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Origins of Muhammadan Jurisprudence

Origins of Muhammadan Jurisprudence

ناشر

Oxford At The Clarendon Press

سال انتشار

۱۹۵۰ ه.ق

ژانرها

اصول فقه

SUNNA, 'PRACTICE' AND 'LIVING TRADITION' 69

is no disagreement amongst us, and one to which men's practice has always corresponded (Muw. iv. 55 f.)'. This shows the close connexion between the old idea of sunna, 'practice', and the common opinion of the recognized scholars, which together constitute the 'living tradition' of the school.

Shāfi'ī attacks this idea of 'living tradition' in Tr. III, 147: 'You claim that the judges give judgment only in accordance with the opinion of the scholars, and you claim that the scholars do not disagree. But it is not so. . . . Where is the practice? . . . We do not know what you mean by practice, and you do not know either, as far as we can see. We are forced to conclude that you call your own opinions practice and consensus, and speak of practice and consensus when you mean only your own opinions.'

The 'practice' of the school is not identical with the opinions ascribed to ancient authorities.1 Shāfi'ī says quite correctly to the Egyptian Medinese: 'You believe in taking knowledge from the lowest source' (Tr. III, 148, p. 246), and Rabi' and his Egyptian companions find the doctrine of their school laid down authoritatively in Mālik's Muwaṭṭa' (ibid., p. 248). They claim the essential unity of the 'living tradition' of the school, or as Shāfi'i puts it, they 'contend that knowledge is transmitted in Medina as if by inheritance, and that the authorities do not disagree on it' (Tr. III, 77). So Rabī', still speaking as a Medinese, can ask confidently: 'Can you show me a single case in Medina where an opinion held by the great majority (al-aghlab al-akthar) of the Successors and rejected only by a minority, has been abandoned by us for the opinion of one of their predecessors, contemporaries, or successors?' (Tr. III, 148, p. 246). The growth of 'unsuccessful opinions' ascribed to Companions, Successors, and later authorities, not to mention traditions from the Prophet, enables Shāfi'ī to take up this challenge, but he acknowledges the Medinese principle implicitly when he blames them for following 'the practice of the majority of those from whom opinions are related in Medina' rather than a tradition from the Prophet (ibid., p. 247).2

1 See above, p. 65,, and also Tr. III, 27, 77, 94, 143, &c.

2 The theory of the Medinese 'living tradition' is clearly stated by Ibn Qutaiba, 331 ff. and by Ibn 'Abdalbarr, quoted in Zurqānī, iv. 36, 1. 1.

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