CHAPTER 2

THE GROWTH OF LEGAL TRADITIONS IN THE LITERARY PERIOD. CONCLUSIONS ON THE PRE-LITERARY PERIOD

THE aim of the present chapter is to provide a firm starting-point for the systematic use of traditions as documents for the development of legal doctrine, by investigating the growth of legal traditions in the literary period, roughly from A.H. 150 to 250, between Abū Ḥanīfa and the classical collections of traditions, with a few extensions into the first half of the second century.¹ The evidence presented here is only the most significant part of what could be collected, and the most important result is that whereas the growth of legal traditions from the Prophet went on over the whole period, it was particularly vigorous in the fifty years between Shāfiʿī and the classical collections, a result which can be ascribed to the joint influence of Shāfiʿī and the traditionists. The evidence must, in the nature of things, be cumulative, and whilst care has been taken to verify the presence or absence of the traditions in question in or from the sources available, an occasional oversight or the well-known incompleteness of our sources does not invalidate the general conclusions. The best way of proving that a tradition did not exist at a certain time is to show that it was not used as a legal argument in a discussion which would have made reference to it imperative, if it had existed. The evidence collected in the present chapter has been chosen with particular regard to this last point, and in a number of cases one or the other of the opponents himself states that he has no evidence other than that quoted by him, which does not include the tradition in question. This kind of conclusion e silentio is furthermore made safe by Tr. VIII, 11, where Shaibānī says: '[This is so] unless the Medinese can produce a tradition in support of their doctrine, but they have none, or they would have produced it.' We may safely assume that the legal traditions with which we are concerned were quoted as arguments by those whose