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Origines de la jurisprudence musulmane

Origins of Muhammadan Jurisprudence

Maison d'édition

Oxford At The Clarendon Press

Année de publication

1950 AH

AND PERSONAL OPINION  117

tradition implies that all others are excluded; at the same time the Medinese, without using the later technical term 'illa, look for the motive which underlies the mention of those categories in the tradition; but again they fall back on the opinion that this is not a case in which one must look for implications and that the tradition has to be accepted as it stands (lā bal al-ḥadīth jumla lā li-maʿnā). This shows that reasoning by analogy, as used by the Medinese, is still an undisciplined part of their general ra’y, and the term qiyās was no doubt forced on Rabī‘ by Shāfi‘ī.

Mālik, in Mud. ii. 268, reasons by analogy on a point of detail, introducing it by ‘I am of the opinion’ (arā). According to Tr. III, 97, Mālik bases ‘any number of analogies’ on a tradition from Ibn ‘Abbās, but these are Shāfi‘ī’s words. Mud. ii. 94 uses shabbah ‘to assimilate’, in describing Mālik’s analogical reasoning.

The use of analogical reasoning, but not the term qiyās, is also ascribed to ancient Medinese authorities such as Sālim (Muw. i. 260) and Ibn Musaiyib (ibid. ii. 307). In the first case there is an analogy based on an exception from a general rule, which is an undisciplined form of qiyās. Whereas these ascriptions must be regarded with the same suspicion as those discussed above (pp. 113 f.), the following story related by Mālik (ibid. iv. 39) is certainly spurious: Rabī‘a b. Abī ‘Abdalrahmān asked Ibn Musaiyib about the compensation for the fingers of a woman; Ibn Musaiyib replied that it was 10 camels for one finger, 20 for two, 30 for three, but 20 for four; when Rabī‘a expressed his astonishment, Ibn Musaiyib asked him whether he was an Iraqian, and assured him that it was the sunna.1 The actual Medinese doctrine followed by Mālik was, however, to fix the compensation for the fingers of a woman at 10 camels each, according to analogy.

Among the Companions, analogical reasoning is ascribed to Ibn ‘Abbās in a Medinese tradition which makes him fix the same amount of compensation for each tooth, whatever its position in the mouth, with reference to the fact that the compensation for each finger is the same (ibid. iv. 40). This is also the doctrine of the Medinese and of the Iraqians. But as regards the compensation for the lips, the Iraqians, carrying farther the analogy in the tradition from Ibn ‘Abbās, hold, indeed, that half the weregeld is due for each lip, whereas the ancient Medinese award one weregeld for both lips,

1 This opinion follows from the Medinese principle that the compensation for injuries caused to a woman is half of that for injuries caused to a man, if it amounts to one-third of the weregeld or more, but the same as that for injuries caused to a man, if it amounts to less than one-third of the weregeld; see below, p. 217.

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