El-Awa_Approaches to Sharia

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Journal of Islamic Studies 2-2 (1991) pp. 143-179

APPROACHES TO SHARl'A:A RESPONSE TO N . J. C OUL SON 'SA HISTORY OF ISLAMIC LAWMUHAMMED SELIM EL-AWAAttorney at Law, Cairo

Though almost all major studies of Islam by Western scholars touchupon some aspect of Shari'a, few deal specifically with that subject, andof those few an even smaller propo rtion deal with Islamic legal though t.The works of the late N. J. Coulson, for many years Professor ofIslamic Law at the School of Oriental and African Studies in London,are among that small num ber. Beside several articles in learned jou rnals,Coulson wrote four book-length studies of which two will be discussedin this paper: A History of Islamic Law (1964) and Conflicts andTensions in Islamic Jurisprudence (1969).1Coulson 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 isthat of a legal scholar, a specialist in civil law, seeking to comparedifferent legal systems, rather than that of an 'Orientalist' concernedwith the history, culture, and traditions of the 'Orient'. His comparisonsare mostly free of the manipulative intent that marks the work of somany of his 'Orientalist' predecessors and colleagues.1 Further, he doesnot share their premiss that Islamic law is obsolete. On the contrary,he believes it to be alive both in the consciences of individual Muslims1 Of the articles, perhaps the most important are: 'The State and the Individual inIslamic Law ', International and Comparative Law Quarterly (Jan. 1957), and 'Doctrineand 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), hereafterreferred to as History, Conflicts and Tensions in Islamic jurisprudence (Chicago andLondon, 1969), hereafter referred to as Conflicts; Succession in the Muslim family(Cambridge, 1971); and Comm ercial 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 ofthe 'Orient', see Edward Said's Orientalism (London, 1978).


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144 MUHAMMED SELIM EL-AWAand as an applied system in Muslim societies. Since 'law, to be a livingforce, must reflect the soul of a society',3 the legal system of a Muslimsociety should, Coulson feels, remain essentially Islamic.He fully appreciates that the binding force of Islamic law derivesfrom its being the expression of God's will and so an integral part ofMuslim belief.* Given some acceptance of the Shared as an active legalsystem valid for Muslims, the aim of Coulson's history is to discoverhow it was built and thus show how its application may be carriedforward. While affirming that the basis of the law must remain thesame, Coulson argues for the doors of ijtihdd (independent reasoning)to be reopened and Islamic law reconsidered, particularly in the areaof economic, social, and political relations. In this respect Coulson is apioneer, the first of a new generation of scholars whose broadly positiveattitude may have far-reaching consequences for the way Islamic lawand jurisprudence, and indeed Islamic studies as a whole, are taughtand studied in the West.

This does not mean that we agree with everything Coulson says. Wedo not. Our aim in this paper is to assess, from a Muslim viewpoint,the validity of Coulson's overall approach to Islamic law. We shallconsider 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 wh at it m eans to say that the law in Muslim societies should remainessentially Islamic.

( I ) COULSON ON THE SOURCES OF THESHARFAThe role of the Qur'anCoulson affirms that one consequence of the establishment of a Muslimpolity in Madina was that 'the Qur'anic revelations came to supersedetribal 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 Se e Conflicts, 1: '... the fundamental question of the nature of law it answered forMuslim jurisprudence, in term* that admit of no compromise, by the religious faithitself. Law is the divinely ordained system of God's commands. To deny this principlewould be, in effect, to renounce the religious faith of Islam.'

' Ibid. 11.


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APPROACHES TO SHART'A 14 5superseded in some pa rticular by the dictates of divine revela tion',' a nd,elsewhere, that 'the legal matter of the Qur'an ... is essentially the bareformulation of the Islamic religious ethic';7 the Qur'an 'does not attemptto cover, in however rudimentary a form, all the basic elements of agiven legal relationship',1 this being seen as a want in Qur'anic legisla-tion from which, for example, the Twelve Tables of Roman Law arefree. Similarly, while Coulson affirms that 'the principle that God wasthe only lawgiver and that His command was to have supreme controlover all aspects of life was clearly established',' he says elsewhere thatit was only 150 years later that a group of scholars 'attempting toexplain the essence of their faith ... took their stand on the principlethat every aspect of human behaviour must of necessity be regulatedby the divine will', and in whose philosophy of law 'the legal sovereigntyof God was all-embracing.'10 The contradictions are easy enough tosee, but how do they arise?

To begin with, Coulson is obviously uncomfortable about using theterm 'legal system' except in reference to those systems of law in whichevery legal relationship is given a precise, technical, definition, such asthe types of system now dominant in the West. Thus we find himmaking the literally outlandish comparison with the Twelve Tables ofRom an Law, w ith whose legal comprehensiveness the lad hoc solutions'of the Qur'an arc unfavourably contrasted." He even seeks to attributethis characteristic of the Q ur'an ic legislation to its piecemeal revelation,though, of itself, this has no bearing at all on whether or not legislationshould cover 'all the basic elements of a given legal relationship'.Coulson's premiss that all legislation must be in some particularformat to qualify for description as law is highly questionable. A farmore important consideration is that the legislation be understood aslegislation by those who choose to live by it, capable of effectiveapplication, and responsive to their changing needs. W ithout offering asingle example of the Qur'anic legislation failing in this respect, Coulsonasserts that 'For those who were pledged to conduct their lives inaccordance with the will of God, the Qur'an itself did not provide asimple and straightforward code of law.'11 If that be so, then fromwhere 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 alegislative docu me nt',11 are in fact a consequence of his misunderstand-ing of the nature of Qur'anic legislation. Coulson looks at the Qur'anas if it were any corpus of laws, requires of it that it 'cover ... all the Conflicts, 4. ' History, 11. Ibid. 13. ' Ibid. 20." Conflicts, 5. " History, 13. " Ibid. 17 . u Ibid.


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146 MUHAM MED SELIM EL-AWAbasic elements of a given legal relationship', and concludes: 'the basicnotions underlying civilised society . . . [such as] compassion for theweaker members of society, fairness and good faith in commercialdealings, incorruptibili ty in the administration of justice are all enjoinedas des i rable norms of behaviour wi thout being t ranslated in to any legalstructure of rights and duties. '14 Similarly, he claims that 'the primarypurpose of the Qur 'an is to regulate not the relat ionships of man withhis fellows but his relationship with his Creator', and he frequentlydescribes the in junct ions of the Qur 'an as 'predominant ly ethical ' ."

That the Qur 'an is primari ly a book of guidance, no t a book ofjurisprudence, or law, or history, or any other specialization, is explicitf rom the Qur 'an itself:A book that We have sent down to you for you to bring people out of thedarkness into the light by the permission of their Lord to the path of theMighty and Praiseworthy. [14:1 ]This Q ur'an guides to w hat is more correct (aqwam) an d gives to the believerswho 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 forthose who submit. [16: 89]

The uniqueness and inimitabi l i ty of the Qur 'an 's eloquence are factsof Muslim experience as well as doctrine. The reader finds himself, fo rinstan ce, mov ing in the space of a few verses from straigh tforw ardnarrative to exposition of the signs in the universe, to a passage ofpromise and warning, the statement of a legal rule, a description of theGarden or the Fire, and so on, wi thout being conscious of any breakin the flow of the language except as the differences in subject-matterdictate. I t i s absurd to expect that a book whose purpose is guidanceand whose means is in imitable eloquence should use the language of atextbook of law. Musl im jurisprudents have long recognized that theQur'an does not deal with every legal subject in some one particularstyle as ordinary legal textbooks do. Not only the style of the legislationis varied, but also its immediate context: thus legal verses may occuralongside verses about belief, or general behaviour, or the nature ofexistence, or the history of bygone peoples. Also, a particular judgementmay occur in a number of different places in a number of differentstyles, thus ' reminding ' the Musl ims in a manner that varies , deepens ,and broadens unders tanding. In short , i t i s poss ible to regard as apositive merit what Coulson presents as a failing.

The verses that describe the Qur'an as a clarification of everything14 Ibid. 11. " e.g. ibid. 12.


