Page:Arabic Thought and Its Place in History.djvu/87

 treatment of the Islamic law: but it is a mistake to suppose that it still is mild and reasonable, for in the course of time the decisions pronounced as to "the preferable" have become hardened into precedents and the Hanifite code expresses only those fixed decisions of early mediæval Islam without flexibility. The case is parallel with the English treatment of equity. In older times equity shows us the philosophical principles of justice correcting the defects of common law; but modern practice displays these principles fossilized as precedents and as rigid and formal in their application as the common law itself. As first conceived, "the preferable" shows the influence of Roman law and Greek philosophy, both of which contemplated an objective standard of right and wrong which could be discovered by investigation, the Stoic teaching, predominant in Roman law, tending to treat this discovery as intuitive. Unsupported by other evidence, we might hesitate to suggest that istihsan necessarily had a Hellenistic basis, but when we compare the ideas of Abu Hanifa with the contemporary teaching of Wasil b. 'Ata (d. 131) in theology, we are forced to the conclusion that the same influences are at work in both, and in Wasil these are certainly derived from Greek philosophy. We are not justified in supposing that Abu Hanifa ever read the Greek philosophers or the Roman law, but he lived at a period when the general principles deduced from these sources were beginning to permeate Muslim thought, though in fact his teaching