182 LEGAL MAXIMS IN TRADITIONS

corporated in traditions from the Prophet.¹ Abū Ḥanīfa knows it as a saying of the Prophet and applies it literally with a surprising result; but Ibn Abī Lailā and Abū Yūsuf, followed by Shāfiʿī, interpret it differently (Tr. I, 224), so that there is hardly a case left to which it could be applied. In the time of Shāfiʿī, there are no scholars who take the legal maxim at its face value, and Shāfiʿī treats him who would do so as an ignoramus (Ikh. 309 f.). This shows how incompatible the maxim was with the Muḥammadan law of marriage, and since it also differed from the old Arab method of deciding disputes about paternity, it is possible that it was influenced by the rule of Roman law pater est quem nuptiae demonstrant,² as Goldziher has pointed out.³

The old Arab method of deciding disputes about paternity was by the decision of professional physiognomists.⁴ This method was, on one side, declared superseded by the decision of the Prophet in favour of the legal maxim, and on the other, justified by making the Prophet himself use it.⁵ The isnāds of the second of these traditions have a common link in Ibrāhīm b. Saʿd, a contemporary of Mālik, and the family isnād of the first points to its origin in the generation preceding him. The old Arab method was finally retained in Muḥammadan law for those rare cases in which a dispute about paternity had to be decided.⁶ But as the legal maxim had become a saying of the Prophet, lip-service continued to be paid to it, although it was not, in fact, acted upon.

The maxim that 'there is no [valid] marriage without a walī', that is, the nearest male relative of the bride who must give her in marriage, was not originally as self-evident as it became later in Muhammadan law. Mālik dispenses with the