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APPROACHES TO SHART'A 14 7have to be understood alongside the verses that give the Prophet theauthority to make legal decisions in response to the developmentsconstantly taking place in the new Muslim community, and alongsidethose that delegate to the Prophet the task of explaining the judgementsof the Qur'an:Judge between them according to w hat G od has revealed, and do not followthem in their vain desires. [5: 49 ]N o, by your Lord, they are not [truly] believers until they make you the judgeof the disputes that arise among them, and find no resistance in their selves towhat you decide but accept [it] with complete submission. [4: 65 ]And We have sent down to you the Reminder, in order for you to explainclearly to people (Ii-tubayyina li'I-nas) what has been sent down to them, andthat they may give thought. [16: 44 ]

To say that the Qur'an is a book of guidance, that its language differsfrom 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 itsprimacy as a source of the SharFa, all other sources being derivative.But the full import of that legal content cannot be understood withoutknowledge of how it was received and put into practice during the timeof the Prophet. In short, the Qur'anic legislation cannot be understoodwithout taking into account the Sunna (practice, or precedents) of theProphet, as well as the occasions of revelation (asbab al-nuziil) of therelevant verses, and the traditional tafstr (commentary) about them.The Sunna and its relation to the Qur'anThe Sunna relates to the Qur'an in three different ways:(i) It may emphasize and affirm a Qur'anic injunction, as with theahadtth (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 essentialsas the prayer, zakat, the t?a)j and lumra. It may involve indicatingexceptions possible to a general Qur'anic rule, such as the ahadtthwhich forbid marriage to a woman and her aunt or niece at the sametime, although these are not specifically mentioned in the Qur'an,1* orthe ahadtth which, by specifying the conditions under which the penalty

" These are thus exceptions to the general permission given in the Qur'an, followingmention of a number of specifically prohibited degrees of marriage, in the words: An dpermitted for you is what is beyond that, seeking [them] w ith your wealth, m thevirtuous manner of marriage [muhsinln] and not in fornication [4: 24].


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148 MUHAMMED SELIM EL-AWAfor theft can be applied (such as the minimum value of the stolenproperty and its degree of inaccessibility, etc.), allow certain exceptionsto the Q ur'anic injunction Cut off the hands of men and women whosteal [5: 38 ]. Or again, the Sunna may qualify an unqualified Qur'anicjudgement, such as the ahadith that specify that testamentary bequestsmust not exceed a third of a man's estate, this being a qualification ofthe Qu r'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, suchas the ahadith that specify the inheritance due to the grandmother, orthat 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 thatspecify the amount of the zakat al-fitr, or the degrees of marriageprohibited by suckling other than those mentioned in the Qur'an, orthe prohibition of a murderer receiving any inheritance from the manmurdered, or of Muslims inheriting from non-Muslims and vice versa.Imam al-Shafil sums up the three kinds of relation between Sunnaand Qur'an in this way: '... firstly, those [matters] about which Allahhas revealed a [piece of the] Qur'an, and where the Prophet lays downa sunna in accordance with it; secondly, where Allah has revealed ageneral statement, and [the Prophet] clarifies what is meant; ... andthirdly, where the Prophet lays down a sunna about which no [pieceof the] Qur'an has been revealed'.17N o less relevant for understanding Qu r'anic legislation is a considera-tion of the actual circumstances of a particular revelation (the asbabal-nuziil), and the traditional passages of commentary {tafstr) that havecome down to us. To consider the Qur'anic texts in isolation, as onemight an ordinary law book, is bound to be, at the least, highlymisleading. When the Q ur'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 tosatisfy very well the legal needs of Muslim society.Positive laws, in whatever system, consist of two elementsa com-mand or mandatory element, and some specified sanction for non-compliance. In Islamic law it is true that command and correspondingsanction sometimes occur in the same and sometimes in different places,but this is also true to some degree of every legal system and thereforenot a serious criticism. Coulson, though well aware that legal rules needto contain both command and sanction,1' quite fails to appreciate thatboth 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 intoterms of rights and obligations an accepted standard of conduct and providing remediesin the event of its infringement.'


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APPROACHES TO SHART'A 14 9Qur'anic commands are often associated with warnings to 'fear Allah'and to be mindful of His pleasure and His wrath, as well as recurrentmention of the Garden and the Fire. Coulson infers that these arepredominantly ethical injunctions addressed to conscience, expressiveof 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 incidentsof the practices is contained in the Qur'an. In fact wine-drinking later becamea criminal offence punishable by flogging while usury was a purely civil m atter,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 thewords of the Q ur'an is that those guilty of so doing shall swallow downthe fires of Hell into their stomachs and shall burn in the flame [4 :10] . "The legislation of the Qur'ancomplemented in the Sunnacom-prehends all the obligations which Allah has made binding on man.Two types of ruling are distinguished in Islamic law: those that referto details, and those th at refer to general principles. The fuqahc? expressthe interrelationship between the tw o in the familiar saying that Islamiclegislation is based upon 'details about what does not change andgeneral statements about what does change'.The fact that certain obligations are not accompanied by definedpunishments for infringement only means that Muslims are required todefine the appropriate punishments according to differing circumstancesthrough the exercise of ijtihad. Contemporary legal systems differ onlyin that the penalty is specified at the same time as the infraction itpunishes. The ijtihad required in Islamic law is necessarily influencedby place and time, but in all cases the basic source for it is one of theprinciples of the SharFa, whether a recognized method of interpretingthe texts on which the judgement is directly based, or a recognizedprinciple for deriving subsidiary judgements from the texts, such asanalogy (qiyas), equity {istihsan), the public interest {maslaha), etc. Inpurely civil matters the penalty includes automatic annulment of thetransaction or contract and/or recompense for the harm caused. Incriminal matters the system of discretionary punishment {ta'ur) iseffective 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 systemdid not, as Coulson thinks, arise with the acquisition of a politicalempire: it is confirmed by the Qur'an and numerous examples in

" Ibid. 11-1Z Chcd ibid. 12.


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1 5 0 M U H A M M E D S E L IM E L - AW Athe Sunna so that subsequent generations of Muslims have alwaysapplied it.Examples include the very ones that Coulson mentions. Drinkingwine is a crime liable to discretionary punishment, the definition ofwhich was achieved during the lifetime of the Prophet (not afterwardsas 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, finalprohibition of wine. There is much that might be said of these verses, but it is ofimmediate relevance here to note that Muslims have no difficulty distinguishing theverses 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 greatharm and som e benefits for people, but their harm is greater than their benefit.' [2: 21 9]

O you who believe! Do not come to the prayer while you are drunk, so that youknow what you are saying. [4:43 ]

. . . so ovoid it [i.e. wine] so that you may prosper. Satan wants only to sow enmityand hatred among you through wine and gambling (maysir) and to keep you fromremembering 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 anyworldly penalty for drinking wine. There are, however, many ahadith which confirmthe prohibition and also tell of the Prophet either carrying out a punishment for theoffence, or ordering that such a punishment be carried out.Al-Bukhari, Ahmad, and Abu Dawud all trasmit from Abu Hurayra that a man whohad drunk wine was brought before the Prophet and the Prophet told those present tobeat the man. Some did so with their hands, some with their sandals, and some withtheir 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 tocensure a wine-drinker after they had beaten him. It would thus appearand, asMuslims are right to say, Allah knows bestthat the difference in judgement reflectsthe difference in the circumstances of each case. Both judgements, however, were intendedto achieve the same deterrent effect. In a variation of this punishment (in a hadithrecorded by Abu Dawud) the Prophet had dust thrown in a man's face after he hadbeen beaten for drinking wine. From that we can infer that punishment should not onlyfit the nature of the crime but also the character of the offender, and that this rule wastrue also in the rime of the Prophet.What is clear from these texts is that the Prophet himself was the first to specify apunishment 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 tofix and carry out discretionary punishment whenever they deem it necessary. To considerthis (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 belegally permissible. Only if a sin is also legally a crime may the action concerned bepunishable in law. Such a distinction does not enter into the SharVa: the commission of


