THE DEVELOPMENT OF LEGAL REASONING IN GENERAL 273

§ 77: Ibn Abī Lailā shows primitive legal reasoning; the reasoning of Abū Ḥanīfa, whom Shāfiʿī follows, is considerably more penetrating.

§ 82: A man claims ownership of a house, and the man in occupation claims that he is only the agent of an absent owner. The ancient Iraqian doctrine was not uniform. Ibn Shubruma (Sarakhsī, xvii. 37) rejected the counterclaim and made the occupier the defendant. Ibn Abī Lailā accepted the counterclaim and dismissed the suit; but later, obviously under the necessities of the administration of justice, he demanded evidence in support of the counterclaim if he doubted the truthfulness of the occupier. Abū Ḥanīfa, more consistent, demanded evidence on principle. Abū Yūsuf followed this originally, but later, again under the necessities of the administration of justice, demanded the evidence of witnesses personally known to him, if he doubted the truthfulness of the occupier. So far, this problem was treated in isolation. But Shāfiʿī put it against the background of the wider problem of the judgment against an absent party, and elaborated two sets of possible and consistent solutions, neither of which agreed with the opinions of his predecessors.

§ 83: Ibn Abī Lailā saw the essential problem; Abū Ḥanīfa, followed by Abū Yūsuf, applied rigidly formal reasoning; Shāfiʿī returned to Ibn Abī Lailā’s decision and gave an explicit legal argument.

§§ 92, 93, 94: The decision given by Ibn Abī Lailā in these three parallel cases is an obviously common-sense and practicable one. Abū Ḥanīfa, followed by Abū Yūsuf, takes a strictly formal view. Shāfiʿī adopts essentially Abū Ḥanīfa’s solution which alone is juridically acceptable to him, but he develops a more appropriate procedure which also obviates the practical difficulty which Ibn Abī Lailā had in mind. In one particular case, Shāfiʿī becomes inconsistent because he must declare a transaction which involves 'usury' null and void; there is, however, a good systematic reason for the fact that the actual results of his procedure in § 94 are different from those in §§ 92 and 93. In § 94, but not in §§ 92 and 93, Abū Yūsuf anticipates Shāfiʿī’s procedure by one which is parallel to it and reconciles the guiding ideas of Ibn Abī Lailā and of Abū Ḥanīfa.