the one [getting] this entire margin, why is it not permissible for two [siblings from the mother] to exclude them? As for their saying that they are equal in maternal kinship, we respond: Why then did they not equate them in inheritance in this case? Furthermore, we say: if they equate them in maternal kinship, they still differ from them in that they are agnates who are not among those with fixed shares. This distinction is what necessitates the precedence of the siblings from the mother and the postponement of the siblings of both parents. For the Shari'ah has mandated the precedence of those with fixed shares over the agnates; therefore, the sibling from the mother is given precedence over the siblings of both parents in the amount [of the share] in the aforementioned case and its likeness. Likewise, the sibling from the mother is given precedence, even if the siblings of both parents are excluded, just like anyone else. It would follow from their logic that in the case of a husband, a sister from both parents, and a sister from a father with her brother, the brother should be excluded alone, and his sister would inherit the seventh; because her kinship in his presence is the same as her kinship in his absence, and he did not block her. Why did they not count him as a 'donkey' and have her inherit with his presence the same as her inheritance in his absence? The analogy they mentioned is inconsistent and lacks any real substance. Al-Anbari said: "The analogy is what Ali said, and the 'istihsan' (juristic preference) is what Umar said." Al-Khabri said: "This is a clever mediation and a correct expression." It is as he said, except that 'istihsan' alone is not a proof in the Shari'ah, for it is establishing laws by personal opinion without evidence. It is not permissible to rule by it if it stands alone without a countervailing factor, so how can it be used in our case when it contradicts the apparent Qur'an, the Sunnah, and analogy? It is surprising that al-Shafi'i adopted it here, while he criticized those who used it in other than this place and said: "Whoever uses 'istihsan' has legislated [on his own]." Adhering to the Book and the Sunnah is more worthy.

Section: If there were, in the place of the siblings of both parents, agnates from the siblings of the father, they would be excluded by unanimous agreement, and none of the scholars whom we know of would grant them inheritance; because they are not equal to the siblings from the mother in maternal kinship. If, in their place, there were sisters from both parents or from the father, they would be allotted two-thirds, and the case would undergo 'awl' (increase in the divisor) to ten, according to the consensus of all, except for the view of Ibn Abbas and those who followed him, among those who do not recognize 'awl'. They would distribute the deficiency among the sisters other than the siblings from the mother. Therefore, the implication of his view is the exclusion of the sisters from among the siblings of both parents, just as if they were brothers. We will explain that the correct view is otherwise, if Allah the Exalted wills.