1 See E Said Covering Islam -How the Media and the Experts Determine how we see the Rest ofthe World (London: Vintage, 1997) p 157.

2 N J Coulson ‘The State and the Individual in Islamic Law’ (1957) 6 ICLQ.

3 Coulson, N J A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964)Google Scholar.

4 Coulson, N J Conflicts and Tensions in Islamic Jurisprudence (Chicago and London: University of Chicago Press, 1969 Google Scholar).

5 Coulson's general views of the Islamic state are found in other well-known Orientalist literature: see H A R Gibb‘ Constitutional Organization’ in Khadduri, M and Liebesney, H (eds) Law in the Middle East (Washington DC: The Middle East Institute, 1955) p 12 Google Scholar; H Siegman’ The State and the Individual in Sunni Islam’ (1964) 54 The Muslim World at 23. Although Coulson's famous contemporary, Joseph Schacht, objected to his general comment that Islamic law does not provide the individual with any status, he did not disagree with his observations re the administration of criminal justice; see J Schacht’ Islamic Law in Contemporary States' (1959) 8 AJCL at 138 n 12. For a more modern Orientalist account, see: F Vogel ‘The Trial of Terrorists Under Classical Islamic Law’ (2002) 43 Haw ILJ 1 at 53–64.

6 After the fall of Baghdad in the thirteenth century (CE), it has been said that many Sunni jurists declined from exercising or advocating analogical reasoning (Ijtihad) for fear of persecution. This gave the impression to many that’ the door to ijtihad had been closed‘: S Mahmassani Falsafat al-Tashri’fi al-Islam The Philosophy of Jurisprudence in Islam (Malaysia: Pemerbitan Hizbi, 1987) p 93. It should be noted this alleged historical event does not comply with Islamic doctrine. Imam ⁁Ali, the fourth Caliph, is reported to have said: ‘The Earth will not be without the one who defends the religion with its evidence’ (La takhlu-l ardu min qa’imin lillahi bihujajihi). This saying of ⁁Ali has been transmitted without any defects in its chain of narrators: see Sheikh ⁁Abdullph al-Harariyy Al-Sharh al-Qawim fi Jal al-Fadz As-Sirat al-Mustaqim (Beirut: Dar-ul Mashari⁁a, 1999) p 416. Implicit within this statement is the notion that there will always be at least one scholar (Mujtahid Mullaq) who has reached the level to deduce religious judgments directly from the Qur'an and the Sunnah, and who will perform his Ijtihad. Moreover, Mujtahidun, such as Taqiyuddin as-Subki and several others, have appeared long after the alleged closure of the doors to Ijtihad. When he was in Egypt and during a time of oppressive government under the Mameluks, Jalaluddin As-Suyuti also openly declared the right to exercise Ijtihad (see his work Ar-radd⁁ala man akhlada ila al-ardi wa jahila-1 ijtihada fi kulli⁁asrin fard). In the more recent past, the Muhaddiths of Morocco – Ahmad al-Ghumariyy and his brother,’ Abdullah al-Ghumpriyy-both claimed to exercise ljtihad (I am grateful Sheikh Samir al-Qadi for this point).

7 The Sunnah comprises hadiths: the Prophet's sayings, judgments, agreements (explicit and implicit) and actions. Some of the Sunnah merely reiterates what is mentioned in the Qur'an, but some of it also explains in more detail certain subjects mentioned by the Qur'an in outline only. The Sunnah may also refer to matters about which the Qur'a is silent.

8 His full name is Abu ⁁Abdir-Rahman, ⁁Abdull& ibn Muhammad Ibn Yusuf, Ibn ⁁Abdull& Ibn Jami⁁. He was born in 1920 CE (1339 AH) in the Ethiopian town of Harar.

9 After travelling to Jerusalem in the 1940s, Sheikh ⁁Abdullah moved to Damascus, where he was welcomed by its people and rapidly acknowledged as the successor to Badr-ud Din al-Hasaniyy, the previous Muhaddith of Ash-Sham. The Sheikh moved to Beirut in 1950, where he has remained to this day.

