Another Hadith which is also quoted frequently in this context reads: 'Honour my Companions, for they
are the best among you, and then those who follow them and then the next generation, and then lying
will proliferate after that [. . .]'
[11. Tabrizi, Mishkat, III, 1695, Hadith no. 6001 and 6003; Ghazali, Mustasfa, I, 136; Amidi, Ihkam, IV, 152.]
It is thus argued that according to these ahadith, following the way of the Companions is equated with
correct guidance, which would imply that their sayings, teachings and fatwas constitute a proof that
commands adherence.
It is, however, contended that these ahadith refer to the dignified status of the Companions in general,
and are not categorical to the effect that their decisions must be followed. In addition, since these
ahadith are conveyed in absolute terms in that they identify all the Companions as a source of guidance,
it is possible that the Prophet had meant only those who transmitted the Hadith and disseminated the
Prophetic teachings, in which case the reference would be to the authority of the Prophet himself. The
Companions in this sense would be viewed as mere transmitters and propagators of the Sunnah of the
Prophet.
[12. Zuhayr, Usul, IV, 192; Isma'il, Adillah, p. 287.]
Furthermore, the foregoing references to the Companions, as al-Ghazali points out, are in the nature of
praise, which indicates their piety and propriety of conduct in the eyes of God, but does not render
adherence to their views an obligation. Al-Ghazali also quotes a number of other ahadith in which the
Prophet praises individual Companions by name, all of which consist of commendation and praise; they
do not necessarily man that the saying of that Companion is a binding proof (hujjah).
136-37.]
2. The second view is that the ijtihad of a Companion is not a proof and does not bind the succeeding
generations of mujtahidun or any one else. This view is held by the Ash'arites, the Mu`tazilah, Imam
Ahmad b. Hanbal (according to one of his two views), and the Hanafi jurist Abu al-Hasan al-Karkhi.
Isma'il, Adillah, p. 294; Zuhayr, Usul, IV, 193.]
The proponents of this view have quoted in support the Qur'anic ayah
(al-Hashr, 59:2) which provides: `Consider, O you who have vision.' It is argued that this ayah makes
ijtihad the obligation of everyone who is competent to exercise it, and makes no distinction over
whether the mujtahid is a Companion or anyone else. What is obligatory is ijtihad itself, not adhering to
the ijtihad of anyone in particular. This ayah also indicates that the mujtahid must rely directly on the
sources and not imitate anyone, including the Companions. The proponents of this view also refer to the
ijma' of the Companions, referred to above, to the effect that the views of one mujtahid among them did
not bind the rest of the Companions.
[15. Ghazali, Mustasfa, I, 135; Amidi, Ihkam, IV, 149.]
Al-Ghazali and al-Amidi both consider this to be the preferred view, saying that those who have held
otherwise have resorted to evidence which is generally weak. Al-Shawkani has also held that the fatwa
of a Companion is not a proof, as he explains that the ummah is required to follow the Qur'an and
Principles of Islamic Jurisprudence ~ Kamali 213
[13. Ghazali, Mustasfa, I,[14.Sunnah. The Shari`ah only renders the Sunnah of the Prophet binding on the believers, and no other
individual, whether a Companion or otherwise, has been accorded a status similar to that of the
Prophet.
[16. Shawkani, Irshad, p. 214.]
Abu Zahrah has, however, criticised al-Shawkani's conclusion, and
explains that when we say that the saying of a Companion is an authoritative proof, it does not mean
that we create a rival to the Prophet. On the contrary, the Companions were most diligent in observing
the Qur'an and Sunnah, and it is because of this and their closeness to the Prophet that their fatwa
carries greater authority than that of the generality of other mujtahidun.
299.]
[17. Abu Zahrah, Usul, p.172; Isma'il, Adillah, p.
3. The third view, which is attributed to Abu Hanifah, is that the ruling of the Companion is a proof
when it is in conflict with qiyas but not when it agrees with qiyas. The explanation for this is that when
the ruling of a sahabi conflicts with qiyas, it is usually for a reason, and the fact that the Companion has
given a ruling against it is an indication of the weakness of the qiyas; hence the view of the Companion
is to be preferred. In the event where the ruling of the Companion agrees with qiyas, it merely concurs
with a proof on which the qiyas is founded in the first place. The ruling of the Companion is therefore
not a separate authority.
[18. Zuhayr, Usul, IV, 194; Isma'il, Adillah, p. 301.]
There is yet another view which maintains that only the rulings of the four Rightly-Guided Caliphs
command authority. This view quotes in support the Hadith in which the Prophet ordered the believers,
'You are to follow my Sunnah and the Sunnah of the Khulafa' Rashidun after me' This is even further
narrowed down, according to another Hadith, to include the first two caliphs only. The Hadith in
question reads: `Among those who succeed me, follow Abu Bakr and 'Umar'. The authenticity of this
second Hadith has, however, been called into question, and in any case, it is suggested that the purpose
of these ahadith is merely to praise the loyalty and devotion of these luminaries to Islam, and to
commend their excellence of conduct.
[19. Ibn Majah, Sunan, I, 37, Hadith no. 97; Ghazali, Mustasfa, I, 135; Amidi, Ihkam, IV, 152.]
Imam Shafi'i is on record as having stated that he follows the fatwa of a Companion in the absence of a
ruling in the Qur'an, Sunnah and ijma'. Al-Shafi'i's view on this point is, however, somewhat
ambivalent, which is perhaps why it has been variously interpreted by the jurists. In a conversation with
al-Rabi', al-Shafi'i has stated: 'We find that the ulema have sometimes followed the fatwa of a
Companion and have abandoned it at other times; and even those who have followed it are not
consistent in doing so.' At this point the interlocutor asks the Imam, 'What should I turn to, then?' To
this al-Shafi'i replies: 'I follow the ruling of the Companion when I find nothing in the Qur'an, Sunnah
or ijma', or anything which carries through the implications of these sources.' Al-Shafi'i has further
stated that he prefers the rulings of the first three caliphs over those of the other Companions, but that
when the Companions are in disagreement, we should look into their reasons and also try to ascertain
the view which might have been adopted by the majority of the Companions. Furthermore, when the
ruling of the Companion is in agreement with qiyas, then that qiyas, according to al-Shafi`i, is given
Principles of Islamic Jurisprudence ~
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priority over a variant qiyas which is not so supported.
170.]
[20. Shafi'i, Risalah, p. 261; Shawkani, Irshad, p. 243; Abu Zahrah, Usul, p.
Imam Abu Hanifah is also on record as having said, `When I find nothing in the Book of God and the
Sunnah of the Prophet, I resort to the saying of the Companions. I may follow the ruling which appeals
to me and abandon that which does not, but I do not abandon their views altogether and do it not give
preference to others over them: It thus appears that Abu Hanifah would give priority to the ruling of a
Companion over qiyas, and although he does not consider it a binding proof, it is obvious that he
regards the fatwa of a sahabi to be preferable to the ijtihad of others.
[21. Abu Zahrah, Usul, p. 170.]
Imam Ahmad ibn Hanbal has distinguished the fatwas of Companions into two types, one being a fatwa
which is not opposed by any other Companion, or where no variant ijtihad has been advanced on the
same point. Ibn Hanbal regards this variety of fatwa as authoritative. An example of this is the
admissibility of the testimony of slaves, on which the Imam has followed the fatwa of the Companion,
Anas b. Malik. Ibn Hanbal is quoted to the effect that he had not known of anyone who rejected the
testimony of a slave; it is therefore admissible. The second variety of fatwa that Ibn Hanbal
distinguishes is one on which the Companions disagreed, and issued two or three different rulings
concerning the same problem. In this situation, Imam Ibn Hanbal considers them all to be valid and
equally authoritative, unless it is known that the Khulafa' Rashidun adopted one in preference to the
others, in which case the Imam would do likewise. An example of such disagreement is the case of the
allotment of a share in inheritance to germane brothers in the presence of the father's father. According
to Abut Bakr, the father's father in this case is accounted like the father who would in turn exclude the
germane brothers altogether. Zayd b. Thabit, on the other hand, counted the father's father as one of the
brothers and would give him a minimum of one-third, whereas `Ali b. Abi Talib counted the father's
father as one of the brothers whose entitlement must not be less than one-sixth. Imam Ibn Hanbal is
reported to have accepted all the three views as equally valid, for they each reflect the light and
guidance that their authors received from the Prophet, and they all merit priority over the ijtihad of
others.
[22. Abu Zahrah, Ibn Hanbal, p. 287; Isma'il, Adillah, pp. 295-96.]
