Origins of Muḥammadan jurisprudence
Origins of Muhammadan Jurisprudence
Publisher
Oxford At The Clarendon Press
Publication Year
1950 AH
THE DEVELOPMENT OF LEGAL REASONING 281
subject of another concession, Ibn Abī Lailā expresses himself in a clumsy terminology, the sign of clumsy legal thought;¹ Abū Ḥanīfa’s opinion is essentially better, but at the same time he is very inconsistent as regards details, obviously on account of material considerations in favour of freedom, the same which had already influenced Ibn Abī Lailā; Shāfiʿī’s opinion is again superior to that of Abū Ḥanīfa, and more consistent, but even Shāfiʿī acknowledges an accomplished fact in favour of freedom.
We have had occasion to discuss in another context the development of legal reasoning on the question of damages due for wounds inflicted on a slave.² The connected problem of the weregeld of a slave shows a similar development of legal thought.³ Originally, the loss of a slave was considered merely as the loss of property, and his value was to be made good. This seems to have been the common ancient doctrine, and it found expression in the legal maxim ‘the weregeld of the slave is his value’. It had the consequence that the weregeld for a valuable slave could exceed the fixed weregeld for a free man.⁴ This remained the doctrine of the Medinese who ascribed it to their ancient authorities. The Kufian doctrine, however, as attributed to Ibrāhīm Nakhaʿī, while paying lip-service to the legal maxim, fixed the highest possible amount of the weregeld for a slave at the amount of the weregeld for a free man minus 10 dirham. Abū Ḥanīfa expressed the underlying reasoning by saying that there would always be found a free man who was better than any slave, and that 10 dirham represented the minimum difference in value. Shaibānī added the systematic argument that the slave was not purely property.
In the earliest Treatises I and VIII,⁵ Shāfiʿī followed the Medinese doctrine and gave general reasoning in its favour. But as early as Tr. VII he has adopted the Iraqian principle of limiting the maximum amount of the weregeld for a slave by the weregeld for a free man, while still rejecting the reduction
¹ Tr. I, 134: 'the manumission is invalid until one waits and sees what he will do'; Ibn Abī Lailā wants to say that it is “in abeyance,” a concept for which the usual term mauqūf occurs in Tr. I, 140 — but this may be Abū Yūsuf’s wording.
² Above., p. 224 f.
³ Muw. iv, 42; Mud. xvi, 196; Āthār Shaib. 86; Tr. I, 193; Tr. VII, 275; Tr. VIII, 15.
⁴ On its amount, see above, p. 203.
⁵ Also in Umm, vi, 23, which must be an early passage.
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