64 SUNNA, 'PRACTICE' AND 'LIVING TRADITION'

lock between the two principles is well illustrated by the following anecdote, related in Ṭabarī (Annales, iii. 2505) on the authority of Mālik: Muhammad b. Abī Bakr b. Muḥammad b. 'Amr b. Ḥazm was judge in Medina, and when he had given judgment contrary to a tradition and come home, his brother, 'Abdallāh b. Abī Bakr, who was a pious man, would say to him: 'My brother, you have given this or that judgment to-day.' Muḥammad would say: 'Yes, my brother.' 'Abdallāh would ask: 'What of the tradition, my brother? The tradition is important enough to have the judgment based on it.' Muḥammad would reply: 'Alas, what of the practice?'—meaning the generally agreed practice in Medina, which they regard as more authoritative than a tradition.

That the Medinese resolved this deadlock by preferring 'practice' to traditions from the Prophet and from Companions, can be seen from the following examples, which are only a few out of many.¹

Mālik (Muw. iii. 134, 136; Mud. x. 44) and Rabī' (Tr. III, 48) admit the sale of bales by specification from a list, because it is the current practice in the past and present by which no uncertainty (gharar) is intended (Mālik), or because men consider it as valid (Rabī'). Mud. x. 44 considers Mālik's statement as authoritative (ḥujja), particularly because he states the practice, and finds it confirmed by traditions (āthār)—not from the Prophet but from authorities such as Yaḥyā b. Sa'īd who establishes the same practice. 'Practice' therefore decides the extent to which the general prohibition of gharar, incorporated in a tradition from the Prophet, is to be applied.

Mālik (Muw. iii. 136) and Rabī' (Tr. III, 47) declare, against a tradition from the Prophet which gives the parties to a sale the right of option as long as they have not separated: 'We have no fixed limit and no established practice for that.' Ibn 'Abdalbarr (quoted in Zurqānī, iii. 137) comments: 'The scholars are agreed that the tradition is well-attested, and most of them follow it. Mālik and Abū Ḥanīfa and their followers reject it, but I know of no one else who does so. Some Mālikīs say that Mālik considered it superseded by the consensus of the Medinese not to act upon it, and this consensus is in Mālik's opinion more authoritative than an 'isolated' tradition. As Abū Bakr b. 'Amr b. Ḥazm says: "If you see the Medi-