10 Sunnite Islam is divided into two main theological schools: that of Abu Hasan al-Ash⁁ariyy, and of Abu Mansm al-Maturidiyy. Theological opinions which differ from the consensus of these two schools are not included within the grouping of Ahlus-Sunnah wa1 Jama⁁h (the People of the Sunnah and the Majority); see further: al-Baghdadi, Abu Mansur, ⁁Abd ul-Qahir, Ibn T-ahir, Ibn Muhammad, nd Kitab al-Farqu Bayn al-Firaq (English trans A S Halkin) Moslem Schisms and Sects (Tel Aviv: Palestine Publishing, 1935).

11 There are four main schools in Sunnite jurisprudence: the Hanafiyyah, Malikiyyah, Shaf⁁iyyah and Hanabilah. The Sunnis are the largest faction and the dominant influence in Muslim countries, with the exceptions of Iran (currently ruled by the Twelver faction of the Shi⁁ah), Yemen (dominated by the Shi⁁i Zaydiyyah) and ⁁Oman (where the ⁁Ibadiyah (Kharijites) retain control). For a recent account of evidential rules obtaining in the Zaydiyyah tradition, see: B Messick ‘Evidence: From Memory to Archive’ (2002) 9 Islamic Law and Society 2 at 231–270.

12 For the criteria of Ijtihad, see al-Ghazzali Al-Mustasfa min⁁Ilm al-Usul vol 2 (Cairo: Al-Maktabah al-Tijariyyyah, 1937) pp 101–103. These are mentioned by Hashim Kamali in his Principles of Islamic Jurisprudence (Petaling Jaya: Pelanduk, 1989) pp 474–476.

13 Since memorising the Qur'an at the age of seven, the Sheikh has acquired an encyclopaedic knowledge of Islamic texts through established chains of oral transmission (Isnad.) This has included Qur'anic exegeses and memorisation of the famous six books of Hadith of al-Bukhariyy, Muslim, at-Tirmidhiyy, Abu Dawud, Ibn Majah and an-Nasa'iyy, along with their chains of narrators and biographies. In addition, he has acquired detailed knowledge and understanding of the rules (Fiqh) expounded by the principal schools of Islamic law (see above) and their science of reasoning (Usul). He is also an expert in Arabic grammar (Nahw).

14 See P Springborg ‘The Contractual State: Reflections on Orientalism and Despotism’ (1987) VIII History of Political Thought 3 at 395, Winter. For a detailed discussion on the values underpinning Orientalist discourse, see E Said Orientalism (London: Penguin, 1995); Said, n 1 above; J Strawson ‘Orientalism and legal education in the Middle East: reading Frederic Goadby's Introduction to the Study of Law’ (2001) 21 LS 4 at 667.

15 See Coulson, n 3 above, pp 120–121; J Schacht An Introduction to Islamic Law (Oxford: Oxford University Press, 1964) p 112.

16 See Coulson, n 4 above, pp 64–66. In this regard, see also Lippman, M, McConville, S and Yerushalami, M Islamic Criminal Law and Procedure (London and New York: Praeger, 1998) pp 60–68 Google Scholar.

17 Coulson, n 2 above, at 52.

18 Coulson, n 4 above, p 67.

19 Coulson, n 4 above, p 67. Vogel expresses the same view. He comments: ‘The law limits admissible evidence to testimony or confession when it is applied in a shari'a (ie. religious law) court by a religious scholar, but provides for other rules of evidence and procedure when it is applied by a military official charged with the suppression of crime, who in this respect represents the age-old Islamic criminal court called the shurta. Such a fact-finder has means of investigation and proof that are much more lenient, and allow him to consider evidence not meeting the ideal shari'a court standards, including the testimony of women and non-Muslims and various forms of circumstantial and real evidence’ (n 5 above, p 57). In addition to Ibn Farhun, he cites the works of al-Mnwardi, Ibn Qayyim and al-Tarabulusi as evidence.

20 This much is not contradicted by Schacht (or by any other Western writers commenting directly upon the materials): see n 5 above, at 138 n 12.