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APPROACHES TO SHARl'A 15 1punishment, 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 todiscretionary punishment, with the offender being obliged to render duecompensation to the wronged party.It should be clear that the role of the Qur*an in Islamic legislation ismuch more than the provision of ethical directives, as Coulson seemsto im agine. There is a very high degree of intercomplementarity amongthe different elements that make up Islamic law. The essential principlesof that law, grounded both on the text of the Qur'an and on theprecepts and actions of the Prophet who showed how Qur'anic injunc-tions should be practised as law, include the principle of flexibility. TheQuranic injunctions ar e legal rules in the full sense of the word, theappropriate penalties for their infringement not necessarily being speltout alongside them. The general principles of Islamic law allow that,in those cases, the appropriate penalties be elaborated separately. Thisnon-specification of penalties is an aspect of the universal applicabilityof Islamic law, its anticipation of the need to provide for the social,economic, and political developments tha t 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, whenstating a legal obligation, appeal to the individual's conscience andrecall him to his connection with his Lord, to his answerability hereand hereafter. This is no argument against the worldly practicability ofth e SharVa: it is, on the contrary, a deepening of its legitimacy andauthority which, in turn, strengthens its individual observance and thecollective commitment to its application.12

Coulson and the SunnaMany people have supposed that Coulson's attitude to the Sunna, givensome divergence from the opinions of his teacher, Joseph Schacht,represents a major shift of position in Western scholarship on thissubject. Coulson begins by saying that the Prophet 'must have beenfaced 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 functionany action that u prohibited in Iilam is a punishable crime. If the prohibition is not (aswith the hadd offences) accompanied by mention of a specific punishment and/or act ofexpiation it will be subject to ta'ar punishment.

u The importance of legitimacy to the practicability of law can be easily understoodby comparing, for example, the prohibition on alcohol within Islam where such aprohibition has legitimacy, and outside Islam where, because lacking in legitimacy, anysuch prohibition is bound to become a law 'honoured only in the breach'.


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151 MUHAMMED SELIM EL-AWAof interpreting and explaining the general provisions of the divinerevelation'.13 Such regulations, Coulson goes on, 'm arked the beginningsof the growth of a legal structure out of the ethical principles containedin the Qur 'an ' ."However, Coulson goes on to say that 'surma' in the second centuryAH meant the consensus of a particular legal schoo l 'the ideal doctrineestablished in the school and expounded by its current re presen tatives'."To consolidate the idea of trad ition, this 'ideal doctrine' was representedas stretching back into the past, and the names of pious personageswere attached to it in order to claim the authority of their generationfor the school's current expression:"Thus TJmar, for example, was frequently represented as the originator ofMedinan sunna, and Ibn Mas'ud held a similar position in Kufa. Eventuallyand inevitably the process ended in claiming the authority of the Prophethimself for the doctrine.17

Coulson then explains those asanld (sing, isndd, chain of transmis-sion) which attribu te ahadith to the Proph et as the result of the insistenceof the new opposition party, 'the people of the fpadith' (ahl al-hadtth),that the precedents of the Prophet had 'supreme and overriding authorityas law'. In effect, Coulson claims, 'many rulings and decisions werefalsely ascribed to the Prophet', and 'these are contained in stories orreports of what [He] said or did on a particular occasion.'1' To avoidinconsistency with his prior affirmation of the Prophet's role in legisla-tion, Coulson aims for some sort of middle ground: 'While certain ofthe legal Traditions may preserve the substance of the actions andwords of Muhammad, particularly in non-controversial matters, thisgenuine core became overlaid by a mass of fictitious material.' 1 'The inconsistencies re-emerge, however, in Coulson's subsequentdevelopment of this idea in the argument that 'sunna' came to take onthe technical meaning of 'sunna of the Prophet' rather than the 'sunnaof the local school'. He says:

The recognition of the Traditions (fpaditb, precedents of the Prophet) as asource of the divine will complementary to the Qur'Sn is the supreme contribu-tion of ash-Shafil to Islamic jurisprudence ...Sunna, thereforein the sense of the divinely inspired behaviour of [theProphet]is the second source of law in ash-ShafiTs scheme. In the earlyschools, as we have seen, sunna had signified essentially the local tradition ofthe individual school. By replacing this concept of tradition, which had, forIslam as a whole, a multiplicity of starting-points, with that of a traditionwhich stemmed from one single originthe actions of Muhammad" History, 22. ** Ibid. 22. " Ibid. 39. Ibid. 40.17 Ibid. 41 . " Ibid. 42. " Ibid. 42f.


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APPROACHES TO SHARl'A 15 3ash-Shafi? aspired to eradicate a root cause of diversity between the severalcentres and instil uniformity into the doctrine. In short, he argued, there couldonly be one genuine Islamic 'traditio n'. And yet ash-Shafil w as not propou ndingany completely novel idea. There had been a growing tendency for the earlyschools, through the projection backwards of the doctrine, loosely to representtheir sunna as rooted in the practice of the Prophet. Ash-Shafi*! exploited thistendency, confirming its correctness as a matter of principle, by his thesis ofthe 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 onlyby a tradition."

But the idea that the Sunna of the Prophet is complementary to theQur^an as a source for knowing the divine will is quite explicit in theQ u r ' a n itself, and would therefore have been widely known:And what the Messenger gives you, take; and what he has forbidden you, leavealone. [59:7]Let those who oppose his command beware lest a trial befall them, or a painfultorment. [24: 63 ]Say, if you love Allah, then follow me and A llah will love you and forgive youyour wrong actions, and Allah is Forgiving and Merciful. [3: 31 ]

Similarly, while it is true that al-Shafil did place the Sunna as thesecond source of Islamic law, this too was not an innovation. This hadbeen the common understanding of the scholars among the Compan-ionsindeed of all the Muslims everywherefrom the earliest times,as is evident from any perusal of the works of fiqh, uftil, an d hadith.The only means of sustaining the opposite view is the wholly negativehypothesis that these works are all fabrications.If, as Coulson claims, 'sunna' for the early schools had meant merelytheir own 'local tradition' of Islamic law, from whom did they receivethis tradition? What was the authority for 'the multiplicity of starting-poin ts' (see quotation above, p. 152)? How , in sum, do w e get from theIslamic law established and practised in the Prophet's lifetime to the'local tradition' of the different schools? And if the Sunna of the Prophethad not already had legislative authority why should the fuqaba' havestriven to attribute their traditions to it?Coulson's reasoning simply does not hold up. Finally, there is hisclaim that al-ShafiT originated the view that the Sunna can be properlyascertained 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.


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1 5 4 M U H A M M E D S E L IM E L -A W Aof the Companions onwards,31 we must ask this question: if the earlyschools exhibited a growing tendency to support their doctrines bytraditions ascribed to the Prophet, where were these traditions if notalready am ong the traditions related from him (unless, that is, we acceptthe hypothesis that all Muslim scholars were continuously and continu-ally forging traditions)? And where did al-Shafil find the hundreds ofafpadtth, scattered throughout his work, if they were not already wellknown and current in the circles of the 'ulanta'? Indeed, had it beenotherw ise, how could he have argued so decisively against his oppon entsfor 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 alreadyexisting material in an arrangement already sufficiently familiar to gainacceptance. He did not invent any new source of Islamic law, norcontrive for any source a greater authority than it already had. Rather,his formidable intellect and knowledge of fiqh enabled him to gatherthe theoretical bases of Islamic jurisprudence into a single, coherentform such that later scholars attributed to him the foundation of thescience of jurisprudence (ufiil al-fiqh). To exaggerate al-ShafiTs role,as Coulson does (following Goldziher and Schacht), is to deny theexistence of any mutual understanding or agreement among the fuqaha0before al-Shafil on how to derive judgements from the sources. In fact,worthwhile discussions and exchange of opinions between them on thissubject are amply recorded in the literature, which testifies that thefuqaha' were aware of these ufiil and had arrived at numerous judge-ments on the basis of them. They differed in their interpretation andparticular use of these sources, but they never doubted or denied theirexistence.

There is, unfortunately, little new in Coulson's critique of the Sunnaother than his acceptance that some of the legal ahadtth are in factgenuine and represent the legal problems with which the Prophet, inhis role as supreme political and legal authority in Madina, had todeal.31 Consequently, Coulson is prepared to accept thatthe substance of many Traditions, particularly those which deal with theobvious day-to-day problems arising from Quranic laws, may well representat least an approximation to a decision of the Prophet which has been preservedinitially by general oral tradition."

What is new here only becomes apparent from comparison with, forexample, Schacht, who says: 'we shall not meet any legal traditions11 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-A c$ami' Studies in EarlyHadlth Literature (Beirut, 1968)." History, 64; also 22 and 42f. " Ibid. 65.


