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Origins of Muhammadan Jurisprudence

Origins of Muhammadan Jurisprudence

प्रकाशक

Oxford At The Clarendon Press

प्रकाशन वर्ष

1950 अ.ह.

8. THE ANCIENT SCHOOLS OF LAW

[of Kufa] at the top. Perhaps all these adherents of different masters exaggerate.'1

Shafi'i insists on the fact that the reputation of all these authorities varies much, and that they hardly agree on a single point of law or a general principle. If Shafi'i denies here the existence of reasoned agreement even between the several prominent scholars in each centre, he does not, on the other hand, imply the existence of any clear-cut, fundamental differences in legal theory between the local schools; it was exactly their common reliance on 'living tradition' and their free exercise of personal opinion, in other words, their lack of strict rules such as were elaborated only by Shafi'i, that led to wide divergences in doctrine.

There was as yet no trace of the particular reputation of Medina as the 'true home of the sunna',2 a reputation incompatible with Shafi'i's terse statement: 'We follow this [tradition from the Prophet], and so do all scholars in all countries except Medina, and so do the great authorities',3 and with his sustained polemics against the Medinese.

The three great geographical divisions that appear in the ancient texts are Iraq, Hijaz, and Syria. Within Iraq, there is a further division into Kufians and Basrians. Although occasional references to the Basrians are not lacking,4 little is known about their doctrine in detail,5 and our knowledge of the ancient Iraqians is mainly confined to the Kufians. In Hijaz there are also two centres, Medina and Mecca,6 and again our infor-

1 Tr. IV, 257.
2 This reputation appears implicitly in the tradition in praise of the 'scholar of Medina' (first in Ibn Hanbal, see below, p. 174, s.v. Ibn 'Uyaina), and explicitly in Ibn Qutaiba, 332. The traditions in praise of Medina in Muw. iv. 59 f. and in Muw. Shaib. 376, are still silent on this particular claim. Tr. III, 148 (p. 242) is concerned with the Medinese 'living tradition' as opposed to traditions from the Prophet.
3 Tr. III, 41. In Tr. III, 34, he invokes the legal opinion of 'all people outside Medina, those from Mecca, the East and Yemen' against the Medinese doctrine.
4 See, e.g., Tr. I, 49 (see below, p. 219); Tr. III, 143, 148 (p. 243; a discussion with a Basrian); Tr. VIII, 11 (Shaibani does not belong to the Basrians); Tr. IX, 22; Ikh. 36, 62, 181, 264; Ris. 43 (and ed. Shakir, p. 305), 62 (ancient authorities of Basra); Ibn Sa'd, vii. 158, 1. 15. See also below, p. 229.
5 Already Shafi'i's Iraqian opponent in Ikh. 337 did not know the opinion of the muftis in Basra.
6 See, e.g., Tr. III, 15 (cf. Muw. iii. 183), 26 (cf. Zurqâni, i. 263: presumably a Meccan opinion and tradition), 34, 53, 87 ('Ata' and his companions); Ikh. 338 (the same); Ris. 62 (ancient authorities of Mecca); Umm, vi. 185 (cf. Tr. III, 57). See also below, pp. 249 ff.

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