Origins of Muḥammadan jurisprudence
Origins of Muhammadan Jurisprudence
Publisher
Oxford At The Clarendon Press
Publication Year
1950 AH
PART IV
THE DEVELOPMENT OF TECHNICAL LEGAL THOUGHT
CHAPTER 1
THE DEVELOPMENT OF LEGAL REASONING IN GENERAL
THE development of technical legal thought is an essential aspect of the history of early Muhammadan jurisprudence. Legal theory, positive legal doctrine, and technical legal thought grew up in close connexion with one another, until legal theory and technical legal thought reached their common culminating point in Shāfi'ī. To follow the development of technical legal thought in detail would demand an historical analysis of positive legal doctrine over the whole field of law, an undertaking which falls outside the scope of our inquiry. What I propose to do, in the first two chapters of this part, is to give the broad outline and to show the significant character of the development of legal reasoning in the early period. This is to be supplemented in the final chapters by remarks on the individual reasoning of some of those ancient lawyers whom the sources available allow us to see as individuals, concluding with Shāfi'ī.1
Legal reasoning was inherent in Muhammadan law from its very beginnings. We have investigated in the first part of this book the appearance of systematic reasoning from the earliest period onwards and its subsequent subjection to an increasingly strict discipline.2 The oldest stage of legal reasoning is represented by Iraqian traditions which show crude and primitive conclusions by analogy (qiyās).3 The results of this reasoning were sometimes expressed in the form of legal 'puzzles',4 or in
1 Only genuine quotations from the ancient authorities can be used in the study of their reasoning; the statements of later authors, such as Sarakhsī, on the alleged principles underlying their doctrine, are often unreliable.
2 See above, pp. 98 ff.
3 See above, pp. 106 ff. 4 See above, p. 241.
Unknown page