CHAPTER 2

COMMON ANCIENT DOCTRINE AND

CROSS-INFLUENCES

A. THE COMMON ANCIENT DOCTRINE

THE earliest period of Muhammadan jurisprudence is characterized by a number of features common to the several schools. We saw in the first part of this book that the ancient schools of law share the essentials of legal theory, not all of which are historically necessary and systematically self-evident. We saw in the preceding chapter that their essential attitude to Umaiyad practice, which they take as their starting-point, is the same. The present section is devoted to the considerable body of positive law which they have in common.

It will appear from the evidence collected here that this common body of doctrine is, generally speaking, not the result of a converging development from original diversity towards later unity, but that the common ancient doctrine came at the beginning and was subsequently diversified in the several schools. Not the whole of the doctrine was uniform at the beginning—we noticed in fact that the reactions of the several schools to Umaiyad practice were often different—but the existing common body of ancient doctrine certainly goes back to the earliest stage of Muhammadan jurisprudence. Because of the continual improvement on traditions and the resort to ever higher and better authorities, a process which we have considered in the second section of this book, the later variations of doctrine are often better supported by traditions than the earliest common stage. The following examples, some of which have been discussed before, are intended to illustrate the common ancient doctrine and its subsequent diversification, a process which cannot be reduced to a single formula.

Family Law

No marriage without a walī. See above, p. 182 f.