such unless some reason
can be adduced as to why it should be regarded as fictitious.'37
Coulson's limited acceptance of the ahadith may be of value in that
it opens the door again for Western scholars to reconsider the authenti-
city of this material. A more reliable method for such reconsideration
than that already developed and elaborated by the Muslim scholars
themselves is improbable. Coulson's assertion that 'the vast majority of
the legal dicta attributed to the Prophet are apocryphal and the result
of the process of "back-projection" of legal doctrine',"will prove unten-
able. So too will the claim that the asatud were fabricated in order to
give weight to the opinions of individual scholars or schools, which
Coulson, although allowing the authenticity of a certain number of
ahadith, nevertheless repeats frequently.
(II) COULSON AND THE ISLAMIC CRIMINAL

CODE
Coulson's critique of the two main sources of Islamic law, the Qur'an
and the Sunna, amounts to a denial of the fundamental grounds of the
legitimacy and authority of the Shari'a. As we now turn—by way of
examples of his comments on the practical expression of the Shari'a—
to Coulson's treatment of the criminal code, we find that he regards
the SharFa's effectiveness, outside those offences explicitly treated in
the Qur'an, as largely attributable to the power of the ruler of the day.
This view means that (excepting the offences mentioned) the ShafTa
enjoyed no authority in Muslim societies unless through arbitrary exer-
cise of political power. Coulson's argument also implies that the Sharif
14
J. Schacht, The Origins of Muhammadan Jurisprudence (Oxford, 1950), 149. This
view is somewhat diluted in his Introduction to Islamic Law (Oxford, 1964), where he
says (34) that 'Hardly any of these traditions, as far as matters of religious law are
concerned, can be considered authentic.'
u
" J. Schacht, Origins, 5. Ibid. 149. " History, 65.
** Ibid. 64. Cf. also 41: 'the great mass of the alleged doctrines of the ancients were
anachronistic ascriptions.'
156 MUHAMMED SEL1M EL-AWA
fails to be persuasive through legal reasoning, its legal concepts being

quite naive, if not downright primitive. The following individual points
made by Coulson illustrate particularly well the general argument:
1. The only aspects of criminal law that fiqh deals with are the crimes
covered by the hudiid, and in these offences it is the notion of man's
obligations to God rather than to his fellow man that predom-
inates.3'
2. Homicide is treated as a private and not as a public offence;40
furthermore, the rules laid down in the Qur'an about physical
assaults and homicide are 'essentially ethical', albeit they have 'self-
evident' legal implications/1
3. As far as procedure in criminal cases is concerned, the sovereign
'may order the use of such methods as he sees fit to discover where
guilt lies'.41
4. Moreover, '... the sovereign is completely free, outside the I?add
offences, to determine what behaviour constitutes an offence and
what punishment is to be applied in each case' (although Coulson
allows that 'most jurists ... adhere to the view that ta'zir should
be restricted to flogging or imprisonment').43
We shall now consider each of these points in turn.
1. The comprehensiveness of Islamic criminal law

As we explained above, the Qur'an and Sunna together make up the
initiating core of Islamic law. This core contains, for the most part, not
detailed rulings, but general principles of law and legal reasoning, that
is, the intellectual tools that make it possible to evolve and extend
rulings to particular cases. Among those tools, the principle of discre-
tionary punishment (ta'zir), established by the Qur'an, is the means by
which the criminal code responds to the legislative needs of the commun-
ity in every place and time. Indeed, it is in the area of ta(ar punishment
that ijtihad has always found its widest application. It is quite untrue
to maintain, as Coulson does, that Islamic criminal law is largely
confined to those few offences whose punishment is 'defined' in the
Qur'an, the so-called hudiid offences. Nor is it true to say that these
" Ibid. 124.

40
Ibid. See also 18: 'Homicide [is] an offence which fall* into the category of civil
injuries rather than that o f public offences or crimes.'
41
Ibid. 17f.
41
Ibid. 132. Cf. 128: '[the] courts ... could take such measures t o discover guilt ...
as they saw fit.'
41
Ibid. 132f. Cf. 129: 'a ruler ... had the power to take such steps as he saw fit t o
implement and supplement the principles established by the religious law.'
APPROACHES TO SHART'A I57
offences are predominantly concerned with man's obligations to God,

rather than to his fellow men.
The comment that these offences are of very narrow legal compass
is misleading. What the Qur'an expounds on these matters covers the
most vital areas of collective life, and provides not only the relevant
values (the moral-ethical framework) but requires a collective commit-
ment to these values as law. The punishments for theft and brigandage
(hiraba) defend people's property and guard the security of public
highways; the punishment for illicit sexual relations defends the integrity
of the family; the punishment for wine-drinking—according to the
majority who hold wine-drinking to be a fradd offence—defends
people's sanity; the punishment for apostasy defends their religion; the
punishment for slanderous allegations of unchastity (qadbf) defends
honour and reputation; and the punishment of rebels (bughat)—accord-
ing to those who consider rebels to be guilty of a hadd offence and
their subjugation to be a punishment—defends, so to speak, the author-
ity of authority, the rule of law. In all of these instances not only the
crime, but also the punishment (and in some cases even the rules of
procedure and evidence), have been defined by the Qur'an and the
Sunna, leaving only the finer details of interpretation and application
to be resolved by the fuqaba'.
In addition to the hudud offences, the Qur'an deals explicitly with
the crimes of murder and physical assault, laying down the principles
of just retaliation (qisas) and blood-money (diya). The Sunna then
augments this picture, after which comes the role of the fuqaba0 in
resolving thefinerdetails of interpretation and application, as mentioned
above.
Coulson's view that the application of the budud offences is predom-
inantly an obligation owed to God, rather than to one's fellow men, is
quite incorrect. It would seem that he makes this point as a result of
misunderstanding the phrase b<*qq li-llah ('a right owed to Allah') in
the writings of the fuqaba0. What in fact this means, as the fuqaba0
have clearly explained, is that the benefits from carrying out the punish-
ment, as well as the obligation to carry it out, are collective.*4 But haqq
li-llah does also mean that the authorities have no sovereignty over the
definition of, or legal response to, these offences, nor any right to
disregard or pardon them. In terms of procedure, the phrase can be
understood to mean that carrying out the hadd punishments is the
responsibility of the authorities and that the victim has no say in that
44
The phrase clearly saved Islamic law from the temptation to resort to such legal
fictions as 'the State' or 'the Crown'. Cf. comparable phrases used to argue against price-
fixing by government authorities—e.g. al-musu'ir huwaallah and al-as'ar wa-'t-a'mar
bi-yaduiUah.
(sec below). All of this is clearly very different from Coulson's under-
standing of the hudud crimes as ones where the notion of man's
obligations towards God, rather than towards his fellow men, predom-
inates.
2. The law of qisas (just retaliation) in Islam