The Hanbali scholar Ibn Qayyim al-Jawziyyah quotes Imam al-Shafi'i as having said, `It is better for us
to follow the ra'y of a Companion rather than our own opinion,' Ibn al-Qayyim accepts this without
reservation, and produces evidence in its support. He then continues to explain that the fatwa of a
Companion may fall into any of six categories. Firstly, it may be based on what the Companion might
have heard from the Prophet. Ibn al-Qayyim explains that the Companions knew more about the
teachings of the Prophet than what has come down to us in the form of Hadith narrated by the
Companions. Note, for example, that Abu Bakr al-Siddiq transmitted no more than one hundred ahadith
from the Prophet notwithstanding the fact that he was deeply knowledgeable of the Sunnah and was
closely associated with the Prophet not only after the Prophetic mission began, but even before.
Secondly, the fatwa of a Companion may be based on what he might have heard from a fellow
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Companion, Thirdly, it may be based on his own understanding of the Qur'an in such a way that the
matter would not be obvious to us had the Companion not issued a fatwa on it. Fourthly, the
Companion may have based his view on the collective agreement of the Companions, although we have
received it through one Companion only. Fifthly, the fatwa of a Companion may be based on the
learned opinion and general knowledge that he acquired through long experience. And Sixthly, the
fatwa of a Companion may be based on an understanding of his which is not a result of direct
observation but of information that he received indirectly, and it is possible that his opinion is incorrect,
in which case his fatwa is not a proof and need not be followed by others.
Usul, pp. 169-70.]
[23. Ibn Qayyim, I`lam, II, 191ff; Abu Zahrah,
And lastly, it will be noted that Imam Malik has not only upheld the fatwas of Companions but has
almost equated it with the Sunnah of the Prophet. This is borne out by the fact, as already stated in our
discussion of the Sunnah, that in his Muwatta', he has recorded over 1,700 ahadith, of which over half
are the sayings and fatwas of Companions.
On a similar note, Abu Zahrah has reached the conclusion that the four Imams of Jurisprudence have
all, in principle, upheld and followed the fatwas of Companions and all considered them to be
authoritative, although some of their followers have held views which differ with those of their leading
Imams. The author then quotes al-Shawkani at some length to the effect that the fatwa of a Companion
is not a proof. Having quoted al-Shawkani, Abu Zahrah refutes his view by saying that it is 'not free of
exaggeration'. (We have already given a brief outline of Abu Zahrah's critique of al-Shawkani.) Abu
Zahrah then quotes Ibn al-Qayyim's view on this matter which we have already discussed, and supports
it to the effect that the fatwa of a Companion is authoritative. But it is obvious from the tenor of his
discussion and the nature of the subject as a whole that the fatwa of a Companion is a speculative proof
only.
[24. Abu Zahrah, Usul, p. 172.]
Although the leading Imams of jurisprudence are in agreement on the point
that the fatwa of a Companion is authoritative, none has categorically stated that it is a binding proof.
Nonetheless, the four leading Imams consider the fatwa of a Companion to be a persuasive source of
guidance in that it carries a measure of authority which merits careful consideration, and commands
priority over the ijtihad of other mujtahidun.
Principles of Islamic Jurisprudence ~
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Chapter Twelve: Istihsan, or Equity in Islamic Law
The title I have chosen for this chapter draws an obvious parallel between equity and istihsan which
should be explained, for although they bear a close similarity to one another, the two are not identical.
'Equity' is a Western legal concept which is grounded in the idea of fairness and conscience, and derives
legitimacy from a belief in natural rights or justice beyond positive law.
[1. Osborn's Concise Law Dictionary, at p. 124,
defines equity as follows: 'Primarily fairness or natural justice. A fresh body of rules by the side of the original law, founded on distinct principles, and claiming to
supersede the law in virtue of a superior sanctity inherent in those principles. Equity is the body of rules formulated and administered by the Court of Chancery to
supplement the rules and procedure of the Common Law.']
Istihsan in Islamic law, and equity in Western law, are both
inspired by the principle of fairness and conscience, and both authorise departure from a rule of positive
law when its enforcement leads to unfair results. The main difference between them is, however, to be
sought in the overall reliance of equity on the concept of natural law, and of istihsan on the underlying
values and principles of the Shari'ah. But this difference need not be over-emphasised if one bears in
mind the convergence of values between the Shari`ah and natural law. Notwithstanding their different
approaches to the question of right and wrong, for example, the values upheld by natural law and the
divine law of Islam are substantially concurrent. Briefly, both assume that right and wrong are not a
matter of relative convenience for the individual, but derive from an eternally valid standard which is
ultimately independent of human cognizance and adherence. But natural law differs with the divine law
in its assumption that right and wrong are inherent in nature.
[2. See for a discussion Kerr's Islamic Reform,p.57.]
From an
Islamic perspective, right and wrong are determined, not by reference to the 'nature of things', but
because God has determined them as such. The Shari'ah is an embodiment of the will of God, the Lord
of the universe and the supreme arbiter of values. If equity is defined as a law of nature superior to all
other legal rules, written or otherwise, then this is obviously not what is meant by istihsan. For istihsan
does not recognise the superiority of any other law over the divine revelation, and the solutions which it
offers are for the most part based on principles which are upheld in the divine law. Unlike equity, which
is founded in the recognition of a superior law, istihsan does not seek to constitute an independent
authority beyond the Shari'ah. Istihsan, in other words, is an integral part of the Shari'ah, and differs
with equity in that the latter recognises a natural law apart from, and essentially superior to, positive
law.
[3. See for a discussion John Makdisi, 'Legal Logic,' p.90.]
While discussing the general theory of istihsan, this chapter also draws attention to two main issues
concerning this subject. One of these is whether or not istihsan is a form of analogical reasoning: is it to
be regarded as a variety of qiyas or does it merit to stand as a principle of equity in its own right? The
other issue to be raised is the controversy over the validity of istihsan, which started with al-Shafi'i's
unambiguous rejection of this principle. A glance at the existing literature shows how the ulema are
preoccupied with the polemics over istihsan and have differed on almost every aspect of the subject. I
shall therefore start with a general characterisation of istihsan, and then discuss the authority which is
Principles of Islamic Jurisprudence ~
Kamali 217
quoted in its support. This will be followed by a brief account of the related concepts, ra'y and qiyas.
The discussion will end with an account of the controversy over istihsan and a conclusion where I have
tried to see the issues in a fresh light with a view to developing a perspective on istihsan.
Istihsan is an important branch of ijtihad, and has played a prominent role in the adaptation of Islamic
law to the changing needs of society. It has provided Islamic law with the necessary means with which
to encourage flexibility and growth. Notwithstanding a measure of juristic technicality which seems to
have been injected into an originally simple idea, istihsan remains basically flexible, and can be used
for a variety of purposes, as will later be discussed. Yet because of its essential flexibility, the jurists
have discouraged an over-reliance on istihsan lest it result in the suspension of the injunctions of the
Shari'ah and become a means of circumventing its general principles. Istihsan has thus become the
subject of much controversy among our jurists. Whereas the Hanafi, Maliki, and Hanbali jurists have
validated istihsan as a subsidiary source of law, the Shafi'i, Zahiri and Shi'i ulema have rejected it
altogether and refused to give it any credence in their formulation of the legal theory of usul al-fiqh.
details see Sabuni, Madkhal, p. 119ff.]
Istihsan literally means `to approve, or to deem something preferable'. It is a derivation from hasuna,
which means being good or beautiful. In its juristic sense, istihsan is a method of exercising personal
opinion in order to avoid any rigidity and unfairness that might result from the literal enforcement of
the existing law. `Juristic preference' is a fitting description of istihsan, as it involves setting aside as
established analogy in favour of an alternative ruling which serves the ideals of justice and public
interest in a better way.
Enforcing the existing law may prove to he detrimental in certain situations, and a departure from it
may be the only way of attaining a fair solution to a particular problem. The jurist who resorts to
istihsan may find the law to be either too general, or too specific and inflexible. In both cases, istihsan
may offer a means of avoiding hardship and generating a solution which is harmonious with the higher
objectives of the Shari'ah.
It has been suggested that the ruling of the second caliph, `Umar b. al-Khattab, not to enforce the hadd
penalty of the amputation of the hand for theft during a widespread famine, and the ban which he
imposed on the sale of slave-mothers (ummahat al-awlad), and marriage with kitabiyahs in certain
cases were all instances of istihsan.
[5. Umm al-walad is a female slave who has borne a child to her master, and who is consequently free at his
death. A kitabiyah is a woman who is a follower of a revealed religion, namely Christianity and Judaism.]
