112 ANALOGY, SYSTEMATIC REASONING,

master has allowed him to purchase his liberty by instalments, is expressed in a tradition from ʿAlī (Tr. II, 17 (c)), and acknowledged by Ibn Abī Lailā (Tr. I, 139); Sarakhsī, vii. 207, calls it istiḥsān. Abū Ḥanīfa is systematically consistent, but still makes a very slight concession (at the end of ibid., 140). Abū Yūsuf followed Abū Ḥanīfa at first; in his later opinion he made a concession to the mukātab, though not so wide and so formal a one as did Ibn Abī Lailā, leaving the matter rather to the discretion of the judge. Shāfiʿī, who rejects istiḥsān on principle, becomes thoroughly consistent.

Goldziher, judging from the sources at his disposal, concluded that Abū Ḥanīfa himself established the principle of istiḥsān.¹ We now find that it already existed, as part of the actual reasoning of the Iraqians, before him, although the technical term for it appears, as far as I know, for the first time in Abū Yūsuf. This is confirmed by the following examples.

Ibn Abī Lailā. Tr. I, 92, 93, 94: he shows regard for the practice and gives a common-sense decision which is later called istiḥsān (see below, p. 273).

§ 153: he makes an inconsistent exception on account of vis maior, out of regard for material justice.

Abū Ḥanīfa. Ibid., 131: Sarakhsī, xxviii. 34, clearly shows the istiḥsān in Abū Ḥanīfa’s reasoning.

§ 178: Abū Ḥanīfa disapproved of the old custom of ishʿār (making incisions in the flesh of sacrificial animals) because it was cruelty; Ibn Abī Lailā and Abū Yūsuf, however, approved of the custom, and authority for it was found in several traditions; Ṭaḥāwī (quoted in Sarakhsī, iv. 138) calls Abū Ḥanīfa’s opinion raʾy, and the reasons which he gives for this opinion show it to be istiḥsān.

Tr. IX, 2: a consideration of Abū Ḥanīfa is based on common sense.

§ 15: neither here nor elsewhere does Abū Ḥanīfa use the term istiḥsān.

Abū Yūsuf. Tr. I, 2: he makes a concession in a case of vis maior; Sarakhsī, xv. 103, calls it istiḥsān.

Goldziher² has collected from Kharāj and from Shaibānī’s Jāmiʿ al-Ṣaghīr several examples where Abū Yūsuf and Shaibānī respectively use the term istiḥsān and oppose it to qiyās.

Shaibānī. Muw. Shaib. 197, 226: Shaibānī gives an arbitrary opinion and chooses his traditions accordingly; he calls this raʾy.