Coulson was not die first Western scholar to suggest that homicide is
regarded in Islamic law as a 'civil injury' requiring compensation rather
than as a 'crime' demanding punishment.** This view may derive from
the presumption that, in this case, the SharTa merely carries on the
customary practice of the Arabs of pre-Islamic times who are thought
(another presumption) to have regarded killing as a matter that can be
settled by rules of private vengeance. In fact, premeditated killing of
another person is universally regarded as a crime, and every legal system
prescribes a punishment for it: the Shart'a is no exception. Nevertheless,
the point does raise a pertinent question about the nature of the legal
response to homicide and serious assault in Islam.
What chiefly distinguishes 'torts' from 'crimes' is the outcome of the
judicial procedure. In the former the harmed party is compensated for
the harm done to him; in the latter the state exercises its right to exact
punishment on the transgressor. A criminal sentence may, additionally,
exact compensation for the victim, but such compensation is a secondary
consideration supplementary to the punishment proper. In civil cases,
by contrast, compensation is the primary consideration.
In Islamic law the punishment for murder is just retaliation, qisas
(from qassa, 'to make two things equal'), a punishment commensurate
with the offence. The same principle applies to punishment for causing
severe bodily injury, although the fuqahW generally use the term qawad
for this, reserving qisas for retaliation for murder. However, the victim
or (in the case of murder) the victim's representative may forgo the
right to retaliation and accept blood-money instead, by way of com-
pensation. To which category then do such offences as homicide, injury,
and assault belong?
The Shari'a, according to the relevant verses of the Qur'an, distin-
guishes accidental from premeditated acts:
O you who believe, retaliation has been prescribed for you in cases of
murder: a free man for a free man, a slave for a slave, and a female for a
female; but if someone is forgiven at all by his brother, [the blood-money]
should be sought in an approved manner (bi-'l-ma'ruf), and paid to the victim
** J. N. Anderson, for instance, suggests this idea in his article 'Homicide in Islamic
Law', Bulletin of the School of Oriental and African Studies, 1951, 811-18, and again
in his Islamic Law in Africa (London, 1970), 198-218.
with due consideration (bi-ihsan). This is a concession from your Lord, and a
mercy, but whoever transgresses after this will suffer a painful torment.
There is life for you in retaliation, O you who have understanding, so that
you may have fear [of AllahJ'. [2:178-9]
A believer would not kill a believer except by mistake. If someone does kill
a believer by mistake, a believing slave should be freed and blood-money be
paid to the man's family, unless they forgo this out of charity. If the man is
from a people with whom you are at enmity, and he is a believer, a believing
slave should be freed. If he is from a people with whom you have an alliance,
blood-money should be paid to his family and a believing slave be freed.
Whoever cannot manage this should fast for two consecutive months, as a
penance [enjoined] by Allah, and Allah is Knowing and Wise. [4: 92 ]
From these texts, the fuqaha' have concluded that there is no retaliation
in cases of accidental killing but only blood-money and/or expiation.
Murder, on the other hand, demands retaliatory execution, unless the
relatives of the victim forgo their right to it in return for blood-money,
the amount of which, not fixed in the Qur'an, is derived from the
hadtth: 'the blood-money for a person killed accidentally, [or] by a
whip or a stick but unintentionally, is a hundred camels, forty of which
should be pregnant.'4* In another hadtth we are told that the Prophet
wrote to the people of Yemen telling them that 'the blood-money for
a life is a hundred camels.'47 It should be noted that the generally
accepted view among the fuqahc? is that the equivalent value (in money
or other commodity in use in a given society) may be substituted.41
The victim (or representative) may demand retaliation, or waive that
right and demand blood-money instead, or forgo both rights. The
predominant view amongst the fuqabc? is that the right to demand
retaliation lies with the victim's relatives in cases of murder, and with
the victim in cases of physical injury. Furthermore, they hold that/the
victim's party must be allowed to carry out the retaliation if able to do
so justly and correctly. This opinion is based on the verse:
And if someone is killed wrongfully. We have given his next of kin (Wall)
authority [i.e. to demand retaliation or to forgive] but let him not go to excess
in killing; surely he will be aided. [17: 33 ]
" This ii transmitted by al-Nasa'i, Ibn Majah, al-Danml, and Abu Dawud. See
Mishkat al-Mafabtb, ed. Muhammad Nitir al-Albini (Damatcui, n.d.), ii. 268.
47
Ibid. See also al-Muwaffa1, ed. Muhammad Fu'Sd 'Abd al-BSql (Cairo, n.d.), 530.
** For offences against a person short of killing, the amount of blood-money varies.
For some parts of the body, such as the eyes, the lips, and the nose, the full blood-
money is payable, whereas for other parts of the body lesser »ums are involved. In all
cases these judgements derive either from the letter that the Prophet sent with 'Amr ibn
Hazm to the people of Yemen or from ijtikad where there is no pertinent text. See ibid.
535, where the use of ijtihad in such cases is specifically mentioned.
l6b MUHAMMED SELIM EL-AWA
But this is not the only interpretation of the verse, nor, in our view,
the correct one. Both al-Qurtubl and al-RazI hold that the 'authority'
accorded by the verse is the right to demand that retaliation be exacted,
but that the right to exact it rests with the competent judicial or
governmental authorities.4' Some commentators indeed interpret the
words but let him not go to excess in killing as directed to the victim's
next of kin and effectively meaning that he should not himself kill the
murderer since this is the responsibility of the ruler/ 0 Also, the com-
mand prescribing retaliation—O you who believe, retaliation has been
prescribed for you in cases of murder—is addressed to the whole
community. In Islamic law, individual duties (e.g. the acts of worship)
are distinguished from collective duties (e.g. the protection of borders)
which are to be carried out by the special representatives of the commun-
ity. Legal retaliation in our view comes under this second category/1
so that the view that the victim, or his next of kin, has the right
personally to exact retaliation is weak. Most contemporary Muslim
scholars therefore argue that exacting retaliation is the responsibility of
the same authorities whose task it is to carry out criminal sentences.
Retaliation thus comes under the same category as punishments for
other crimes, where the judicial authorities issue the sentence and the
relevant state authorities carry it out."
Nevertheless, the right remains for the victim (or representative) to
forgo retaliation and demand blood-money instead. That right clearly
allows for compensation for the harm suffered. It is further underlined
by the permission to the parties involved to agree to blood-money
(possibly a sum in excess of the normally accepted amount) outside the
jurisdiction of the courts.
In those instances where the victim exercises the right to forgive
outright, to forgo blood-money as well as the right to retaliation, the
majority view is that it is not then permissible to impose punishment
on the offender. However, Imam Malik allows talar (discretionary)
punishment of the offender, not only in such cases of outright forgive-
ness but wherever retaliation is not exacted. We would support this
opinion since it accords with the principle that an offence against
*' See Tafsir al-Qurfubi, ii. 245 and 256. See also Mahmud ShaJtflt, al-Ulam 'aqida
wa shan*a (Cairo, 1964), 385-8, where he mentions that this is also the view of al-RazI
and Muhammad 'Abduh.
M
See Ibn al-Jawzi, ZJid al-rruulr ft lilm al-tafstr (Damascus, 1965), v. 33, where this
opinion is attributed to al-ZajjSj.
11
See ShaltOt, al-Ulam 'aqida wa sharVa, 286.
" See ibid. Ahmad Ibrahim, al-Qifaf, 215-18; 'Abd al-Qidir 'Awda, al-TashrT d-
Ulanu al-jina'T muqaranan bi-'l-qanun al-wafi (many editions), ii. 155; Ahmad al-
SharabisT, al-Qifaf ft al-fiqh al-Islaml (Cairo, 1954), 134ff.; Sayyid Sabiq, Fiqh al-sunna
(Kuwait, 1968), 61-3.
APPROACHES TO SHART'A l6l
another's life or limb is a crime for which punishment is due, and that
the right of the victim's party to forgive only applies where that party
would otherwise benefit, that is in regard to the blood-money, and does
not affect the appropriateness of punishment but only changes it so
that, instead of obligatory qifd?, there is a discretionary punishment
determined by the principles of ta'vr.
To summarize, we may say that the judgements of the SharPa on
such offences are of a double nature. In some respects they come under
criminal law, with retaliation being the due punishment for the crime
committed; in other respects they come under civil law, because of the
compensation due to the harmed party. In our view it is incorrect to
consider that blood-money is a punishment for the offender as well as
compensation for the victim, since, first, all jurists are agreed that the
victim or next of kin may come to an arrangement with the offender
without recourse to the courts, even after the offence has come to the
attention of the authorities, for either more or less than the normal
amount of blood-money; and, secondly, because the benefits of other
monetary punishments—whether fines or confiscations of property—
accrue to the state, which is not the case with blood-money.
The double nature of the SharT'a judgements on these offences is not
a failing, nor the result of a conceptual muddle. Rather, it reflects the
nature of the offences and their consequences. The fact that various
Western legal systems have recently introduced schemes of compensa-
tion for the victims of violent crimes while continuing to regard these
crimes as such suggests that the balance and wisdom of the SharVa
position can be appreciated outside the traditions of Islam." The argu-
ment that the SharFa regards homicide as merely a private and civil,
not public and criminal, matter is false. Similarly, to say that the rules
of retaliation are 'essentially ethical', implying that they have not been
legally thought through, is also false: the details of the analyses done
by the fuqaha1 to define intention (even quasi-intention, though this
concept was rejected by the Malik! school) in different circumstances
(for example where several persons were involved in a single crime)
and to work out corresponding degrees of responsibility and liability
under the rules for compensation or retaliation arc too involved to
summarize here; but what we have said is' sufficient to make the point
that the objective of the SharFa in this matter is not, as Coulson's view
implies, to enable a 'private' settlement of dispute, but to establish
liability and then, appropriately, punish the criminal and satisfy the
victim.
Sec Hall Williams, The English Penal System in Transition (London, 1970), 196.
l6z MUHAMMED SELIM EL-AWA
3. Rules of procedure and evidence