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A P P R O A C H E S TO SHART'A 155from the Prophet which can positively be considered authentic',14 and:'the evidence of legal traditions carries us back to the year 100 AHonly.'M Schacht holds that 'every legal tradition from the Prophet, un tilthe contrary is proved, must be taken not as an authentic or essentiallyauthentic, even if slightly obscured, statement valid for his time or thetime of the Companions, but as the fictitious expression of a legaldoctrine formulated at a later date'." Coulson, by contrast, holds that'i t is a reasonable principle of historical enquiry that an alleged rulingof the Prophet should be tentatively accepted as such unless some reasoncan be adduced as to why it should be regarded as fictitious.'37

Coulson's limited acceptance of the ahadith may be of value in thatit opens the door again for Western scholars to reconsider the authenti-city of this material. A more reliable method for such reconsiderationthan that already developed and elaborated by the Muslim scholarsthemselves is improbable. Coulson's assertion that 'the vast majority ofthe legal dicta attributed to the Prophet are apocryphal and the resultof the process of "back-projection" of legal doctrine',"will prove unten-able. So too will the claim that the asatud were fabricated in order togive weight to the opinions of individual scholars or schools, whichCoulson, although allowing the authenticity of a certain number ofahadith, nevertheless repeats frequently.

(II) COULSON AND THE ISLAMIC CRIMINALCODECoulson's critique of the two main sources of Islamic law, the Qur'anand the Sunna, amounts to a denial of the fundamental grounds of thelegitimacy and authority of the Shari'a. As we now turnby way ofexamples of his comments on the practical expression of the Shari'ato Coulson's treatment of the criminal code, we find that he regardsthe SharFa's effectiveness, outside those offences explicitly treated inthe Qur'an, as largely attributable to the power of the ruler of the day.This view means that (excepting the offences mentioned) the ShafTaenjoyed 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. Thisview is somewhat di luted in his Introduction to Islamic Law (Oxford, 1964), where hesays (34) that 'Hardly any of these traditions, as far as matters of religious law areconcerned, can be considered authentic.'" J. Schacht, Origins, 5. u Ibid. 149. " History, 65.** Ibid. 64. Cf. also 41: 'the great mass of the alleged doctrines of the ancients wereanachronistic ascriptions.'


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156 MUHAMMED SEL1M EL-AWAfails to be persuasive through legal reasoning, its legal concepts beingquite naive, if not dow nright primitive. The following individual pointsmade by Coulson illustrate particularly well the general argument:1 . The only aspects of criminal law that fiqh deals with are the crimescovered by the hudiid, and in these offences it is the no tion of ma n'sobligations 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;40furthermore, the rules laid down in the Qur'an about physicalassaults and homicide are 'essentially ethical', albeit they have 'self-evident' legal implications/13 . As far as procedure in criminal cases is concerned, the sovereign'may order the use of such methods as he sees fit to discover whereguilt lies'.414 . Moreover, '... the sovereign is completely free, outside the I?addoffences, to determine what behaviour constitutes an offence andwhat punishment is to be applied in each case' (although Coulsonallows that 'most jurists ... adhere to the view that ta'zir shouldbe restricted to flogging or imprisonment').43We shall now consider each of these points in turn.1 . The comprehensiveness of Islamic criminal lawAs we explained above, the Qur'an and Sunna together make up theinitiating core of Islamic law. This core contains, for the m ost part, notdetailed rulings, but general principles of law and legal reasoning, thati s , the intellectual tools that make it possible to evolve and extendrulings to particular cases. Among those tools, the principle of discre-tionary punishment (ta'zir), established by the Qur'an, is the means bywhich the criminal code responds to the legislative needs of t h e commun-ity in every place and time. Indeed, it is in the area of ta (ar punishmentthat ijtihad has always found its widest application. It is quite untrueto maintain, as Coulson does, that Islamic criminal law is largelyconfined to those few offences whose punishment is 'defined' in theQur'an, the so-called hudiid offences. Nor is it true to say that these

" I b i d . 1 2 4 .40 I b i d . S e e a l s o 1 8 : ' H o m i c i d e [ i s ] a n o f f e n c e w h i c h f a l l* i n t o t h e c a t e g o r y o f c i v i li n j u r i e s r a t h e r t h a n t h a t o f p u b l i c o f f e n c e s o r c r i m e s . '41 I b i d . 17f .41 I b i d . 1 3 2 . C f. 1 2 8 : ' [ t h e ] c o u r t s .. . c o u l d t a k e s u c h m e a s u r e s t o d i s c o v e r g u i l t .. .a s t h e y s a w fit.'41 I b i d . 1 3 2 f . C f. 1 2 9 : 'a r u l e r .. . h a d t h e p o w e r t o t a k e s u c h s t e p s as h e s a w fit toi m p l e m e n t a n d s u p p l e m e n t t h e p r i n c i p l e s e s t a b l i s h e d b y t h e r e l i g i o u s l a w . '


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APPROACHES TO SHART'A I5 7offences 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 compassis misleading. What the Qur'an expounds on these matters covers themost vital areas of collective life, and provides not only the relevantvalues (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 publichighways; the punishment for illicit sexual relations defends the integrityof the family; the punishment for wine-drinkingaccording to themajority who hold wine-drinking to be a fradd offencedefendspeople's sanity; the punishment for apostasy defends their religion; thepunishment for slanderous allegations of unchastity (qadbf) defendshonour and reputation; and the punishment of rebels (bughat)accord-ing to those who consider rebels to be guilty of a hadd offence andtheir 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 thecrime, but also the punishment (and in some cases even the rules ofprocedure and evidence), have been defined by the Qur'an and theSunna, leaving only the finer details of interpretation and applicationto be resolved by the fuqaba'.

In addition to the hudud offences, the Qur'an deals explicitly withthe crimes of murder and physical assault, laying down the principlesof just retaliation (qisas) and blood-money (diya). The Sunna thenaugments this picture, after which comes the role of the fuqaba0 inresolving thefinerdetails of interpretation and application, as mentionedabove.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, isquite incorrect. It would seem that he makes this point as a result ofmisunderstanding the phrase b


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158 MUHAMMED SELIM EL-AWA(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'sobligations towards God, rather than towards his fellow men, predom-inates.2. The law of qisas (just retaliation) in IslamCoulson was not die first Western scholar to suggest that homicide isregarded in Islamic law as a 'civil injury' requiring com pensation ratherthan as a 'crime' demanding punishment.** This view may derive fromthe presumption that, in this case, the SharTa merely carries on thecustomary practice of the Arabs of pre-Islamic times who are thought(another presumption) to have regarded killing as a matter that can besettled by rules of private vengeance. In fact, premeditated killing ofanother person is universally regarded as a crime, and every legal systemprescribes a punishmen t for it: the Shart'a is no exception. N evertheless,the point does raise a pertinent question about the nature of the legalresponse to homicide and serious assault in Islam.

What chiefly distinguishes 'torts' from 'crimes' is the outcome of thejudicial procedure. In the former the harmed party is compensated forthe harm done to him; in the latter the state exercises its right to exactpunishment on the transgressor. A criminal sentence may, additionally,exact comp ensation for the victim, but such compensation is a secondaryconsideration 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 commensuratewith the offence. The same principle applies to punishment for causingsevere bodily injury, although the fuqahW generally use the term qawadfor this, reserving qisas for retaliation for murder. However, the victimor (in the case of murder) the victim's representative may forgo theright 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 ofmurder: a free man for a free man, a slave for a slave, and a female for afemale; 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 IslamicLaw', Bulletin of the School of Oriental and African Studies, 1951, 811-18, and againin his Islamic Law in Africa (London, 1970), 198-218.


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APPROACHES TO SHARl'A 15 9with due consideration (bi-ihsan). This is a concession from your Lord, and amercy, but whoever transgresses after this will suffer a painful torment.

