UMAIYAD PRACTICE AS THE STARTING-POINT 191

although the dynasty and most of the Arab ruling class were Muslims, and although some elementary legal rules enacted in the Koran were more or less followed,¹ the legal practice during the earlier part of the Umaiyad period cannot yet be called Muhammadan law. Muhammadan law came into existence only through the application of Muhammadan jurisprudence to the raw material supplied by the practice.² It will be shown that legal norms based on the Koran, which go beyond the most elementary rules, were introduced into Muhammadan law almost invariably at a secondary stage.³

During most of the Umaiyad period the administration of justice lay in the hands of the provincial governors and, in so far as special judges were appointed, they were agents of the governors to whom these last delegated part of their functions.⁴ The creation of a judiciary, separate from the political administration, dates only from 'Abbāsid times. When John of Damascus refers to the lawgivers (νομοθέται) of Islam, he means the governors and their agents, the judges, and his repeated statement, which cannot be a mistake, on flogging as the punishment for theft shows that their practice disregarded an explicit rule of the Koran (v. 38), which prescribes the cutting off of the hand.⁵ In a number of passages, Shāfi'ī and his predecessors refer, for the most part polemically, to the origin of legal rules in decisions of governors and their agents.⁶

In assigning the origins of Muhammadan jurisprudence, which created Muhammadan law out of Umaiyad practice, to the later part of the Umaiyad period, I do not wish to deny that this practice contained earlier elements and, in particular, that some of its fundamental features were created by 'Umar. The problems of the caliphate of 'Umar, of pre-Umaiyad and Umaiyad administrative practice, and of the origins of Muhammadan law and jurisprudence have been discussed at length, but in rather general terms, by Caetani.⁷ Parts II and III of this book will show how far my results have led me to agree or to disagree with him.⁸