Coulson allows that, generally speaking, 'the rules of evidence aimed
at the establishment of the truth of claims with a high degree of
certainty', but also claims that the ruler 'may order the use of such
methods as he sees fit to discover where guilt lies'."
The means used for establishing guilt in Islamic law are the same for
criminal and civil matters. Foremost among them are testimony, confes-
sion, the knowledge of the judge (although there is disagreement on
this point), and various kinds of circumstantial evidence. In almost all
cases 'testimony' means the testimony of two just witnesses. This rule
applies to the hudud crimes of false accusations of unchastity (qadhf),
brigandage {Ipiraba), and theft; it applies likewise to serious crimes
subject to discretionary punishment, and is the necessary procedure
before the right to retaliation in cases of homicide or physical injury
can be established. For reasons we need not here investigate, the testi-
mony of four just witnesses is required legally to establish illicit sexual
relations (zina).
The chief preoccupation of the fuqaha" regarding testimony has been
the definition of 'adala, or moral probity. The origin of the condition
that only the testimony of someone who is 'adl is acceptable is in the
Qur'an:
And have two just men (dhaway cadl) among you to be witnesses. [65: 2]
O you who believe! Testimony between you, when death is nigh to one of you,
at the time when bequests are made, should be [either that of] two just persons
from among yourselves, or two others from a different [group]. [5: 106 ]
In a different verse the Qur'an describes proper witnesses as those whose
testimony is acceptable to the believers, without specifically mentioning
that they be 'adl:
If two men are not [available] there should be one man and two women, from
amongst those whom you approve as witnesses. [2: 282 ]
The balanced conclusion to be inferred from these verses is that a
proper witness is one whose testimony is acceptable according to con-
temporary, local norms. While certain actions can never be acceptable
to Muslims, the acceptability of other sorts of behaviour does vary with
circumstances of place and time—that is surely the wisdom of from
amongst those whom you approve as witnesses." One may then say
" History, 126, 132.
" According to the HanafT, Milikl, and Shifil schools, a Muslim is considered 'just'
{'ad{) if he is known to comply with the commands and prohibitions of the ShafFa. The
Hanballs (and some Shifils) also include at a condition of 'adala what they refer to as
'manly conduct' (utfmal d-murffa), by which they mean the avoidance of any sort of
APPROACHES TO SHARr'A 163
that, apart from those instances where a man's testimony is explicitly

rejected by a text, a just witness is one whose testimony is acceptable
to the majority of the Muslims of his community.
There are, of course, many relevant matters to be borne in mind
when testimony is weighed—whether a particular individual could
reasonably be expected to know or to understand the significance of
particular events or sequences of events, the relative weight of written
or verbal testimony, the demands of equity and natural justice in the
particular case, etc. But we cannot here go into these matters, nor into
the other procedures of evidence such as confessions, circumstantial
evidence, the knowledge of the judge, etc. What we have said is sufficient
to show that a SharTa court has to establish guilt or innocence according
to SharTa procedure, and not to suit the whim of either the judge or
the ruler. The word bayyina ('proof or 'evidence') means that which
clarifies (yubayyin) and brings out the truth; so when the truth is clear
to the judge he must accordingly convict the guilty or acquit the
innocent. The court must proceed according to what is established by
the evidence (al-bayyinat) that is permitted by the Shart'a. It is incorrect
to claim, as Coulson does, that the ruler may use any means he sees fit
to establish guilt.
4. The authority to define crimes

It is generally understood that an action is judged a crime in respect of
intention, whence the legal principle that if an action was not already
known to be a crime it is unlawful to convict or punish anyone for
having done it. No text in either the Qur'an or hadith unambiguously
states this principle; nevertheless, it is well established among the basic
principles of Islamic law. It is derived from the following verses of the
Qur'an:
We would never punish until We had first sent a messenger. [17:15]
Your Lord would never destroy [those] cities until He had [first] sent to their
centre (fT ummi-ha) a messenger, reading out Our signs to them. [28: 59 ]
Say to those who disbelieve that if they stop they will be forgiven what is past
(ma qadsalafa). [8:38]
The same phrase—except what is past—also qualifies the various
degrees of prohibited marriage mentioned in Surat al-Nisa3 (4: 22-3),
behaviour that lowers a man's dignity and esteem in the eyes of others. This last
condition, however, is rejected by the majority of the fuqaha", and particularly by Ibn
Hazm, in his usual severe manner, in his Muhalla. For references to the general question
of procedure and evidence in Islamic law, see M. S. El-Awa, Ft ufid al-nifam al-jmai
d-islimi (Cairo, 1979 and 1983), 286ff.
and again in Allah pardons what is past, but if someone repeats [the
offence], Allah will take vengeance on him (5: 95).
Among the ahadith that underscore this principle are the Prophet's
words during the Farewell Pilgrimage: 'The blood of the Time of
Ignorance is forgone, and the first blood I begin by forgoing is the blood
of al-Harith ibn cAbd al-Mutfalib; and the usury of the Time of Ignor-
ance is forgone, and the first usury I begin by forgoing is the usury of
my uncle al-'Abbas ibn 'Abd al-Muttalib.'
From such texts the fuqaha" developed the two well-known rules—
that no act is obligatory unless it has been stipulated by the SharFa,
and, conversely, that all things are permitted unless otherwise specified.
The commonly held Western view, shared by Coulson, that the Shari'a
allows the ruler unconditional power to define, according to arbitrary
caprice, any act as a crime and then punish it, is incorrect.
Within the Islamic legal system, the authority to define crimes not
already explicit in the Qur'an and Sunna derives legitimacy from the
obligation clearly stated in the Qur'an: And let there be from among
you a community who invite to good, enjoin the right and forbid the
wrong (3: 104); and from the description of the Muslims as the best
community to have been brought forth for mankind, enjoining the right
and forbidding the wrong and believing in Allah (3: 110). We explained
above (p. 157) that the hudud offences cover the core areas of collective
life and secure the essentials of religion, family integrity, life and limb,
sanity, property, and the rule of law. It is binding upon Muslims,
individually and collectively, and therefore binding upon any Muslim
ruler, to guarantee these essentials. The fuqabc? are agreed that the
ruler has a duty to act against any threat to any one or all of these
essentials—he has a duty, in other words, to act in the interest of the
common good as that good is defined within the SharFa. Similarly, the
ruler has a duty to act in support of and to encourage whatever
promotes those essentials. Failure to do this, as al-Qarafl says, is 'a
clear deviation from the straight path and a violation of the consensus
of the community'.5'
To enact legislation on the basis of the common good is what is
known as al-siyasa al-shar'iyya or government according to the prin-
ciples of the SharFa. On this topic the famous scholar Ibn al-Qayyim
al-Jawziyya says:
There are two kinds of government: one which is unjust and is forbidden by
the SharFa, and another which is just and takes the right from a wrong-acting
oppressor. [This second type] is part of the SharFa: knowledge of it is part of
M
See al-QarifT, al-Furuq (Cairo, 1939), iii. 16-20, and iv. 182.
the knowledge of the Shari'a, and ignorance of it is part of ignorance of the

