Origins of Muhammadan Jurisprudence

116 ANALOGY, SYSTEMATIC REASONING,

This is the reply of Ibn Qāsim to a systematic reasoning of Sahnūn, and shows the influence of Shāfiʿī.

Medinese ijtihād

The ancient Medinese use ijtihād not in the general sense of exercising one's own opinion, but in the rather more specialized one of technical estimate, discretion of the expert. There are positive indications that this narrower meaning of ijtihād as a technical term is older than the broader one.

In Mālik ijtihād often means estimate by experts.¹ Mālik further knows the ijtihād of the Caliph or government (sulṭān), meaning either their endorsement of the technical estimate of the experts, as in Muw. iv. 39,² or their fair, discretionary judgment, as ibid. ii. 305 = Ṭabarī, 87; Mud. iii. 29, 30.³ In Mud. ii. 194 he enjoins on the arbiter, who is called upon to fix the fine for a transgression of ritual, to follow his own fair judgment (ijtihād) and not traditions on the decisions of Companions in similar cases.

Rabīʿ, in Tr. III, 61, uses 'ijtihād of the Caliph' with the same meaning, and in § 77 he says: 'There is no fixed decision (ḥukm maʿrūf) here, but a compensation (ḥukūma) must be fixed by fair estimate (ijtihād)'.⁴

Ibn Qāsim, in Mud. iv. 29, uses ijtihād ahl al-ʿilm for 'estimate of knowledgeable people, experts'.

Medinese qiyās

In many passages in Tr. III Shāfiʿī credits the Medinese with using analogy, and attacks them for using it improperly.⁵ According to them, Shāfiʿī says, one must not diverge from traditions except for sound reason and qiyās (§ 145 (a)). But we find them using the term qiyās themselves only in § 36, where Rabīʿ states that Mālik does not extend the effect of a tradition by analogy, as Shāfiʿī does, although he extends one of the categories mentioned there by subsumption; some of Mālik's followers hold that the specific mention of five categories in that