Principles of Islamic Jurisprudence by MH kamali

Conclusion 51 abu zahrah usul p 215 the attempt at

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Unformatted text preview: fact, completely silent on this point. Had al-Shafi'i (d.204/820) known that istihsan was a variety of qiyas, one can imagine that he might have softened his stand with regard to it. Originally istihsan was conceived in a wider and relatively simple form which was close to its literal meaning and free of the complexities that were subsequently woven into it. One is here reminded of Imam Malik's characteristic statement which designates istihsan as nine-tenth of human knowledge, a statement which grasps the true essence of istihsan as a method of finding better and more equitable alternatives to existing problems both within and beyond the confines of analogical reasoning. Istihsan is basically antithetic to qiyas and not a part of it. It enables the jurist to escape from strict conformity to the rules of qiyas when such conformity is likely to lead to unfair results. Istihsan was originally formulated, not as another variety of qiyas, but as a doctrine which liberated the jurist from the strait-jacket of qiyas, especially where conformity to qiyas clashed with the higher objectives of the Shari'ah. It is well to remember that much of the juristic controversy over istihsan has developed under the pressure of conformity to the strict requirements of the legal theory once it was finally formulated by alShafi`i and gradually accepted by others. The thrust of al-Shafi'i's effort in formulating the legal theory of the usul was to define the role of reason vis--vis the revelation. Al-Shafi'i confined the scope of human reasoning in law to analogy alone. In his well-known statement concerning ijtihad and qiyas, especially where he considered the two to be synonymous, one hardly fails to notice the attempt at confining the use of human reasoning to qiyas alone: On all matters touching the life of a Muslim there is either a binding decision or an indication as to the right answer. If there is a decision, it should be followed; if there is no indication as to the right answer, it should be sought by ijtihad, and ijtihad is qiyas. [52. Shafi'i, Risalah, p. 206.] In this statement, al-Shafi`i reflected the dominant mood of his time. From that point onward, any injection of rationalist principles into the legal theory of the usul had to seek justification through qiyas, which was the only channel through which a measure of support could be obtained for istihsan. In order Principles of Islamic Jurisprudence ~ Kamali 231 to justify istihsan within the confines of the legal theory, it was initially equated with qiyas and eventually came to be designated as a sub-division of it. The next issue over which the fuqaha' have disagreed is whether an istihsan which is founded in the Qur'an, Sunnah, or ijma` should be called istihsan at all. In cases where a Hadith authorises departure from an existing analogy in favour of an alternative ruling, then all that one needs to authorise the departure in question is the Hadith itself. It would therefore seem redundant to apply the word istihsan to this form of departure from the rules of qi...
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