SharVa."
He then says, quoting the leading HanbaS scholar Ibn c Aqll:
Ibn 'AqTl says in al-Funun, 'It has been established that acting according to the
principle of siyasa shat*iyya in government is permissible because this is the
way of judiciousness (huwa al-hazm), and there is no imam that is not of this
opinion.' A follower of al-Shafil then said, 'There is no government except
that which is in accord with the Law', whereupon Ibn 'Aqll replied, 'Real
government is that which brings people closer to what is of benefit to them
and takes them further away from what causes diem harm, even if it involves
something that has not been instituted by the Prophet or the Qur'Sn.' If by
your saying, 'There is no government except that which is in accord with die
Law' you mean that which does not contradict any pronouncement of the
SharVa, that is true. But if you mean that diere is no government except
by that which die SharFa has made a pronouncement upon, you are not
only mistaken yourself, but also accusing die Companions of having been
mistaken ...
This is an area where feet slip and minds go astray, and a place of great
difficulty and much debate. One group went to one extreme, failing to apply
die hudud, causing people's rights to be lost, and at the same time allowing
die people of indecency to become bold in dieir evil-doing. They thus made
die SharVa into somediing which was incapable of bringing about the general
good {masalih) of die people ... When die people in charge saw diis happening
and thought diat diere would be no order possible in people's lives unless diey
used odier means beyond what they considered to be within the SharVa, they
introduced a great deal of evil and corruption into dieir government. Matters
soon escalated and got out of control, and it became extremely difficult for
those with a real understanding of the SharVa to free people from this situation
and save diem from these dangers.
A second group, the opposite of die first, went to die odier extreme and
considered as lawful diings that went against die judgements of Allah and His
Messenger. Both groups lacked an understanding of die message which Allah
gave His Messenger and revealed in His Book, which was that He had sent
His messengers and revealed His books in order that people might establish
justice (qis(), which is the quality that governs die heavens and die earth. And
wherever one sees the signs of justice shining forth, in whatever form, there
one has found die Law of Allah and His religion.51
The real meaning of siyasa sbafiyya, as Ibn al-Qayyim clearly points

out (and his view on this is, as he himself says, supported by the fuqaba0
of all the schools), is that it is permissible to enact legislation which is
17
Ibn al-Qayyim al-Jawziyya, al-Turuq al-bukmiyya ft al-sryasa al-shar'iyya, ed.
Muhammad HJraid al-Fiql (Beirut, n.d.), 5. See also the edition by Muhammad Muljyi
al-DIn 'Abd al-Hamld and Ahmad 'Abd al-Hallm al-'AskiiT (Cairo, 1380/1961), 5.
" Ibid. (Beirut ed.), 13ff.; (Cairo ed.), ISff.
l66 MUHAMMED SELIM EL-AWA
needed by the community in order to bring about what is for its general
good in cases where there is no text in the Qur'an or the hadith. Where
this legislation consists of defining crimes and punishments, it falls
within the discretionary, ta'zir sphere and is decided on the basis of the
relevant general principles in the Qur'an and authentic ahadith. Indeed,
the existence of this sphere of the law is the strongest proof of the
flexibility of Islamic criminal law. There is no doubt that otherwise the
provisions of the law in Islam would be unable to realize the general
good. Any legal system that sought to be exhaustive in detail would
necessarily become irrelevant, sooner or later. It is quite unreasonable
to expect that any code (criminal or other) regulating the life of indi-
viduals in a society could both include all the minute details of that life
and expect to endure. A leading British judge expressed the idea suc-
cinctly: 'No-one can know beforehand all and every means that will be
contrived by the evil implanted in the human being to disturb the order
of the community.1"
The concept of al-siyasa al-shar'iyya is not, as Coulson presents it,
an argument for the insufficiency or impracticability of the SharFa. It
is not a sign of defect in the law, but rather of its perfect provision for
the dramatic or open nature of human circumstances. Certainly, for
those who choose to live their lives according to Islam, there is no
better method of establishing a system to maintain law and order than
one whose general purpose and principles have been fixed by the Qur'an
and the Sunna, and whose details—except in a small but sufficient
number of instances—are left to be decided according to need. By
speaking in detail only of the offences punishable by the hudud and
retaliation and leaving all other matters to the system of ta'zir (i.e. to
the discretion of the authorities), the SharFa provides the necessary
flexibility and applicability. It requires the ruler—or the relevant state
authorities—to promulgate the laws and effect the procedures needed
to oppose behaviour that is harmful to society and encourage what is
beneficial. Correspondingly, the people are required to obey their rulers
in so far as they establish the authority of the SharFa and seek the
public good—as the Qur'an says: O you who believe! Obey Allah and
obey the Messenger and those in authority among you (4: 59).
(Ill) SUMMARY AND GENERAL REFLECTIONS

Summary: (a) the story of Coulson''s History
We remarked at the outset that Coulson's work is free of the explicit
bias of 'Orientalism'. Indeed, we have reason to believe that his attitude
" Lord Simonds, quoted in H. l_ A. Hart, Liberty and Morality (London, 1968), 9.
to his subject is tolerant and sympathetic.*0 It does not follow that a

Muslim will find his presentation of the SharVa objective and fair. In
his history of Islamic law he plainly has a story to tell, a thesis to
propose, for whose sake facts and incidents are chosen and arranged
without much sensitivity to what a Muslim might recognize as the
whole truth about the matter. In summary form, the story Coulson tells
is this:
(i) Whatever the view taken of the Qur'an subsequently, the early
generations of Muslims thought of it as, at most, the preamble to a
code of law, but not itself a code of law.
(ii) The Qur'an and the Prophet largely accepted the norms of the
existing customary law; and they did not, except in a few cases, seek
to replace those norms. Therefore, except where expressly altered by
the revelation, the Arabs retained their customary law after they became
Muslims.
(iii) However, when their power enjoyed its sudden cultural and
geographical expansion, the Muslims were faced with situations not
envisaged either in their customary law, or in the provisions of the
Qur'an, or in the legal judgements of the Prophet. (For the first 150
years, those legal judgements were few in number and preserved almost
entirely in oral traditions.)
(iv) The Muslims responded by vigorous use of individual reasoning
both in the interpretative extension of Qur'anic principles to make them
applicable to regional conditions, and in the adaptation or reform (the
minimum necessary) of regional practices to satisfy those principles. In
short, they Islamized what law they found; they did not have either a
ready-made system of Islamic law or a systematically Islamic way of
legal reasoning to impose on the lands and peoples they conquered.
(v) This activity of Islamizing the status quo in the different regions
of the empire inevitably gave rise to growing diversity in the legal
philosophy and practice of regional schools of Islamic law.
(vi) From the second half of the second century AH on, no doubt to
counter the threat of disunity and dispute, a hierarchy of legal sources
and rules for deriving legal judgements came to be defined and widely
" A personal reminiscence may be relevant here. This paper draws to a large extent
on ray two works Fi ufiil al-nifam al-jinS't al-Islami (Cairo, 1979 and 1983) and
Punishment in Islamic Law, which were in turn developed from my doctoral thesis, 'The
Theory of Punishment in Islamic Law' (1972), written under the supervision of Professor
Coulson at the University of London. I wish to record here that Professor Coulson was
at all times fair, and never hostile to any opinion of mine merely because it was in
opposition to his own. This was a generous virtue in him, and one I gladly acknowledge.
One only hopes that it could be shown by all who profess knowledge about Islam and
Islamic civilization.
l68 MUHAMMED SELIM EL-AWA
accepted, most notably as a result of the formidable synthesizing genius