For `Umar set aside the established
law in these cases on grounds of public interest, equity and justice.
[6. Cf. Ahmad Hasan, Early Development, p.145.]
The Hanafi jurist al-Sarakhsi (d. 483/1090), considers istihsan to be a method of seeking facility and
ease in legal injunctions. It involves a departure from qiyas in favour of a ruling which dispels hardship
and brings about ease to the people. 'Avoidance of hardship (raf' al-haraj)' al-Sarakhsi adds, `is a
Principles of Islamic Jurisprudence ~ Kamali 218
[4. Forcardinal principle of religion which is enunciated in the Qur'an, where we read, in an address to the
believers, that `God intends facility for you, and He does not want to put you in hardship' (al-Baqarah
2:185). Al-Sarakhsi substantiates this further by quoting the Hadith that reads: `The best of your
religion is that which brings ease to the people.'
[7. Sarakhsi, Mabsut, X, 145; Ibn Hanbal, Musnad, V. 22.]
Al-Khudari has rightly explained that in their search for solutions to problems, the Companions and
Successors resorted in the first place to the Qur'an and the normative example of the Prophet. But when
they found no answer in these sources, they exercised their personal opinion (ra'y) which they
formulated in the light of the general principles and objectives of the Shari'ah. This is illustrated, for
example, in the judgment of `Umar ibn al-Khattab in the case of Muhammad ibn Salamah. The caliph
was approached by Ibn Salamah's neighbour who asked for permission to extend a water canal through
Ibn Salamah's property, and he was grafted the request on the ground that no harm was likely to accrue
to Ibn Salamah, whereas extending a water canal was to the manifest benefit of his neighbour.
Tarikh, p.199.]
It thus appears that istihsan is essentially a form of ra'y which gives preference to the best of the
various solutions that may exist for a particular problem. In this sense, istihsan is an integral part of
Islamic jurisprudence and indeed of many other areas of human knowledge. Hence it is not surprising to
note Imam Malik's observation that `istihsan represents nine-tenth of human knowledge'. While quoting
this view, Abu Zahrah adds that when Malik made this remark, he was apparently including the broad
concept of maslahah within the purview of istihsan. `For it is maslahah which accounts for the larger
part of the nine-tenth.
IV. 208.]
[9. Abu Zahrah, Usul, p. 207, and 215. Imam Malik's characterisation of istihsan also appears in Shatibi, Muwafaqat (ed. Diraz),
Evidence suggests that the Companions and Successors were not literalists who would seek a specific
authority in the revealed sources for every legal opinion (fatwa) they issued. On the contrary, their
rulings were often based on their understanding of the general spirit and purpose of the Shari'ah, and
not necessarily on the narrow and literal meaning of its principles. Istihsan has been formulated in this
spirit; it is the antidote to literalism and takes a broad view of the law which must serve, not frustrate,
the ideals of fairness and justice.
To give an example, oral testimony is the standard form of evidence in Islamic law on which a
consensus (ijma') can be claimed to exist. This normally requires two upright (`adl) witnesses unless the
law provides otherwise (the proof of zina, for instance, requires four witnesses). The number of
witnesses required in these cases is prescribed in the Qur'an, but the rule that testimony should be given
orally is determined by consensus. Muslim jurists have insisted on oral testimony and have given it
priority over other methods of proof, including confession and documentary evidence. In their view, the
direct and personal testimony of a witness who speaks before the judge with no intermediary is the most
reliable means of discovering the truth. The question arises, however, whether one should still insist on
Principles of Islamic Jurisprudence ~ Kamali 219
[8. Khudari,oral testimony at a time when other methods such as photography, sound recording, laboratory
analyses, etc. offer at least equally, if not more, reliable methods of establishing facts. Here we have, I
think, a case for a recourse to istihsan which would give preference to these new and often more
reliable means of proof. It would mean departing from the established rules of evidence in favour of an
alternative ruling which is justified in light of the new circumstances. The rationale of this istihsan
would be that the law requires evidence in order to establish the truth, and not the oral testimony for its
own sake. If this is the real spirit of the law, then recourse to istihsan would seem to offer a better way
to uphold that spirit.
The jurists are not in agreement on a precise definition for istihsan. The Hanafis have, on the whole,
adopted Abu'l-Hasan al-Karkhi's (d. 340/947) definition, which they consider accurate and
comprehensive. Istihsan is accordingly a principle which authorises departure from an established
precedent in favour of a different ruling for a reason stronger than the one which is obtained 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 ~
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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 divine revelation. Both sides have quoted the
Qur'an and the Sunnah in support of their arguments. They were able to do so partly because the
Qur'anic ayat which they have quoted are on the whole open to various interpretation.
The Hanafi jurists have mainly quoted two Qur'anic ayahs, both of which employ a derivation of the
root word hasuna, and enjoin the believers to follow the best of what they hear and receive. They are as
follows:
1. And give good tidings to those of my servants who listen to the word and follow the best of it
[ahsanahu]. Those are the ones God has guided and endowed with understanding (al-Zumar, 39:18);
2. And follow the best [ahsan] of what has been sent down to you from your Lord (al-Zumar, 39:55)
Qawl (lit.`word' or `speech') in the first ayah could either mean the word of God, or any other speech. If
it means the former, which is more likely, then the question arises as to whether one should distinguish
between the words of God which are ahsan (the best) as opposed to those which are merely hasan
(good). Some commentators have suggested that the reference here is to a higher course of conduct. The
Qur'an, in other words, distinguishes a superior course of conduct from that which may be considered as
ordinary. Punishing the wrong-doer, for example, is the normal course enjoined by the Shari'ah, but
forgiveness may at times be preferable (ahsan) and would thus represent the higher course of conduct.
The basic concept of istihsan, in other words, can be seen in the Qur'an, although not in its technical
form which the ulema of jurisprudence have developed.
[14. Yusuf Ali's commentary to The Holy Qur'an, p.1241 at f.n. 4269.]
The following two ahadith have also been quoted in support of istihsan:
1. `What the Muslims deem to be good is good in the sight of God'
but it is more likely to be a saying of the prominent companion, 'Abd Allah Ibn Mas'ud; see also Shatibi, I'tisam, II, 319.]
2. 'No harm shall be inflicted or reciprocated in Islam.'
Diraz), III, 17, Khudari, Tarikh, p. 199.]
[15. Amidi (Ihkam, I, 241) considers this to be a Hadith
;
[16. Ibn Majah, Sunan, II, 784, Hadith no. 2340; Shatibi, Muwafaqat (ed.
Principles of Islamic Jurisprudence ~
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The critics of istihsan have argued, however, that none of the foregoing provide a definite authority in
support of this doctrine. Regarding the first of the two ayahs, for example, Amidi points out that it
merely praises those who follow the best of what they hear. There is no indication in this ayah to render
adherence to the `best speech' an obligation. Nor does the second ayah bind one to a search for the best
in the revelation: if there is an injunction in the revealed sources, it would bind the individual regardless
of whether it is the best of the revelation or otherwise.
[17. Amidi, Ihkam, IV, p. 159.]
As for the Tradition, 'what
the Muslims deem good is good in the sight of God', both al-Ghazali and al-Amidi have observed that,
if anything, this would provide the authority 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 ~
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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 had not yet been compiled nor
consolidated. With the territorial expansion of the Islamic domain under the Umayyads, and the
dispersal of jurists and Companions who were learned in the Hadith, direct access to them became
increasingly difficult. Fear of isolating the Sunnah led the jurists to lay down certain rules which
restricted free recourse to ra'y. In order to be valid, the jurists ruled, ra'y must derive its authority from
the Shari'ah principles which are enunciated in the Qur'an and the Sunnah. This was the genesis of
qiyas, which was initially a disciplined form of ra'y. However, the exercise of this relatively liberal
form of ra'y during the formative stages of jurisprudence had already led to considerable disagreement
among the fuqaha'. Those who called for a close adherence to the Hadith, namely the Ahl al-Hadith,
mainly resided in the holy cities of Makkah and Madinah. The Ahl al-Hadith regarded the Sunnah to be
supplementary to the Qur'an. They insisted on strict adherence to the Sunnah which, in their view, was a
basic requirement of the faith. Acceptance of the faith, they argued, must be on a dogmatic basis
without referring to the rationale causes (ta'lil) of its ordinances. They were, in other words, literalists
who denied the mujtahid the liberty to resort to the basic rationale of the Shari'ah rules. Whenever they
failed to find an explicit authority in the sources concerning a problem, they chose to remain silent and
avoid recourse to ra'y. This they considered to be the essence of piety and unquestioning submission to
God.
[22. Khudari, Tarikh, p. 200ff.]
