Origins of Muhammadan Jurisprudence

AND PERSONAL OPINION 109

military expeditions of the Prophet. The ancient Iraqians found it illogical that the share of an animal should be greater than the share of a Muslim, and reduced the portion of the rider to one share for his mount, in addition to his own share. This was still the doctrine and the argument of Abū Ḥanīfa, who also knew a tradition from ʿUmar to this effect (Comm. ed. Cairo, loc. cit.). Abū Yūsuf, however, returned to the Syrian (and Medinese) doctrine. His ostensible reasons were Syrian and Medinese traditions, which he relates in detail in Kharāj, 11 f. But Shaibānī (Siyar, ii. 176) gives, besides the reference to traditions, the argument that the older Iraqian doctrine would put the animal and the Muslim on the same footing. In this case, therefore, the refinement of reasoning led to the rejection of a crude qiyās.

Shāfiʿī calls the Iraqians “adherents of qiyās” (ahl al-qiyās) in Tr. I, 137, and in several other passages he represents the qiyās as one of their fundamental principles. For example, ibid., 89: “They do not allow anyone to diverge from qiyās.” Or Tr. IV, 258: “If they [the Successors] express opinions on questions on which there is no Qurʾānic text and no sunna, you infer that they have arrived at their decision by qiyās, and you say: ‘Qiyās is the established knowledge which knowledgeable people agree is right.’” The opponent agrees. Shāfiʿī points out that it is possible that they based their opinions on raʾy and not on qiyās. The opponent agrees that this is possible, but does not think that they could have expressed opinions except on the basis of qiyās. Shāfiʿī replies: “You... imagine that they used qiyās, and you make its use obligatory...'¹ These statements are materially correct, but Shāfiʿī formulates them in a pointed manner for purposes of polemics.² Shāfiʿī was the first to distinguish on principle between general raʾy and strict qiyās, and he imposed this distinction on his opponents by a favourite debating device of his.

In the actual reasoning of the Iraqians, qiyās is simply a more or less clearly defined kind of raʾy, and the term qiyās is used rarely. In Ikh. 116 f., the Iraqian opponent agrees that a certain doctrine of his is based neither on tradition nor sunna nor on