of al-Shafii.
(vii) Once the legal judgements of the Prophet had been formally
recognized as a source complementary to the Qur'an, the way was open
for massive fabrication of such judgements to legitimize laws that had
already been built up by the regional schools. (Coulson, following
Schacht, rests this argument on the assumption that all Muslim scholars
participated in the fabrications—an improbable assumption to make.)
(viii) Thus formalized, the SharFa fell into a profound intellectual
inertia: gradually becoming more and more theoretical, its effective
jurisdiction was limited to the hudud offences and matters of family
law and inheritance. Outside that narrow compass, those who held
political power did just as they pleased both in terms of promulgating
practicable laws and in terms of legal procedure. Further, even within
its sphere, key provisions of the Shari'a were subverted or went unen-
forced.
(ix) Contemporary Muslims find themselves in a situation analogous
to that of the pre-'classical' period: their lives are not merely surrounded
but thoroughly invaded by legal practices of non-Muslim origin with
which they, as Muslims, must very soon come to terms. Almost the last
words of A History of Islamic Law are:
... The fortress of the traditional law has been breached beyond repair, but
the complex structure that has taken its place does not as yet rest upon the
same solid foundations ...
This is perhaps inevitable in the circumstances of the time. For history
appears to have turned full cycle and to have confronted Islam with a situation
remarkably parallel to the one she faced during the Umayyad period. Just as
the law of the Madinan community, a rudimentary system of customary practice
modified by basic Quranic precepts, proved wholly inadequate to meet the
circumstances of the new political empire, so today traditional SharlVi law has
crumbled under the impact of Western civilisation. And modern reformers, just
like the Umayyad administrators, have managed to control the sudden surge
of events by ad hoc measures adopted under a policy of pragmatism and
expediency.
" During the eighth century jurisprudence had systematically reduced the
haphazard growth of Umayyad legal practice and the hotch-potch of customary,
Quranic and foreign elements of which it was composed into terms of an
Islamic legal system. The question, therefore, may naturally suggest itself as to
whether modern jurisprudence will assume a similar function by endeavouring
to assimilate and 'Islamise' the mass of heterogeneous material which makes
up current legal practice ..."
" History, 222-3.

Summary: (b) the theme of Coulson's History

That neatly turned ending is quite blunt about the demise of the SharTa:
in the face of the Western challenge it was 'a rudimentary system' which
'proved wholly inadequate' and 'crumbled'. Why it 'crumbled' is the
thematic burden of the story. According to Coulson, Islamic jurispru-
dence suffered a disabling tension between an 'idealistic' and a 'realistic'
tendency—his critique of the sources of the SharTa is best understood
as an attempt to explain the inevitability of that tension.
The SharTa is believed by-Muslims to be a law whose provisions are
of divine origin and therefore immutable. From the fact that such a law
is not questionable by human reason nor in any other way subject to
human sovereignty, it follows (for Coulson) that it could never be
sufficiently responsive to the changing detail of human affairs which, in
culturally and geographically very diverse regions of the world, it was
supposed to regulate. Inevitably, as a historian of the law with an
outsider's viewpoint,'1 Coulson finds that the practice of the SharFa in
Muslim societies was far removed from its ideals, with deliberate legal
subversion" and simple evasion or non-enforcement*4 of key provisions.
More seriously still, Coulson argues that there was a systematic exclu-
sion of the SharTa from the great majority of legal affairs.
A chapter of Conflicts and Tensions, drawing on a long exposition
in History," is specifically devoted to the struggle between 'idealism'
and 'realism'. Coulson attributes the rise of judicial posts such as Sahib
al-mazalim ('the one in charge of complaints'), and the whole concept
of al-siyasa a\-sharliyya ('government in accordance with the revealed
law'), to the need to find practical solutions often quite impossible
under the SharTa and, on occasions, even deviating from it. Coulson's
final picture of the SharTa is of a law confined to a narrow jurisdiction
comprising the rites of the faith and certain personal and family matters.
It is to substantiate this picture that the Qur'anic injunctions are
described as 'predominantly ethical', and the legal dicta of the Prophet
as largely forgeries. In short, all that might lead a Muslim to regard
the SharTla as the ideal legal system is, in Coulson's argument, no more
than a dream of legitimacy, a mirage that evaporates on close historical
study.
By 'realism' in the fiqh, Coulson refers to the laws of 'secular'
jurisdiction, promulgated, controlled, and enforced by direct political
" It should be pointed out, however, that the view that a law founded on divine
revelation is bound to be 'other-worldly' ii not restricted to Western scholarship; it even
found expression in the writings of certain professors of law in some Arab (particularly
Egyptian) universities at the beginning of this century, e.g. Hassan Kira, Usil al-Qanun
(Alexandria, 1959).
" History, 139^1. " Ibid. 135-9.
" See Conflicts, ch. 4, especially 63-7; and History, 128-34.
decree. He argues (as we saw in the preceding discussion) that the

sovereign enjoyed arbitrary power over rules of evidence and court
procedure, over the appointment of officials, and over the definition of
crimes and punishments. Further, as is clear from his comments on the
hudud (discussed above in relation to homicide and qifaf), Coulson
believes that either the Sharila applied as law the texts of the Qur'an
and hadith (verbatim or by close analogy), or it applied as law the
absolute will of die sovereign—the doctrine of al-siyasa al-shar'iyya
being merely a lip-service device to keep legitimacy. Acceptance of the
Shari'a within the Islamic world is thus accounted for on the grounds
of either psychological compulsion (that is, inward religious commit-
ment to the will of Allah), or of political compulsion (that is, outward
surrender to the will of the sovereign). In neither case is acceptance
(thus, practice, enforcement) of the SharJ'a conditional upon legal
reasoning or general reasonableness. This is the ground of Coulson's
contention that, as formalization increased in later centuries, the fuqaha'
elaborated rulings of monkish purity and marginal relevance to the legal
problems with which people actually had to deal. It is clear that, albeit
implicitly, Coulson is contrasting 'classical' Islamic jurisprudence with
the Anglo-Saxon tradition of refining legal concepts by study of actual
cases, the resulting 'artificial reason' feeding an evolving process of new
legislation modified by further judgements, and so on.
General reflections
Although Coulson's starting-point (as we noted) is that belief in the
Shari'a is axiomatic for Muslims, his argument does not provide them
with many reasons for preferring it—at least in his mind, the encounter
with 'Western civilization' has been decisive and final. Indeed, his theme
is that the Shari'a had already become irrelevant in practice, Western
presence amid Muslims merely serving to hasten acknowledgement of
that reality. But then, in what sense is the law in Muslim societies to
remain essentially Islamic, as Coulson says that it needs to remain?
What, given his argument, is left for Muslims to do with their SharJ'a
except, for form's sake, to pretend not to abandon it while in fact
abandoning it? Most of what is derived from the practice of the Prophet,
Coulson says, is based on—extraordinary choice of phrase—bona fide
fabrication, and could therefore be discarded. The explicitly legal con-
tent of the Qur'an, however, cannot be so easily set aside and is
therefore an embarrassment:
It cannot be denied that certain specific provisions of the Qur'an, such as that
which commands the amputation of the hand for theft, pose problems in the
context of contemporary life for which the solution is not readily apparent."
" Ibid. 224-5.
Muslims are bound to conclude, if they accept Coulson's critique, that

