270 THE DEVELOPMENT OF LEGAL REASONING IN GENERAL

the form of legal maxims;¹ these last then became a favourite mode of expressing the results of systematic legal thought in Iraq and in Hijaz.² Some abstract legal principles are part of the common stock of ancient doctrine.³ All this belongs to the first half of the second century A.H. The technical legal thought attributed to Ibrāhīm Nakha'ī dates only, as we saw, from the time of Ḥammād,⁴ and the technical details of legal doctrine which are discussed in Tr. I emerged in the period between Ḥammād on one side, and Abū Ḥanīfa and Ibn Abī Lailā on the other.⁵ These indications provide us with a useful chronology for the development of legal reasoning.

Tr. I allows us to follow the development of legal reasoning step by step from Ibn Abī Lailā to Abū Ḥanīfa, Abū Yūsuf, and Shāfi'ī. Ibn Abī Lailā and Abū Ḥanīfa were contemporaries, but Ibn Abī Lailā's reasoning is, generally speaking, more primitive and represents an older stage than that of Abū Ḥanīfa.⁶ The reasoning of Shāfi'ī is on the whole much superior to that of his Iraqian predecessors. The following examples are intended to show the general trend of the development.

Tr. I, 6: Shāfi'ī's reasoning is more detailed and articulate than that of an anonymous Iraqian.

§ 8 = Ris. 71 = Ikh. 340: The Iraqians interpret the legal maxim 'profit follows responsibility',⁷ after an expedient fashion, more intuitive than logical; Shāfi'ī's reasoning is strictly systematic and superior to that of his predecessors.

§ 13: 'A man concludes a sale on condition that the seller has the right of option for one day; the buyer takes possession, and the object perishes whilst it is in his possession. Abū Ḥanīfa used to decide: “The buyer is responsible for the value, because he took it on the basis of a contract of sale”, and we [Abū Yūsuf] follow this. Ibn Abī Lailā used to say: “He is a trustee and is not responsible.” If the option is in favour of the buyer and the object perishes whilst it is in his possession, it is to his debit at the price for which he bought it, according to the doctrine of both [Abū Ḥanīfa and Ibn Abī Lailā]. Shāfiʿī: “If a man sells a slave, stipulating the right of option for three days or less,⁸ and the buyer takes possession and the slave dies whilst he is in his possession, he [the buyer] is responsible for the value. What prevents us from making him responsible