21 This is not limited to the type of case nor type of accused; see Coulsen, n 3 above, p 128.

22 Coulson, n 2 above, at 52.

23 Coulson, n 2 above, at 52.

24 Coulson, n 2 above, at 52.

25 See Coulson, n 2 above, at 51.

26 Coulson, n 2 above, at 59.

27 Coulson, n 2 above, at 59.

28 See Springborg, n 14 above, at 423ff. In her later work, Western Republicanism and the Oriental Prince (Cambridge: Polity Press, 1992) Springborg mentions that an Islamic constitutional and administrative law was manifested in the legal handbooks and compendiums, such as Ibn Khaldun's Muqqadimah (Cairo: Al-Bahiyyat-al-Misriyyah, nd) pp 270–275.

29 According to Schacht (see n 15 above, p 197), while torture was contrary to the letter of Shari'ah, the prohibition was only in theory. As criminality became more rife, Shari'ah courts ceded power and jurisdiction to the secular authorities as a matter of practical necessity. He believed Islamic scholars condoned this for the greater good and that torture became so prevalent it was a ‘fixed institution’: seen 15 above, p 561.

30 See P Legrand’ Comparative Legal Studies and Commitment to Theory’ (1995) 58 MLR 266; J Hodgson’ Comparing Legal Cultures' in Nelken, D (ed) Contrasting Criminal Justice – Getting from here to there (Aldershot: Ashgate Dartmouth, 2000) p 150 Google Scholar. On chauvinistic constructions of the civil law tradition, see: B J Shapiro Beyond Reasonable Doubt and Probable Cause – Historical Perspectives on the Anglo-American Law of Evidence (Oxford: University of California Press, 1991).

31 Even the notion of a ‘civil law tradition’ has been criticised as an attempt to give meaning to the ‘common law,’ see Hodgson, n 30 above.

32 See Said, n 1 above, p 136.

33 The Hanafiyy, Shafi⁁iyy, Malikiyy and Hanbaliyy. On the differences between schools, see: H Kamali Principles of Islamic Jurisprudence (Petaling Jaya, Malaysia: Pelanduk Publications, 1989) p 491. Vogel also recognises manifest differences can exist: n 5 above, at 55. He also presents more evidence from the different schools re the flexibility provided to the ruler to determine judgment. But he makes no comment on the use of torture or coercion.

34 Coulsen, n 2 above, p 49.

35 The process of Ijtihad and the need for an Islamic ruler to best judge how he is to enforce Islamic rules and precepts militates against rigid forms and inflexibility; see Introduction above.

36 This is reported by al-Bayhaqiyy in his Sunan vol 8 (Beirut: Darmal-Fkr, nd) p 177 Google Scholar. The meaning of the hadith is confirmed also in the Sahih of Muslim: ‘If people were given on the basis of their claims, they would claim the blood and property of others; but the oath is on the defendant’ (vol 5, p 128 Google Scholar). See also art 77 of the Ottoman Civil Code, the Mejelle (English trans C R Tyser (Lahore: Law Publishing Company, 1980), which is to similar effect.

37 This would be contrary to the meaning of the Qur'an, Surah Yunus, ay 36: ‘conjecture can by no means take the place of truth.’ It would also contradict the understanding of the Companions, for ⁁A'ishah, the Prophet's wife, is reported to have said: ‘If the Imam makes a mistake in granting forgiveness, it is better for him than that he should commit a mistake in imposing punishment’ (cited in Abu Yusuf Kitab ul Kharaj (Cairo: Matba⁁ah al-Salafiyyah, 1346 AH) p 183). It is an accepted principle of Islamic jurisprudence that doubt (shakk) is never enough to displace a certainty; see S Mahmassani, n 6 above, p 169, citing Jalaluddin Al-Suyuti-Al-Ashbah wa al-Nadza'ir (Cairo, 1936) p 106 and Ibn Nujaym, Zayn al-⁁Abidin ibn Ibrahim Al-Ashbgh wa al-Nadza'ir (Cairo, 1322 AH) pp 22 and 29.

