Origins of Muhammadan Jurisprudence
الناشر
Oxford At The Clarendon Press
سنة النشر
١٩٥٠ هجري
تصانيف
104 ANALOGY, SYSTEMATIC REASONING,
inconclusive character of raʾy provides Shāfiʿī with an argument against it.1
The earliest documents of Iraqian raʾy consist of a number of traditions from Ṣaḥāba, one of which has been quoted above, p. 29. Further examples in Tr. II are:
§ 12 (a): ʿAlī credits himself and ʿUmar with raʾy. Shaʿbī appears in the isnād.
§ 12 (g): Ibn Masʿūd expresses his raʾy, but in view of the opposition of some Ṣaḥāba of the Prophet he forgoes acting upon it. This is a counter-tradition against the Iraqian doctrine which goes under the name of Ibn Masʿūd.
§§ 14 (e), 18 (n): raʾy is ascribed to ʿAlī.
§ 18 (w): raʾy is used by Ibn Masʿūd in a tradition which expresses the oldest Iraqian doctrine. Its isnād is munqaṭiʿ, and it is not earlier than the time of Shaʿbī, who appears in its isnād.
§ 18 (y): Ibn Masʿūd and ʿUmar, who approves of Ibn Masʿūd’s decision, express their raʾy that the punishment by taʿzīr, which is awarded by the judge, is not to exceed half the Qurʾānic ḥadd punishment. This Iraqian principle is an early arbitrary decision, and the tradition endeavours to enlist the authority of ʿUmar for the doctrine which is attributed to Ibn Masʿūd.
The Basrian version of a tradition against the sale of fruit before it is ripe even puts into the mouth of the Prophet an argument with araʾayta, which is typical of the discussions based on raʾy (Tr. I, 19; Tr. III, 12).
To a later period belong traditions in the classical collections and other works, such as that which makes Ibn Masʿūd come out boldly in favour of the use of one’s own raʾy, after following first the Qurʾān, then the decisions of the Prophet, then the decisions of pious men;2 or that which declares that the Ṣaḥāba, when confronted with a question on which they had no tradition from the Prophet, used to come together and arrive at a decision in common (ajmaʿū), and that their opinion was right (fa-l-ḥaqq fīmā raʾaw);3 or ʿUmar’s alleged instructions to the old judges in Iraq, Shurayḥ and Abū Mūsā al-Ashʿarī.4
1 Below, pp. 121 f. We have observed the same kind of inconsistency in the technical criticism of traditions by the ancient schools: above, pp. 38 f.
2 Nasā'ī, Kitāb ādāb al-qudāt, al-hukm bi-ttifaq ahl al-'ilm. This can be dated in the time of A'mash.
3 Dārīmī, Bab al-tawarru' 'an al-jawāb.
4 Goldziher, Zahiriten, 9; Margoliouth, in J.R.A.S., 1910, 307 ff. On the famous tradition on Mu'adh and the Prophet, see below, pp. 105 f.
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