278 THE DEVELOPMENT OF LEGAL REASONING

states correctly: 'Such was the practice of the Muslims, and thus decrees the Koran' (Sura iv. 24). The Medinese accepted this practice unreservedly and simply drew the logical conclusion from it by formulating the legal principle that captivity dissolves the marriage tie. The Iraqians, however, reasoned that captivity as such did not dissolve the marriage tie, and consequently tried to introduce certain safeguards. Auzā'ī was partly influenced by Iraqian legal thought and, while endorsing the practice, regarded the marriage of captives as continuing valid after captivity, with the result that his doctrine became inconsistent. Abū Yūsuf criticizes Auzā'ī's inconsistency, and Shāfi'ī's doctrine is still more thoroughly systematic than that of Abū Yūsuf. At the same time, Auzā'ī, Abū Yūsuf, and Shāfi'ī represent three successive stages of growing formal dependence on traditions.

On the ownership of household chattels, a problem which became acute on every dissolution of a marriage, there existed a series of six more and more technically refined decisions.¹ Their relative position in this series does not necessarily imply a corresponding place in the historical development, but we notice that the first three belong essentially to the first half, and the last three to the second half of the second century A.H.

(A) First, we have the old patriarchal idea that everything belongs to the husband, tempered more or less by exempting the wife’s clothing; this opinion is ascribed (by Sarakhsī) to Ibn Shubruma and attested beyond doubt for Ibn Abī Lailā.

(B) Then comes the technically legal concern with ownership, and this leads to the idea of the presumption of ownership according to whose house it is—but in fact it would regularly be the house of the husband; this doctrine is projected back (in Sarakhsī) to Ḥasan Baṣrī, again excepting the wife’s clothes; it is attested for “some lawyers” by Shaibānī, and refuted by Shāfiʿī.

(C) A different idea is introduced with the presumption of ownership according to the nature of the chattels; this opinion was provided with the standard isnād of the Kufians, Abū Ḥanīfa—Ḥammād—Ibrāhīm Nakhaʿī; it was held by Abū Ḥanīfa himself and originally by Abū Yūsuf, and Shaibānī came near to it.