There is life for you in retaliation, O you w ho have understanding, so thatyou may have fear [of AllahJ'. [2 :178-9]

A believer would not kill a believer except by mistake. If someone does killa believer by mistake, a believing slave should be freed and blood-money bepaid to the man's family, un less they forgo this out of charity. If the man isfrom a people with w hom you are at enmity, and he is a believer, a believingslave should be freed. If he is from a people with whom you have an a lliance,blood-money should be paid to his family an d a believing slave be freed.Whoever cannot ma nage this should fast for two consecutive months, as apenance [enjoined] by Allah, and Allah is Knowing and Wise. [4: 92 ]From these texts, the fuqaha' have concluded th at there is no retaliationin cases of accidental killing but only blood-money and/or expiation.Murder, on the other hand, demands retaliatory execution, unless therelatives 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 thehadtth: 'the blood-money for a person killed accidentally, [or] by awhip or a stick but unintentionally, is a hundred camels, forty of whichshould be pregnant.'4* In another hadtth we are told that the Prophetwrote to the people of Yemen telling them that 'the blood-money fora life is a hundred camels.'47 It should be noted that the generallyaccepted view among the fuqahc? is that the equivalent value (in moneyor other commodity in use in a given society) may be substituted. 41The victim (or representative) may demand retaliation, or waive thatright and demand blood-money instead, or forgo both rights. Thepredominant view amongst the fuqabc? is that the right to demandretaliation lies with the victim's relatives in cases of murder, and withthe victim in cases of physical injury. Furthermore, they hold that/thevictim's party must be allowed to carry out the retaliation if able to doso justly and correctly. This opinion is based on the verse:And if someone is killed wron gfully. We have given his next of kin (Wall)authority [i.e. to demand retaliation or to forgive] but let him not go to excessin killing; surely he will be aided. [17: 33 ]

" This ii transmitted by al-Nasa'i, Ibn Majah, al-Danml, and Abu Dawud. SeeMishkat al-Mafabtb, ed. Muhammad Nit ir al-Albini (Damatcui , n.d. ) , i i . 268.47 Ibid. See also al-Muwaffa 1, 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 allcases these judgements derive either from the letter that the Prophet sent with 'Amr ibnHazm 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.


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l 6 b M U H A M M E D S E L I M E L - A W ABut 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 tha t retaliation be exacted,

but that the right to exact it rests with the competent judicial orgovernmental authorities.4' Some commentators indeed interpret thewords but let him not go to excess in killing as directed to the victim'snext of kin and effectively meaning that he should not himself kill themurderer since this is the responsibility of the ruler/ 0 Also, the com-mand prescribing retaliation O you who believe, retaliation has beenprescribed for you in cases of murderis addressed to the wholecommunity. 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 ou t by the special representatives of the comm un-ity. Legal retaliation in our view comes under this second category/1so that the view that the victim, or his next of kin, has the rightpersonally to exact retaliation is weak. Most contemporary Muslimscholars therefore argue that exacting retaliation is the responsibility ofthe same authorities whose task it is to carry out criminal sentences.Retaliation thus comes under the same category as punishments forother crimes, where the judicial authorities issue the sentence and therelevant state authorities carry it out."

Nevertheless, the right remains for the victim (or representative) toforgo retaliation and demand blood-money instead. That right clearlyallows for compensation for the harm suffered. It is further underlinedby the permission to the parties involved to agree to blood-money(possibly a sum in excess of the normally accepted amount) outside thejurisdiction of the courts.In those instances where the victim exercises the right to forgiveoutright, to forgo blood-money as well as the right to retaliation, themajority view is that it is not then permissible to impose punishmenton the offender. However, Imam Malik allows ta lar (discretionary)punishment of the offender, not only in such cases of outright forgive-ness but wherever retaliation is not exacted. We would support thisopinion 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-RazIand Muhammad 'Abduh.M See Ibn al-Jawzi, ZJid al-rruulr ft lilm al-tafstr (Damascus, 1965), v. 33, where thisopinion 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 muqa ranan b i-'l-qanun a l-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.


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APPROACHES TO SHART'A l6lanother's life or limb is a crime for which punishment is due, and thatthe right of the victim's party to forgive only applies where that partywould otherwise benefit, that is in regard to the blood-money, and doesnot affect the appropriateness of punishment but only changes it sothat, instead of obligatory qifd?, there is a discretionary punishmentdetermined by the principles of ta'vr.To summarize, we may say that the judgements of the SharPa onsuch offences are of a double nature. In some respects they come undercriminal law, with retaliation being the due punishment for the crimecommitted; in other respects they come under civil law, because of thecompensation due to the harmed party. In our view it is incorrect toconsider that blood-money is a punishment for the offender as well ascompensation for the victim, since, first, all jurists are agreed that thevictim or next of kin may come to an arrangement with the offenderwithout recourse to the courts, even after the offence has come to theattention of the authorities, for either more or less than the normalamount of blood-money; and, secondly, because the benefits of othermonetary punishmentswhether fines or confiscations of propertyaccrue to the state, which is not the case with blood-money.

The double nature of the SharT'a judgements on these offences is nota failing, nor the result of a conceptual muddle. Rather, it reflects thenature of the offences and their consequences. The fact that variousWestern legal systems have recently introduced schemes of compensa-tion for the victims of violent crimes while continuing to regard thesecrimes as such suggests that the balance and wisdom of the SharVaposition 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 rulesof retaliation are 'essentially ethical', implying that they have not beenlegally thought through, is also false: the details of the analyses doneby the fuqaha 1 to define intention (even quasi-intention, though thisconcept 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 liabilityunder the rules for compensation or retaliation arc too involved tosummarize here; but what we have said is' sufficient to make the pointthat the objective of the SharFa in this matter is not, as Coulson's viewimplies, to enable a 'private' settlement of dispute, but to establishliability and then, appropriately, punish the criminal and satisfy thevictim.

Sec Hall Williams, The English Penal System in Transition (London, 1970), 196.


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l6z MUHAMMED SELIM EL-AWA3. Rules of procedure and evidenceCoulson allows that, generally speaking, 'the rules of evidence aimedat the establishment of the truth of claims with a high degree ofcertainty', but also claims that the ruler 'may order the use of suchmethods as he sees fit to discover where guilt lies'."The means used for establishing guilt in Islamic law are the same forcriminal and civil ma tters. Foremost among them are testimony, confes-sion, the knowledge of the judge (although there is disagreement onthis point), and various kinds of circumstantial evidence. In almost allcases 'testimony' means the testimony of two just witnesses. This ruleapplies to the hudud crimes of false accusations of unchastity (qadhf),brigandage {Ipiraba), and theft; it applies likewise to serious crimessubject to discretionary punishment, and is the necessary procedurebefore the right to retaliation in cases of homicide or physical injurycan be established. For reasons we need not here investigate, the testi-mony of four just witnesses is required legally to establish illicit sexualrelations (zina).

The chief preoccupation of the fuqaha" regarding testimony has beenthe definition of 'adala, or moral probity. The origin of the conditionthat only the testimony of someone who is 'adl is acceptable is in theQur '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 personsfrom among yourselves, or two others from a different [group]. [5: 106 ]In a different verse the Qur'an describes proper witnesses as those whosetestimony is acceptable to the believers, without specifically mentioningthat they be 'adl:If two men are not [available] there should be one man and two wome n, fromamongst those whom you approve as witnesses. [2: 282 ]The balanced conclusion to be inferred from these verses is that aproper witness is one whose testimony is acceptable according to con-temporary, local norms. While certain actions can never be acceptableto M uslims, the acceptability of other sorts of behaviour does vary withcircumstances of place and timethat is surely the wisdom of fromamongst those whom you approve as witnesses." One may then say

" History, 126, 132." According to the HanafT, Milikl , and Sh ifil schools, a Muslim is considered 'just'{'ad{) if he is known to comply with the commands and prohibitions of the ShafFa. TheHanballs (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


