303

Origins of Muḥammadan jurisprudence

Origins of Muhammadan Jurisprudence

جوزيف شاخت - 1389 AH

Publisher

Oxford At The Clarendon Press

Publication Year

1950 AH

Genres
Principles of Islamic Jurisprudence
history of legislation
•
Regions
Germany

292 THE REASONING OF INDIVIDUAL IRAQIANS

§§ 134, 139: Practical concessions in favour of the mukātab slave (see above, pp. 112, 281).

§§ 143, 235 f.: A decision based on material, non-juridical considerations.
§ 150: A seemingly just and practicable decision, obviously inspired by material considerations (see above, p. 274).

Connected with these material considerations is Ibn Abī Lailā’s regard for the actual practice. The fact of his holding the office of judge would naturally reinforce this tendency. There are numerous traces of Ibn Abī Lailā’s activity as a judge in his doctrine.

We now come to a group of downright primitive features, both material and formal, in Ibn Abī Lailā’s doctrine.

§§ 30, 37, 59: Traces of patriarchy in civil law.
§ 44: Ibn Abī Lailā shows himself crudely systematic, but clumsy and inconsistent (see above, p. 271).
§ 77: Primitive legal reasoning (see above, p. 273).
§ 127: A trace of patriarchy in family property rights (see above, p. 278).
§ 140: Ibn Abī Lailā gives a seemingly natural and straightforward solution, but does not see its legal difficulties which were later pointed out by Abū Ḥanīfa.
§ 189: The old Arab idea that husband and wife have no share in matters of talion; this idea was dropped from Abū Ḥanīfa onwards.
§ 245: A far-fetched specious interpretation of a statement.

The last case quoted is one example out of many of Ibn Abī Lailā’s formalism. This rigid formalism is perhaps the most persistent single feature typical of his legal thought.⁴

1  This is well pointed out by Sarakhsī, vi. 97.

2  In common with the other Iraqians, Ibn Abī Lailā avoids the term ʿamal for practice (see above, p. 76). But the influence of the actual practice on his doctrine, to a much higher degree than in the case of Abū Ḥanīfa and his disciples, is unmistakable. See §§ 92‑94 (above, p. 273), 107 and 110 (above, p. 291), 109 (above, p. 210), 111 (above, p. 211), 115 (above, p. 218), 167 (above, p. 284).

3  See §§ 9, 49 (a change in his decision on an ancient controversial point under instructions from the ʿAbbāsid Caliph Saffāḥ), 55 (above, p. 272), 82 (a change of doctrine under the needs of the administration of justice: above, p. 273), 113, 210, 211, 255 (b), 256 (Abū Yūsuf was present when Ibn Abī Lailā related his decision as a judge). – It can further be reasonably presumed that Ibn Abī Lailā’s doctrine was influenced by the needs of judicial practice in the cases of §§ 106 (above, p. 274), 116 (above, p. 187 f.), 202, 203, 207.

4  See § 4 (complicated reckoning instead of valuation), 10, 25 (above, p. 271), 27 (ibid.), 50 (Ibn Abī Lailā attaches formal importance to a declaration and

292