Principles of Islamic Jurisprudence by MH kamali

Regarding the first of the two ayahs for example

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Unformatted text preview: thority for consensus (ijma'). There is nothing in this Tradition to suggest, and indeed it would be arbitrary to say, that what a Muslim individual deems good is also good in the sight of God. [18. Amidi, Ihkam, IV, p. 160; Ghazali, Mustasfa, I, 138.] The critics of istihsan have further suggested that this doctrine was initially introduced by Hanafi jurists in response to certain urgent situations. The Hanafis then tried to justify themselves by quoting the Qur'an and the Hadith ex-post facto. The Qur'anic foundation of istihsan, in other words, is weak, and no explicit authority for it can be found in the Sunnah either. [19. Ahmad Hasan, `The Principle of Istihsan', p. 347.] The historical origins of istihsan are somewhat uncertain too. While Goldziher has suggested that Abu Hanifah was the first to introduce and use the term in its juristic sense, Joseph Schacht has attributed the origin of istihsan to Abu Hanifah's disciple, Abu Yusuf. Fazlur Rahman has confirmed the former view, which he thinks is substantiated by the fact that al-Shaybani, another disciple of Abu Hanifah, in a number of cases attributed istihsan to Abu Hanifah himself. Ra'y, Qiyas and Istihsan [20. Fazlur Rahman, Islamic Methodology, p.32.] Istihsan is closely related to both ra'y and analogical reasoning. As already stated, istihsan usually involves a departure from qiyas in the first place, and then the departure in question often means giving preference to one qiyas over another. Broadly speaking, qiyas is the logical extension of an original ruling of the Qur'an, the Sunnah (or even ijma') to a similar case for which no direct ruling can be found in these sources. Qiyas in this way extends the ratio legis of the divine revelation through the exercise of human reasoning. There is, in other words, a rationalist component to qiyas, which consists, in the most part, of a recourse to personal opinion (ra'y). This is also true of istihsan, which relies even more heavily on ra'y. It is this rationalist tendency verging on personal opinion in both qiyas and istihsan which has been the main target of criticism by al-Shafi'i and others. Hence the controversy over the validity of istihsan is essentially similar to that encountered with regard to qiyas. 'Qiyas(Analogy)' in The Encyclopedia of Religion XII, 128ff.] [21. See further on qiyas Kamali, However, because of its closer identity with the Qur'an and the Sunnah, qiyas has gained wider acceptance as a principle of jurisprudence. But even so, qiyas and Principles of Islamic Jurisprudence ~ Kamali 222 istihsan are both considered to be expressive of rationalist tendencies in a system of law which must keep a close identity with its origins in divine revelation. In the centre of this controversy lies the question of the validity or otherwise of recourse to personal opinion (ra'y) in the development of the Shari'ah. From an historical vantage point, it will be noted that in their recourse to personal opinion, the Companions were careful not to exercise ra'y at the expense of the Sunnah. This concern over possible violation of the Sunnah was greater in those days when the Hadith...
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