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Происхождение Исламской юриспруденции

Origins of Muhammadan Jurisprudence

Издатель

Oxford At The Clarendon Press

Год публикации

1950 AH

14 SHĀFI'I AND LEGAL TRADITIONS

ing; he considers them contradictory only when one cannot possibly be applied without rejecting the other (p. 330). He gives a detailed statement on his method of interpreting traditions in Ris. 30 f.

When conflicting traditions cannot be harmonized Shāfi‘i's declared intention, as we have seen, is to choose the one more in keeping with the Koran and the remaining undisputed parts of the sunna of the Prophet. He elaborates this rule in several passages, such as Ris. 40 f., where he says: 'If two traditions are contradictory, the choice between them must be made for a valid reason; for instance, one chooses the one which is more consistent with the Koran. If there is no relevant text in the Koran, one chooses the more reliable tradition, the one related by men who occur in a better-known isnād, who have a greater reputation for knowledge, or better memory, or else one chooses the one related by two or more authorities in preference to a single authority, or the one which is more consistent with the general tendency of the Koran or with the other sunnas of the Prophet or more in keeping with the doctrine of the scholars or easier with respect to analogy, and finally the one followed by the majority of the Companions.' But Shāfi‘i often has to fall back on the artificial expedient of counting the traditions and letting the greater number prevail, an expedient which was already used before him.2 The affirmative statement prevails over the negative one because it implies a better memory, and the fuller statement which contains additional matter, is to be preferred to the shorter one.3 But Shāfi‘i himself acts against this last rule in Ikh. 364 f., and even gives theoretical reasons for doing so.4 All these considerations do not afford him a sure guidance, and he is reduced to affirming, in the manner customary in the ancient schools of law, that those traditions and variants which he does not accept, are unreliable.5

1 See for the application of this method, Ikh. 208, 219 f. (below, p. 319), 222 f., 234, 267, &c.

2 For its use by Shāfi‘i, see Tr. III, 89; Ikh. 165, 206 f., 212, 230 f., 290; for its use before Shāfi‘i, see Ikh. 243.

3 The affirmative statement is preferred: Ikh. 212, 215; the fuller statement is preferred: Ikh. 228, 409.

4 Tr. I, 49; Ikh. 379. The ancient schools of law, particularly the Iraqians, are inclined to prefer the negative and the shorter statement, and to argue e silentio: Tr. III, 10, 17; Ikh. 48, 50.

5 Tr. III, 17. Further on Shāfi‘i's method of interpretation, see below, pp. 47, 56.

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