Beruflich Dokumente
Kultur Dokumente
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
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.
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.'
APPROACHES TO SHART'A 149
" History, 22. ** Ibid. 22. " Ibid. 39. » Ibid. 40.
17
Ibid. 41. " Ibid. 42. " Ibid. 42f.
APPROACHES TO SHARl'A 153
(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.
** 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.
APPROACHES TO SHARl'A 159
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
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.
APPROACHES TO SHART'A 165
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).
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.
APPROACHES TO SHART'A 171
... 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.
APPROACHES TO SHART'A 173
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
174 MUHAMMED SELIM EL-AWA
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.
APPROACHES TO SHART'A 175
™ '... 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.
176 MUHAMMED SELIM EL-AWA
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.'