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APPROACHES TO SHARr'A 16 3that, apart from those instances where a man's testimony is explicitlyrejected by a text, a just witness is one whose testimony is acceptableto the majority of the Muslims of his community.There are, of course, many relevant matters to be borne in mindwhen testimony is weighedwhether a particular individual couldreasonably be expected to know or to understand the significance ofparticular events or sequences of events, the relative weight of writtenor verbal testimony, the demands of equity and natural justice in theparticular case, etc. But we cannot here go into these matters, nor intothe other procedures of evidence such as confessions, circumstantialevidence, the knowledge of the judge, etc. Wh at we have said is sufficientto show that a SharTa court has to establish guilt or innocence accordingto SharTa procedure, and not to suit the whim of either the judge orthe ruler. The word bayyina ('proof or 'evidence') means that whichclarifies (yubayyin) and brings out the truth; so when the truth is clearto the judge he must accordingly convict the guilty or acquit theinnocent. The court must proceed according to what is established bythe evidence (al-bayyinat) that is permitted by the Shart'a. It is incorrectto claim, as Coulson does, that the ruler may use any means he sees fitto establish guilt.4. The authority to define crimesIt is generally understood that an action is judged a crime in respect ofintention, whence the legal principle that if an action was not alreadyknown to be a crime it is unlawful to convict or punish anyone forhaving done it. No text in either the Qur'an or hadith unambiguouslystates this principle; nevertheless, it is well established among the basicprinciples of Islamic law. It is derived from the following verses of theQur'an:We w ould n ever punish until We had first sent a messenger. [17:15]Your Lord would never destroy [those] cities until He had [first] sent to theircentre (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 pa st(ma qadsalafa). [8:38]The same phrase except what is pastalso qualifies the variousdegrees 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 lastcondition, however, is rejected by the majority of the fuqaha", and particularly by IbnHazm, in his usual severe manner, in his Muhalla. For references to the general questionof procedure and evidence in Islamic law, see M. S. El-Awa, Ft ufid al-nifam al-jmaid-islimi (Cairo, 1979 and 1983), 286ff.


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164 MUHAMM ED SELIM EL-AWAand again in Allah pardons what is past, but if someone repeats [theoffence], Allah will take vengeance on him (5: 95).

Among the ahadith that underscore this principle are the Prophet'swords during the Farewell Pilgrimage: 'The blood of the Time ofIgnorance is forgone, and the first blood I begin by forgoing is the bloodof 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 ofmy uncle al-'Abbas ibn 'Abd al-Muttalib.'From such texts the fuqaha" developed the two well-known rulesthat 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'aallows the ruler unconditional power to define, according to arbitrarycaprice, any act as a crime and then punish it, is incorrect.Within the Islamic legal system, the authority to define crimes notalready explicit in the Qur'an and Sunna derives legitimacy from theobligation clearly stated in the Qur'an: And let there be from amongyou a community who invite to good, enjoin the right and forbid thewrong (3: 104); and from the description of the M uslims as the bestcommunity to have been brought forth for mankind, enjoining the rightand forbidding the wrong and believing in Allah (3: 110). We ex plainedabove (p. 157) that the hudud offences cover the core areas of collectivelife 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 Muslimruler, to guarantee these essentials. The fuqabc? are agreed that theruler has a duty to act against any threat to any one or all of theseessentialshe has a duty, in other words, to act in the interest of thecommon good as that good is defined within the SharFa. Similarly, theruler has a duty to act in support of and to encourage whateverpromotes those essentials. Failure to do this, as al-Qarafl says, is 'aclear deviation from the straight path and a violation of the consensusof the community'.5 '

To enact legislation on the basis of the common good is what isknown as al-siyasa al-shar'iyya or government according to the prin-ciples of the SharFa. On this topic the famous scholar Ibn al-Qayyimal-Jawziyya says:There are two kinds of government: one which is unjust and is forbidden bythe SharFa, and another which is just and takes the right from a wrong-actingoppressor. [This second type] is part of the SharFa: knowledge of it is part ofM See al-QarifT, al-Furuq (Cairo, 1939), iii. 16-20, and iv. 182.


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APPROACHES TO SHART'A 165the knowledge of the Shari'a, and ignorance of it is part of ignorance of theSharVa."He th en says , q u ot i n g th e l ead i n g Han b aS sch ol ar Ib n cAq l l :Ibn 'AqTl says in al-Funun, 'It has been established that acting according to theprinciple of siyasa shat*iyya in government is permissible because this is theway of judiciousness (huwa al-hazm), and there is no imam that is not of thisopinion.' A follower of al-Shafil then said, 'There is no government exceptthat which is in accord with the Law', whereupon Ibn 'Aqll replied, 'Realgovernment is that which brings people closer to what is of benefit to themand takes them further away from what causes diem harm, even if it involvessomething that has not been instituted by the Prophet or the Qur'Sn.' If byyour saying, 'There is no government except that which is in accord with dieLaw' you mean that which does not contradict any pronouncement of theSharVa, that is true. But if you mean that diere is no government exceptby that which die SharFa has made a pronouncement upon, you are notonly mistaken yourself, but also accusing die Companions of having beenmistaken .. .

This is an area where feet slip and minds go astray, and a place of greatdifficulty and much debate. One group went to one extreme, failing to applydie hudud, causing people's rights to be lost, and at the same time allowingdie people of indecency to become bold in dieir evil-doing. They thus madedi e SharVa into somediing which was incapable of bringing about the generalgood {masalih) of die people ... When die people in charge saw diis happeningand thought diat diere would be no order possible in people's lives unless dieyused odier means beyond what they considered to be within the SharVa, theyintroduced a great deal of evil and corruption into dieir government. Matterssoon escalated and got out of control, and it became extremely difficult forthose with a real understanding of the SharVa to free people from this situationand save diem from these dangers.A second group, the opposite of die first, went to die odier extreme andconsidered as lawful diings that went against die judgements of Allah and HisMessenger. Both groups lacked an understanding of die message which Allahgave His Messenger and revealed in His Book, which was that He had sentHis messengers and revealed His books in order that people might establishjustice (qis(), which is the quality that governs die heavens and die earth. Andwherever one sees the signs of justice shining forth, in whatever form, thereone has found die Law of Allah and His religion.51

The real meaning of siyasa sbafiyya, as Ibn al-Qayyim clearly pointsout (and his view on this is, as he himself says, supported by the fuqaba0of all the schools), is that it is permissible to enact legislation which is17 Ibn al-Qayyim al-Jawziyya, al-Turuq al-bukm iyya ft al-sryasa al-shar'iyya, ed .

Muhammad HJraid al-Fiql (Beirut, n.d.), 5. See also the edition by Muhammad Muljyial-DIn 'Abd al-Hamld and Ahmad 'Abd al-Hallm al-'AskiiT (Cairo, 1380/1961), 5." Ibid. (Beirut ed.) , 13ff.; (Cairo ed.), ISff.


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l6 6 MUHAMMED SELIM EL-AWAneeded by the community in order to bring ab out w hat is for its generalgood in cases where there is no text in the Qur'an or the hadith. Wherethis legislation consists of defining crimes and punishments, it fallswithin the discretionary, ta'zir sphere and is decided on the basis of therelevant general principles in the Qur'an and authentic ahadith. Indeed,the existence of this sphere of the law is the strongest proof of theflexibility of Islamic criminal law. There is no doubt that otherwise theprovisions of the law in Islam would be unable to realize the generalgood. Any legal system that sought to be exhaustive in detail wouldnecessarily become irrelevant, sooner or later. It is quite unreasonableto 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 lifean d expect to endure. A leading British judge expressed the idea suc-cinctly: 'No-one can know beforehand all and every means that will becontrived by the evil implanted in the hum an being to disturb the o rderof 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. Itis not a sign of defect in the law, but rather of its perfect provision forthe dramatic or open nature of human circumstances. Certainly, forthose who choose to live their lives according to Islam, there is nobetter method of establishing a system to maintain law and order thanone w hose general purpose and principles have been fixed by the Q ur'anand the Sunna, and whose detailsexcept in a small but sufficientnumber of instancesare left to be decided according to need. Byspeaking in detail only of the offences punishable by the hudud andretaliation and leaving all other matters to the system of ta'zir (i.e. tothe discretion of the authorities), the SharFa provides the necessaryflexibility and applicability. It requires the ruler or the relevant stateauthoritiesto promulgate the laws and effect the procedures neededto oppose behaviour that is harmful to society and encourage what isbeneficial. Correspondingly, the people are required to obey their rulersin so far as they establish the authority of the SharFa and seek thepublic goodas the Qur'an says: O you who believe! Obey Allah andobey the Messenger and those in authority among you (4: 59).

( I l l ) S U M M A R Y A N D G E N E R A L R E F L E C T IO N SSummary: (a) the story of Coulson''s HistoryWe remarked at the outset that Coulson's work is free of the explicitbias of 'Orien talism '. Indeed, we have reason to believe that his attitude

" Lord Simonds, quoted in H. l_ A. Hart, Liberty and M orality (London, 1968), 9.


