126 ANALOGY, SYSTEMATIC REASONING

theoretical requirements.¹ Another case, which was, however, eliminated by Shāfi'ī in his later doctrine, occurs in Tr. I, 98. There was an ancient common tendency to apply the ḥadd punishment for drinking wine only if the culprit was taken flagrante delicto, that is, in a state of drunkenness. This was the doctrine of Ibn Abī Lailā. Abū Ḥanīfa, followed by Abū Yūsuf, extended this principle by analogy to all ḥadd punishments, which according to him lapse after a short period of prescription. Shāfi'ī did not admit this principle, which conflicted with the system, but he made allowances for the common tendency by letting all ḥadd punishments lapse through intervening repentance (tauba), by analogy with the Koranic ruling on banditry (Koran v. 34). This is an analogy based on an exceptional case. In his later opinion, however, as related by Rabī', Shāfi'ī ruled that repentance had no effect on the ḥadd punishment (excepting, of course, the particular case of Koran v. 34), and found this decision implied in traditions from the Prophet.

Qiyās often means not a strict analogy, but consistent systematic reasoning in a broader sense, as in Tr. I, 123, 133, 184, 200, and often.

Shāfi'ī and Istiṣḥāb

istiṣḥāb is the conclusion by which one 'attaches' a later stage to a former—in other words, one does not presume any changes in the legal situation unless they are proved for certain. Shāfi'ī applies this principle in Umm, iv. 170 without, however, using the term istiṣḥāb; he obviously regards it as part of qiyās and 'reason' (ma'qūl).

Shāfi'ī and 'aql, ma'qūl

Shāfi'ī often refers to 'aql 'reason' or ma'qūl 'what is reasonable', sometimes as a synonym of qiyās, as in Tr. I, 160, and in the numerous cases where he speaks of qiyās and 'aql or qiyās and ma'qūl, sometimes in a broader meaning, implying that a doctrine is consistent and stands to reason.² So ma'qūl can be opposed to qiyās proper (ibid. 121), or be used to show that there is no place for qiyās (ibid. 253).³ Ijtihād must be exercised by 'aql (Ris. 5); Allah has endowed mankind with 'aql and guides them either by an explicit text or by indications on which to base their ijtihād (ibid. 69).