Origins of Muhammadan Jurisprudence

AND PERSONAL OPINION 103

The distinction which Ibn Muqaffa' makes here between those who base themselves on sunna¹ and those who use ra'y has nothing to do with the distinction between the Hijazis and the Iraqians which he has introduced before, or even with that between the traditionists and the adherents of the ancient schools. It is, as the evidence collected in this and the preceding chapters shows, merely a distinction between two still-connected and complementary tendencies which the shrewd secretary of state, anticipating Shāfi'ī, isolated from each other and saw as destined to clash.

As an observer from outside, Ibn Muqaffa' disparages ra'y as it is used in the ancient schools of law, and suggests that the Caliph should supersede and regulate it.² He shows that human imperfections are inherent in systematic reasoning although the person who undertakes it applies strict analogy, particularly when this reasoning is pushed to its extreme limits. He gives a common-sense but non-technical description of the proper function and limitations of analogy and the proper use of ra'y and istiḥsān, by which undesirable consequences of strict systematic reasoning can be avoided (p. 126).

By his very attacks on ra'y Ibn Muqaffa' acknowledges its importance in the ancient schools of law. Apart from using the term, as we saw, for the supreme discretionary decision of the ruler, he uses it for a suggestion of his own on taxation (p. 130), and even mentions it repeatedly as an essential part of the activity of the lawyers, who must possess knowledge of sunna and precedents (ahl al-fiqh wal-sunna wal-siyar). The emphasis which he lays on the ra'y of the Caliph, as opposed to that of the lawyers, is caused by his special position as a secretary of state and the particular political situation at the beginning of the 'Abbasid dynasty.

B. THE IRAQIANS

The Iraqians do not invalidate the decision of a judge who decides according to his discretion (ra'y), even if they regard it as unjust (Ikh. 54). But whilst they use ra'y themselves, they do not consider it as a valid argument on the part of others (ibid. 378). This inconsistency and the resultant