Origins of Muḥammadan jurisprudence
Origins of Muhammadan Jurisprudence
Publisher
Oxford At The Clarendon Press
Publication Year
1950 AH
THE REASONING OF INDIVIDUAL IRAQIANS 291
§ 31: A practical and 'homely' inference, combined with systematic reasoning.1
§ 32: An inconsistent decision, based on practical expediency.
§ 63: A decision based on a false analogy, not technically legal or logical, but practical and keeping account of the presumed intention of the party concerned.
§ 65: Ibn Abī Lailā does not see the implications of the problem and gives what must have seemed to him a practicable and materially just solution.2
§ 72: A practicable and seemingly natural decision (see above, p. 272).
§§ 92, 93, 94: Common-sense and practicable decisions, showing regard for the practice (see above, p. 273).
§§ 107, 110: A rough-and-ready solution, taking account of the old practice of identifying slaves and tax-payers by seals of lead attached to their necks,3 and of the official correspondence between judges; Shāfi'ī's comment shows that this is the easiest way out of a practical difficulty, but it is against qiyās, legally irregular and beset with difficulties.4
§ 126: A practicable interim solution (see above, p. 274).
§ 190: A practical but inconsistent decision (see below, p. 295).
§ 227: Ibn Abī Lailā gives the reason for his decision; it is plausible on the face of it, but rather irrelevant.
§§ 236, 251: Makeshift method and rough-and-ready decision (see above, p. 236).
This practical, common-sense reasoning often takes material, and particularly Islamic-ethical, considerations into account.
§ 3: An inconsistent decision in favour of the liberty of a slave.
§ 17: A rough-and-ready decision in the interests of material justice.
§ 28: A decision based on material justice and on an ethical consideration (see above, p. 284).
§ 130: An inconsistent decision in favour of the orphan (see above, p. 217).
¹ The silence of the owner is treated by analogy with the silence of the virgin on her marriage. This argument, only adumbrated in Tr. I, is explicitly given by Sarakhsī, xxx. 140, on behalf of Ibn Abī Lailā; it is certainly authentic because Shāfiʿī refers to it.
² But the general theory of tajhīl which is attributed to Ibn Abī Lailā by Sarakhsī is spurious, as appears from a comparison of Sarakhsī, xi. 129 ff., with Tr. I, 67.
³ See Becker, Islamstudien, i. 261.
⁴ Sarakhsī, xi. 24 f., calls it 'a not very good istiḥsān', but states that it is in the public interest.
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