122 ANALOGY,SYSTEMATIC REASONING,

fetwas on one and the same problem. In Tr. IV, 253, Shāfiʿī states that no decisions by arbitrary istiḥsān are allowed, only reasoning by analogy on points on which there is no text in the Koran, no sunna, and no consensus—that is, no binding information (khabar yalzam);¹ 'we and the people of our time (ahl zamāninā) are obliged to observe this.' Shāfiʿī recognizes here that the earlier generations used a freer kind of reasoning, and he is the first to confine it on principle within the limits of strict analogy.²

But in Tr. III, 14, Shāfiʿī uses what is, in fact, an istiḥsān ; and in Umm. iii. 114, where he discusses the same problem, his reasoning is clearly arbitrary raʾy, that is, istiḥsān. Mālik (Mud. ix. 138) had given the same decision by istiḥsān,³ and Shāfiʿī no doubt retained it from his early Medinese period.⁴

Shāfiʿī and qiyās

The only kind of reasoning which Shāfiʿī admits is conclusion by analogy. He takes qiyās for granted in his polemics against the ancient schools. Qiyās is obligatory (Tr. IV, 258), and is resorted to when there is no relevant text in the Koran, no sunna, and no consensus (Ris. 65); all are agreed on this (Tr. IV, 260). But qiyās remains subordinate to, and is weaker than, these sources of law (Ris. 82); Shāfiʿī does not reckon it as one of the sources (uṣūl), but considers it derivative (farʿ ) (Tr. VII, 274). It must be based on Koran, sunna, or consensus; it cannot supersede them and is in its turn superseded by them (Tr. III, 61 and passim). Sunnas, that is, traditions from the Prophet, are not subject to analogical reasoning, and their wording must not be interpreted away by qiyās.⁵ Nothing that the Prophet has forbidden can be allowed by qiyās (Tr. I, 51). But Shāfiʿī uses qiyās in support of traditions,⁶ and in Ris. 76 he says: 'Unquestioning submission to traditions (ittibāʿ) and qiyās'.