CHAPTER 6

LEGAL MAXIMS IN TRADITIONS

MUHAMMADAN jurisprudence in the pre-literary period often formulated legal maxims in the form of slogans most of which became traditions from the Prophet and from other authorities. A study of these legal maxims enables us to draw additional conclusions regarding the growth of legal traditions and the development of doctrine in the pre-literary period.

Not all legal maxims succeeded in becoming traditions with an acceptable isnād. This applies, for example, to the lawyers' maxim 'who joins a people belongs to them' which Auzā'ī uses as an argument (Tr. IX, 41),¹ and to the rule 'a sacrifice cannot be shared'. Mālik (Muw. ii. 348) refers to this last as 'the best that I have heard',² and interprets a tradition on the action of the Prophet and the Companions restrictively in its light. Shāfi'ī (Tr. III, 38) deprecates it as an anonymous saying which cannot overrule the action of the Prophet and of the Companions. The details of Mālik's doctrine go beyond the slogan, which, however, expresses the underlying idea in a short form.

Some maxims acquired the full status of a tradition from the Prophet rather late. The rhyming maxim 'there is no divorce and no manumission under duress' (lā ṭalāq wa-lā 'atāq fī ighlāq) appears as a tradition from the Prophet only in Ibn Ḥanbal and some of the classical collections;³ Mālik (Muw. iii. 69) and an unsuccessful Iraqian opinion (Tr. II, 10 (r)) know only traditions from Ibn 'Umar and from 'Alī to the same effect, but still without the explicit maxim.

The process by which the maxim 'the spoils belong to the killer' was gradually provided with the authority of the Prophet and of Companions, has been described above (pp. 70 f.). It represented the old practice, but was interpreted restrictively by the ancient schools of law for a systematic reason, based on a religious scruple.