Origines de la jurisprudence musulmane
Origins of Muhammadan Jurisprudence
Maison d'édition
Oxford At The Clarendon Press
Année de publication
1950 AH
Genres
114 ANALOGY, SYSTEMATIC REASONING,
— ʿUmar fixed the compensation for a molar at one camel,1 Muʿāwiya at five camels;2 Ibn Musaiyib would personally have preferred to fix it at two camels, and remarks that every mujtahid is rewarded. This harmonizing but unsuccessful opinion, which presupposes the two other doctrines, can hardly go back to Ibn Musaiyib. The remark on the reward of the mujtahid expresses opposition to the doctrine of the school and, though earlier, is hardly much earlier than the tradition from the Prophet on this matter, a tradition which we can date in the generation before Mālik.3 The common ancient doctrine which fixed the compensation at five camels can safely be dated in Umayyad times, and the mention of Muʿāwiya as the authority for it points in the same direction; it was possibly, but not necessarily, an administrative regulation.4 It was given a higher authority in a tradition in which Marwān b. Ḥakam (whose name is another hall-mark of traditions connected with Umayyad doctrines) consults Ibn ʿAbbās, who replies: five camels, and on another aspect of the problem draws an analogy with the fingers;5 and in the still later traditions from the Prophet to the same effect, either through Ibn ʿAbbās or with a new isnād through ʿAmr b. Shuʿaib—his father—his grandfather.6 The common ancient doctrine was also projected back to individual early Iraqian authorities: Shaʿbī, Ibrāhīm Nakhaʿī, Ibrāhīm—Shuraiḥ.7
But even if ascriptions of raʾy to Medinese authorities of the first century are not as a rule authentic, they show its importance in the doctrine of the Medinese school.8
As regards the generation before Mālik, it does not seem likely that Rabīʿa b. Abī ʿAbdalraḥmān, who later received the nickname Rabīʿat al-Raʾy, showed an inclination to raʾy stronger than his contemporaries. Indeed, this would have been difficult for him in view of the role which raʾy played even in Mālik's doctrine; his nickname
¹ This is the opinion of 'some other Medinese' in Tr. VIII, 10.
² This is the opinion of 'some Medinese', including Mālik, ibid. It is shared by the Iraqians, Muw. Shaib. 290.
³ See above, p. 96. Raʾy and its reward are mentioned together in an anecdote on ʿUmar b. ʿAbdalʿazīz and the lawyers of Medina: Ṭabarī, Annales, ii. 1183 (year 87). This anecdote is later than ʿUmar b. ʿAbdalʿazīz, and therefore later than Ibn Musaiyib.
⁴ See below, p. 208.
⁵ Muw. iv. 40; Muw. Shaib. 290; Tr. VIII, 10. On another tradition in which Ibn ʿAbbās expresses his raʾy, see above, p. 108, n. 4.
⁶ Traced by Comm. Muw. Shaib. 290, to some of the classical and other collections.
⁷ Āthār Shaib. 83, 95; Tr. VIII, 10.
⁸ The old Meccan authority Mujāhid, a 'rationalist' in the interpretation of the Koran, was reported also in law to have accorded to raʾy a very high position (Goldziher, Richtungen, 110).
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