the Shari'a is a psychological need which, in time, they will come to
leave behind in favour of Western laws, modified to accommodate their
cultural habits which also (given the aggressiveness of what Coulson
euphemistically calls 'the context of contemporary life') are slowly
withering away.
But Muslims are unlikely to be persuaded by Coulson's critique. To
begin with, the neatness with which, in his narrative, 'history appears
to have turned full cycle' is suspect. What enfeebles the argument further
is its failure to support a formal, outward comparability between the
formative and contemporary periods of Islamic law with any demonstra-
tion of the comparability of the content of the two situations. It matters
whether the non-Muslim norms and practices are fundamentally com-
patible with Islam, and therefore assimilable, or (as with key areas of
modern Western legal philosophy and practice) incompatible and there-
fore certain to be rejected. It also matters who the Mush'ms are who
are entrusted with the responsibility of revising or enlarging Islamic
law. The criterion by which assimilability to Islamic law can be judged
is the conscience of Muslims, informed and educated within the living
tradition of the Qur'an and Sunna. Much of the 'nco-ijtihad' which
Coulson describes in the chapter under thattitle*7is not motivated from
within that tradition. It is motivated instead by the need to justify—
through pedantic (and, in fact, also very literal and rigid) interpretation
of particular Qur'anic verses in isolation from the Islamic tradition—
the further entrenchment of Western mores in Muslim societies.
Unfortunately, few Western commentators regard Muslim conscience
with any genuine respect—courtesies towards it change but not the
substance of their discussion. For example, in order to explain away
the existence of the Qur'an, innumerable Christian polemics alleged
that it was a deliberate forgery. Nearer the present—in, for example,
the biographical studies of the Prophet by Montgomery Watt**—it is
deemed more acceptable to say that the Qur'an was the product of
well-intentioned self-delusion. Such explanations have their worldly
reward in perpetuating ignorance, and not many non-Muslim scholars
now directly raise questions of authenticity since doing so yields no
useful knowledge. Among accounts of Islamic law, Coulson's is at the
explaining-away stage—that is, he slights the relevance of the legal
content of the Qur'an, and rejects the vast majority of the ahadith as
well-meaning, self-deluded fabrication:
" Ibid., ch. 14, 202-18.

«• See W. Montgomery Watt, Muhammad: Prophet and Statesman (Oxford, 1961),
238-40. (This volume is the condensed version of Watt'i earlier two-volume study.)
XJ2. MUHAMMED SELIM EL-AWA
... many rulings and decisions were falsely ascribed to the Prophet ... Those
who put about such reports, however, should not be regarded as malicious
forgers. Rather, in the bona fide belief that their doctrine expressed the correa
Islamic standard, they were convinced that the Prophet would so have acted
had he been faced with the relevant problem. From this it was but a short step
to asserting that he had in fact so acted ... Thus [a] genuine core became
overlaid by a mass offictitiousmaterial."
The explanation for this kind of approach is not a poverty in scholarly
intention but in the quality of scholarly curiosity. The principal ques-
tions Coulson addresses to Islamic law do not arise from the subject
itself; they represent, instead, the major issues of relationship in Western
history—issues now resolved—between religion, politics, and law. For
example, the division of Islamic law into a pre-'classical' period—ad
hoc reforms of customary practice with wide regional variation—and
a 'classical' period, when a centralized government had emerged with
an interest in unifying legal principles and practices, is derived from the
division in Europe between a feudal order, in which the sovereign
adjudicated disputes arising from the application of customary law but
otherwise enjoyed no legislative function, and the much later develop-
ment of bureaucratized monarchies with a growing number of policy-
making functions, of which the most prestigious was the power to
promulgate and modify laws. The contrast Coulson finds between
'idealism' and 'realism' in the SharTa is determined by notions that
came out of the radical division in Western legal history between
religious and secular jurisdictions, the former having no right on the
latter except in simple annulment of legitimacy (by 'excommunication'
of the sovereign); between positive law identified with the will of the
sovereign and so-called natural law identified with 'traditional' norms
of right and justice.
Coulson is not, as we have said, a proponent of the 'Orientalist'
tradition, and his work does not converge on the common 'Orientalist'
prejudices about Islamic law. But it is also true that he is not an
opponent of the 'Orientalist' tradition and does not resist the institu-
tional pull towards certain 'common knowledge' asssumptions about
the worth of Islamic law and Western law. The latter is 'commonly
known' to have achieved a stable, constitutional arrangement between
government, legislature, and judiciary, giving to the practice of law a
reliable openness, independence, and procedural regularity. Islamic law,
however noble its first impulse, is 'commonly known' to have ended up
with only the 'sultan' under his palace dome, and 'qadi justice' under
the palm-tree, the whole unenlightened mess of 'Oriental despotism'.
*• History, 42-3.
The certainty with which these things are 'known' means that it requires
an extraordinary intellectual defiance to ask why, for example, the
Western constitutional arrangement retains royal or presidential prerog-
atives, special powers to appoint judges to the highest court, and powers
(in effect) to negate the result of legal proceedings by ordering review,
exempting, or pardoning, or other devices. These prerogatives are not
mere relics from a despotic past but specially devised safeguards against
the system. The certainty about 'Oriental despotism' means that, again,
an extraordinary willingness to be defiant is needed in order to
enquire—in the absence of formally expressed legal constraints—what
kind of informal constraints inhibited the ruler's power, in specific
social-historical contexts, to affect the workings of law. The too easily
available assumptions—'no civil society in Islam', 'no politics except
court intrigue'—make for a more fluent narrative, beside supporting
the view (also found in Coulson) that most Muslim scholars, guardians
of the SharFa, lost interest in seeking justice for the people and advoc-
ated only the maintenance of law and order.
The consequence of this approach is a steady failure in Coulson's
work to let observations about individual aspects of Islamic law cohere
intellectually in the SharVa's own terms, so that, vis-a-vis typical West-
ern assumptions and expectations about law, the Shan'a can emerge as
properly itself and therefore challengingly 'other'. He frequently ignores
the tradirional Muslim view which would give the necessary perspective
and coherence to the separate elements observed, and is then led to
explanatory hypotheses drawn from Western experience of the relation-
ship between religion, government, and law. Several of the inconsisten-
cies in his argument are a consequence of this. This is also the
explanation of why, albeit reluctantly, he sometimes falls back on the
'Orientalist' position. For example, the fabrication hypothesis that he
accepts from Goldziher and Schacht is an attempt to construe the
emergence of (i) formalized rules for the elaboration of the SharTa, and
(ii) written records of the legal judgements of the Prophet. The events
are claimed to separate decisively the pre-'classical' from the 'classical'
periods of Islamic law. The traditional Muslim construction of these
same events has the merit of being both simpler and easier to believe,
(i) The rules for elaboration of the SharFa were already a living tradition
before they were expressed in formal terms. The latter related to the
former much as the written grammar of a living language does to its
practice—that is, by expressing formally and theoretically both the
commendable and the actual usage. In any case, it is not unusual to
find the theoretical implications of a practice being studied and elabor-
ated some time after the practice has been well established. (U) The
writing down of the Prophet's words and deeds was a practice of many
of his Companions and was continued after them, although no doubt