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APPROACHES TO SHART'A 16 7to his subject is tolerant and sympathetic.*0 It does not follow that aMuslim will find his presentation of the SharVa objective and fair. Inhis history of Islamic law he plainly has a story to tell, a thesis topropose, for whose sake facts and incidents are chosen and arrangedwithout much sensitivity to what a Muslim might recognize as thewhole truth about the matter. In summary form, the story Coulson tellsis this:

(i) Whatever the view taken of the Qur'an subsequently, the earlygenerations of Muslims thought of it as, at most, the preamble to acode of law, but not itself a code of law.(ii) The Qur'an and the Prophet largely accepted the norms of theexisting customary law; and they did not, except in a few cases, seekto replace those norms. Therefore, except where expressly altered bythe revelation, the Arabs retained their customary law after they becameMuslims.(iii) However, when their power enjoyed its sudden cultural andgeographical expansion, the Muslims were faced with situations notenvisaged either in their customary law, or in the provisions of theQur'an, or in the legal judgements of the Prophet. (For the first 150years, those legal judgements w ere few in number and preserved alm ostentirely in oral traditions.)(iv) The Muslims responded by vigorous use of individual reasoningboth in the interpretative extension of Qu r'anic principles to make themapplicable to regional conditions, and in the adaptation or reform (theminimum necessary) of regional practices to satisfy those principles. Inshort, they Islamized what law they found; they did not have either aready-made system of Islamic law or a systematically Islamic way oflegal reasoning to impose on the lands and peoples they conquered.(v) This activity of Islamizing the status quo in the different regionsof the empire inevitably gave rise to growing diversity in the legalphilosophy and practice of regional schools of Islamic law.(vi) From the second half of the second century AH on, no doubt tocounter the threat of disunity and dispute, a hierarchy of legal sourcesand rules for deriving legal judgements came to be defined and widely

" A personal reminiscence may be relevant here. This paper draws to a large extenton ray two works Fi ufiil al-nifam al-jinS't al-Islami (Cairo, 1979 and 1983) andPunishment in Islamic Law, which were in turn developed from my doctoral thesis, 'TheTheory o f Pun ishment in Islamic Law' (1972 ), written under the supervision of ProfessorCoulson at the University of London. I wish to record here that Professor Coulson wasat all times fair, and never hostile to any opinion of mine merely because it was inoppo sition to his ow n. Th is was a generous virtue in him, and one I gladly ack nowledge.One only hopes that it could be shown by all who profess knowledge about Islam andIslamic civilization.


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l6 8 MUHAMM ED SELIM EL-AWAaccepted, most notably as a result of the formidable synthesizing geniusof al-Shafii.

(vii) Once the legal judgements of the Prophet had been formallyrecognized as a source complementary to the Qur'an, the way was openfor massive fabrication of such judgements to legitimize laws that hadalready been built up by the regional schools. (Coulson, followingSchacht, rests this argument on the assumption that all Muslim scholarsparticipated in the fabricationsan improbable assumption to make.)(viii) Thus formalized, the SharFa fell into a profound intellectualinertia: gradually becoming more and more theoretical, its effectivejurisdiction was limited to the hudud offences and matters of familylaw and inheritance. Outside that narrow compass, those who heldpolitical power did just as they pleased both in terms of promulgatingpracticable laws and in terms of legal procedure. Further, even withinits sphere, key provisions of the Shari'a were subverted or went unen-

forced.(ix) Contemporary Muslims find themselves in a situation analogousto tha t of the pre-'classical' period: their lives are not merely surroundedbut thoroughly invaded by legal practices of non-Muslim origin withwhich they, as Muslims, must very soon come to terms. Almost the lastwords of A History of Islamic La w are:... The fortress of the traditional law has been breached beyond repair, butthe complex structure that has taken its place does not as yet rest upon thesame solid foundations ...This is perhaps inevitable in the circumstances of the time. For historyappears to have turned full cycle and to have confronted Islam with a situationremarkably parallel to the one she faced during the Umayyad period. Just asthe law of the Madinan community, a rudimentary system of customary practicemodified by basic Quranic precepts, proved wholly inadequate to meet thecircumstances of the new political empire, so today traditional SharlVi law hascrumbled under the impact of Western civilisation. And modern reformers, justlike the Umayyad administrators, have managed to control the sudden surgeof events by ad hoc measures adopted under a policy of pragmatism andexpediency." During the eighth century jurisprudence had systematically reduced thehaphazard growth of Umayyad legal practice and the hotch-potch of customary,Quranic and foreign elements of which it was composed into terms of anIslamic legal system. The question, therefore, may naturally suggest itself as towhether modern jurisprudence will assume a similar function by endeavouringto assimilate and 'Islamise' the mass of heterogeneous material which makesup current legal practice ..."

" History, 222-3.


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APPROACHES TO SHART'A 169Summary: (b) the theme of Coulson's HistoryTha t neatly turned ending is quite blunt abou t the demise of the SharTa:in the face of the Western challenge it was 'a rudimentary system' w hich'proved wholly inadequate' and 'crumbled'. Why it 'crumbled' is thethematic burden of the story. According to Coulson, Islamic jurispru-dence suffered a disabling tension between an 'idealistic' and a 'realistic'tendencyhis critique of the sources of th e SharTa is best understoodas an attempt to explain the inevitability of that tension.The SharTa is believed by-Muslims to be a law w hose provisions areof divine origin and therefore imm utable. From the fact that such a lawis not questionable by human reason nor in any other way subject tohuman sovereignty, it follows (for Coulson) that it could never besufficiently responsive to the changing detail of human affairs which, inculturally and geographically very diverse regions of the world, it wassupposed to regulate. Inevitably, as a historian of the law with anoutsider's viewpoint,'1 Coulson finds that the practice of the SharFa inMuslim societies was far removed from its ideals, with deliberate legalsubve rsion" and simple evasion ornon-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 expositionin History," is specifically devoted to the struggle between 'idealism'and 'realism'. Coulson attributes the rise of judicial posts such as Sahibal-mazalim ('the one in charge of complaints'), and the whole conceptof al-siyasa a\-shar liyya ('government in accordance with the revealedlaw'), to the need to find practical solutions often quite impossibleunder the SharTa and, on occasions, even deviating from it. Coulson'sfinal picture of the SharTa is of a law confined to a narrow jurisdictioncomprising the rites of the faith and certain personal and family m atters.It is to substantiate this picture that the Qur'anic injunctions aredescribed as 'predominantly ethical', and the legal dicta of the Prophetas largely forgeries. In short, all that might lead a Muslim to regardthe SharTla as the ideal legal system is, in Coulson's argument, nomorethan a dream of legitimacy, a mirage that evaporates on close historicalstudy.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 divinerevelation is bou nd to be 'other-worldly' ii not restricted to Western scholarship; it evenfound expression in the writings of certain professors of la w in some Arab (particularlyEgyptian) 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.


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170 MUHAMMED SELIM EL-AWAdecree. He argues (as we saw in the preceding discussion) that thesovereign enjoyed arbitrary power over rules of evidence and courtprocedure, over the appointment of officials, and over the definition ofcrimes and punishments. Further, as is clear from his comments on thehudud (discussed above in relation to homicide and qifaf), Coulsonbelieves that either the Sharila applied as law the texts of the Qur'anand hadith (verbatim or by close analogy), or it applied as law theabsolute will of die sovereignthe doctrine of al-siyasa al-shar'iyyabeing merely a lip-service device to keep legitimacy. Acceptance of theShari'a within the Islamic world is thus accounted for on the groundsof either psychological compulsion (that is, inward religious commit-ment to the will of Allah), or of political compulsion (that is, outwardsurrender to the will of the sovereign). In neither case is acceptance(thus, practice, enforcement) of the SharJ'a conditional upon legalreasoning or general reasonableness. This is the ground of Coulson'scontention that, as formalization increased in later centuries, the fuqaha'elaborated rulings of monkish purity and marginal relevance to the legalproblems with which people actually had to deal. It is clear that, albeitimplicitly, Coulson is contrasting 'classical' Islamic jurisprudence withthe Anglo-Saxon tradition of refining legal concepts by study of actualcases, the resulting 'artificial reason' feeding an evolving process of newlegislation modified by further judgements, and so on.General reflectionsAlthough Coulson's starting-point (as we noted) is that belief in theShari'a is axiomatic for Muslims, his argument does not provide themwith many reasons for preferring it at least in his mind, the encounterwith 'Western civilization' has been decisive and final. Indeed, his themeis that the Shari'a had already become irrelevant in practice, Westernpresence amid Muslims merely serving to hasten acknowledgement ofthat reality. But then, in what sense is the law in Muslim societies toremain essentially Islamic, as Coulson says that it needs to remain?What, given his argument, is left for Muslims to do with their SharJ'aexcept, for form's sake, to pretend not to abandon it while in factabando ning it? Most of what is derived from the practice of the Proph et,Coulson says, is based onextraordinary choice of phrasebona fidefabrication, and could therefore be discarded. The explicitly legal con-tent of the Qur'an, however, cannot be so easily set aside and istherefore an embarrassment:It cannot be denied that certain specific provisions of the Qur'an, such as thatwhich commands the amputation of the hand for theft, pose problems in thecontext of contemporary life for which the solution is not readily apparent."" Ibid. 224-5.


