LEGAL MAXIMS IN TRADITIONS 183

legal walī in the case of a lowly woman,¹ and Abū Ḥanīfa (and others, if Zurqānī, iii. 4, is right) if the bride marries a man of equal standing for the full ṣadaq or donatio propter nuptias which a woman of her standing can expect;² Zurqānī, iii. 17, refers to an unidentified doctrine according to which a woman who is not a virgin needs no walī for marriage. The marriage without a legal walī, which continued the easy-going practice of the pre-Islamic Arabs, was taken for granted in a tradition from ʿĀʾisha which—on account of its isnād—can be dated in the generation preceding Mālik.³

The opinion that there is no valid marriage without a walī found its first expression in the alleged decision of ʿUmar b. ʿAbd al-ʿAzīz that such marriages must be dissolved (Mud. iii. 15). This is no doubt later than the Caliphate of ʿUmar b. ʿAbd al-ʿAzīz, and dates only from the second century A.H. It was held in Iraq, Medina, and Mecca, projected back to ʿAlī, ʿUmar, and Ibn ʿAbbās, and finally ascribed to the Prophet, on the authority of ʿĀʾisha and of other Companions; the traditions which put it into the mouth of the Prophet appear only from Shāfiʿī onwards.⁴ The legal maxim was coined at this later stage. Abū Yūsuf, having held an opinion near to that of Abū Ḥanīfa at first, adopted this doctrine,⁵ Shaibānī held it, Shāfiʿī supported it with a brilliant systematic argument (Tr. III, 53), and Ibn Qāsim rejected the earlier tradition from ʿĀʾisha as contrary to the 'practice' (Mud. iv. 281).

The alliterating maxim [there shall be] no damage and no mutual infliction of damage (lā ḍarar wa-lā ḍirār) is given as a saying of the Prophet in a tradition with the isnād Mālik–ʿAmr b. Yaḥyā Māzinī–his father.⁶ This is mursal,⁷ and is abstracted from two traditions with the same isnād, one on ʿUmar with Ḍabḥak b. Khalīfa and Muḥammad b. Maslama, the other on ʿUmar with ʿAbd al-Raḥmān b. ʿAuf and Yaḥyā Māzinī's grandfather; both stories are parallel and express the