Principles of Islamic Jurisprudence by MH kamali

The rationale of this istihsan would be that the law

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Unformatted text preview: ined in that precedent. While quoting this, al-Sarakhsi adds that the precedent which is set aside by istihsan normally consists of an established analogy which may be abandoned in favour of a superior proof, that is, the Qur'an, the Sunnah, necessity (darurah), or a stronger qiyas. [10. Sarakhsi, Mabsut, X, 145.] The Hanbali definition of istihsan also seeks to relate istihsan closely to the Qur'an and the Sunnah. Thus according to Ibn Taymiyyah, istihsan is the abandonment of one legal norm (hukm) for another which is considered better on the basis of the Qur'an, Sunnah, or consensus. 446.] [11. Ibn Taymiyyah, Mas'alah al-istihsan, p. Notwithstanding the fact that the Maliki jurists lay greater emphasis on istislah (consideration of public interest) and are not significantly concerned with istihsan, they have in principle validated istihsan. But the Maliks view istihsan as a broad doctrine, somewhat similar to istislah, which is less stringently confined to the Qur'an and Sunnah than the Hanafis and Hanbalis have. Thus according to Ibn al-'Arabi, 'istihsan is to abandon exceptionally what is required by the law because applying the existing law would lead to a departure from some of its own objectives.' Ibn al-'Arabi points out that the essence of istihsan is to act on 'the stronger of two indications (dalilayn)'. Whereas the majority of ulema would hold to qiyas when it was attacked on grounds of rigidity, Malik and Abu Hanifah departed from qiyas, or specified the general in qiyas, on grounds of maslahah and other indications. [12. 'Al-istihsan huwa tark muqtada al-dalil `ala tariq al istithna' wa'l-tarakhkhus li-mu'aradah ma yu'arad bihi fi ba'd muqtadayatih.' See Ibn al-Arabi, Ahkam al-Qur'an, II, 57. A discussion of Ibn al-'Arabi's definition also appears in Shatibi, Muwafaqat, (ed. Diraz), IV, 208.] There are certain differences in the terms of these definitions which will hopefully become clearer as our discussion proceeds. But it appears that departure from an existing precedent on grounds of more compelling reasons is a feature of istihsan which is common to all the foregoing definitions. According to Abu Zahrah, the Hanafis have adopted al-Karkhi's definition, as it embraces the essence of istihsan in all of its various forms. The essence of istihsan, Abu Zahrah adds, is to formulate a decision which sets Principles of Islamic Jurisprudence ~ Kamali 220 aside an established analogy for a reason that justifies such a departure and seeks to uphold a higher value of the Shari'ah. [13. Abu Zahrah, Usul, p. 207.] The departure to an alternative ruling in istihsan may be from an apparent analogy (qiyas jali) to a hidden analogy (qiyas khafi), or to a ruling which is given in the nass (i.e. the Qur'an or the Sunnah), consensus, custom, or public interest. There is no direct authority for istihsan either in the Qur'an or in the Sunnah, but the jurists have quoted both in their arguments for it. The opponents of istihsan have, on the other hand, argued that istihsan amounts to a deviation from the principles of the Shari'ah. It is an idle exercise in human preferences which only detracts from our duty to rely exclusively on...
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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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