The Epistle on Legal Theory

Opinions of the Companions

٤٣١ 431 Opinions of the Companions view that the grandfather receives a share equal to or greater than that of the brother. I do not think one should contradict them or resort to analogizing when it leads to a position outside the total range of their opinions. I concluded that confirming the right of both the brothers and the grandfather to inherit together is the best of the two views on the basis of the indications that analogizing furnished me, as I have described. This is especially so in conjunction with the fact that my conclusion is the opinion of most jurists in the various regions past and present. In addition, the inheritance of the brothers is affirmed in the Book; the grandfather has no inheritance according to the Book; and the inheritance of the brothers is better established than that of the grandfather in Prophetic Practice. Opinions of the Companions Then he said, “I have heard your opinion concerning consensus and analogizing after your opinion about rulings of the Book of God and the Practice of His Emissary. What do you think about the opinions of the Companions of God’s Emissary when they disagree with each other?” In that case, I said, we adopt the opinion that agrees with the Book, Prophetic Practice, consensus, or what makes for the most valid analogy. “What do you think,” he continued, “about the case in which one of them utters an opinion and no one else is remembered to have agreed or disagreed with it? Can you cite any authority for following it—whether from a scriptural passage, a Prophetic practice, or something people have agreed on—that could serve as a justification of a kind that you could adduce as a report?”452 We have not found, I replied, any scriptural prooftext or confirmed account of a Prophetic practice pertaining to that. We have found scholars adopting the opinion of one Companion sometimes and not adopting it at other times, and also disagreeing over some of the Companions’ opinions that they do adopt. “Which of those do you do?” he asked. I follow the opinion of a 725 726 727 ٤٣٢ 432 =>
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 .                ١ .(   ) :  ٢ ٤٣٣ 433 The Status of Consensus and Analogy 728 729 Companion, I said, if I cannot find a prooftext from scripture, a Prophetic practice, an instance of consensus, anything of similar import to the Companion ’s opinion that would justify using his opinion as the basis for a ruling ,453 or an illustration of how it could be used for analogical reasoning. Only rarely does one find that the opinion of one Companion remains unopposed by another. The Status of Consensus and Analogy “You have based rulings on the Book and Prophetic Practice,” he said. “How do you rule on the basis of consensus, and then analogies? Do you accord consensus and analogies the same status as a scriptural prooftext or a Prophetic practice?” Even if I do base rulings on them in the same way that I do using the Book and accounts of Prophetic Practice, I replied, the principle that underlies my rulings that I base on them differs. “Is it permissible,” he asked, “for such bases to have differing...