An Introduction to Islamic Law by Joseph Schacht

By Joseph Schacht

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Though the ancient schools of law were brought to pay lip-service to the principle of the Traditionists, they did not, however, necessarily change their positive legal doctrine to the full extent desired by this latter group. The Traditionists were sometimes successful in bringing about a change of doctrine, and when this happened the doctrine of the minority in opposition became indistinguishable from that of the majority of the school, so that it is not always possible to determine whether a particular doctrine originated in Traditionist circles or within the ancient schools of law; but they often failed, and we find whole groups of 'unsuccessful' Medinese and Iraqian minority doctrines expressed in traditions from the Prophet.

The transmission of legal doctrine in Hijaz becomes historically ascertainable only at about the same time as in Iraq, with Zuhri (d. 124/742) and with his younger contemporary Rabi'a ibn Abi 'Abd al-Rahman for Medina and with 'Ata' ibn Abi Rabah for Mecca. 32 THE ANCIENT SCHOOLS OF LAW, THE OPPOSITION The process of going backwards for a theoretical foundation of Islamic religious law as it was being taught in the ancient schools did not stop at these relatively late authorities. At the same time at which the doctrine of the school of Kufa was retrospectively attributed to Ibrahim al-Nakha'i, and perhaps even slightly earlier, that doctrine and the local idealized practice, which in the last resort was its basis, were directly connected with the very beginnings of Islam in Kufa, beginnings associated with Ibn Mas'fid, a Companion of the Prophet.

Their earliest efforts were arbitrary, such as the decision that the mukdtab slave becomes free as soon as he has paid half the stipulated amount, or the decision, attributed to 'Ati' and probably authentic, that he becomes free as soon as he has paid three-quarters. Presumably authentic, too, is the information that 'AtW' considered it obligatory on the master to conclude a mukdtaba contract with his deserving slave although "Ati' agreed that he had no traditional authority for this doctrine; in other words, the implications of the Koranic passage began to be considered in the time of 'AW'.

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