Origins of Muḥammadan jurisprudence
Origins of Muhammadan Jurisprudence
Publisher
Oxford At The Clarendon Press
Publication Year
1950 AH
THE REASONING OF INDIVIDUAL IRAQIANS 293
Such are the foundations from which rises Ibn Abī Lailā’s technical legal thought. The following examples will be sufficient to show its extent and quality.
§ 16: Ibn Abī Lailā anticipates Shāfiʿī.
§ 39: Ibn Abī Lailā bases his decision on a general rule of presumption; Sarakhsī shows competently that Ibn Abī Lailā misapplies the rule, but Shāfiʿī, in his better-attested opinion, agrees with Ibn Abī Lailā.
§ 47: Ibn Abī Lailā reasons on the theoretical construction of the right of pre‑emption, but his solution is practical.
§ 75: Ibn Abī Lailā reasons against contracts concerning an unknown quantity; Shāfiʿī has nothing substantial to add to his argument.
§ 83: Ibn Abī Lailā sees the essential problem and anticipates Shāfiʿī (see above, p. 273).
§§ 123, 125, 206: Ibn Abī Lailā’s decisions on two widely differing groups of problems are based on the theory of the indivisibility of acknowledgements.
§ 129: The doctrine of Ibn Abī Lailā is juridically better developed than that of Abū Ḥanīfa; it is maintained with a systematic improvement by Shāfiʿī.
§ 133: Ibn Abī Lailā enounces a sound general principle as the basis of his decision.
§§ 134, 140: Ibn Abī Lailā knows the concept of being “in abeyance,” but expresses it clumsily (see above, p. 281, n. 1).
§ 148: A common‑sense and juridically sound decision, endorsed by Shāfiʿī.
§ 151: A close parallel which shows, in addition, an intelligent application of a general principle and a high degree of legal thought.
§ 152: Equally good.
§ 171 (a), 216: Analogical reasoning, without the term qiyās (see above, p. 110).
§ 243: If we are to believe Sarakhsī, xxx. 165 (and this seems indeed the only possible reason for Ibn Abī Lailā’s decision), Ibn
becomes systematically inconsistent), 52 (above, p. 272), 67, 68 f. (very rigid and formal, simple but consistent legal thought), 90, 97, 108 (above, p. 274), 118 (Ibn Abī Lailā’s formalistic respect for the res iudicata is, however, not peculiar to him; see Umm, vii. 34), 120, 141 f. (Ibn Abī Lailā pursues to its farthest consequences a formal principle which embodies crude and primitive reasoning; above, p. 274), 174 (formalistic concern with the intention), 179, 180, 193, 205, 239.
1 Sarakhsī, xxx. 144, mentions Ibn Abī Lailā’s argument explicitly; this is confirmed by Shāfiʿī’s reference to it.
2 Sarakhsī, xi. 150, says correctly that it takes account of the outward, obvious facts (li‑ʿtibār al‑ẓāhir).
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