LEGAL MAXIMS IN TRADITIONS 185

slave]' (al-ʿabd yaḥjub wa-lā yūrith). This shows a primitive kind of legal reasoning, as if the right to inherit were a force transmitted from one person through another to a third. Another tradition from Ibn Masʿūd (Tr. II, 16 (l)) shows the old, unsystematic concern for the just and morally right decision. But in the time of Shāfiʿī, the Iraqians had developed a strict and technical legal reasoning which they expressed in the maxim al-ʿabd lā yarith wa-lā yūrith (‘the slave cannot inherit and cannot leave inheritance’). This is derived from the first maxim (with a change of meaning in the word yūrith) and implies that the slave does not debar anyone from inheriting.

Iraqian legal maxims were sometimes taken over by the Medinese. The Iraqian maxim 'the killer inherits nothing' was transformed in Medina into 'the killer receives nothing [of the weregeld]', so as to agree with one of the two Medinese opinions (above, p. 159).

The maxim ‘injury caused by an animal is not actionable’ (jarḥ al-ʿajmāʾ jubār), and the doctrine expressed by it, are Iraqian.¹ The Medinese held that damage caused by roving animals at night was actionable, and this doctrine was expressed in a tradition from the Prophet (Muw. iii. 211). But the Iraqian maxim penetrated into Ḥijāz and was provided with a Medinese isnād (Muw. iv. 46). Mālik, who relates both traditions, does not try to harmonize them; only Shāfiʿī (Ikh. 400) does so by using forced interpretation.²

'The Medinese say: "Talion depends on the weapon" (al-qawad bil-silah)', meaning that talion takes place only when the murder has been committed with a weapon.³ This does not fit the doctrine of the Medinese who have, therefore, to construe the use of a stick, stone, and so on as the equivalent of the use of a weapon. It does, however, fit the Iraqian doctrine,⁴ and