118 ANALOGY,SYSTEMATIC REASONING,

but two-thirds of the weregeld for the loss of the lower lip alone; Malik and his disciples, however, share the doctrine of the Iraqians, presumably under their influence (Muw. iv. 40; Tr. VIII, 7).¹

Medinese istihsan

According to Tr. III, 24 the doctrine of the Medinese on a certain point is istiḥsān; Shāfiʿī uses this term as a synonym of raʾy. Ibn Qāsim, in the Mudauwana, often uses istiḥsān.² He also ascribes it to Mālik.³ But in most passages there is nothing to show whether the term istiḥsān was used by Mālik himself or only introduced by Ibn Qāsim, and in one at least (xiv. 109) Ibn Qāsim gives as his own opinion (raʾait) that Mālik used istiḥsān; the term does not, as far as I know, occur in Mālik's Muwattaʾ or in other ancient quotations from Mālik; and where Mālik uses reasoning which might, indeed, be termed istiḥsān he does not mention the term. We are therefore justified in concluding that Mālik does not use the term, and that in the solitary passage in which Ibn Qāsim gives it as part of Mālik's words he has put it into the mouth of his master.

This passage is xiv. 134, where Ibn Qāsim says: "I only know that Mālik distinguished [between the two cases in question], and used to say: 'This is a point which has not been made, as far as I know, by any scholar before me . . . but it is a decision on which I have used my istiḥsān and my raʾy, and I am of the opinion (arā) that the practice ought to be accordingly. . .."' We have seen above (p. 115) that Ibn Qāsim uses raʾy and istiḥsān as synonyms. This is one of the four cases in which the later Mālikī school ascribes to its founder istiḥsān as opposed to raʾy, a systematic distinction which did not exist in the early period.⁴ These alleged cases of Mālik's istiḥsān do not include the following, which are authentic:

(a) Muw. iii. 10 and Mud. v. 2: Mālik expresses his raʾy; his reasoning is typical istiḥsān, and Ibn Qāsim (Mud. v. 4 f.) calls it so.

(b) Mud. ix. 138: this is an exception from a strict analogy based on a tradition — a loan with restitution in kind, which is permissible in the case of male slaves, is not allowed in the case of slave-girls.