By N. Coulson
The vintage creation to Islamic legislation, tracing its improvement from its origins,through the medieval interval, to its position in smooth Islam.
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Additional info for A History of Islamic Law
The simple statement, occurring passim in the Muwatta' that a rule i~ the subject of current practice and a~·ee~ ment, provides not merely a sufficient but often the supreme, juristic basis for the rule conc; rned. ntext In which the Tradition occurs in ash-Shafi'i's Rrsala. ' 7 Ash-Shafi'~ is here c~nce rned with the general problem of resolvmg conflicts between individual Qur'anic passages by the presumption that one passage repeals or abrogates the other. the Qur'an itself or, failing this from the ~unna or practice of the Prophet.
Henceforth every jurist was an "imitator" (muqallid), bound to accept and follow the doctrine established by his predecessors. Certain modern writersJ have suggested that this doctrine arose out of the peculiar circumstances of the Mongol invasions of the thirteenth certury, when the treasured heritage of the Shari' a was thus embalmed and interred to preserve it from the ravaging hordes of Gen- ghis Khan. But historically the phenomenon occurred some three centuries before this, and was probably the result not of external pressures but of internal causes.
D. 720)". ~ith respect? these two arguments by no means conclusrvely establish the Umayyad origin of the rule. The first report of Malik simply records the decision of an Un:ayyad governor. It does not stare explicitly that Aban. rmulate~ the rule. Nor it may be argued, does It eve~ 1mply thts. mpendiUm of current. Medinan law and is not prin:arily concerned to establish the origins of that law. The simple statement, occurring passim in the Muwatta' that a rule i~ the subject of current practice and a~·ee~ ment, provides not merely a sufficient but often the supreme, juristic basis for the rule conc; rned.
A History of Islamic Law by N. Coulson