AND PERSONAL OPINION 111

§ 6: Shaibānī uses analogical reasoning and calls it a qiyās based on the sunna; he also calls it maʿqūl (“reasonable”), but Shāfiʿī claims that Shaibānī has perverted the qiyās and turned it upside down. § 7: Shaibānī is able to support the Iraqian doctrine by analogical reasoning starting from a Medinese tradition (Muw., iv. 40).

§ 21 and often elsewhere in Tr. VIII: conclusions a maiore ad minus.

Siyar, iv. 376: a weak analogy against Abū Ḥanīfa’s and Abū Yūsuf’s consistent doctrine (Tr. IX, 24).

Iraqian istiḥsān

According to Shāfiʿī (Tr. III, 66), the Iraqians are accustomed to say: “The qiyās would be..., but we practise istiḥsān.” Ṭabarī (§ 101) says that according to Abū Ḥanīfa and his companions a certain act “is considered valid by istiḥsān, although it is against the qiyās”; this decision is taken for purely practical reasons. The terms are of Ṭabarī’s choosing and do not occur in the parallel passage, Tr. IX, 15.

Some old cases of istiḥsān are expressed in—and therefore obliterated by—traditions. For example, strict analogy justifies the application of the lex talionis to only one culprit for one victim, and this is indeed the Iraqian doctrine in the case of wounds; but as regards capital crimes, the Iraqians have several culprits executed for the murder of one. Comm. Muw. Shaib. 292, n. 3, states that this doctrine is held in deference to a [Medinese] tradition from ʿUmar in which the consideration of the public interest is expressed clearly (Muw. iv. 48; Muw. Shaib. 291). In other words, the ancient Iraqians diverged from the qiyās for reasons of public policy—a decision which in Medina was embodied in the tradition from ʿUmar. But Shāfiʿī takes the tradition from ʿUmar as his starting-point, builds on it another qiyās to the effect that the lex talionis for wounds is also applicable to several culprits for one victim, and then blames the Iraqians for their inconsistency (Tr. II, 18 (h)). Properly speaking, this goes against Shāfiʿī’s own rule that no qiyās is to be based on an exception, but for him the tradition is the basis of his doctrine.¹

A practical concession to the mukātab, the slave whose