Principles of Islamic Jurisprudence by MH kamali

Amidi ihkam iv 157 which obviously means that their

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Unformatted text preview: ho is familiar with the works of the ulema of jurisprudence would agree that Abu Hanifah and his disciples are not alone in their reliance on istihsan. All jurists have resorted to istihsan in one form or another, and a reader of the various juristic schools of thought is bound to come across opinions which are founded in it. [47. Khudari, Tarikh, p.201.] This view finds further support from Yusuf Musa, who has tersely observed that juristic differences over istihsan essentially amount to no more than arguments over words. For the fuqaha' of every major school have invariably resorted to istihsan in one form or another. [48. Musa, Madkhal, p.198.] If this is accepted, then one naturally wonders as to the causes that might explain the controversy in question. Al-Taftazani has observed that neither of the two sides of the controversy over istihsan have understood one another, and that the whole debate is due to a misunderstanding. Those who argue in favour of istihsan have perceived this principle differently to those who have argued against it. Had istihsan been properly understood, al-Taftazani adds, its basic validity would never have been disputed. [49. Taftazani, Talwih, p. 82. It is not certain whether Taftazani was a Hanafi or a Shafi'i. In a bibliographical note on Taftazani, it is stated that he is sometimes considered a Hanafi and sometimes a Shafi'i. See al-Mawsu`ah al-Fiqhiyyah, I, 344.] Al-Taftazani's assessment has been widely endorsed by modern writers on the subject, including Khallaf, Abu Zahrah and Yusuf Musa. In Khallaf's opinion, the essential validity of istihsan is undeniable, for it enables a departure from the apparent or the general rule of law to a variant ruling which warrants such a departure. Every judge and jurist must consider the circumstances of an individual case, and occasionally decide not to apply a certain rule, or to make an exception, as he considers this to be required by maslahah and justice. [50. Khallaf, `Ilm, p. 83; Musa, Madkhal, p.197.] And lastly, Abu Zahrah observes that, 'One exception apart, none of al-Shafi'is criticisms are relevant to the Hanafi conception of istihsan'. The one exception that may bear out some of al-Shafi'i's criticisms is istihsan Principles of Islamic Jurisprudence ~ Kamali 230 [46. which is authorised by custom. For custom is not a recognised source of law and is, in any case, not sufficiently authoritative to warrant a departure from qiyas. Conclusion [51. Abu Zahrah, Usul, p. 215.] The attempt at linking istihsan with qiyas has involved tortuous reasoning which somehow remains less than convincing. One way to resolve some of the juristic differences on this issue may be to go back to the origin of istihsan and recapture the meaning that was given to it by Abu Hanifah and the early ulema of jurisprudence. On this point there is evidence to suggest that Abu- Hanifah (d. 150/767) did not conceive of istihsan as an analogical form of reasoning. About half a century later, when al-Shafi`i wrote his Risalah and Kitab al-Umm, there was still little sign of a link between istihsan and qiyas. AlShafi'i is, in...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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