38 This is the plural of ‘Hadd’ which means linguistically a limit or boundary (see Rohi Baalbaki Al-Mawrid (Beirut: Dar al-⁁Ilm li-l Malayin, 9th edn, 1997) p 455). Legally, it refers to those punishments prescribed in either the Qur'an or the Sunnah which cannot be annulled or pardoned. In practical terms, it refers to the offences of adultery/fornication (zina), unlawful accusation of the latter (qadhf), wine-drinking (shurbu-l khamr), theft (sariqah), waylaying (qutta'u tariq or hirabah), apostasy (riddah) and deliberately omitting to pray the obligatory prayers. For further details, see: Muhammad ash-Sharbini al-Khatib Al-Iqna vol 2 (Beirut: Dar al-Fikr, nd) pp 220–250 Google Scholar; al-Mawardi, Abu-l Hasan ibn ⁁Ali ibn Muhammad Al-Ahkam sl-Sultaniyyah (Beirut: Dar al-Fikr, nd) pp 219–231. The latter has been translated by Asadullah Yate as The Laws of Islamic Governance (London: Ta-Ha, 1996); see pp 312–325.

39 This refers to all cases of intentional killing and intentional injury where the victim, or his heirs, are given the right to respond in kind, or to ask for a Diyyat (a specific payment representing compensation for the degree of harm caused); see further, al-Mawardi, n 38 above, pp 325–326. In addition to crimes of Hadd and Qisas, there are Ta⁁zir offences which may cover all other prohibited activity (see al-Mawardi, n 38 above, pp 236–239; Asadullah Yate, n 38 above, pp 332–334).

40 Yusuf, n 31 above, p 209.

41 Yusuf, n 37 above, p 190.

42 A voluntary confession is an irrevocable source of evidence and can never be legitimately removed by positive legislation because of its clear Qur'anic authority; see Surah a-I-Nisa’, ay 135. The Shafi⁁iyy scholar, ar-Ramli, confirms this verse as a proof; see Nihayat al-Muhtaj vol 5 (Cairo: Matba⁁at Mustafa Al-Babi 1967) p 165. See also Surah al-Baqarah, ay 282, Surah al-Qiyamah, at 14–15. The evidential validity of confessions is supported by juristic consensus; see Ibn Qudamah Al-Mughni vol 5 (Beirut: Dar ul-Kitab ul-⁁Arabiyy, 1983) p 27 1. It is also the strongest proof to establish a charge; see Mahmassani, n 6 above, p 173; Al-Suyuti Al-Ashbah wa al-Nadza'ir (Beirut: Dar ul-Kutub ⁁Ilmiyyah, 1983) p 53; Sheikh Ibrahim ibn Muhammad ibn Salim ibn Duyan Manar al-Sabil (Crime and Punishment Under Hanbali Law trans George M Baroody) (London: Regency, 1979) p 113. This remains the case whether with or without corroborative evidence; see Abu Yusuf, n 37 above, p 183.

43 Although there are some differences among the schools, a witness is deemed to be trustworthy if he avoids major sins, avoids committing small sins persistently andcomplies with the customs of the people to whom he belongs: see Al-Nawawi Minhaj at-Talibin (Cairo: Matba⁁ah ⁁Abd al-Hamid Ahmad Hanafi, 1956) p 141. According to the Shafi⁁iyy jurists, if the court is satisfied as to the trustworthiness of the witness, there is no need to investigate further; see Al-Suyuti, n 42 above, p 208. Where, however, doubts are cast as to his reliability, further inquiries would be made by court officers (the mudhakkis); see Al-Nawawi, above, pp 170–174.

44 The evidence must be clear and explicit. Al-Bayhaqi reports in Sunnah al-Kubra that the Prophet said (in meaning): ‘If you see a thing like the sun, give evidence on that and not otherwise’ (vol 8, p 132).

