210 UMAIYAD PRACTICE AS THE STARTING-POINT

army should be administered by military commanders, even those of lower rank; Abū Ḥanīfa insists, as a part of his systematic reasoning, that only the cadi is competent to do it. Shāfi‘ī, with consistent and systematic reasoning, cuts across the previous divisions of doctrine. This is typical of the growth of legal doctrine out of, and away from, the old practice.

Other Branches of Law

At the same time at which the weregeld for a non-Muslim was fixed at half of that for a Muslim¹ it was decreed that Christians, and presumably non-Muslims in general, could not give evidence against Muslims. This did not imply that their evidence against Muslims had been admitted before, but it meant that their evidence was henceforth to be admitted in cases where only non-Muslims were involved. The Koran (ii. 282, v. 106, lxv. 2) had ordered the Muslims to choose their witnesses from amongst themselves;² but nothing was said about the evidence of non-Muslims against one another. The Iraqians endorsed the administrative practice for which they claimed the authority of Shuraiḥ (Tr. I, 109), and later that of the Prophet.³ Yaḥyā b. Aktham (quoted in Sarakhsī, xvi. 133) calls this doctrine ‘the consensus of the old authorities’.

The Iraqian judge Ibn Abī Lailā regarded Jews and Christians as belonging to two different religions, and therefore admitted their evidence only against their own co-religionists; this corresponded to the ancient practice.⁴ Abū Ḥanīfa and Abū Yūsuf, however, opposed the unbelief of all tolerated religions to the true belief of Islam, and therefore held that all adherents of tolerated religions could give evidence against one another. In the particular case of Tr. I, 35, Ibn Abī Lailā by an expedient but inconsistent decision admitted the evidence of non-Muslims against one another but excluded regress against a Muslim, whereas Abū Ḥanīfa and Abū Yūsuf, with stricter systematic reasoning, rejected the evidence of non-Muslims because it would lead to regress against a Muslim.

When no Muslims were available to witness the will of a