much more was transmitted orally and by example than in written
form. As the temporal and geographical distance from first-hand know-
ledge increased, the need to communicate the tradition in written form
would necessarily have been more strongly felt. Few Muslims in the
past or since have claimed that all recorded ahadith are wholly or
equally authentic. Hadith scholars were scrupulously alert to the detail
of what was recorded, by whom remembered, and transmitted, and
conscientious about preserving variants; the best of them often indicated
their own preference through editorial comments, also preserved, and
the preferences of those who disagreed with them. Set beside such
intellectual humility and open-mindedness, Coulson's view of these
Muslim scholars as self-deluded forgers is most unfair.
Conclusion
It would be possible to end on such a note of complaint about Western
misrepresentation, coupled with an appeal for Islamic law to be studied
in particular social-historical contexts, that is, for a wider approach
than that of the legal specialist. But that would appear, quite improperly,
to deny the possibility of a valid overview of Islamic law such as
Coulson's History attempts. We do not deny that such an overview is
possible in principle. But it is unlikely to yield reliable information
unless the most general notions within Islamic law about Islamic law
are studied directly. Coulson's approach studies these notions indirectly,
through implicit comparison with Western thought and experience.
The essential religious idea legitimizing the law of what Coulson calls
'Western civilization' is the defence of individual (protesting) conscience
against any form of control or censorship by received doctrine. From
that idea follows the most striking characteristic of modern Western
law, namely that it is regulatory—it aims only to secure the external
order within which individuals are free to get on with their business
without transgressing the freedom of other individuals to do the same.
This characteristic is confirmed by the cultural discomfort that becomes
evident (in 'civil liberties' protest) whenever the law tries to interfere
affirmatively—even when the interference is in obvious conformity with
the essential religious idea—for example, in mandatory preferential
discrimination for ethnic minorities. In the Qur"anic phrase, such law
aims to 'forbid what is wrong'. The SharVa by contrast has also and
always sought to 'enjoin the good'. By muddling this SharFa ambition
with certain Western medieval notions about natural or divine law,
Coulson fails to seek out what the ambition has meant to Muslims and
the complexities and subtleties of their efforts to realize it.
The account he gives of the conflict between 'idealism' and 'realism'

follows from that failure. An example of 'realism'—which, for Coulson,
means an example of the impracticability of 'ideal' SharTa provisions—
is the alleged contrivance of certain legal 'devices' to enable people to
circumvent the prohibition of riba (usury).70 It is inconceivable that a
Muslim 'alim would condone a practice described as seventy times more
sinful than zina (adultery). In fact, the permission to which Coulson
refers is limited to certain specific transactions and based upon ahadith
of the Prophet. Coulson would explain this away by the simple device
of alleging that such ahadith are 'back-projections' to legitimize a later
falling-off from the original ideal. His argument originates, inevitably,
not from direct study of the situation in an Islamic context, but from
half-conscious recollection of the situation in medieval Christendom
when usury was prohibited (to Christians) and economic life was,
relatively, insecure and unvaried. Behind the argument lies the false
assumption that the prohibition of usury constrains economic life, and
that, therefore, Muslims must have been looking for ways to let usury
into the system. But the Islamic world of that period enjoyed an
extensive and diverse trade—the history of commodities and manufac-
tures in Muslim societies provides persuasive support for the intuition
(not confined to Muslims) that usury overconcentrates and then un-
leashes economic power, and does both in ways that are sure to be
socially disruptive and destructive. Even if we were to accept that the
legal 'devices' to which Coulson refers had no basis in ahadith, we
would explain them in the Islamic context. The economy in Muslim
societies was vigorous and yet never, in any meaningful sense of the
term, interest-based: no major enterprise whether commercial or agricul-
tural or military was financed by raising interest-accumulating capital,
as happened before Islam and after it in societies not ruled by Shari'a.
Those who sanctioned the particular transactions were concerned to let
business thrive and exclude usury from the economic life of the com-
munity. This they did by recognizing certain specific transactions (tradi-
tionally accepted—as we have said, on the best precedent—and not
confounded with other transactions, also once accepted but which were
known to be usurious and prohibited after Islam), and by disallowing
such covert praaice as would amount to a de facto recognition by the
individuals involved of the unlawful as lawful. The general point to be
grasped is that enjoining the good and forbidding the wrong operate
together, that the idealism of the Shari'a lies in the effort to find, in a
given real context, a balance of the two, of the prescriptive and the
™ '... the doctrine expounded by the classical jurists was of a highly idealistic character
... the existing law was ... manipulated to create a system of "devices" ..., designed to
achieve purposes fundamentally contrary to the spirit of the SharT'a.' Ibid. 138-9.
prohibitive goals of the law (respectively, in this case, a vigorous eco-

nomy and forbidding usury). Mere prohibition alone could never serve
the full purpose of the divine law: this has always been known and has
always prevented the sort of idealism of which Coulson accuses the
Shart'a.
It is very clear from his History that Coulson is quite unable to grasp
how a legal system, or an individual judge practising within it, could
entertain such a double objective within a single process of reasoning.
Thus he observes that the Qur'an contains ethical injunctions; he also
observes that it has some, though (in his view) not much, legal content.
Plainly, however, the Qur'an does not merely set the ethical beside the
legal, it relates the ethical and the legal, and urges both together—not
separately, as appears normal to Western sensibility. It urges the har-
monization of inward and outward order, of conscience and law, in a
manner that through the Sunna becomes a pervasive (and unique)
characteristic of Islam. $adaqa, for example, the commended giving of
alms, has its complement in the public, legal duty of zakat, and in the
legal prohibition of riba, against which, as also against the refusal to
pay zakat, there is jihad, a collective, legal sanction. Similarly, chastity
has its complements in modesty of dress and the prohibition of fornica-
tion. In fact, for every individual personal virtue that can be expressed
as an injunction to act in a certain way, there is some complement in
a collective legal obligation.
The Qur'an and the Prophet, in Coulson's view, reformed the existing
customary law in an ad hoc manner, which implies that a new legal
order was no essential part of the purpose of the foundation of Islam,
the early reforms being merely temporary expedients. Again, Coulson
misses the truth in the facts he observes. To decree a new legal order
is not to achieve it. Every people has its history and society—estab-
lished, delicate patterns of usage within which and by which notions
of lawful and unlawful are sustained. The formal imposition of a whole
system of laws from above, as it were, can never reach to enough of
the detail of those established usages to effect enduring change, and is
persuasive only through coercion. Any genuine commitment to estab-
lishing a new legal order has to include an equally genuine, patient
respect for the history for which the new order is intended—without
such respect, the new order will be (at best) a self-justifying moral
pretext for the occupation of other peoples' lands and resources. The
individual reforms put in place by authority of the Qur'an and the
Prophet reformed the whole legal order both effectively and enduringly,
precisely because they were individual reforms and because they were
those reforms and not others. Thus, for example, a number of individual
measures—the prohibition of usury, the rules of inheritance which
enforce the division and circulation of wealth, the collection of zakat

