166 chapter five
companions’ opinion, served as a third basis of jurisprudence after
the Qur"àn and the Sunnah. By the increasing complexity of the
affairs of the state during the Umayyads and the Abbasids there was
a need for further development of jurisprudence. With the absence
of a clear-cut secular rule in the Qur"àn, the Sunnah or the con-
sensus of the companions’ opinion, Muslim theologists, in line once
more with the spirit of Islam, resorted to other means of formulat-
ing a view: analogical reasoning, qiyàs, juristic preference, istiœsàn,
and public interest, istislàœ.
Various leading scholars placed different emphasis on one means
or another which led to the development of two schools of legal phi-
losophy: the school of opinion, ahl al ra"y, which flourished in Kufa
in Iraq, and the school of Aœadìth, ahl al Œadìth, which was influential
in Makkah and al-Medìnah in al-Œijaz. While the first school widened
the concept of juristic preference, istiœsàn, and analogical reasoning,
qiyàs, with less reliance on Aœadìth, the second relied more heavily
on Aœadìthand less on istiœsànor qiyàs. An important Tradition lends
support to the use of one’s opinion in reaching a rule in relation to
a situation that is not specifically specified in the Qur"àn or the
Sunnah. It is an important dialogue that is reported to have taken
place between the Prophet and Mu"aûibn-Jabal when the Prophet
appointed him as a judge in al-Yemen. The Prophet asked Mu"aû
how he would decide when a question arose. Mu"aûanswer was,
“According to the book of Allah”. “And if you find naught therein?”
the Prophet asked. Mu"aû’s answer was “According to the Sunnah
of the Messenger of Allah”. Then came the crucial question, “And
if you find naught therein?” Mu"aû’s answer, to which the Prophet
gave his approval, was, “Then I shall apply my own reasoning”.
This tradition provides the much needed legal support for the school
of opinion, ahl al ra"y, in developing their approach to Islamic law,
Sharì"ah (Al-Qattan, 1986).
Various factors could be said to have affected the move of each
school towards its own direction: (a) the lack of hadiths in Iraq com-
pared to that of Makkah and al-Medìnah, (b) the high degree of
complexity in the Iraqi society as a result of its closeness to Persia
and the Persian civilisation compared with the much simpler life in
al-Œijaz, (c) the suspicion of the Iraqi scholars that the Khawàrij
and the Shi"ìwho dominated Iraq could have injected false hadiths
in the Sunnah to serve their political claims, and (d) the delay in
the appearance of Hadiths canonical books, a task which was under-