Origins of Muhammadan Jurisprudence

  SUNNA, 'PRACTICE' AND 'LIVING TRADITION' 79

most stubbornly opposed to the [hypothetical] people of Medina, and you could not deny it. You are much more in the wrong than others because you claim to continue their doctrine and to follow them, and then differ from them more than those who do not make this claim.'¹

As the recognized doctrine of the Medinese school had, by Shāfi'ī's time, acquired a considerable body of loci probantes in traditions from the Prophet, his Companions, and later authorities, Shāfi'ī was able to charge them with inconsistency in maintaining their 'living tradition' in the face of other traditions of the same kind. This argument of his merges with his criticism of the attitude of the ancient schools to traditions:² 'Mālik sometimes rejects a tradition from the Prophet in favour of the doctrine of a Companion, and then he rejects the Companion's doctrine in favour of his own opinion (ra'y); that is to say, everything is at his discretion (fal-'amal idhan ilaih)³ and he can act as he likes. But to do this is not proper for people of our generation (wa-laisa dhālik li-aḥad min ahl dahrinā).' This implies that Shāfi'ī's theory is something new.⁴

The earlier writings of Shāfi'ī contain a few traces of the old concept of sunna. The following passage deserves to be quoted: 'Ibn Musaiyib states that the weregeld for three fingers of a woman is 30 camels and for four fingers 20, and in answer to the objection of inconsistency he replies that it is the sunna; further a tradition to the same effect is related from Zaid b. Thābit. One cannot therefore declare this doctrine erroneous from the systematic point of view (min jihat al-ra'y), because this objection can be made only to an opinion which is itself based on systematic reasoning, where one reasoning could be considered sounder than another. But here the only possible objection would be a traditional one (ittiba'an), based on something from which one may not diverge; and as Ibn Musaiyib said that it is the sunna, it is probable that it comes from the Prophet or from the majority of his Companions. Moreover Zaid [b. Thabit] is not likely to have based his doctrine on systematic reasoning, because it can have no such basis. Should someone quote against this the tradition from 'Alī to the contrary, the answer is that this is well authenticated neither from 'Alī nor from 'Umar; even if it were,