LEGAL MAXIMS IN TRADITIONS 187

and of the Medinese school represent two successive stages in the abandonment of the opinion expressed by the first maxim. Shāfi'ī completed this process and was the first consistently to apply to securities the concept of a deposit on trust (amāna).¹

The essential maxim of procedure in Muhammadan law, 'evidence [by witnesses] has to be produced by the plaintiff, and the oath [in denial] has to be taken by the defendant', became a tradition from the Prophet only at a relatively late period.² It is not mentioned as a tradition in Muw. and in Muw. Shaib., although Muw. iii. 181 presupposes it as the accepted rule. Abū Ḥanifa (Tr. I, 116) and Shāfi'ī's Iraqian opponent (Ikh. 354) refer to it as a saying of the Prophet, without an isnād.³ Āthār A. Y. 738 gives it as a statement of Ibrāhīm Nakha'ī, and only the later versions of the Musnad Abī Ḥanīfa in Khwā- rizmī have full isnāds from Abū Ḥanifa back to the Prophet, mostly through Ibrāhīm. It appears as a formal tradition from the Prophet, with a Meccan isnād, for the first time in Shāfi'ī (Ikh. 345), and as part of the composite speech of the Prophet at the conquest of Mecca in Shāfi'ī's contemporary Wāqidī. It is later found in the classical collections.

The maxim presupposes that the plaintiff does not have to take the oath, but Abū Ḥanifa's Iraqian contemporary, the judge Ibn Abī Lailā, demanded it from the plaintiff together with the evidence of witnesses (Tr. I, 116), and this doctrine was ascribed to Shuraiḥ and expressed in a tradition from 'Alī (Tr. II, 14 (e)).⁴ The Medinese, and Shāfi'ī after them, recognized the evidence of one witness together with the oath of the plaintiff, and we saw that this doctrine grew out of the judicial practice at the beginning of the second century A.H.⁵ If the plaintiff has no evidence and the defendant refuses to take the oath in denial, the Medinese give judgment for the plaintiff only if he takes the oath himself;⁶ Ibn Abī Lailā, in the same