45 This was stated by Sheikh ⁁Abdullah al-Harariyy in response to a question by Ashraf Malhas, in the presence of Sheikh Samir al-Qadi and Sheikh Mahmud Mushrif, February 2003, Beirut, Lebanon. A report is regarded as Mutawatir if the number of reporters is so large, and they acquired their knowledge in such a way, that it would preclude the possibility of lying or error: see Sheikh ⁁Abdullah Muhammad, known as al-Hattab al-R⁁ainiyy al-Malikiyy Qurrat al-⁁Ain bi-Sharh Waraqat Imam al-Haramayn (Beirut: Dar al-Mashaari⁁, 1st edn, 2001) p 73. This is his explanation of al-Juwayniyy's text, al-Waraqat. See also Jalaluddin As-Siyuti's Tudrib ar-Rawi. The same statements can be found in Kamali, n 12 above, pp 87–88.

46 See Qudamah, Ibn, n 42 above, vol 9, p 54; Al-Sharbini Mughni al-Muhtaj vol 4 (Cairo: Matbah Mustafa Al-Babi al-Halabi, 1958) p 398Google Scholar.

47 See Ibn Qud-amah, n 42 above, vol 9, p 176. See also Mahmassani, n 6 above, p 197. The majority of scholars reject circumstantial evidence as a primary source of evidence other than in cases of Ta⁁zir because they regard it as more speculative. They refer to the meaning of a hadith of the Prophet narrated through ⁁Abdullah ibn ⁁Abbas, and reported by Ibn Majah: ‘Were I to stone anyone without evidence, I would stone so-and-so, because of her speech, appearance and the cohabitation of others in her house, as they raise suspicion’; see Ahmad ⁁Abd al-Muniem al-Bahai Min Turuk al-Ithbat Fi al-Shariah Wa Fi -al Qanan (Cairo: Dar al-Fikr al-⁁Arabi, 1965) p 80.

48 See Al-Qurtubi” Abdullah Muhammad Ibn Ahmad al-Ansari Al-Jami⁁u li Ahkami-l Qur'an vol 16 (Cairo: Dar al-Katib al-⁁Arabi, 1967) pp 331–332. The English translation is taken from Yusuf Tala1 Delorenzo in Taha J Al-⁁Alwani's work, ‘The Rights of the Accused in Islam (Part One)’, above, pp 362–363.

49 The Prophet is reported to have said (in meaning): ‘Do not seek to uncover their secrets, for certainly he who seeks to uncover the secrets of his fellow Muslim, Allah will expose what he has kept hidden.’ This is narrated in Al-Musnad of Ahmad, Al-Jami⁁ of At-Tirmidhiyy and Al-Sunan of Abu Dawud. Sheikh ⁁Abdullah al-Harariyy said: ‘If he is not known to be a bad person or if he is pious, he cannot be questioned because we presume the Muslim is virtuous’, interview, July 1998, Beirut. If a police officer questioned such an accused without legal authority and harmed him, the police officer could be punished by the authorities; Sheikh ⁁Abdullah al-Harariyy, interview, March 2000, London. However, according to Sheikh ⁁Abdullah, such improper questioning would not invalidate a subsequent confession. Questioning is not included within the categories of duress which, in most circumstances, would absolve an accused from criminal liability (see above). Moreover, it is rationally assumed that ordinary individuals would not be coerced into making a false confession simply by questioning. If, however, the accused was a minor (ie pre-pubescent) or de facto insane, any subsequent confession would be excluded; see Qudamah, Ibn, n 42 above, vol 5, p 271 Google Scholar.

50 Abu Yusuf, n 37 above, p 209.

51 Surah an-Nahl, v 106.

52 See Qudamah, , n 42 above, ‘Al-Mughni’, vol 5, p273 Google Scholar; Al-Shiraz, Abu Ishaq Al-Muhadhdhab vol 2 (Cairo: Matba't ⁁Isa al-Babi al-Halabi, 1924) 343 Google Scholar. Sheikh ⁁Abdullah al-Harariyy confirmed that this hadith is a proof to exclude confessions obtained by duress.

53 Taha J Al-⁁Alwani ‘The Rights of the Accused in Islam (Part Two)’ (1994) 11 The American Journal of Islamic Social Sciences 4 at 514.