The fuqaha' of Iraq, on the other hand, resorted more liberally to personal opinion, which is why they
are known as Ahl al-Ra'y. In their view, the Shari'ah was in harmony with the dictates of reason. Hence
they had little hesitation to refer, in their search for solutions to legal problems, both to the letter and the
spirit of the Shari'ah ordinances. The Ahl al-Ra'y are thus known for their frequent resort to analogical
reasoning and istihsan.
As will be shown in the following pages, istihsan reflects an attempt on the part of the fuqaha at
regulating the free exercise of ra'y in matters of law and religion. Any restrictions imposed on istihsan,
such as the one that sought to turn istihsan into a technical formula, were basically designed to tilt the
balance in the continuous debate over the use of ra'y versus literalism in favour of the latter. Yet those
who saw istihsan as a predominantly rationalist doctrine had reservations over subjecting it to
restrictions that eroded its rationalist content and rendered istihsan a mere subdivision of qiyas.
Principles of Islamic Jurisprudence ~
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Although the classical theory of usul al-fiqh tacitly recognised that in some cases analogical reasoning
might entail injustice and that it was then permissible to resort to istihsan, this was, however, not to be
regarded as 'giving human reason a sovereign role'. Istihsan and maslahah were to be applied strictly in
the absence of a specific ruling in the Qur'an or the Sunnah.
Qiyas Jali, Qiyas Khafi 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 ~
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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: the waqf of cultivated lands, without its ancillary rights, would
frustrate the basic purpose of waqf, which is to facilitate the use of the property for charitable purposes.
To avoid hardship, a recourse to an alternative analogy, namely, to qiyas khafi, is therefore warranted.
The hidden analogy in this case is to draw a parallel, not with the contract of sale, bur with the contract
of lease (ijarah). For both of these involve a transfer of usufruct (intifa'). Since usufruct is the essential
purpose of ijarah, this contract is valid, on the authority of a Hadith, even without a clear reference to
the usufruct. This alternative analogy with ijarah would enable us to say that waqf can be validly
concluded even if it does not specify the attached rights to the property in detail.
To give another example, supposing A buys a house an a single transaction from Band C at a price of
40,000 pounds payable in installments. A pays the first installment of 2,000 pounds to B assuming that
B will hand over C's portion to him. But before this happens, B loses the 2,000 and the question arises
as to who should suffer the loss. By applying qiyas jali, B and C should share the loss. For B received
the money on behalf of the partnership and not for himself alone. Their position in sharing the loss, in
other words, is analogous to their status as partners in the first place. But by applying istihsan, only B,
who received the money, suffers the loss. For C, although a partner, was basically under no obligation
to obtain his portion of the 2,000 from B. It was only his right/privilege, and he would be at the liberty
to waive it. C's portion of the 2,000 pounds would consequently become a part of the remainder of the
price (or the debt) that A owed to both. Only B is therefore to suffer the loss. The solution is based on
the subtle analogy that one who is under no obligation should not have to pay any compensation
either.
[25. Khallaf, 'Ilm, p.82; al-Nabhani, Muqaddimah, p. 67.]
2) The second variety of istihsan consists of making an exception to a general rule of the existing law,
which is why some writers have called this type `exceptional istihsan' (istihsan istithna'i), as opposed to
'analogical istihsan' (istihsan qiyasi) - the latter consisting of a departure from one qiyas to another.
Note the use of these terms e.g., in Sabuni, Madkhal, p. 123.]
Of these two, exceptional istihsan is considered to be the
stronger, for it derives support from another recognised source, especially when this is the Qur'an or the
Sunnah. The scholars of various schools are generally in agreement on the validity of the istihsan for
which authority can be found in the primary sources, but they have disputed istihsan which is based on
qiyas khafi alone. In fact the whole controversy over istihsan focuses on this latter form of istihsan.
Thus the Maliki jurist Ibn al-Hajib classifies istihsan into three categories of accepted (maqbul), rejected (mardud) and uncertain (mutaraddid), adding that istihsan
which is based on stronger grounds is acceptable to all. But istihsan which can find no support in the nass, ijma' or qiyas is generally disputed. See Ibn al-Hajib,
Mukhtasar, II, 485.]
But more to the point, the authority for an exceptional istihsan may be given either in the
Principles of Islamic Jurisprudence ~ Kamali 225[26.[27.nass, or in one of the other recognised proofs, namely consensus (ijma'), necessity (darurah), custom (
`urf or `adah), and public interest (maslahah). We shall illustrate each of these separately, as follows:
2.1. An example of the exceptional istihsan which is based in the nass of the Qur'an is its ruling on
bequests to relatives: `It is prescribed that when death approaches any of you, if he leaves any assets,
that he makes a bequest to parents and relatives' (al-Baqarah 2:180).
This Qur'anic provision represents an exception to a general principle of the Shari'ah, namely that a
bequest is basically not valid: since bequest regulates the division of the estate after the death of the
testator, the latter is not allowed to accelerate this process. A bequest made during the lifetime of the
testator is thus tantamount to interference in the rights of the heirs after the testator's death, which is
unlawful. However, the Qur'an permits bequest as an exception to the general rule, that is by way of an
exceptional istihsan. It sets aside the general principle in favour of an exception which contemplates a
fair distribution of wealth in the family, especially in cases where a relative is destitute and yet is
excluded from inheritance in the presence of other heirs.
[28. Cf. Sabuni, Madkhal, p. 123.]
2.2. Exceptional istihsan which is based on the Sunnah may be illustrated with reference to the contract
of ijarah (lease or hire). According to a general rule of the Shari'ah law of contract, an object which
does not exist at the time of contract may not be sold. However, ijarah has been validated despite its
being the sale of the usufruct (i.e. in exchange for rent) which is usually non-existent at the moment the
contract is concluded. Analogy would thus invalidate ijarah, but istihsan exceptionally validates it on
the authority of the Sunnah (and ijma'), proofs which are stronger than analogy and which justify a
departure from it.
Ibn Rushd, Bidayah, II, 220-221.]
[29. Cf. Musa, Madkhal, p.197; Khallaf, 'Ilm, p. 82. For ahadith which validate various types of ijarah (land, labour, animals, etc.) see
Similarly, the option of cancellation (khabar al-shart) represents an exceptional istihsan which is
authorised by the Sunnah. It is employed when a person buys an object on condition that he may revoke
the contract within the next three days or so. This kind of stipulation amounts to a departure from the
general rule of the Shari'ah law of contract, which is that a contract becomes binding upon its
conclusion. An exception to this rule has, however, been made, by way of istihsan, which is based on
the Hadith: `When you agree on the terms of a sale, you may say: it is not binding and I have an option
for three days.
[30. Sahih al-Bukhari (trans. Khan), III, 575. Hadith no. 893; Sabuni, Madkhal, pp. 123-24.]
2.3. To illustrate exceptional istihsan which is authorised by ijma`, we may refer to istihsan`, or the
contract for manufacture of goods. Recourse to this form of istihsan is made when someone places an
order with a craftsman for certain goods to be made at a price which is determined at the time of the
contract. Istihsan validates this transaction despite the fact that the object of the contract is non-existent
at the time the order is placed. This form of istihsan closely resembles the one which is authorised by
custom, as will later be discussed.
[31. See Abu Zahrah, Usul, p. 211.]
Principles of Islamic Jurisprudence ~
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2.4. An example of exceptional istihsan which is based on necessity (darurah) is the method adopted
for the purification of polluted wells. If a well, or a pond for that matter, is contaminated by impure
substances, its water may not be used for ablution. It will be noted, however, that the water in the well
cannot be purified by removing that part which is impure-and it cannot be poured out either, for it is in
continuous contact with the water which flows into the well. The solution has been found through
istihsan, which provides that contaminated wells can be purified by removing a certain number, say a
hundred, buckets of water from the well (the exact number is determined with reference to the type and
intensity of pollution). Istihsan in this case is validated by reason of necessity and prevention of
hardship to the people.
[32. See Abu Zahrah, Usul, pp. 211-12.]
In a similar vein, strict analogy requires that witnesses, in order to be admissible, must in all cases be
`adl, that is, upright and irreproachable. For judicial decisions must be founded on truth, and this is
facilitated by the testimony of just witnesses. However if the qadi happens to be in a place where adl
witnesses cannot be found, then it is his duty, by virtue of istihsan, to admit witnesses who are nor
totally reliable so that the rights of the people may be protected.
[33. Cf. Sabuni, Madkhal, p.124.]
Similarly with
regard to the qadi the general rule requires that he be a mujtahid, but a non-mujtahid may be appointed
as qadi where no mujtahid can be found for this office.
