CHAPTER 4

THE REASONING OF INDIVIDUAL IRAQIANS

A. IBN ABĪ LAILĀ

WE have seen that the technical legal problems which form the subject-matter of Tr. I, and on which Ibn Abī Lailā and Abū Ḥanīfa differ, are later than the real or fictitious opinions ascribed to Ibrāhīm Nakhaʿī in Athār A. Y. and Athār Shaib., and further that these last date mainly from the time of Ḥammād.¹ The discussion of the technical legal problems must have started therefore not much earlier than the time of Ibn Abī Lailā himself. On the other hand, the doctrine of Ibn Abī Lailā is as a rule more primitive, less highly developed, and represents an earlier stage than that of his contemporary Abū Ḥanīfa.² In other words: Ibn Abī Lailā is more conservative, and this is well in keeping with his having been a judge (a fact of which we shall also find direct traces in his decisions), whereas Abū Ḥanīfa, a speculative lawyer, was less hampered by the necessity of paying regard to the practice.

The doctrine of Ibn Abī Lailā, taken as a whole, shows a considerable amount of technical legal thought, but it is generally of a primitive kind, somewhat clumsy and untrained, and therefore short‑sighted and often unfortunate in its results. His loose and imperfect method is not incompatible with formalism and the stubborn drawing of consequences. Nevertheless, Ibn Abī Lailā’s technical reasoning is far from rudimentary; the striving for systematic consistency, the action of general trends and principles, pervade his whole doctrine, and there is a considerable amount of explicit legal reasoning.³

In a great number of cases, Ibn Abī Lailā’s doctrine represents seemingly natural and practical common‑sense, and rough‑and‑ready decisions. The following short remarks on a few chosen examples will serve to make this clear.

§ 13: A seemingly just and reasonable, but short‑sighted solution (see above, p. 270 f.).