A Critical Reaction to Coulson - Islamic Law
It is the weakness of the Islamic legal system that caused it to become progressively less effective at promoting the very ideals it was designed to safeguard. N. J. Coulson argues in his Doctrine and Practice in Islamic Law that there is a significant gap between the ideal and practical application of shari’a that caused this weakness. As the Islamic system of jurisprudence evolved after the death of the Prophet Mohammed, rules came to be adopted and administered in an increasingly complex superstructure of teachings, interpretations, and common practice reinterpretations. By trying to produce an answer for every legal question that could arise, scholars wove a legal web that was both challenging to comprehend and overly restrictive of the qadi’s authority. Coulson argues that these inherent weaknesses are what caused good men to avoid the position of qadi at all costs.
Meanwhile, political leaders also wielded their power over the judge, or qadi, in an effort to influence legal decisions in their favor. Although the relative level of political interference oscillated over time, this factor was, without question, an obstacle to producing morally appropriate legal decisions. Consequently, many pious Muslims refused to knowingly accept a position in which they would be swayed by political pressures and possibly make immoral decisions. As a consequence of this pressure, scholars argue, many Muslims were surprisingly reluctant to accept the role of qadi, or judge.
Rather than accepting this notion that fear of political reprisal, alone, deterred pious individuals from accepting the position of qadi, Coulson maintains that it was the very nature of Islamic law that prevented the pious from assuming the role of judge. By emphasizing personal accounts, transcripts, and historical records, Coulson outlines certain characteristics of the common shari’a law that made it difficult to arrive at a decisive judgment on controversial matters.
Interpreting the shari’a was a daunting task partly because this code was, itself, a speculative attempt at interpreting the will of Allah. Complicating the issue, according to Coulson, this legal code became nothing but a religious ideal. It should be noted that during these first four centuries after the Prophet, the teachings of Islam spread swiftly. The contents of the shari’a were less relevant partly due to the fact that they were being interpreted by people living very different lives, far away from the villages where the Prophet lived and they confronted daily challenges that the Prophet had never heard of.
In any case, the shari’a was inadequate as a concrete source for direction in difficult cases of jurisprudence because it failed to answer practical questions of daily life. As new situations arose and decisions were made, additional precedents were enshrined in codes such as the ijtihad and ‘urf, which were derived from personal reasoning and common practice. As different individuals and circumstances contributed to these codes of conduct, divergent viewpoints occasionally emerged on identical cases.
This structure of religious and legal ideals snowballed into an increasingly complex superstructure of socially-accepted norms and laws. Into the 11 th century, the documented legal system became so voluminous and varied that it was difficult for individuals to adhere to and more importantly, for the qadi to use in making decisive judgments. In attempting to answer every conceivable issue that could arise in court, the system actually prevented the qadi from applying his own beliefs to the particular decision at hand. This only furthered the distaste that pious Muslims held for the position of qadi and reinforced their unwillingness to assume the position. Not only did the qadi frequently face constraint from political authorities, he was also limited in his ability to interpret and apply the law.
Finally, it must be recognized that the pious qadi, once he possessed authority, was generally quite anxious that he would act immorally and violate the will of Allah if he chose wrongly in a particular case. It was perceived that by accepting the position of qadi, the individual took on a dangerous responsibility, that of trying to determine what Allah would have wanted. In this sense, by making an error in judgment, the qadi was also going against the will of Allah. This created a stressful situation for the person who had the unfortunate responsibility of interpreting complex moral and legal codes with the knowledge that an error in interpretation or reason could lead to his eternal damnation.
Incredibly, the pressures to not err were so acute that on one occasion, an individual who refused appointment to the position of qadi declined even to nominate others for the post. He feared that the nominee would judge wrongly and then he would be complicit in that individual’s sin. It is difficult to understand such a system. A pious Muslim would dread nominating another to the position of judge; for fear that an incorrect judgment would render them both culpable for an error, albeit an accidental one. Implementing this type of legal code is strikingly cumbersome; influenced by a tremendously complex relationship between interpretations of the truth, pressures to live by the truth, and finally, the need to interpret previously elaborated notions of the same truth, but in a new light and for a new situation.
It is ironic that the individual’s very anxiety about doing what is right is what prevented the qadi from firmly establishing the institution of a pious judge, who determines what is right. Instead, the judge shirked his authority in order to not make incorrect judgments. In time, the qadi became dependent on asking scholars for advice and deferring to other courts for rulings in order to avoid culpability. Consequently, other branches of judicial administration appeared, one of which existed specifically to handle cases in which the qadi was in doubt. Effectively, the fear of making an error in judgment prevented the chosen leader from enforcing religious ideals in a practical manner.
Why did this society not develop the notion that an unintentional misinterpretation of the law does not result in condemnation? Instead, the religious and judicial leaders adopted the attitude that it is better to make no decision at all on what is right, rather than to make an incorrect one. It was based on this uncertainty that scholars created rigorous codes of law that were, themselves, often even more impractical to implement. In this case, it was the very lack of courage on the part of the qadi that weakened the system of justice, which is ironically the very purpose for which the institution of the qadi was developed. Coulson would argue that this is understandable, however, as the laws themselves were based on a religious and moral idealism that was unenforceable.
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