2.5. To illustrate exceptional istihsan which is authorised by custom, we may refer to the waqf of
moveable goods. Since waqf, by definition, is the endowment of property on a permanent basis, and
moveable goods are subject to destruction and loss, they are therefore not to be assigned in waqf. This
general rule has, however, been set aside by the Hanafi jurists, who have validated the waqf of
moveable such as books, tools and weapons on grounds of its acceptance by popular custom.
Madkhal, p.124.]
Similarly, a strict analogy would require that the object of sale be accurately defined and
quantified. However, popular custom has departed from this rule in the case of entry to public baths
where the users are charged a fixed price without any agreement on the amount of water they use or the
duration of their stay.
[35. Shatibi, I'tisam, II, 318.]
Another example is bay' al-ta ati, or sale by way of `give and
take', where the general rule that offer and acceptance must be verbally expressed is not applied owing
to customary practice.
2.6. And finally, to illustrate istihsan which is founded on considerations of public interest (maslahah),
we may refer to the responsibility of a trustee (amin) for the loss of goods which he receives in his
custody. The general rule here is that the trustee is not responsible for loss or damage to such property
unless it can be attributed to his personal fault or negligence (taqsir). Hence a tailor, a shoemaker or a
craftsman is not accountable for the loss of goods in his custody should they be stolen, or destroyed by
fire. But the jurists, including Abu Yusuf and al-Shaybani, have set aside the general rule in this case
and have held, by way of istihsan, the trustee to be responsible for such losses, unless the loss in
question is caused by a calamity, such as fire or flood, which is totally beyond his control. This istihsan
Principles of Islamic Jurisprudence ~ Kamali 227
[34. Cf. Sabuni,has been justified on grounds of public interest so that trustees and tradesmen may exercise greater care
in safeguarding people's property.
[36. Sabuni, Madkhal, p. 125.]
The Hanafi - Shafi'i Controversy Over Istihsan
Al-Shafi`i has raised serious objections against istihsan, which he considers to be a form of pleasureseeking
(taladhdhudh
wa-hawa)
and 'arbitrary law-making in religion'.
VII, 271.]
[37. Shafi'i, Kitab al-Umm, 'Kitab Ibtal al-Istihsan',
A Muslim must obey God and His Messenger at all times, and follow injunctions which are
enshrined in the clear texts (nusus). Should there arise any problem or difference of opinion, they must
be resolved with reference to the Qur'an and the Sunnah. In support of this, al-Shafi`i quotes the
Qur'anic nass in sura al-Nisa' (4:59): `Should you dispute over a matter among yourselves, refer it to
God and His Messenger, if you do believe in God and the Last Day.'
Al-Shafi`i continues on the same page: Anyone who rules or gives a fatwa on the basis of a nass or on
the basis of ijtihad which relies on an analogy to the nass has fulfilled his duty and has complied with
the command of the Lawgiver. But anyone who prefers that which neither God nor His Messenger has
commanded or approved, his preference will be acceptable neither to God nor to the Prophet. Istihsan
involves, according to al-Shafi'i, personal opinion, discretion and the inclination of the individual jurist,
an exercise which is not in harmony with the Qur'anic ayah which reads: 'Does man think that he will
be left without guidance [an yutraka suda]?' (al-Qiyamah, 75:36).
Commentators are in agreement that 'suda' in this ayah means a state of lawlessness in which the
individual is not subject to any rules, commands or prohibitions. With this meaning in mind, Imam
Shafi'i observes: if every judge and every mufti ruled according to their own inclinations, one can
imagine that self-indulgence and chaos would afflict the life of the community. Unlike qiyas, whose
propriety can be tested by the methodology to which it must conform, istihsan is not regulated as such.
Since istihsan consists neither of nass nor of an analogy to nass, it is ultra vires and must therefore be
avoided.
[38. Shafi'i, Kitab al-Umm, 'Kitab Ibtal al-Istihsan', VII, 272.]
In response to this critique, the Hanafis have asserted that istihsan is not an arbitrary exercise in
personal preference. It is a form of qiyas (viz., qiyas khafi), and is no less authoritative than qiyas. Thus
it is implied that, contrary to allegations by the Shafi`i jurists, istihsan is not an independent source of
law, but a branch of qiyas which has a firm grounding in the Shari'ah. If this argument is accepted, it
would imply that istihsan must be subjected to the same rules which are applicable to qiyas, and would
therefore lose its status as a juristic principle in its own right. The scope and flexibility of istihsan
would consequently be restricted as it would mean changing istihsan from a predominantly equitable
doctrine into a form of analogical reasoning. This would confine istihsan only to matters on which a
parallel ruling could be found in the primary sources. Having said this, however, it is doubtful whether
istihsan is really just another form of qiyas.
Principles of Islamic Jurisprudence ~
Kamali 228
are the best among you, and then those who follow them and then the next generation, and then lying
will proliferate after that [. . .]'
[11. Tabrizi, Mishkat, III, 1695, Hadith no. 6001 and 6003; Ghazali, Mustasfa, I, 136; Amidi, Ihkam, IV, 152.]
It is thus argued that according to these ahadith, following the way of the Companions is equated with
correct guidance, which would imply that their sayings, teachings and fatwas constitute a proof that
commands adherence.
It is, however, contended that these ahadith refer to the dignified status of the Companions in general,
and are not categorical to the effect that their decisions must be followed. In addition, since these
ahadith are conveyed in absolute terms in that they identify all the Companions as a source of guidance,
it is possible that the Prophet had meant only those who transmitted the Hadith and disseminated the
Prophetic teachings, in which case the reference would be to the authority of the Prophet himself. The
Companions in this sense would be viewed as mere transmitters and propagators of the Sunnah of the
Prophet.
[12. Zuhayr, Usul, IV, 192; Isma'il, Adillah, p. 287.]
Furthermore, the foregoing references to the Companions, as al-Ghazali points out, are in the nature of
praise, which indicates their piety and propriety of conduct in the eyes of God, but does not render
adherence to their views an obligation. Al-Ghazali also quotes a number of other ahadith in which the
Prophet praises individual Companions by name, all of which consist of commendation and praise; they
do not necessarily man that the saying of that Companion is a binding proof (hujjah).
136-37.]
2. The second view is that the ijtihad of a Companion is not a proof and does not bind the succeeding
generations of mujtahidun or any one else. This view is held by the Ash'arites, the Mu`tazilah, Imam
Ahmad b. Hanbal (according to one of his two views), and the Hanafi jurist Abu al-Hasan al-Karkhi.
Isma'il, Adillah, p. 294; Zuhayr, Usul, IV, 193.]
The proponents of this view have quoted in support the Qur'anic ayah
(al-Hashr, 59:2) which provides: `Consider, O you who have vision.' It is argued that this ayah makes
ijtihad the obligation of everyone who is competent to exercise it, and makes no distinction over
whether the mujtahid is a Companion or anyone else. What is obligatory is ijtihad itself, not adhering to
the ijtihad of anyone in particular. This ayah also indicates that the mujtahid must rely directly on the
sources and not imitate anyone, including the Companions. The proponents of this view also refer to the
ijma' of the Companions, referred to above, to the effect that the views of one mujtahid among them did
not bind the rest of the Companions.
[15. Ghazali, Mustasfa, I, 135; Amidi, Ihkam, IV, 149.]
Al-Ghazali and al-Amidi both consider this to be the preferred view, saying that those who have held
otherwise have resorted to evidence which is generally weak. Al-Shawkani has also held that the fatwa
of a Companion is not a proof, as he explains that the ummah is required to follow the Qur'an and
Principles of Islamic Jurisprudence ~ Kamali 213
[13. Ghazali, Mustasfa, I,[14.Sunnah. The Shari`ah only renders the Sunnah of the Prophet binding on the believers, and no other
individual, whether a Companion or otherwise, has been accorded a status similar to that of the
Prophet.
[16. Shawkani, Irshad, p. 214.]
Abu Zahrah has, however, criticised al-Shawkani's conclusion, and
explains that when we say that the saying of a Companion is an authoritative proof, it does not mean
that we create a rival to the Prophet. On the contrary, the Companions were most diligent in observing
the Qur'an and Sunnah, and it is because of this and their closeness to the Prophet that their fatwa
carries greater authority than that of the generality of other mujtahidun.
299.]
[17. Abu Zahrah, Usul, p.172; Isma'il, Adillah, p.