54 Sayed Iskander Shah Haneef Islamic Law of Evidence (Petaling Jaya, Malaysia: Pelanduk Publications, 1994) p 39.

55 Muhammad ⁁Ata Al-Sid Sid Ahmad The Hudud (Kuala Lumpur, Malaysia: Muhammad ⁁Ata Al-Sid Sid Ahmad, 1995) p 160.

56 It was not permissible to detain for questioning. This contrasts with the position in English law post 1983: see Holgate-Mohammad v Duke [1983] 3 WLR 598 and the Police and Criminal Evidence Act 1984.

57 Imam Malik Al-Muwatta, narration of Yahya ibn Yahya al-Laythi al-Qayrawan (English trans) (Norwich: Diwan Press, Kitab al-Ahkam, 1982) pp 337–338.

58 Sayed Iskander Shah Haneef, n 54 above, p 39; see also al-Zurqani Shark al-Muwatta, cited by Taha J al-⁁Alwani, n 53 above, at 514. Rationally, the doubt surrounding the truthfulness of the confession has not dissipated simply by finding the goods where he said them to be. If there is doubt in the trustworthiness of the police officers, it is possible the evidence would be planted. Where, however, the police officers are trustworthy (for the requirements of trustworthiness, see above), the evidence could support the validity of the confession; per Sheikh ⁁Abdullah, interview, March 2000. The opinion of Ibn al-Qayyim al-Jawziyyah (see At-Turuk al-Hukmiyyah fi Siyasati Shar⁁iyyah (Cairo: Matba⁁ah al-Madani, 1961) p 104, reprinted in Taha J Al-⁁Alwani, n 53 above, at 513), therefore, should not be accepted without qualification.

59 This is a categorisation one commonly finds in the Fiqh literature. Offences categorised as pure ‘Rights of Allah’ (Huquq Allah) tend to be ‘victimless’ and refer to the crimes of adultery/fornication, wine-drinking, and failures to perform religious obligations such as prayer and fasting. ‘Rights of Persons’ (Huquq al-Nas or Huquq al-Adami) relate to crimes such as Qisas and Qadhf (unlawfu1 imputation of adultery) in which the right of punishment is vested in the victim or his or her heirs. Some crimes, such as theft (of items with a value above a minimum threshold and taken from a secure place) and brigandage/ waylaying (Hirabah), are deemed to be ‘mixed’ in that their punishments are fixed and form the ‘Rights of Allah’, but the nature of the offences are such that they also involve the ‘Rights of Persons.’

60 Sayed Iskander Shah Haneef, n 54 above, p 40.

61 Al-Mustasfa minilm al-Usul vol 1 (Cairo: Matba't Mustafa Muhammad, 1937) pp 139–144 Google Scholar, cited in Masmassani, n 6 above, p 89. According to Sheikh ⁁Abdullah al-Harariyy, a forced confession is always inadmissible even if supported by circumstantial evidence, unless the judge has personal knowledge of the issue and was certain as to its truth: meeting, July 1998, Beirut.

62 Al-Sarakhsi, Imam Al-MabsM vol 9 (Beirut: Da al-Ma⁁nfa1, 1980–86) pp 184–185Google Scholar.

63 Abu Yusuf Kitab ul-Kharaj (Cairo: Matba⁁ah al-Salafiyyah, 1927) p 209. The English translation is taken from Dr Abid Ahmad ⁁Ali, revised by ⁁Abdul Hameed Siddiqui Kitab ul-Kharaj (Lahore: Islamic Book Centre, 1979) p 355.

64 Yusuf, n 63 above, p 209; Ahmad ⁁Ali, n 63 above, pp 355–356.

65 Yusuf, n 63 above; Ahmad ⁁Ali, n 63 above, p 356.

66 Yusuf, n 63 above; Ahmad ⁁Ali, n 63 above, p 355.

67 (Beirut: Dar ul-Kitab ul-⁁Arabiyy, 1983, reprint).

68 See Abu, Shamsuddin Abdur-Rahman, Farj Al-Sharh, Kabir, Al. (Beirut: Dar al-Kitab al-⁁Arabi, 1983) Printed in the footnotes of Al-Mughni (vol 5) p357 Google Scholar. This is the explanation of Ibn Qudamah's al-Mughni. See also Sheikh Ibrahim ibn Muhammad ibn Salim ibn Duyan Manar al-Sabil (Crime and Punishment under Hanbali Law trans G Baroody (******: *****, ****) p 114; Sayed Iskander Shah Haneef, n 54 above, p 40.

