Origins of Muḥammadan jurisprudence
Origins of Muhammadan Jurisprudence
Publisher
Oxford At The Clarendon Press
Publication Year
1950 AH
266 SHĪ'A LAW
a doctrine which is based on an analogy with the umm al-walad.1
But even in the time of Dāwūd Zāhirī, the opinion that the umm al-walad could be sold, had not yet become an exclusively Shiite doctrine.2
Mut'a. The mut'a is a marriage concluded for a fixed term, at the end of which it is dissolved automatically. This was presumably an ancient Arab institution, and seems to have been sanctioned and regulated in Koran iv. 24. It was certainly a widespread practice in early Islam which found expression in a fuller and unequivocal version of the Koranic passage in the copies attributed to Ibn Mas'ūd, Ubai, and Ibn 'Abbās,3 in a tradition attributed to Ibn Mas'ūd for Kufa,4 and in a doctrine attributed to Ibn 'Abbās and his Companions for Mecca.5 Its existence is also attested by the traditions directed against it.
The opposition to mut'a prevailed among the Iraqians and the Medinese. In Iraq, the Ibn Mas'ūd tradition was turned into its contrary by the assumption of a repeal of mut'a in the Koran, and to this was prefixed the standard isnād of the school of Kufa;6 and a more recent tradition with a Nāfi'—Ibn 'Umar isnād affirmed the prohibition of mut'a by the Prophet.7 In Medina, a tradition with a typical family isnād made 'Alī reject the doctrine ascribed to Ibn 'Abbās by referring to the prohibition of mut'a by the Prophet,8 and another tradition, with spurious
1 See Bergsträsser, in O.L.Z. xxv. 123.
2 See Comm. Muw. Shaib. 344.
3 See Jeffery, Materials, 36, 126, 197. The copy of Ubai is traditionally associated with Syria.
4 Tr. II, 11 (a), and more fully Ikh. 254 f.
5 I find a tradition from Ibn 'Abbās to this effect only in the classical and other collections of the third century; but that the doctrine in question was attributed to Ibn 'Abbās about the middle of the second century, is shown by the polemics against it in the Medinese tradition from 'Alī (see infra). Shāfi'ī implies the existence of other authorities besides Ibn Mas'ūd for this doctrine (Ikh. 255), and Ibn 'Abdalbarr refers to 'the Companions of Ibn 'Abbās in Mecca and Yemen' (quoted in Zurqānī, iii. 25).
6 Āthār A. Y. 698; Āthār Shaib. 66. The systematic reasoning which this tradition implies at the end, anticipates essentially Shāfi'ī's argument (Ikh. 257), and represents a fairly developed stage.
7 Āthār A. Y. 699; Āthār Shaib. 66. On the isnād, see above, p. 32.
8 Muw. iii. 23; Muw. Shaib. 260; Tr. II, 11 (a). This counter-tradition against the doctrine ascribed to Ibn 'Abbās, does not necessarily imply the existence of a relatively old tradition from 'Alī in favour of mut'a, a tradition which one might be tempted to expect on account of the doctrine of the "Twelver' Shiites (see what follows).
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