CHAPTER 9

ANALOGY, SYSTEMATIC REASONING,

AND PERSONAL OPINION

THE result of our inquiry so far has been that the real basis of legal doctrine in the ancient schools was not a body of traditions handed down from the Prophet or even from his Companions, but the 'living tradition' of the school as expressed in the consensus of the scholars. The opinion of the scholars on what the right decision ought to be precedes systematically, and also historically, its expression in traditions. We shall see¹ that the material on which the ancient lawyers of Islam started to work was the popular and administrative practice as they found it towards the end of the Umaiyad period. At present we are concerned with their systematizing activity itself. It started with the exercise of personal opinion and of individual reasoning on the part of the earliest cadis and lawyers. It would be a gratuitous assumption to consider the arbitrary decision of the magistrate or the specialist as anterior to rudimentary analogy and the striving after coherence. Both elements are found intimately connected in the earliest period which the sources allow us to discern. Nevertheless, all this individual reasoning, whether purely arbitrary and personal or inspired by an effort at consistency, started from vague beginnings, without direction or method; and it moved towards an increasingly strict discipline until Shafi'i, consistently and as a matter of principle, rejected all individual arbitrariness and insisted on strict systematic thought.²

Individual reasoning in general is called ra'y, 'opinion'. When it is directed towards achieving systematic consistency and guided by the parallel of an existing institution or decision it is called qiyas 'analogy'. When it reflects the personal choice of the lawyer, guided by his idea of appropriateness, it is called istiḥsān or istiḥbāb 'preference'. The term istiḥsan therefore came