3. The third view, which is attributed to Abu Hanifah, is that the ruling of the Companion is a proof
when it is in conflict with qiyas but not when it agrees with qiyas. The explanation for this is that when
the ruling of a sahabi conflicts with qiyas, it is usually for a reason, and the fact that the Companion has
given a ruling against it is an indication of the weakness of the qiyas; hence the view of the Companion
is to be preferred. In the event where the ruling of the Companion agrees with qiyas, it merely concurs
with a proof on which the qiyas is founded in the first place. The ruling of the Companion is therefore
not a separate authority.
[18. Zuhayr, Usul, IV, 194; Isma'il, Adillah, p. 301.]
There is yet another view which maintains that only the rulings of the four Rightly-Guided Caliphs
command authority. This view quotes in support the Hadith in which the Prophet ordered the believers,
'You are to follow my Sunnah and the Sunnah of the Khulafa' Rashidun after me' This is even further
narrowed down, according to another Hadith, to include the first two caliphs only. The Hadith in
question reads: `Among those who succeed me, follow Abu Bakr and 'Umar'. The authenticity of this
second Hadith has, however, been called into question, and in any case, it is suggested that the purpose
of these ahadith is merely to praise the loyalty and devotion of these luminaries to Islam, and to
commend their excellence of conduct.
[19. Ibn Majah, Sunan, I, 37, Hadith no. 97; Ghazali, Mustasfa, I, 135; Amidi, Ihkam, IV, 152.]
Imam Shafi'i is on record as having stated that he follows the fatwa of a Companion in the absence of a
ruling in the Qur'an, Sunnah and ijma'. Al-Shafi'i's view on this point is, however, somewhat
ambivalent, which is perhaps why it has been variously interpreted by the jurists. In a conversation with
al-Rabi', al-Shafi'i has stated: 'We find that the ulema have sometimes followed the fatwa of a
Companion and have abandoned it at other times; and even those who have followed it are not
consistent in doing so.' At this point the interlocutor asks the Imam, 'What should I turn to, then?' To
this al-Shafi'i replies: 'I follow the ruling of the Companion when I find nothing in the Qur'an, Sunnah
or ijma', or anything which carries through the implications of these sources.' Al-Shafi'i has further
stated that he prefers the rulings of the first three caliphs over those of the other Companions, but that
when the Companions are in disagreement, we should look into their reasons and also try to ascertain
the view which might have been adopted by the majority of the Companions. Furthermore, when the
ruling of the Companion is in agreement with qiyas, then that qiyas, according to al-Shafi`i, is given
Principles of Islamic Jurisprudence ~
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priority over a variant qiyas which is not so supported.
170.]
[20. Shafi'i, Risalah, p. 261; Shawkani, Irshad, p. 243; Abu Zahrah, Usul, p.
Imam Abu Hanifah is also on record as having said, `When I find nothing in the Book of God and the
Sunnah of the Prophet, I resort to the saying of the Companions. I may follow the ruling which appeals
to me and abandon that which does not, but I do not abandon their views altogether and do it not give
preference to others over them: It thus appears that Abu Hanifah would give priority to the ruling of a
Companion over qiyas, and although he does not consider it a binding proof, it is obvious that he
regards the fatwa of a sahabi to be preferable to the ijtihad of others.
[21. Abu Zahrah, Usul, p. 170.]
Imam Ahmad ibn Hanbal has distinguished the fatwas of Companions into two types, one being a fatwa
which is not opposed by any other Companion, or where no variant ijtihad has been advanced on the
same point. Ibn Hanbal regards this variety of fatwa as authoritative. An example of this is the
admissibility of the testimony of slaves, on which the Imam has followed the fatwa of the Companion,
Anas b. Malik. Ibn Hanbal is quoted to the effect that he had not known of anyone who rejected the
testimony of a slave; it is therefore admissible. The second variety of fatwa that Ibn Hanbal
distinguishes is one on which the Companions disagreed, and issued two or three different rulings
concerning the same problem. In this situation, Imam Ibn Hanbal considers them all to be valid and
equally authoritative, unless it is known that the Khulafa' Rashidun adopted one in preference to the
others, in which case the Imam would do likewise. An example of such disagreement is the case of the
allotment of a share in inheritance to germane brothers in the presence of the father's father. According
to Abut Bakr, the father's father in this case is accounted like the father who would in turn exclude the
germane brothers altogether. Zayd b. Thabit, on the other hand, counted the father's father as one of the
brothers and would give him a minimum of one-third, whereas `Ali b. Abi Talib counted the father's
father as one of the brothers whose entitlement must not be less than one-sixth. Imam Ibn Hanbal is
reported to have accepted all the three views as equally valid, for they each reflect the light and
guidance that their authors received from the Prophet, and they all merit priority over the ijtihad of
others.
[22. Abu Zahrah, Ibn Hanbal, p. 287; Isma'il, Adillah, pp. 295-96.]
The Hanbali scholar Ibn Qayyim al-Jawziyyah quotes Imam al-Shafi'i as having said, `It is better for us
to follow the ra'y of a Companion rather than our own opinion,' Ibn al-Qayyim accepts this without
reservation, and produces evidence in its support. He then continues to explain that the fatwa of a
Companion may fall into any of six categories. Firstly, it may be based on what the Companion might
have heard from the Prophet. Ibn al-Qayyim explains that the Companions knew more about the
teachings of the Prophet than what has come down to us in the form of Hadith narrated by the
Companions. Note, for example, that Abu Bakr al-Siddiq transmitted no more than one hundred ahadith
from the Prophet notwithstanding the fact that he was deeply knowledgeable of the Sunnah and was
closely associated with the Prophet not only after the Prophetic mission began, but even before.
Secondly, the fatwa of a Companion may be based on what he might have heard from a fellow
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Companion, Thirdly, it may be based on his own understanding of the Qur'an in such a way that the
matter would not be obvious to us had the Companion not issued a fatwa on it. Fourthly, the
Companion may have based his view on the collective agreement of the Companions, although we have
received it through one Companion only. Fifthly, the fatwa of a Companion may be based on the
learned opinion and general knowledge that he acquired through long experience. And Sixthly, the
fatwa of a Companion may be based on an understanding of his which is not a result of direct
observation but of information that he received indirectly, and it is possible that his opinion is incorrect,
in which case his fatwa is not a proof and need not be followed by others.
Usul, pp. 169-70.]
[23. Ibn Qayyim, I`lam, II, 191ff; Abu Zahrah,
And lastly, it will be noted that Imam Malik has not only upheld the fatwas of Companions but has
almost equated it with the Sunnah of the Prophet. This is borne out by the fact, as already stated in our
discussion of the Sunnah, that in his Muwatta', he has recorded over 1,700 ahadith, of which over half
are the sayings and fatwas of Companions.
On a similar note, Abu Zahrah has reached the conclusion that the four Imams of Jurisprudence have
all, in principle, upheld and followed the fatwas of Companions and all considered them to be
authoritative, although some of their followers have held views which differ with those of their leading
Imams. The author then quotes al-Shawkani at some length to the effect that the fatwa of a Companion
is not a proof. Having quoted al-Shawkani, Abu Zahrah refutes his view by saying that it is 'not free of
exaggeration'. (We have already given a brief outline of Abu Zahrah's critique of al-Shawkani.) Abu
Zahrah then quotes Ibn al-Qayyim's view on this matter which we have already discussed, and supports
it to the effect that the fatwa of a Companion is authoritative. But it is obvious from the tenor of his
discussion and the nature of the subject as a whole that the fatwa of a Companion is a speculative proof
only.
[24. Abu Zahrah, Usul, p. 172.]
Although the leading Imams of jurisprudence are in agreement on the point
that the fatwa of a Companion is authoritative, none has categorically stated that it is a binding proof.
Nonetheless, the four leading Imams consider the fatwa of a Companion to be a persuasive source of
guidance in that it carries a measure of authority which merits careful consideration, and commands
priority over the ijtihad of other mujtahidun.
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Chapter Twelve: Istihsan, or Equity in Islamic Law
The title I have chosen for this chapter draws an obvious parallel between equity and istihsan which
should be explained, for although they bear a close similarity to one another, the two are not identical.
'Equity' is a Western legal concept which is grounded in the idea of fairness and conscience, and derives
legitimacy from a belief in natural rights or justice beyond positive law.
[1. Osborn's Concise Law Dictionary, at p. 124,
defines equity as follows: 'Primarily fairness or natural justice. A fresh body of rules by the side of the original law, founded on distinct principles, and claiming to
supersede the law in virtue of a superior sanctity inherent in those principles. Equity is the body of rules formulated and administered by the Court of Chancery to
supplement the rules and procedure of the Common Law.']
