that, if the opinions of the licensed prudentes all agreed, such common opinion had the force of statute; but if they disagreed, the judge might follow which he chose." The Arabic term, ra'y, here rendered Opinion, has passed through marked vicissitudes of usage. In old Arabic, before it, in the view of some, began to keep bad company, it meant an opinion that was thoughtful, weighed and reasonable, as opposed to a hasty dictate of ill-regulated passion.. In that sense it is used in a tradition—probably forged—handed down from Muhammad.. He was sending a judge to take charge of legal affairs in al-Yaman, and asked him on what he would base his legal decisions. "On the Qur'an," he replied. " But if that contains nothing to the purpose?" "Then upon your usage." "But if that also fails you?" "Then I will follow my own opinion." And the Prophet approved his purpose. A similar tradition goes back to Umar, the Khalifa, and it, too, is probably a later forgery, written to defend this source of law. But, with the revolt against the use of Opinion, to which we shall soon come, the term itself fell into grave disrepute and came to signify an unfounded conclusion. In its extremest development it went beyond the Responsa, which professed always to be in exact accord with the letter of the older law, and attained to be Equity in the strict sense; that is, the rejection of the letter of the law for a view supposed to be more in accordance with the spirit of justice itself. Thus, Equity, in the English sense, is the law administered by the Court of Chancery and claims, in the words again of Sir Henry Maine, to

"override the older jurisprudence of the country on the strength of an intrinsic ethical superiority." In Roman law, as introduced by the edict of the Praetor, it was the law of Nature, "the part of law 'which natural reason appoints for all mankind.'" This is represented in Islam under two forms, covered by two technical terms. The one is that the legist, in spite of the fact that the analogy of the fixed code clearly points to one course, "considers it better" (istihsan) to follow a different one; and the other is that, under the same conditions, he chooses a free course "for the sake of general benefit to the community" (istislah). Further scope of Equity Muslim law never reached, and the legitimacy of these two developments was, as we shall see, bitterly contested. The freedom of opinion, with its possibility of a system of Equity, had eventually to be given up, and all that was left in its place was a permissibility of analogical deduction (qiyas), the nearest thing to which in Western law is Legal Fiction. In a word, the possibility of development by Equity was lost, and Legal Fiction entered in its place. But this anticipates, and we must return to the strictly historical movement.

During the first thirty years after the death of Muhammad—the period covered by the reigns of the four theocratic rulers whom Islam still calls "the Four Just, or Rightly Guided Khalifas" (al-Khulafa ar-rashidun)—the two twin studies of tradition (hadith) and of law (fiqh) were fostered and encouraged by the state. The centre of that state was still in al-Madina, on ground sacred with the memories of