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APPROACHES TO SHART'A 17 1Muslims are bound to conclude, if they accept Coulson's critique, thatthe Shari'a is a psychological need which, in time, they will come toleave behind in favour of Western laws, modified to accommodate theircultural habits which also (given the aggressiveness of what Coulsoneuphemistically calls 'the context of contemporary life') are slowlywithering away.But Muslims are unlikely to be persuaded by Coulson's critique. Tobegin with, the neatness with which, in his narrative, 'history appearsto have turned full cycle' is suspect. Wh at enfeebles the argum ent furtheris its failure to support a formal, outward comparability between theformative and contem porary periods of Islamic law with any dem onstra-tion of the comparability of the content of the two situations. It m atterswhether the non-Muslim norms and practices are fundamentally com-patible with Islam, and therefore assimilable, or (as with key areas ofmodern W estern legal philosophy and practice) incom patible and there-fore certain to be rejected. It also matters who the Mush'ms are whoare entrusted with the responsibility of revising or enlarging Islamiclaw. The criterion by which assimilability to Islamic law can be judgedis the conscience of Muslims, informed and educated within the livingtradition of the Qur'an and Sunna. Much of the 'nco-ijtihad' whichCoulson describes in the chapter under th at itle*7 s not motivated fromwithin that tradition. It is motivated instead by the need to justifythrough p edantic (and, in fact, also very literal and rigid) interpretationof particular Qur'anic verses in isolation from the Islamic traditionthe further entrenchment of Western mores in Muslim societies.

Unfortunately, few Western com mentators regard Muslim consciencewith any genuine respectcourtesies towards it change but not thesubstance of their discussion. For example, in order to explain awaythe existence of the Qur'an, innumerable Christian polemics allegedthat it was a deliberate forgery. Nearer the presentin, for example,the biographical studies of the Prophet by Montgomery Watt**it isdeemed more acceptable to say that the Qur'an was the product ofwell-intentioned self-delusion. Such explanations have their worldlyreward in perpetuating ignorance, and not many non-Muslim scholarsnow directly raise questions of authenticity since doing so yields nouseful knowledge. Among accounts of Islamic law, Coulson's is at theexplaining-away stagethat is, he slights the relevance of the legalcontent of the Qur'an, and rejects the vast majority of the ahadith aswell-meaning, self-deluded fabrication:

" Ibid., ch. 14, 20 2-1 8. 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.)


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XJ2. MUHAMMED SELIM EL-AWA... many rulings and decisions were falsely ascribed to the Prophet ... Thosewho put about such reports, however, should not be regarded as maliciousforgers. Rather, in the bona fide belief that their doctrine expressed the correaIslamic standard, they were convinced that the Prophet would so have actedhad he been faced with the relevant problem. From this it was but a short stepto asserting that he had in fact so acted ... Thus [a] genuine core becameoverlaid by a mass offictitiousmaterial."

The explanation for this kind of approach is not a poverty in scholarlyintention but in the quality of scholarly curiosity. The principal ques-tions Coulson addresses to Islamic law do not arise from the subjectitself; they represent, instead, the major issues of relationship in Westernhistoryissues now resolvedbetween religion, politics, and law. Forexample, the division of Islamic law into a pre-'classical' period adho c reforms of customary practice with wide regional variationanda 'classical' period, when a centralized government had emerged withan interest in unifying legal principles and practices, is derived from thedivision in Europe between a feudal order, in which the sovereignadjudicated disputes arising from the application of customary law butotherwise 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 topromulgate and modify laws. The contrast Coulson finds between'idealism' and 'realism' in the SharTa is determined by notions thatcame out of the radical division in Western legal history betweenreligious and secular jurisdictions, the former having no right on thelatter except in simple annulment of legitimacy (by 'excommunication'of the sovereign); between positive law identified with the will of thesovereign and so-called natural law identified with 'traditional' normsof 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 anopponent of the 'Orientalist' tradition and does not resist the institu-tional pull towards certain 'common knowledge' asssumptions aboutthe worth of Islamic law and Western law. The latter is 'commonlyknown' to have achieved a stable, constitutional arrangement betweengovernment, legislature, and judiciary, giving to the practice of law areliable openness, independence, and procedural regularity. Islamic law,however noble its first impulse, is 'commonly known' to have ended upwith only the 'sultan' under his palace dome, and 'qadi justice' underthe palm-tree, the whole unenlightened mess of 'Oriental despotism'.

* History, 42-3.


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APPROACHES TO SHART'A 17 3The certainty w ith which these things are 'kn ow n' m eans that it requiresan extraordinary intellectual defiance to ask why, for example, theWestern constitutional arrangemen t retains royal or presidential prerog-atives, special powers to appoint judges to the highest cou rt, and pow ers(in effect) to negate the result of legal proceedings by ordering review,exempting, or pardoning, or other devices. These prerogatives are notmere relics from a despotic past but specially devised safeguards againstthe system. The certainty about 'Oriental despotism' means that, again,an extraordinary willingness to be defiant is needed in order toenquirein the absence of formally expressed legal constraintswhatkind of informal constraints inhibited the ruler's power, in specificsocial-historical contexts, to affect the workings of law. The too easilyavailable assumptions'no civil society in Islam', 'no politics exceptcourt intrigue'make for a more fluent narrative, beside supportingthe view (also found in Coulson) that most Muslim scholars, guardiansof 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'swork to let observations about individual aspects of Islamic law cohereintellectually in the SharVa's own terms, so that, vis-a-vis typical West-ern assumptions and expectations about law, the Shan'a can emerge asproperly itself and therefore challengingly 'other'. He frequently ignoresthe tradirional Muslim view which w ould give the necessary perspectiveand coherence to the separate elements observed, and is then led toexplanatory 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 theexplanation of why, albeit reluctantly, he sometimes falls back on the'Orientalist' position. For example, the fabrication hypothesis that heaccepts from Goldziher and Schacht is an attempt to construe theemergence of (i) formalized rules for the elaboration of the SharTa, and(ii) written records of the legal judgements of the Prophet. The eventsare claimed to separate decisively the pre-'classical' from the 'classical'periods of Islamic law. The traditional Muslim construction of thesesame events has the merit of being both simpler and easier to believe,(i) The rules for elaboration of the SharFa were already a living traditionbefore they were expressed in formal terms. The latter related to theformer much as the written grammar of a living language does to itspracticethat is, by expressing formally and theoretically both thecommendable and the actual usage. In any case, it is not unusual tofind the theoretical implications of a practice being studied and elabor-ated some time after the practice has been well established. (U) Thewriting down of the Prophet's words and deeds was a practice of many


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17 4 MUHAMM ED SELIM EL-AWAof his Companions and was continued after them, although no doubtmuch more was transmitted orally and by example than in writtenform. As the temporal and geographical distance from first-hand know -ledge increased, the need to communicate the tradition in written formwould necessarily have been more strongly felt. Few Muslims in thepast or since have claimed that all recorded ahadith are wholly orequally authentic. Hadith scholars were scrupulously alert to the detailof what was recorded, by whom remembered, and transmitted, andconscientious about preserving variants; the best of them often indicatedtheir own preference through editorial comments, also preserved, andthe preferences of those who disagreed with th

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El-Awa_Approaches to Sharia