212 UMAIYAD PRACTICE AS THE STARTING-POINT

The position of the grandfather with regard to the brothers was uncertain in the ancient agnatic Arab law of inheritance which the Koran had maintained in principle, whilst superimposing on it its new system of 'heirs by quota'. The ancient doctrine of Muhammadan law makes the grandfather inherit on the same footing as the brothers, but guarantees him one-third of the combined shares if there are more than two brothers. There is no possible systematic reason for this guarantee, and a tradition (Muw. ii. 368) shows its origin in an administrative regulation of Umaiyad times, projected back into the period of the first Caliphs:

Mālik—Yaḥyā b. Saʿīd²—Muʿāwiya consulted Zaid b. Thābit by letter on the share of the grandfather; Zaid wrote back that God knew best, the rulers had decided it, and the two previous Caliphs [ʿUmar and ʿUthmān] let him share equally with one or two brothers, but if there were more brothers, guaranteed him one-third.

This was improved and transformed into the dogmatic statement that 'Umar, ʿUthmān, and Zaid b. Thābit gave the grandfather, when there were also brothers, one-third. Another version with a full, improved isnād acknowledges the process of backward projection by declaring ingenuously that "Umar treated the grandfather in the same way in which he is treated nowadays'.

Two unsuccessful Iraqian opinions reject the administrative regulation.³ One systematizes rigidly by primitive qiyās and makes the grandfather preclude the brothers from inheriting; this was projected back to Abū Bakr, as being senior to ʿUmar and ʿUthmān, and to other Companions, and was held by Abū Ḥanīfa. The other opinion makes the grandfather inherit on the same footing as the brothers and adopts the principle of a minimum guarantee, but fixes it at one-sixth of their combined shares. The sixth is meant to replace the arbitrary third of the administrative regulation, and is derived from the sixth which is the share of the grandfather when he inherits as an "heir by quota," on the basis of a broad interpretation of Koran