272 THE DEVELOPMENT OF LEGAL REASONING IN GENERAL

an institution existing for its own sake. This attitude heralds the end of the formative period of Muhammadan law.

§ 52: Ibn Abī Lailā does not admit an amiable settlement which is not based on the recognition of the claim of the other party (ṣulḥ 'alā-l-inkār); this presupposes strictly formal reasoning, of the same kind as that given by Shāfi'ī later, starting from the Koranic prohibition of 'consuming one another's property in vanity' (Sura ii. 188 and often). Abū Ḥanīfa, followed by Abū Yūsuf, admits that kind of settlement, taking a more common-sense and practical view. Shāfi'ī must, by strict qiyās, revert to the doctrine of Ibn Abī Lailā.

§ 55: On the validity of an acknowledgement made out of court, the decision of Ibn Abī Lailā is inconsistent but inspired by the interests of the administration of justice.¹ The decision of Abū Ḥanīfa, who is followed by Abū Yūsuf, is consistent but leaves considerations of judicial practice out of account. Shāfi'ī gives essentially the same decision as Abū Ḥanīfa on the problem in question, but raises the discussion to a higher, more juridical, plane on which he is able to provide for the need felt by Ibn Abī Lailā, whilst avoiding his inconsistency.

§ 60 f.: It is the common doctrine of the ancient Iraqians that a gift becomes fully valid only if the donee takes possession of the object. What of the gift of an undivided share in property? Ibn Abī Lailā, with a pointed reference to the common Iraqian doctrine, admits it as valid, presumably because this appeared to him as the natural solution. Abū Ḥanīfa, who gives technical reasoning of a high standard, sees a difficulty in taking possession of an undivided share, and therefore cannot admit it as the object of a valid gift; he tries to find a confirmation of this conclusion in a tradition from Companions of the Prophet and in an opinion attributed to Ibrāhīm Nakha'ī, but neither is decisive on this particular point. Abū Yūsuf,² inconsistently, follows Abū Ḥanīfa in the case of § 61, but not in that of § 60. Shāfi'ī, whilst in fact returning to the doctrine of Ibn Abī Lailā, contributes an excellent systematic discussion of the concept of 'taking possession'.

§ 72: Ibn Abī Lailā gives a practicable and seemingly natural solution of a problem relating to security (rahn); Abū Ḥanīfa, followed by Abū Yūsuf, applies elementary legal reasoning; Shāfi'ī carries the legal analysis farther, and by excellent systematic reasoning arrives at a solution different from both opinions.