286 SYSTEMATIZING AND ISLAMICIZING

legal thought. The Iraqi lawyer Sufyān Thaurī almost anticipated Shāfiʿī, but not quite; he retained a trace of the religious scruple and its Iraqi common‑sense solution.

Tr. IX, 25, and Ṭabarī, 64: As regards booty taken by a private raider, Auzāʿī endorses the practice by leaving to the imam, that is, the government, the final decision whether to confiscate it as unauthorized or to leave it to the raider after deducting one‑fifth. This deduction is based on the general ruling concerning booty in Koran viii. 41. Mālik and Sufyān Thaurī agree with Auzāʿī that the booty of the private raider is subject to the deduction of one‑fifth, but make it a hard‑and‑fast rule and exclude any other decision of the imām. The Iraqis (other than Sufyān Thaurī), interpreting Koran lix. 6 f. carefully, find that Koran viii. 41 does not apply to the booty of a private raider, and therefore do not subject it to the deduction of one‑fifth. Shāfiʿī takes the recent traditions on the history of the Prophet into account, and arrives at the same opinion as Mālik.

Tr. IX, 33, Tr. I, 201, and Ṭabarī, 46: The problem is whether a mustaʾmin, a non‑Muslim who enters Islamic territory under a safe‑conduct, is liable to ḥadd punishments for crimes committed in Islamic territory. Auzāʿī was influenced by the material consideration of whether the crimes, such as adultery, were committed in public or not, which made his opinion inconsistent. The Iraqis from Abū Ḥanīfa onwards showed a higher degree of technical legal reasoning, by raising the question of the competence of jurisdiction; Abū Ḥanīfa with Abū Yūsuf and his other followers answered the question in the negative, and Ibn Abī Lailā, who had formerly held the opposite opinion, joined them later. Shāfiʿī made explicit the systematic distinction between religious sanctions and civil rights (ḥudūd Allāh and ḥuqūq al‑ʿādamīyīn), a distinction which was incipient in Auzāʿī’s doctrine, and was certainly in the mind of Abū Ḥanīfa. He stands on narrower systematic ground than Abū Ḥanīfa and Abū Yūsuf, being concerned exclusively with the validity of the safe‑conduct and with what is covered by it, and not with the wider issue of jurisdiction. Shāfiʿī’s doctrine is therefore less technically legal than that of the Iraqis, but combines considerations of Islamic public policy with systematic consistency.