Istihsan in Islamic law, and equity in Western law, are both
inspired by the principle of fairness and conscience, and both authorise departure from a rule of positive
law when its enforcement leads to unfair results. The main difference between them is, however, to be
sought in the overall reliance of equity on the concept of natural law, and of istihsan on the underlying
values and principles of the Shari'ah. But this difference need not be over-emphasised if one bears in
mind the convergence of values between the Shari`ah and natural law. Notwithstanding their different
approaches to the question of right and wrong, for example, the values upheld by natural law and the
divine law of Islam are substantially concurrent. Briefly, both assume that right and wrong are not a
matter of relative convenience for the individual, but derive from an eternally valid standard which is
ultimately independent of human cognizance and adherence. But natural law differs with the divine law
in its assumption that right and wrong are inherent in nature.
[2. See for a discussion Kerr's Islamic Reform,p.57.]
From an
Islamic perspective, right and wrong are determined, not by reference to the 'nature of things', but
because God has determined them as such. The Shari'ah is an embodiment of the will of God, the Lord
of the universe and the supreme arbiter of values. If equity is defined as a law of nature superior to all
other legal rules, written or otherwise, then this is obviously not what is meant by istihsan. For istihsan
does not recognise the superiority of any other law over the divine revelation, and the solutions which it
offers are for the most part based on principles which are upheld in the divine law. Unlike equity, which
is founded in the recognition of a superior law, istihsan does not seek to constitute an independent
authority beyond the Shari'ah. Istihsan, in other words, is an integral part of the Shari'ah, and differs
with equity in that the latter recognises a natural law apart from, and essentially superior to, positive
law.
[3. See for a discussion John Makdisi, 'Legal Logic,' p.90.]
While discussing the general theory of istihsan, this chapter also draws attention to two main issues
concerning this subject. One of these is whether or not istihsan is a form of analogical reasoning: is it to
be regarded as a variety of qiyas or does it merit to stand as a principle of equity in its own right? The
other issue to be raised is the controversy over the validity of istihsan, which started with al-Shafi'i's
unambiguous rejection of this principle. A glance at the existing literature shows how the ulema are
preoccupied with the polemics over istihsan and have differed on almost every aspect of the subject. I
shall therefore start with a general characterisation of istihsan, and then discuss the authority which is
Principles of Islamic Jurisprudence ~
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quoted in its support. This will be followed by a brief account of the related concepts, ra'y and qiyas.
The discussion will end with an account of the controversy over istihsan and a conclusion where I have
tried to see the issues in a fresh light with a view to developing a perspective on istihsan.
Istihsan is an important branch of ijtihad, and has played a prominent role in the adaptation of Islamic
law to the changing needs of society. It has provided Islamic law with the necessary means with which
to encourage flexibility and growth. Notwithstanding a measure of juristic technicality which seems to
have been injected into an originally simple idea, istihsan remains basically flexible, and can be used
for a variety of purposes, as will later be discussed. Yet because of its essential flexibility, the jurists
have discouraged an over-reliance on istihsan lest it result in the suspension of the injunctions of the
Shari'ah and become a means of circumventing its general principles. Istihsan has thus become the
subject of much controversy among our jurists. Whereas the Hanafi, Maliki, and Hanbali jurists have
validated istihsan as a subsidiary source of law, the Shafi'i, Zahiri and Shi'i ulema have rejected it
altogether and refused to give it any credence in their formulation of the legal theory of usul al-fiqh.
details see Sabuni, Madkhal, p. 119ff.]
Istihsan literally means `to approve, or to deem something preferable'. It is a derivation from hasuna,
which means being good or beautiful. In its juristic sense, istihsan is a method of exercising personal
opinion in order to avoid any rigidity and unfairness that might result from the literal enforcement of
the existing law. `Juristic preference' is a fitting description of istihsan, as it involves setting aside as
established analogy in favour of an alternative ruling which serves the ideals of justice and public
interest in a better way.
Enforcing the existing law may prove to he detrimental in certain situations, and a departure from it
may be the only way of attaining a fair solution to a particular problem. The jurist who resorts to
istihsan may find the law to be either too general, or too specific and inflexible. In both cases, istihsan
may offer a means of avoiding hardship and generating a solution which is harmonious with the higher
objectives of the Shari'ah.
It has been suggested that the ruling of the second caliph, `Umar b. al-Khattab, not to enforce the hadd
penalty of the amputation of the hand for theft during a widespread famine, and the ban which he
imposed on the sale of slave-mothers (ummahat al-awlad), and marriage with kitabiyahs in certain
cases were all instances of istihsan.
[5. Umm al-walad is a female slave who has borne a child to her master, and who is consequently free at his
death. A kitabiyah is a woman who is a follower of a revealed religion, namely Christianity and Judaism.]
For `Umar set aside the established
law in these cases on grounds of public interest, equity and justice.
[6. Cf. Ahmad Hasan, Early Development, p.145.]
The Hanafi jurist al-Sarakhsi (d. 483/1090), considers istihsan to be a method of seeking facility and
ease in legal injunctions. It involves a departure from qiyas in favour of a ruling which dispels hardship
and brings about ease to the people. 'Avoidance of hardship (raf' al-haraj)' al-Sarakhsi adds, `is a
Principles of Islamic Jurisprudence ~ Kamali 218
[4. Forcardinal principle of religion which is enunciated in the Qur'an, where we read, in an address to the
believers, that `God intends facility for you, and He does not want to put you in hardship' (al-Baqarah
2:185). Al-Sarakhsi substantiates this further by quoting the Hadith that reads: `The best of your
religion is that which brings ease to the people.'
[7. Sarakhsi, Mabsut, X, 145; Ibn Hanbal, Musnad, V. 22.]
Al-Khudari has rightly explained that in their search for solutions to problems, the Companions and
Successors resorted in the first place to the Qur'an and the normative example of the Prophet. But when
they found no answer in these sources, they exercised their personal opinion (ra'y) which they
formulated in the light of the general principles and objectives of the Shari'ah. This is illustrated, for
example, in the judgment of `Umar ibn al-Khattab in the case of Muhammad ibn Salamah. The caliph
was approached by Ibn Salamah's neighbour who asked for permission to extend a water canal through
Ibn Salamah's property, and he was grafted the request on the ground that no harm was likely to accrue
to Ibn Salamah, whereas extending a water canal was to the manifest benefit of his neighbour.
Tarikh, p.199.]
It thus appears that istihsan is essentially a form of ra'y which gives preference to the best of the
various solutions that may exist for a particular problem. In this sense, istihsan is an integral part of
Islamic jurisprudence and indeed of many other areas of human knowledge. Hence it is not surprising to
note Imam Malik's observation that `istihsan represents nine-tenth of human knowledge'. While quoting
this view, Abu Zahrah adds that when Malik made this remark, he was apparently including the broad
concept of maslahah within the purview of istihsan. `For it is maslahah which accounts for the larger
part of the nine-tenth.
IV. 208.]
[9. Abu Zahrah, Usul, p. 207, and 215. Imam Malik's characterisation of istihsan also appears in Shatibi, Muwafaqat (ed. Diraz),
Evidence suggests that the Companions and Successors were not literalists who would seek a specific
authority in the revealed sources for every legal opinion (fatwa) they issued. On the contrary, their
rulings were often based on their understanding of the general spirit and purpose of the Shari'ah, and
not necessarily on the narrow and literal meaning of its principles. Istihsan has been formulated in this
spirit; it is the antidote to literalism and takes a broad view of the law which must serve, not frustrate,
the ideals of fairness and justice.
To give an example, oral testimony is the standard form of evidence in Islamic law on which a
consensus (ijma') can be claimed to exist. This normally requires two upright (`adl) witnesses unless the
law provides otherwise (the proof of zina, for instance, requires four witnesses). The number of
witnesses required in these cases is prescribed in the Qur'an, but the rule that testimony should be given
orally is determined by consensus. Muslim jurists have insisted on oral testimony and have given it
priority over other methods of proof, including confession and documentary evidence. In their view, the
direct and personal testimony of a witness who speaks before the judge with no intermediary is the most
reliable means of discovering the truth. The question arises, however, whether one should still insist on
Principles of Islamic Jurisprudence ~ Kamali 219
[8. Khudari,oral testimony at a time when other methods such as photography, sound recording, laboratory
analyses, etc. offer at least equally, if not more, reliable methods of establishing facts. Here we have, I
think, a case for a recourse to istihsan which would give preference to these new and often more
reliable means of proof. It would mean departing from the established rules of evidence in favour of an
alternative ruling which is justified in light of the new circumstances. The rationale of this istihsan
would be that the law requires evidence in order to establish the truth, and not the oral testimony for its
own sake. If this is the real spirit of the law, then recourse to istihsan would seem to offer a better way
to uphold that spirit.