and the expenditures due therefrom—together establish distributive
justice as a legal responsibility of the governing authorities. It is right
to record that there existed in pre-Islamic times an understanding that
generosity towards the socially and economically weak was a virtue
and part of manliness. But it is wrong not to notice that the early
reforms in Islam made this virtue and manliness a part of the legal
order.
It is also wrong to argue that gradualness in the introduction of legal
reform was a function of the circumstances, and that, if sufficient means
of coercion had been available, reform would have been attempted
more abruptly. Within the supremacy of the authority of Islam and of
its law, that law, from the beginning, envisaged coexistence with whole
communities which, unlike the Muslims, did not accept the injunctions
of the Qur'an and Sunna as a matter of religious conviction. A formal,
legal contract governing the relations between Muslims and 'people of
the Book' protected their cultural separateness. From that followed a
unique quality of tolerance in Islamic law for law which is not Islamic,
even when this non-Islamic law falls within its power. A distinction
exists between what is non-Islamic and what is anti-Islamic. On the
basis of this distinction regional variations in the practice of Islamic
law are deemed tolerable, even when specific injunctions of the law are
being 'only honoured in the breach'. Coulson remarks, by way of
illustrating the impracticability ('idealism') of the SharFa, that at the
peripheries of the empire laws of inheritance followed existing custom-
ary practice, long after the people had accepted Islam. The attitude of
the lulama' in such cases is that the people must be informed of what
is lawful, so that, however slowly, reform will be achieved because the
people at least acknowledge what is lawful and, equally important, they
do not feel themselves excluded from normal contact with the more
observant.71 This attitude understands that individual conscience, espe-
cially with regard to marriage customs and the division of property, is
constrained by the knowledge that observing the law fully may so far
dislocate family relationships and economic life as to bring about
71
The question whether the legal order under which the people live in these circum-
stances is rightly described as Islamic must be answered affirmatively. The people identify
themselves passionately as Muslims. Cf. Mervyn Hiskett: 'it seems reasonable to argue
that for ail practical purposes the society is a Muslim one, despite the fact that it retains
some of its old beliefs. Even negative evidence can support this conclusion. It is well
known that many Hausa villagers do not observe the Islamic laws of inheritance very
strictly but continue to apply the old pre-Islamic custom in this matter. When questioned
about this, most of them turn out to be rather ashamed of it. They apologise but excuse
themselves on the grounds that to apply the Islamic system would cause too many
quarrels and disputes ..." The Development ofltlam in Weft Africa (Harlow, 1984), 309.
injustice and disorder, in turn creating an aversion to Islam. Where, by

contrast, the lawfulness of SharPa injunctions has come to be denied
by Muslims, or formally prohibited acts have become widespread,
Muslim scholars have, traditionally, not preferred law and order at any
price, but recommended and even initiated vigorous reform movements
and/or jihad to re-establish the authority of the Shared.
Within 'Western civilization' idealism of law does mean an aspiration
for virtue combined with a necesssary failure (necessary from the Chris-
tian doctrine of a fallen world) to express that virtue in the form of an
enforceable legal injunction. And realism, correspondingly, means an
admission that people are inclined to vice, not virtue, and that only
that is truly law that can be enforced by political power. For a Muslim
the idealism of Islamic law plainly cannot mean that it was or is
inapplicable. The fact is that that law which was applied throughout
the Muslim world for centuries, and which survived the disruption of
Western colonization in a number of countries to remain a functioning
legal system, that is one capable of promulgating new laws on the basis
of the existing corpus, is the very same SharPa of divine origination
(albeit imperfectly or unevenly practised by human beings) which Mus-
lims regard as the ideal legal system. Coulson fails to find any better
reason for this than dogmatic belief. He fails because he is measuring
the Shari'a against an aggressively secularized, modern law which
(unlike the law of traditional societies) spurns what used to be a vital
function of law, namely to give form to the convictions of its legal
community about what was right and lawful, and wrong and unlawful,
and therefore also, respectively, legal and illegal.
The true idealism of the Shart'a is its demand that qualified Muslims
strive, in the particular circumstances in which they find themselves, to
express in law the most practicable balance of enjoining the good and
forbidding the evil. In this sense the SharVa can be seen as the outward
expression of Islam: it aims so to regulate the external affairs of a
Muslim community that its members are both drawn away from disrupt-
ive selfishness and appetite, and drawn towards shared discipline,
reason, and balance. If to have an educative function—something of
which modern Western legal systems so wilfully deprive their communi-
ties—is to be idealistic, then we not only accept that the SharFa is
idealistic, but wholeheartedly affirm that it should remain so.
The other meaning (academicism, otherworldliness) has no basis
either in the typical rulings of Islamic law or in the reality of their
normal application, past or present. We therefore also affirm that the
SharFa is realistic. But to say that is not to say that the Sharfa is subject
to the whims of the individual sovereign or judge; rather that, in
response to people's needs, it can effect appropriate legislation, within
the general purpose of expressing Islam, that benefits the people without
burdening them unbearably. The evidence for the flexibility of the
SharTa—if such is needed—is the many hundreds of judgements
reached by the 'ulama' to meet new situations, judgements that have
indeed given rise to a particular genre of Islamic legal literature, the
nawazil. The claim by Coulson and others—that the idealism of Shari'a
necessarily led to a deviation from strict application of its principles so
that the practical problems confronting the community could be
addressed in law71—can only be founded upon remarking the aberrant
and ignoring the normal.
72
Ibid. 26: '... circumstances obviously called for the regulation of matters altogether
outside the purview of the Qur'inic provisions ..." And ibid. 35: '... the sharp focus in
which the Qur'anic laws had been held in the Medinan period was now lost and their
image blurred by the expanding horizons of activity'; '... Under the pressure of events
problems had materialised and multiplied too rapidly for systematic thought, and
solutions were necessarily based on the demands of immediate expediency.'

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Journal of Islamic Studies 2-2 (1991) pp.

Though almost all major studies of Islam by Western scholars touch

and as an applied system in Muslim societies. Since 'law, to be a living

(I) COULSON ON THE SOURCES OF THE

The role of the Qur'an

superseded in some particular by the dictates of divine revelation',' and,

basic elements of a given legal relationship', and concludes: 'the basic

The Sunna and its relation to the Qur'an

Qur'anic commands are often associated with warnings to 'fear Allah'

" Ibid. 11-1Z » Chcd ibid. 12.

the Sunna so that subsequent generations of Muslims have always

punishment, in accordance with the general rules of such punishment,

Coulson and the Sunna

of interpreting and explaining the general provisions of the divine

ash-Shafi? aspired to eradicate a root cause of diversity between the several

of the Companions onwards,31 we must ask this question: if the early

(II) COULSON AND THE ISLAMIC CRIMINAL

fails to be persuasive through legal reasoning, its legal concepts being

1. The comprehensiveness of Islamic criminal law

" Ibid. 124.

offences are predominantly concerned with man's obligations to God,

2. The law of qisas (just retaliation) in Islam

3. Rules of procedure and evidence

that, apart from those instances where a man's testimony is explicitly

4. The authority to define crimes

the knowledge of the Shari'a, and ignorance of it is part of ignorance of the

The real meaning of siyasa sbafiyya, as Ibn al-Qayyim clearly points

(Ill) SUMMARY AND GENERAL REFLECTIONS

to his subject is tolerant and sympathetic.*0 It does not follow that a

accepted, most notably as a result of the formidable synthesizing genius

" History, 222-3.

Summary: (b) the theme of Coulson's History

decree. He argues (as we saw in the preceding discussion) that the

Muslims are bound to conclude, if they accept Coulson's critique, that

" Ibid., ch. 14, 202-18.

of his Companions and was continued after them, although no doubt

The account he gives of the conflict between 'idealism' and 'realism'

prohibitive goals of the law (respectively, in this case, a vigorous eco-

enforce the division and circulation of wealth, the collection of zakat

injustice and disorder, in turn creating an aversion to Islam. Where, by

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