LEGAL MAXIMS IN TRADITIONS 181

The maxim 'the Muslims must abide by their stipulations' has been discussed above (p. 174). It was put into the mouth of Qāsim b. Muhammad, two generations before Mālik, and later ascribed to the Prophet. It is earlier than the tradition from the Prophet regarding the case of Barīra, which refers to it polemically and which can itself be dated in the generation preceding Mālik. The statement of Qāsim and the Barīra tradition refer to two separate problems, and the maxim was obviously intended as a general rule; the introductory words of the statement of Qāsim confirm this.

In most cases, however, legal maxims appear only as part of formal traditions. This is the case with the maxim 'profit follows responsibility', which appears as a tradition from the Prophet in Iraqian and Medinese texts from the time of Abū Yūsuf onwards. The isnāds of the Medinese version have a common link in the traditionist Ibn Abī Dhi'b. But this shows only the origin of the Medinese tradition and not of the legal maxim.

Legal maxims can often be shown to be later than the earliest stage of legal doctrine and practice. This is the case even with as fundamental a rule on ritual as the maxim 'no prayer without recitation' (above, p. 154 f.).

The frequency of divorce with immediate re-marriage led to many cases of contested paternity in pre-Islamic Arab society and even during the first century of Islam.⁴ The Koran (ii. 228 ff., lxv. 1 ff., xxxiii. 48) introduced the 'idda, a waiting period during which a divorced woman and a widow were barred from re-marrying. But this rule was still disregarded in the middle Umaiyad period, as Aghānī, xi. 140, shows. The legal maxim 'the child belongs to the marriage bed' was intended to decide disputes about paternity which were likely to happen in these conditions, but which could hardly arise under the Koranic rule regarding 'idda. The maxim is, strictly speaking, incompatible with the Koran, and it had not yet asserted itself in the time of the dispute recorded in Aghānī.⁵ It was, however, in-