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Unformatted text preview: hand would be governed not by istihsan but directly by the provision of the Qur'an or Sunnah itself. [42 . Ghazali, Mustasfa, I. 137.] Furthermore alGhazali is critical of Abu Hanifah for his departure, in a number of cases, from a sound Hadith in favour of qiyas or istihsan. Principles of Islamic Jurisprudence ~ Kamali 229 [40. Aghnides, [43. Ghazali criticises Abu Hanifah's ruling, for example, with regard to implementing the punishment of zina on the testimony of four witnesses each of whom point at a different corner of the room where zina is alleged to have taken place. This is a case, according to Ghazali, of doubt (shubha) in the proof of zina which would prevent the enforcement of the hadd penalty. For according to a Hadith, hudud are to be dropped in all cases of doubt. Abu Hanifah's ruling is based on istihsan, apparently on the grounds that disbelieving the Muslims (takdhib al-muslimin) is reprehensible. Ghazali regards Abu Hanifah's ruling as whimsical and a form of istihsan which should not be followed (Mustasfa, I, 139).] And finally, al-Ghazali rejects istihsan which is based on popular custom, for custom by itself is not a source of law. He observes that approved customs are often justified with reference, not to istihsan, but to other proofs. While referring to the example of entry to a public bath for a fixed price without quantifying the consumption of water, al-Ghazali asks: `How is it known that the community adopted this practice by virtue of istihsan? Is it not true that this was the custom during the time of the Prophet, in which case it becomes a tacitly approved Sunnah (Sunnah taqririyyah) so as to prevent hardship to the people?' [44. Mustasfa, II, 138.] Another Shafi'i jurist, al-Amidi, has stated that notwithstanding his explicit denunciation of istihsan, alShafi`i himself resorted to istihsan. Al-Shafi'i has been quoted to have used a derivation of istihsan on several occasions including the ruling in which he said, 'I approve (astahsinu) mut'ah (gift of consolation) at the level of 30 dirhams'; and `I approve (astahsinu) the proof of pre-emption (shuf`) to be three days' (following the date when the sale of the property in question came to the knowledge of the claimant). Al-Amidi thus draws the conclusion that `there is no disagreement on the essence of istihsan between the two schools,' [45. Amidi, Ihkam, IV, 157.] which obviously means that their differences amount to no more than splitting hairs over words. The Maliki jurist al-Shatibi has held that istihsan does not mean the pursuit of one's desires; on the contrary, a jurist who understands istihsan has a profound understanding of the intention of the Lawgiver. When the jurist discovers that a strict application of analogy to a new problem leads to loss of maslahah and possibly to an evil (mafsadah) then he must set aside qiyas and resort to istihsan. Shatibi, Muwafaqat (ed. Diraz), IV, 206.] While discussing the controversy over istihsan, another observer, Shaykh al-Khudari, writes that anyone w...
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