69 Al-Ahkam as-Sultaniyyah, n ** above, p 220; Asadullah Yate, n 38 above, p 310.

70 Al-Mawardi requires the Amir to be actively involved in the investigations and to check the statements of his assistants regarding the circumstances of the accused. Coercion could be applied only if the Amir was satisfied with their statements about the accused committing similar acts in the past and if they confirmed that he had a suspicious character or was widely known to be a ‘scoundrel’ (see the earlier comments re known criminality through Mutuwatir reports). In addition, there would need to be strong circumstantial evidence directly linking the accused to the crime. In cases of murder or violent assault, this would require signs of blows on his body, or discovery of a sharp instrument on his person at the time of the offence; see: Al-Ahkam as-Sultaniyyah, n 38 above, pp 219–220; Asadullah Yate, n 38 above.

71 ‘Dislike’ (karaha) is one of the five ontological modalities applicable in Islamic law (see the works of Bernard S Jackson for comparable categorisations in Judaic law). The prohibited (al-haram), the obligatory (al-wajib), the permissible (al-mubah) and the recommended (al-mandub or al-sunnah) comprise the remaining four. If a person commits or omits something which is disliked, he is not sinful (within the school of ash-Shafi⁁iyy). If, however, he avoids the disliked for the sake of God only, his abstinence is rewardable in the hereafter. See” Abdullah Muhammad, better known as al-Hattab ar-Ra⁁iniyy al-Malikiyy (d 954 AH) Qurrat al- ⁁Ayn bi-sharh Waraqat Imam al-Haramayn (Beirut: Darul-Mashar⁁a, 2001) pp 21–22 (the original text was written by the ShafiAiyy scholar and ‘Imam of the Haramayn’, al-Juwayniyy); Kamali, n 12 above, pp 419–420. This is significant in a system where officials are meant to be appointed according to religious criteria and whose aspirations relate to the Hereafter rather than to temporal gain. For the criteria of appointment, see: al-Mawardi, n 38 above, pp 6, 22, 33–34, 76, 240–241; Asadullah Yate, n 38 above, pp 12, 37, 54–56, 100 and 338.

72 On confirmation of this position in the Shafi⁁iyy school, see further: Al-Ramli Nihayat al-Muhtaj vol 5 (Cairo: Mustafa al-Babi al-Halabi, 1967) p 71 and the explanations of Al-Shabramallisiyy and Al-Rashidiyy which are printed in the footnotes. Some of the later Hanafis also admitted the validity of a confession obtained by duress if the accused was ‘ma⁁rufun bi-ha’ (well-known for it): see Muhammad Amin Ibn” Abidin Radd ul-Muhtar, ⁁ala ad-Durr-ul Mukhtar: Sharh Tanweer al-Absar, vol 6 (Beirut: Dar al-Fikr, 2nd edn, 1966, 1979 (reprint) Kitab al-Ikrah) pp 128–129 and 140. It has already been noted that if the ruler was certain of the defendant's guilt because of mutawatir reports, the defendant could be punished anyway, even if he did not confess. In terms of law enforcement, therefore, there would be little point in forcing the accused to confess, apart from in cases of theft where the confession would be useful in order to recover the victim's property. This case is expressly mentioned by some of the Malikiyy scholars; see Mahmassani, n 6 above, p 89 (citing Al-Shatibi) and Awad M A wad ‘The Rights of the Accused Under Islamic Criminal Procedure’ in Cherif Bassiouni The Islamic Criminal Justice System (London and New York: Oceana, 1982) p 106. If, however, the accused was a Muslim who believed in the Day of Judgment, forcing him to acknowledge the truth would be a means to facilitate his repentance and to avoid punishment in the hereafter. The association of confessions with repentance is seen in the case of Ma⁁iz who, regretting his act of adultery, asked to be stoned to death for his sin. In Muslim's report of this hadith (see Al-Suhih Kitab al-Hudud, Hadith no 1695; see also Al-Mawardi Al-Hawi al-Kabir (Beirut: Dar al-Fikr, 1994) p 38), Ma⁁iz asked the Prophet (in meaning): ‘O Messenger of Allah, purify me!’ The Prophet replied (in meaning): ‘From what do you wish to be purified?’ Ma⁁iz responded: ‘From adultery’ (emphases added). Purification here relates to cleansing from sin, not to law enforcement. I suggest, therefore, one should be careful not to ignore the religious contexts when reading al-Mawardi and others.

