CHAPTER 4

TRADITIONS IN THE ANCIENT

SCHOOLS OF LAW

THE attitude of the Iraqians and of the Medinese to legal traditions is essentially the same, and differs fundamentally from that of Shafi'i. Ikh. 30 ff. shows that both the Iraqians and the Medinese neglect traditions from the Prophet in favour of systematic conclusions from general rules, or of opinions of the Companions; Shafi'i argues first (pp. 30 ff.) against the Medinese from the point of view of the Iraqians, and then (pp. 34 ff.) in turn against these; he says: 'these same arguments apply to you when you follow the same method with regard to other traditions from the Prophet'; he states that both groups of opponents use the same arguments, and that his own arguments against both are the same, and he uses each party in order to refute the other. There are several other passages to the same effect.

Shafi'i finds their attitude a mass of inconsistencies: 'You diverge from what you yourselves relate from Ibn 'Umar, and from what others relate from the Prophet, without following the opinion of any Companion or Successor from whom you might transmit it, as far as I know. I do not know why you transmit traditions: if you transmit them in order to show that you know them and diverge from them in full knowledge, you have achieved your purpose and shown that you diverge from the doctrine of our forebears; if you transmit them in order to follow them, you are mistaken when you neglect them, and you neglect much of the little that you transmit; but if the proof, in your opinion, does not lie in traditions, why do you go to the trouble of transmitting them at all, using that part of them with which you agree as an argument against those who disagree?' (Tr. III, 146).

Even if this and other passages were not part of Shafi'i's polemics, it would be obvious from the sources other than his writings, that they give no complete picture of the attitude of the ancient schools of law to tradition,¹ and we shall investigate