70 SUNNA, 'PRACTICE' AND 'LIVING TRADITION'

C. THE SYRIANS

Auzā'ī knows the concept of 'sunna of the Prophet' (§ 50),¹ but does not identify it with formal traditions. He considers an informal tradition without isnad, concerning the life-story of the Prophet, sufficient to establish a 'valid sunna' (§ 37), and an anonymous legal maxim sufficient to show the existence of a 'valid sunna going back to the Prophet' (§ 13).²

His idea of 'living tradition' is the uninterrupted practice of the Muslims, beginning with the Prophet, maintained by the first Caliphs and by the later rulers, and verified by the scholars. The continuous practice of the Muslims is the decisive element, reference to the Prophet or to the first Caliphs is optional, but not necessary for establishing it. Examples occur in almost every paragraph of Tr. IX.

Auzā'ī's 'living tradition' is based partly on actual custom; he says so clearly in § 6, and the same can be inferred from §§ 14,³ 16, 18, 25, 27 (see the parallel passage in Țabarī, 52). At the same time, it has become idealized by being projected back to 'Umar b. 'Abdal'azīz (§ 25), or is being idealized by Auzā'ī himself who lays down fixed rules (§ 27). He exaggerates the unanimity of doctrine (§§ 31, 32); the stage reached by his immediate predecessors becomes for him the continuous and unanimous practice.

Auzā'ī opposes the fictitious 'constant usage of the Prophet and of the Caliphs' to the actual administrative practice (§ 4).⁴ He infers the existence of a normative usage of the Muslims or of the Caliphs from informal traditions on the history of the Prophet (§§ 7, 10),⁵ or even from a legal maxim (§ 13).

The legal maxim which Auzā'ī in § 13 takes as proof of a 'valid sunna going back to the Prophet', says that 'he who kills a foreign enemy [in single combat] has the right to his spoils'. Auzā'ī does not say that this is related on the authority of the Prophet; and Abū Yūsuf, who must certainly have mentioned it if he had known it as a tradition on the authority of the Prophet, is silent. The maxim appears, as part of a tradition concerning the Prophet and Abū Qatāda at the battle of Hunain, for the first time in Mālik (Muw. ii.