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Origins of Muhammadan Jurisprudence

Origins of Muhammadan Jurisprudence

جوزيف شاخت - 1389 ہجری

ناشر

Oxford At The Clarendon Press

اشاعت کا سال

1950 ہجری

اصناف

اصول فقہ

SUNNA, 'PRACTICE' AND 'LIVING TRADITION' 71

301) who interprets it restrictively.1 He denies knowledge of any other tradition from the Prophet (ibid. 305), but knows a statement on Abū Bakr and 'Umar in favour of the contrary doctrine (Ṭabari, 87): this statement, being a denial, presupposes the doctrine expressed in the legal maxim, and is the result of a religious scruple at infringing the strict division of booty. The scruple arises from the Koran, and is shared by the Iraqians. The statement may therefore be taken as confirming the authentic character of the practice as alleged by Auzā'ī. Auzā'ī (Ṭabari, 87) knows the scruple in an earlier form in which it was given the authority of 'Umar. This form subjects the spoils at least to the deduction of one-fifth as the share of the Prophet, a deduction which is also based on the Koran.

The tradition on the announcement of the Prophet at the battle of Bi'r Ma'ūna, again in favour of the legal maxim, appears for the first time in Shafi'ī (Tr. IX, 13), and so does the reference to the action of Sa'd b. Abī Waqqāṣ at Qādisīya, which is intended to rebut the earlier negative statement on Abū Bakr and 'Umar. Later than Shāfi'ī are several traditions mentioned in Zurqānī, ii. 306, and in Comm. ed. Cairo on Tr. IX, 13; they make the Prophet award the spoils to the killer on a number of other occasions. Some of these have found a place in one or other of the classical collections. The practice was certainly old, it found expression in a legal maxim, Auzā'ī identified it with the 'sunna going back to the Prophet', a religious scruple regarding it was in part acknowledged by the Iraqians and Mālik, and only Shāfi'ī, under the spell of formal traditions from the Prophet, fell back on the old doctrine.

In § 1 (and in the parallel in Ṭabarī, 89), Auzā'ī refers to actions of the Prophet in general terms without giving isnāds, and alleges the uninterrupted practice of the Muslims under 'Umar and 'Uthmān and so on, until the civil war and the killing of the Umaiyad Caliph Walīd b. Yazīd (A.H. 126).3 In

  1. Shāfi'ī (Tr. IX, 13) calls it already 'well-attested, reliable, and not contradicted as far as I know'. It appears in an improved form, providing Abū Qatāda with legal proof of his deed, in Wāqidī.

  2. The tradition on Khālid b. Walīd and the Prophet (in Ibn Ḥanbal, Muslim, and others) favours the restrictive Mālikī and Ḥanafi doctrine. The tradition on Sa'd b. Abī Waqqās at the battle of Uḥud improves the reference to his action at Qādisīya, referred to above, by projecting the incident back into the time of the Prophet.

  3. Ibn Wahb in Mud. iii. 12 quotes the same statement of Auzā'i, but instead of the passage on 'Umar and so on until the killing of Walīd, he says: 'from the Caliphate of 'Umar to the Caliphate of 'Umar b. 'Abdal'azīz'; the name of impious Walīd was changed into that of pious 'Umar b. 'Abdal'azīz in early 'Abbāsid times.

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