Origins of Muḥammadan jurisprudence
Origins of Muhammadan Jurisprudence
Publisher
Oxford At The Clarendon Press
Publication Year
1950 AH
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traditions, directed against the doctrines of another school.1 A reference to the doctrine of another school is also implied when the name of its main authority is borrowed by opponents;2 in particular, the Iraqians use the name of the Medinese authority Ibn 'Umar, and the Medinese that of the Iraqian authority Ibn Mas'ūd.3 Occasionally, we find explicit references to a school by its name,4 and comments on its doctrine in the traditions of its opponents.5 This taking cognizance of one another's doctrines and opposing one's own opinions to those of the opponents is a feature common to the ancient Iraqians and the ancient Medinese.
The following example, taken from the doctrine of pre-emption, will show how cross-references to other schools enter into the development of legal doctrine in the pre-literary period. The result of this development, as it affected pre-emption, was that two opposite doctrines prevailed in the Medinese and in the Iraqian school respectively: the Medinese restricted the right of pre-emption to the owner of a share in undivided property, and the Iraqians extended it to the neighbour.6 The oldest Iraqian formula, however, was that 'the right of pre-emption goes by gates, and the person whose gate is nearest has the best right to pre-emption'; it was projected back to Ibrāhīm Nakha'ī as his alleged former opinion, and on the fictitious authority of Ibrāhīm back to Shuraiḥ. This formula, which reflects the social background of the institution of pre-emption in early Muhammadan law, seems to be the common starting-point of the Medinese and of the Iraqian doctrines.7
The Basrians, while essentially maintaining this opinion, justified it as against the Medinese restriction of the right of pre-emption by pointing out that the lane, on which the several adjoining plots abutted, remained undivided and constituted an interest common to them all. The earlier Kufians, on the other hand, extended the right of pre-emption to all owners of plots within a single block or section not traversed by a thoroughfare, irrespective of whether
1 See above, p. 152 ff. 2 See above, p. 155 f.
3 See above, pp. 32, 197.
4 See, e.g. Āthār A.Y. 623; Āthār Shaib. 76, and above, pp. 117, 153.
5 See above, p. 203 f.
6 Muw. iii. 172 ff.; Āthār A.Y. 766 f.; Āthār Shaib. 111 f.; Muw. Shaib. 364; Tr. I, 49; Tr. III, 107; Ikh. 260, 264. On legal maxims in favour of the Iraqian doctrine, see above, p. 164.
7 A tradition in Kindī, 334 (l. 10 ff.), reflects the change in Egypt from the common ancient to the final Medinese doctrine, and the arguments adduced in favour of the latter.
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