208 UMAIYAD PRACTICE AS THE STARTING-POINT

The Umaiyad administration, moreover, seems to have fixed the actual fractions of the weregeld which were due for certain kinds of wounds.¹

The Umaiyad administration did not interfere with the working of the old Arab lex talionis, as modified by the Koran.² Considerations of public policy regarding the execution of murderers, such as are found in, or rejected by, the Iraqian and Medinese schools,³ do not necessarily reflect a corresponding administrative practice.

As regards the purely Islamic ḥadd punishments and similar penalties, however, there are positive traces of an Umaiyad practice from which the ancient schools of law started. This practice was in some respects irregular by later standards.⁴

The non-Muslim slave who escaped to the enemy was killed or crucified at the discretion of the government (imām), if he was recaptured; Auzā'ī gave his opinion (ra'y) endorsing this practice, the Iraqians and the Medinese rejected it.⁵

The Umaiyad administration refused to cut off the hand of a slave who had run away from his master in Islamic territory and stolen.⁶ Both the Medinese and the Iraqians held that the slave was liable to the punishment for theft prescribed in Qurʾān 5:38.⁷ A Nāfiʿ tradition makes Ibn ʿUmar insist on it against the Umaiyad governor Saʿīd b. ʿĀṣ; another tradition makes ʿUmar b. ʿAbdalʿazīz countermand what had hitherto been the accepted opinion.⁸ The thesis of the Medinese was projected back to Qāsim b. Muḥammad, Sālim, and ʿUrwa, and Mālik found it held unanimously in Medina.

Both ancient schools, however, agreed that only the government, and not the master, could cut off the hand of a slave as