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Unformatted text preview: ery judge and every mufti ruled according to their own inclinations, one can imagine that self-indulgence and chaos would afflict the life of the community. Unlike qiyas, whose propriety can be tested by the methodology to which it must conform, istihsan is not regulated as such. Since istihsan consists neither of nass nor of an analogy to nass, it is ultra vires and must therefore be avoided. [38. Shafi'i, Kitab al-Umm, 'Kitab Ibtal al-Istihsan', VII, 272.] In response to this critique, the Hanafis have asserted that istihsan is not an arbitrary exercise in personal preference. It is a form of qiyas (viz., qiyas khafi), and is no less authoritative than qiyas. Thus it is implied that, contrary to allegations by the Shafi`i jurists, istihsan is not an independent source of law, but a branch of qiyas which has a firm grounding in the Shari'ah. If this argument is accepted, it would imply that istihsan must be subjected to the same rules which are applicable to qiyas, and would therefore lose its status as a juristic principle in its own right. The scope and flexibility of istihsan would consequently be restricted as it would mean changing istihsan from a predominantly equitable doctrine into a form of analogical reasoning. This would confine istihsan only to matters on which a parallel ruling could be found in the primary sources. Having said this, however, it is doubtful whether istihsan is really just another form of qiyas. Principles of Islamic Jurisprudence ~ Kamali 228 Ahmad Hasan has observed that istihsan is more general than qiyas khafi, as the former embraces a wider scope and can apply to matters beyond the confines of the latter. p.352.] [39. Ahmad Hasan, 'The Principle of Istihsan', Aghnides has similarly held that istihsan is a new principle which goes beyond the scope of qiyas, whether or not this is openly admitted to be the case: Abu Hanifah and his earliest disciples did not consider istihsan as a kind of qiyas [...] nor did he use the word in any technical sense. Had that been the case, like so many of his views, it would probably have been placed on record. The fact is that he used the word istihsan in its usual meaning, namely, that of abandoning qiyas for an opinion thought to be more subservient to the social interest. Muhammedan Theories, p.73.] Aghnides goes on to suggest that when the Shafi'i jurists attacked istihsan on the grounds that it meant a setting aside of the revealed texts, the disciples of Abu Hanifah felt themselves forced to show that such was not the case. Hence they put forward the contention that istihsan was nothing but another kind of qiyas. According to another observer, the attempt to bring istihsan within the sphere of qiyas is unjustified. For `it really lies outside of this narrow sphere and must therefore be recognised as a special form of deduction'. [41. Paret, 'Istihsan and Istislah', Encyclopedia of Islam, new ed., IV, 256.] Al-Ghazali has criticized istihsan on different grounds. He has observed that the jurists of the Shafi`i school have recognised the validity of istihsan which is based on an indication (dalil) from the Qur'an or Sunnah. When there exists a dalil of this kind, then the case at...
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