Origins of Muḥammadan jurisprudence
Origins of Muhammadan Jurisprudence
Publisher
Oxford At The Clarendon Press
Publication Year
1950 AH
206 UMAIYAD PRACTICE AS THE STARTING-POINT
likely; if weregeld for a non-Muslim was paid at all, there was no fixed usage, and this regulation was the starting-point.
It is typical of the fictitious character of the frequent references to 'Umar b. 'Abdal'azīz and of the lack of positive information on the part of the ancient lawyers that here where 'Umar b. 'Abdal'azīz did inaugurate an important legal rule, there should be only an isolated reference to him which moreover is 'weak' by the standards of the Muhammadan critics,1 and that the regulation should be commonly attributed to Mu'āwiya.2 The most circumstantial version of the common story occurs in Aghānī, xv. 13, related by an anonymous sheikh from Hijaz on the authority of the freedman of an implicated party; and by that notorious propagator of traditions, Ibn Abī Dhi'b, on the authority of one Abū Suhail or Ibn Suhail who is no more than a name. According to it, Mu'awiya demanded 12,000 dirham as weregeld for his Christian physician, remitted 6,000 to the public treasury and took 6,000 for himself, and this usage remained in force until 'Umar b. 'Abdal'azīz cancelled the ruler's share but maintained the treasury's.
We have here a disturbed echo of a corollary to the regulation of 'Umar b. 'Abdal'azīz. Half of the normal weregeld did in fact go to the next of kin of the non-Muslim victim, but the second half was demanded by the public treasury. This is explicitly stated on the authority of Zuhrī (Tr. VIII, 13, p. 293 ult.), and is another example of Umaiyad fiscal policy.
The Medinese adopted the Umaiyad regulation as far as the weregeld proper for a non-Muslim was concerned, but ignored the demand of the public treasury.3 The Iraqians, by insisting on the full weregeld for a non-Muslim, protested against the demand of the treasury in another way.4 The Iraqian doctrine was ascribed to the ancient authorities Ibrāhīm Nakha'ī and Sha'bi. It seems that the same doctrine was held by at least some Medinese in the time before Malik, because Shaibānī quotes traditions from and through Medinese authorities to this effect.5 On the other hand, once discrimination against the
1 Muw. iv. 41; Tr. VIII, 13, p. 294, l. 13.
2 Āthār A.Y. 972; Āthār Shaib. 87; Tr. VIII, 13. It was also projected back to the Prophet, but this too is not 'well-established' (Tr. VIII, 13, p. 294, l. 10).
3 Muw. iv. 41; Mud. xvi. 195; Tr. VIII, 13.
4 Āthār A.Y. 969; Āthār Shaib. 87; Tr. VIII, 13.
5 Tr. VIII, 13. He mentions Rabī'a (this is perhaps genuine) and Ibn Musaiyib
206