PART III

THE TRANSMISSION OF LEGAL DOCTRINE

CHAPTER 1

A. PRELIMINARY REMARKS

OUR conclusions so far have led us to the beginning of the second century ^A.H. as the time in which Muhammadan jurisprudence started. Occasionally, we have met or shall meet legal opinions which can probably be assigned to the end of the first century.¹ But the essential features of old Muhammadan jurisprudence, such as the idea of the 'living tradition' of the ancient schools of law; a body of common doctrine expressing the earliest effort to systematize;² legal maxims which often reflect a slightly later stage; and an important nucleus of legal traditions—all these features can be dated, roughly in this order, from the beginning of the second century onwards. In any case, it is safe to say that Muhammadan legal science started in the later part of the Umaiyad period, taking the legal practice of the time as its raw material and endorsing, modifying, or rejecting it, as the present chapter will show in detail. This is our starting-point for an historical study of the transmission of legal doctrine in the pre-literary period, which is the subject of Part III of this book.

As we are concerned with the early history of Muhammadan jurisprudence and not that of legal institutions as such, we need not attempt to analyse here the Umaiyad practice from which it started into its component parts. Two general remarks, however, are relevant. Firstly: legal practice in the several parts of the Umaiyad empire was not uniform, and this accounts for some of the original differences in doctrine between the ancient schools of law.³ Secondly: