AND PERSONAL OPINION 101

reference to a tradition from 'Umar (p. 319) is certainly spurious, because this tradition expresses a secondary and 'unsuccessful' Medinese doctrine (Muw. iii. 86; Muw. Shaib. 271; Mud. v. 87; Tr. III, 56). The same applies, for similar reasons, to Ibn Musaiyib's protest to Ibn Ḥujaira against an Egyptian practice relating to the contract of sale (p. 316), and to Ibn Ḥujaira's alleged decision on the obligatory gift from husband to wife in the case of divorce (p. 317), the model for which occurs on p. 309.

Pp. 334 ff, A.H. 99: the Caliph 'Umar b. 'Abdal'azīz left it to a judge to decide at his own discretion (ra'y) a question of injury on which no precedent was known to the Cāliph (lam yablughnī fī hādhā shai'). When the same judge submitted a question of pre-emption to the Caliph, 'Umar b. 'Abdal'azīz referred in general terms to 'what he had heard' (kunnā nasma' ). This expression does not imply the existence of a tradition, but is regularly used in ancient terminology of opinions that commend themselves.¹ In answering two other problems submitted by the same judge, the Caliph did not refer to traditions but gave his own independent decisions.²

P. 344, on Tauba b. Nimr, judge A.H. 115-20: he imposed an obligatory gift from husband to wife in every case of divorce, but did not insist in the face of persistent refusal; this shows that this doctrine, based on a sweeping interpretation of Koran iv. 236, 241, was an innovation.

P. 350, on Khair b. Nu'aim, judge A.H. 120-7: he gave the same decision as Tauba, and the context implies beyond doubt that it was the result of his own discretion. Kindī's authority states that no other judge gave this decision, which seems to contradict the former statement. The same doctrine was reported from Khair's Medinese contemporary Zuhrī and projected back to Qāsim b. Muhammad, one generation earlier (Muw. iii. 55). But it did not prevail in the Medinese school, which imposed the obligatory gift only when the divorce originated from the husband and not from the wife (Tr. III, 141). Another unsuccessful Medinese opinion, which is based on a