Principles of Islamic Jurisprudence by MH kamali

Yet those who saw istihsan as a predominantly

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Unformatted text preview: i and Istihsan [23. Coulson, Conflicts, pp. 6-7.] Qiyas jali or 'obvious analogy', is a straightforward qiyas which is easily intelligible to the mind. An oft-quoted example of this is the analogy between wine and another intoxicant, say a herbal drink, both of which have in common the effective cause ('illah) of being intoxicating. Hence the prohibition concerning wine is analogically extended to the intoxicant in question. But qiyas khafi, or 'hidden analogy', is a more subtle form of analogy in the sense that it is not obvious to the naked eye but is intelligible only through reflection and deeper thought. Qiyas khafi, which is also called istihsan or qiyas mustahsan (preferred qiyas) is stronger and more effective in repelling hardship than qiyas jali, presumably because it is arrived at not through superficial observation of similitudes, but through deeper reflection and analysis. According to the majority of jurists, istihsan consists of a departure from qiyas jali to qiyas khafi. When the jurist is faced with a problem for which no ruling can be found in the definitive text (nass), he may search for a precedent and try to find a solution by means of analogy. His search for alternatives may reveal two different solutions, one of which is based on an obvious analogy and the other on a hidden analogy. If there is a conflict between the two, then the former must be rejected in favour of the latter. For the hidden analogy is considered to be more effective and therefore preferable to the obvious analogy. This is one form of istihsan. But there is another type of istihsan which mainly consists of making an exception to a general rule of the existing law when the jurist is convinced that justice and equity will be better served by making such an exception. The jurist might have reached this decision as a result of his personal ijtihad, or the exception may have already been authorised by any of the following: nass, ijma', approved custom, necessity (darurah), or considerations of public interest (maslahah). [24. Sha`ban, Usul, p.100.] These will be illustrated in the examples that follow. The examples chosen will also show more clearly the role that istihsan has played in the development of fiqh. 1) To give an example of istihsan which consists of a departure from qiyas jali to qiyas khafi, it may be noted that under Hanafi law, the waqf (charitable endowment) of cultivated land includes the transfer of all the ancillary rights (the so-called 'easements') which are attached to the property, such as the right of water (haqq al-shurb), right of passage (haqq al-murur) and the right of flow (haqq al-masil), even if these are not explicitly mentioned in the instrument of waqf. This ruling is based on qiyas khafi (or Principles of Islamic Jurisprudence ~ Kamali 224 istihsan), as I shall presently explain. It is a rule of the Islamic law of contract, including the contract of sale, that the object of contract must be clearly identified in detail. What is not specified in the contract, in other words, is not included therein. Now if we draw a direct analogy (i.e. qiyas jali) between sale and waqf - as both involve the transfer of ownership - we must conclude that the attached rights can only be included in the waqf if they are explicitly identified. It is, however, argued that such an analogy would lead to inequitable results...
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