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to signify a breach of strict analogy for reasons of public interest, convenience, or similar considerations. The use of individual reasoning in general is called ijtihād, and mujtahid is the qualified lawyer who uses it. These terms are to a great extent synonymous in the ancient period, and remained so even after Shāfi'ī. Individual reasoning, both in its arbitrary and in its systematically disciplined form, is freely used by the ancient schools, often without being called by any of the terms mentioned. It is typical of the lack of differentiation between the two elements that, if any term is used at all, it is mostly the generic term ra'y. In this chapter we are concerned only with the function of individual reasoning as a source of law; for the development of technical legal thought as such, see below, pp. 269 ff.

Qiyas is derived from the Jewish exegetical term hiqqīsh, inf. heqqesh, from the Aramaic root nqsh, meaning 'to beat together'. This is used: (a) of the juxtaposition of two subjects in the Bible, showing that they are to be treated in the same manner; (b) of the activity of the interpreter who makes the comparison suggested by the text; (c) of a conclusion by analogy, based on the occurrence of an essential common feature in the original and in the parallel case. The third meaning, in which Hillel uses the term (Palestinian Talmud, Pesachim, 6, fol. 33 a 14), is identical with that of qiyās. The existence of an original concrete meaning in Aramaic but not in Arabic (where qiyās belongs to the root qys), makes the foreign provenance of the term certain. Margoliouth has recognized this origin of qiyās, and tentatively suggested the further filiation of hiqqīsh, in its technical meanings, from συμβάλλειν.²

Conclusions a maiore ad minus (and negatively a minore ad maius) which fall under qiyas and are familiar to Shāfi'ī and his Iraqian predecessors,³ form one branch of Hillel's exegetical rules.⁴ D. Daube has pointed out that some of these rules occur, almost literally, in earlier Roman legal classics, and has suggested the 'plausible explanation . . . that there were pretty much the same rhetorical schools in Rome and in the provinces'.⁵ The same conclusions occur in Shāfi'ī's older Christian contemporary Theodore Abū Qurra (ed. Migne, Patr. Gr. xcvii. 1556), and Theodore's whole technique of