THE DEVELOPMENT OF LEGAL REASONING 277

Islam, the Medinese leave the marriage in abeyance during her waiting period (ʿidda); if it is the husband, they still refer to Koran lx. 10, but maintain the concession of offering Islam to the wife, and this concession becomes another inconsistency, as Shāfiʿī points out. Only Shāfiʿī is fully consistent again in according the reprieve of the waiting period to both parties; for him, the Koranic regulation has become irrelevant.

There is the connected problem of the man who is married to more than four wives, and adopts Islam. The earliest, and seemingly most natural solution—that he can choose those four wives to whom he wishes to remain married—was that adopted by Auzāʿī. It was also expressed in a tradition from the Prophet.¹ Mālik followed the same doctrine but specified that the Koranic prohibition (Sūrat iv. 23) of marital relationships with two sisters or with mother and daughter applied also here and limited the possible choices. The early Iraqians introduced systematic refinements. Abū Ḥanīfa declares: 'If the man was married to all his wives by one contract, and they all become Muslims, he becomes separated from all his wives.' Abū Yūsuf adduces systematic reasoning in favour of this doctrine and adds: 'But if he was married by successive contracts, the first four marriages remain valid'; this detail he also quotes from Ibrāhīm Nakhaʿī. The tradition in favour of the first doctrine was still 'irregular' (shādhdh) in the time of Abū Yūsuf. Shaibānī, however, knew already a greater number of traditions from the Prophet and could not disregard them; but he retained the doctrine of Abū Ḥanīfa and Abū Yūsuf with regard to persons who had been members of tolerated religions; the result is very inconsistent. Shāfiʿī, under the spell of the traditions, returned completely to the oldest doctrine and supplied a good systematic argument.

It was an ancient Arab custom that the victors took the womenfolk of their conquered enemies as concubines without caring much whether they were married women or not.⁴ This rough‑and‑ready practice continued in Islam,⁵ and Auzāʿī