68 SUNNA, 'PRACTICE' AND 'LIVING TRADITION'

Shaibāni relates in Tr. VIII, 21: 'Mālik declared once: "We did not apply the lex talionis to [broken] fingers, until 'Abdal'azīz b. Muṭṭalib, a judge,¹ applied it; since then, we have applied it." But the opinion of the Medinese does not become right because an official ('āmil) has acted thus in their country.' This shows the relatively recent origin of parts of the Medinese 'practice' and doctrine.²

But the 'practice' of the Medinese does not simply reflect the actual custom, it contains a theoretical or ideal element.

In Mud. i. 65, Mālik opposes the 'practice' to a tradition from Abū Bakr (Muw. i. 149). But he thinks of the practice as it ought to be, and therefore says: 'The practice, in my opinion, is . . . . ' In Mud. iii. 12, Mālik says: "This is how it is' (huwa l-sha'n). But the picture he gives is not one of the actual custom. It is, rather, an ideal, fictitious picture of the practice at the beginning of Islam, as is shown by Tr. IX, 1.³ In Muw. iii. 39, Mālik states: "This is our practice.' But it was not yet so in the time of Zuhrī, shortly before Mālik. So Mālik's recurrent expression al-amr 'indanā, literally 'the practice with us', may mean here and in other places only 'the [right] practice in our opinion', although Zurqānī as a rule carefully explains it as meaning 'the practice in Medina'.

At this point, we see the 'practice' of the Medinese merge into the common opinion of the recognized scholars, which becomes the final criterion of the 'living tradition' of the school.⁴ The continuous doctrine of Medina prevails over the strict and literal interpretation of a tradition (Muw. iii. 259). Mālik follows what he has seen the scholars approve, and uses a tradition from Ibn 'Umar only as a subsidiary argument (Muw. ii. 83). He counters a tradition from 'Ā'isha, which he does not follow, with the accepted doctrine of the school (Muw. ii. 336), and introduces the latter with the words 'the best that I have heard'.⁵ He calls a doctrine 'our generally agreed practice, that which I have heard from those of whom I approve, and that on which both early and late authorities are agreed', and again 'a sunna on which there