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Origins of Muḥammadan jurisprudence

Origins of Muhammadan Jurisprudence

Publisher

Oxford At The Clarendon Press

Publication Year

1950 AH

THE MEDINESE AND MECCANS 251

the ancient Meccans, but cannot be connected with 'Aṭā' personally, concern the marriage of the pilgrim (above, p. 153), the permission of the mut'a marriage (below, p. 266), and the definition of what constitutes the 'usury' which is forbidden in the Koran.

The current practice of Mecca, against which the relevant passages of the Koran were directed, consisted in adding the accumulated interest to the capital which was to be repaid at a fixed term, and in doubling the debt every time the debtor asked for and received an extension of the term. The other ancient schools of law, by a common development of doctrine but with differences on details, extended the law of 'usury', generally speaking, to all exchanges of gold, silver, and various other commodities, and demanded not only immediate delivery of the two lots which were being exchanged, but also absolute equality in quantity if they fell under the same species. The Meccans, however, kept more closely to the original circumstances of the Koranic prohibition and held that there could be no 'usury' unless there was a time-lag in the transaction (Ikh. 241 f.). They had therefore no objection to the exchange of one dinar for two, or of one dirham for two, if both lots were delivered immediately, and only objected to it if the delivery of one of the lots was to be postponed. This doctrine was projected back to Ibn 'Abbās and his Companions in general.

Corresponding doctrines were also propagated, but unsuccessfully, in Iraq under the name of Ibn Masʿūd (Tr. II, 12 (g)), and in Medina under the names of Ibn Musaiyib and ʿUrwa b. Zubair (Ikh. 241). They represent, it is true, an earlier stage than the doctrine which prevailed in the Iraqian and Medinese schools, but the references to these authorities cannot be taken as genuine.

Some of the opinions attributed to 'Aṭā' are certainly or probably fictitious, particularly his statement against ra'y which is contradicted by his own use of qiyās and istiḥsān (above, p. 131); and certainly one, or possibly both, of two contradictory opinions which are ascribed to him (above, p. 186 and n. 6); for a further example, see above, p. 167.

A tradition in Muw. ii. 144 aims at showing that a doctrine which goes under the name of Ibn 'Abbās, the authority of the Meccans, coincides with the practice of the Prophet. Zaid b. Aslam, in the generation before Mālik, is the common link in

1 See E.I., s.v. Ribā.
2 For a consequence of this sweeping rule, see above, p. 67.

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