73 Surah al-Nisa’, v 29.

74 Surah al-Nisa’, v 29.

75 See Ghunaymi al-Maydani Sharh al ⁁Aqidah al-Tahawiyyah and ⁁Abd ul-Ghani ibn Abu Talib (Beirut: Dar al-Fikr, 2nd edn, 1982). See, in particular, para 68 of the original text, written by Abu Ja⁁far at-Tahawiyy.

76 Schacht, n 5 above, at 134. Nevertheless, Schacht agrees with Coulson that, in practice, the doctrine allowed rulers to legislate as they saw fit, especially in criminal matters. See ‘The Law’ in G Grunebaum (ed) Unity and Variety in Muslim Civilization (Chicago: University of Chicago Press, 1955) p 55; see also ‘Islamic Law in contemporary states’, p 138 n 12.

77 Schacht, n 5 above.

78 Ibn Khaldun wrote: ‘In the kingdoms that succeeded the rule of the caliphs, the functions of the caliphate became the prerogative of this kind of urban weakling. They were no longer exercised by people of prestige, but by persons whose qualifications were limited, both by their descent and by the habits of sedentary culture to which they had become accustomed. They were despised as sedentary people are, who live submerged in luxury and tranquillity, who have no connection with the group feeling of the ruler, and who depended on being protected by others’: Al-Muqaddimah (Cairo: Al-Matba⁁h al-Bahiyyah al-Misriyyah, nd) p 194. The translation is provided by F Rosenthal's The Muqaddimah – An Introduction to History vol 1 (London and Henley: Routledge and Keegan Paul, 2nd edn, 1967) p 458.

79 Orientalists have often provided intellectual support for the export of Western ideas; see Said, n 1 above, p 143.

80 Abu Yusuf's text, Kitab al-Kharaj, n 63 above, mentions the letter sent by ⁁Umar ibn ⁁Abd ul-⁁Aziz, one of the ‘rightly-guided’ caliphs and the first Mujaddid (Renewer), in which the latter warned: ‘By Allah, it is better that they should face (the judgment of) Allah for their offences than I should have to account to Allah for torturing them’: p 119.

81 The decision by US authorities to try the detainees held at Guantanamo Bay by secret military tribunals, the suggestion that’ torture warrants' be introduced to facilitate interrogation of terrorist suspects in the US (see Dershowitz, A M Why terrorism works: understanding the threat, responding to the challenge (New Haven, Conn: Yale University Press, 2002 Google Scholar) and the draconian anti-terrorism measures introduced in the UK by the Anti-terrorism, Crime and Security Act 2001, Pt IV, provide recent examples from both sides of the Atlantic. Although it might be argued these extreme measures are exceptional, most criminologists maintain that due process has never been central to the operation of the Anglo-American criminal process: see Packer, H The Limits of the Criminal Sanction (Stanford, Cal: Stanford University Press, 1967 Google Scholar); Bottoms, A and McLean, J (1976) Defendants in the Criminal Process (London: Routledge and Keegan Paul, 1976 Google Scholar); McBarnett, D Conviction (London: Macmillan, 1981 CrossRefGoogle Scholar); McConville, M et al The Case for the Prosecution (London: Routledge, 1991 Google Scholar); Sanders, A and Young, R Criminal Justice (London: Buttenvorths, 1994 Google Scholar); Choongh, S Policing as Social Discipline (Oxford: Clarendon Press, 1997 Google Scholar); S A Farrar ‘Myths and Legends: An Examination of the Historical Role of the Accused in Traditional Legal Scholarship; a Look at the 19th Century’ (2001) 21 OJLS 2 at 331–353.