By Joseph Schacht
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Extra resources for An Introduction to Islamic Law
Hardly any of the doctrines ascribed to these ancient authorities can be considered authentic. The transmission of legal doctrine in Hijaz becomes historically ascertainable only at about the same time as in Iraq, with Zuhri (d. 124/742) and with his younger contemporary Rabi'a ibn Abi 'Abd al-Rahman for Medina and with 'Ata' ibn Abi Rabah for Mecca. 32 THE ANCIENT SCHOOLS OF LAW, THE OPPOSITION The process of going backwards for a theoretical foundation of Islamic religious law as it was being taught in the ancient schools did not stop at these relatively late authorities.
For this new society, the arbitration of pre-Islamic Arabia and of the earliest period of Islam was, no longer adequate, and the Arab hakam was supplanted by the Islamic kdi. i Shurayh. CJ&i of Kufa over a very long period and died at an incredibly old age. But the historical Shuray. was merely a hakam of the old style among the Arab tribes in the neighbourhood of Kufa. His activity coincided with the establishment and spread of Islam, and his legendary figure reflects the transition from the old to the new form of administration of justice.
We also find him more consistent than his predecessors in separating the moral and the legal aspects, whenever both arise with regard to the same problem. In this respect, Shqfi'i did not carry out the programme of the Traditionists who had tried to identify the categories 'forbidden' and 'invalid'. On the other hand, ShafiTs fundamental dependence on traditions from the Prophet, in which he followed the Traditionists, implied a different, formal way of Islamicizing the legal doctrine. In theory, Shdfi'i distinguished sharply between the argument taken from traditions and the result of systematic thought.
An Introduction to Islamic Law by Joseph Schacht