The jurists are not in agreement on a precise definition for istihsan. The Hanafis have, on the whole,
adopted Abu'l-Hasan al-Karkhi's (d. 340/947) definition, which they consider accurate and
comprehensive. Istihsan is accordingly a principle which authorises departure from an established
precedent in favour of a different ruling for a reason stronger than the one which is obtained 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
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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 divine revelation. Both sides have quoted the
Qur'an and the Sunnah in support of their arguments. They were able to do so partly because the
Qur'anic ayat which they have quoted are on the whole open to various interpretation.
The Hanafi jurists have mainly quoted two Qur'anic ayahs, both of which employ a derivation of the
root word hasuna, and enjoin the believers to follow the best of what they hear and receive. They are as
follows:
1. And give good tidings to those of my servants who listen to the word and follow the best of it
[ahsanahu]. Those are the ones God has guided and endowed with understanding (al-Zumar, 39:18);
2. And follow the best [ahsan] of what has been sent down to you from your Lord (al-Zumar, 39:55)
Qawl (lit.`word' or `speech') in the first ayah could either mean the word of God, or any other speech. If
it means the former, which is more likely, then the question arises as to whether one should distinguish
between the words of God which are ahsan (the best) as opposed to those which are merely hasan
(good). Some commentators have suggested that the reference here is to a higher course of conduct. The
Qur'an, in other words, distinguishes a superior course of conduct from that which may be considered as
ordinary. Punishing the wrong-doer, for example, is the normal course enjoined by the Shari'ah, but
forgiveness may at times be preferable (ahsan) and would thus represent the higher course of conduct.
The basic concept of istihsan, in other words, can be seen in the Qur'an, although not in its technical
form which the ulema of jurisprudence have developed.
[14. Yusuf Ali's commentary to The Holy Qur'an, p.1241 at f.n. 4269.]
The following two ahadith have also been quoted in support of istihsan:
1. `What the Muslims deem to be good is good in the sight of God'
but it is more likely to be a saying of the prominent companion, 'Abd Allah Ibn Mas'ud; see also Shatibi, I'tisam, II, 319.]
2. 'No harm shall be inflicted or reciprocated in Islam.'
Diraz), III, 17, Khudari, Tarikh, p. 199.]
[15. Amidi (Ihkam, I, 241) considers this to be a Hadith
;
[16. Ibn Majah, Sunan, II, 784, Hadith no. 2340; Shatibi, Muwafaqat (ed.
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The critics of istihsan have argued, however, that none of the foregoing provide a definite authority in
support of this doctrine. Regarding the first of the two ayahs, for example, Amidi points out that it
merely praises those who follow the best of what they hear. There is no indication in this ayah to render
adherence to the `best speech' an obligation. Nor does the second ayah bind one to a search for the best
in the revelation: if there is an injunction in the revealed sources, it would bind the individual regardless
of whether it is the best of the revelation or otherwise.
[17. Amidi, Ihkam, IV, p. 159.]
As for the Tradition, 'what
the Muslims deem good is good in the sight of God', both al-Ghazali and al-Amidi have observed that,
if anything, this would provide the authority 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
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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 had not yet been compiled nor
consolidated. With the territorial expansion of the Islamic domain under the Umayyads, and the
dispersal of jurists and Companions who were learned in the Hadith, direct access to them became
increasingly difficult. Fear of isolating the Sunnah led the jurists to lay down certain rules which
restricted free recourse to ra'y. In order to be valid, the jurists ruled, ra'y must derive its authority from
the Shari'ah principles which are enunciated in the Qur'an and the Sunnah. This was the genesis of
qiyas, which was initially a disciplined form of ra'y. However, the exercise of this relatively liberal
form of ra'y during the formative stages of jurisprudence had already led to considerable disagreement
among the fuqaha'. Those who called for a close adherence to the Hadith, namely the Ahl al-Hadith,
mainly resided in the holy cities of Makkah and Madinah. The Ahl al-Hadith regarded the Sunnah to be
supplementary to the Qur'an. They insisted on strict adherence to the Sunnah which, in their view, was a
basic requirement of the faith. Acceptance of the faith, they argued, must be on a dogmatic basis
without referring to the rationale causes (ta'lil) of its ordinances. They were, in other words, literalists
who denied the mujtahid the liberty to resort to the basic rationale of the Shari'ah rules. Whenever they
failed to find an explicit authority in the sources concerning a problem, they chose to remain silent and
avoid recourse to ra'y. This they considered to be the essence of piety and unquestioning submission to
God.
[22. Khudari, Tarikh, p. 200ff.]
The fuqaha' of Iraq, on the other hand, resorted more liberally to personal opinion, which is why they
are known as Ahl al-Ra'y. In their view, the Shari'ah was in harmony with the dictates of reason. Hence
they had little hesitation to refer, in their search for solutions to legal problems, both to the letter and the
spirit of the Shari'ah ordinances. The Ahl al-Ra'y are thus known for their frequent resort to analogical
reasoning and istihsan.
As will be shown in the following pages, istihsan reflects an attempt on the part of the fuqaha at
regulating the free exercise of ra'y in matters of law and religion. Any restrictions imposed on istihsan,
such as the one that sought to turn istihsan into a technical formula, were basically designed to tilt the
balance in the continuous debate over the use of ra'y versus literalism in favour of the latter. Yet those
who saw istihsan as a predominantly rationalist doctrine had reservations over subjecting it to
restrictions that eroded its rationalist content and rendered istihsan a mere subdivision of qiyas.
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Although the classical theory of usul al-fiqh tacitly recognised that in some cases analogical reasoning
might entail injustice and that it was then permissible to resort to istihsan, this was, however, not to be
regarded as 'giving human reason a sovereign role'. Istihsan and maslahah were to be applied strictly in
the absence of a specific ruling in the Qur'an or the Sunnah.
Qiyas Jali, Qiyas Khafi 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 ~
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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: the waqf of cultivated lands, without its ancillary rights, would
frustrate the basic purpose of waqf, which is to facilitate the use of the property for charitable purposes.
To avoid hardship, a recourse to an alternative analogy, namely, to qiyas khafi, is therefore warranted.
The hidden analogy in this case is to draw a parallel, not with the contract of sale, bur with the contract
of lease (ijarah). For both of these involve a transfer of usufruct (intifa'). Since usufruct is the essential
purpose of ijarah, this contract is valid, on the authority of a Hadith, even without a clear reference to
the usufruct. This alternative analogy with ijarah would enable us to say that waqf can be validly
concluded even if it does not specify the attached rights to the property in detail.
To give another example, supposing A buys a house an a single transaction from Band C at a price of
40,000 pounds payable in installments. A pays the first installment of 2,000 pounds to B assuming that
B will hand over C's portion to him. But before this happens, B loses the 2,000 and the question arises
as to who should suffer the loss. By applying qiyas jali, B and C should share the loss. For B received
the money on behalf of the partnership and not for himself alone. Their position in sharing the loss, in
other words, is analogous to their status as partners in the first place. But by applying istihsan, only B,
who received the money, suffers the loss. For C, although a partner, was basically under no obligation
to obtain his portion of the 2,000 from B. It was only his right/privilege, and he would be at the liberty
to waive it. C's portion of the 2,000 pounds would consequently become a part of the remainder of the
price (or the debt) that A owed to both. Only B is therefore to suffer the loss. The solution is based on
the subtle analogy that one who is under no obligation should not have to pay any compensation
either.
[25. Khallaf, 'Ilm, p.82; al-Nabhani, Muqaddimah, p. 67.]
2) The second variety of istihsan consists of making an exception to a general rule of the existing law,
which is why some writers have called this type `exceptional istihsan' (istihsan istithna'i), as opposed to
'analogical istihsan' (istihsan qiyasi) - the latter consisting of a departure from one qiyas to another.
Note the use of these terms e.g., in Sabuni, Madkhal, p. 123.]
Of these two, exceptional istihsan is considered to be the
stronger, for it derives support from another recognised source, especially when this is the Qur'an or the
Sunnah. The scholars of various schools are generally in agreement on the validity of the istihsan for
which authority can be found in the primary sources, but they have disputed istihsan which is based on
qiyas khafi alone. In fact the whole controversy over istihsan focuses on this latter form of istihsan.
Thus the Maliki jurist Ibn al-Hajib classifies istihsan into three categories of accepted (maqbul), rejected (mardud) and uncertain (mutaraddid), adding that istihsan
which is based on stronger grounds is acceptable to all. But istihsan which can find no support in the nass, ijma' or qiyas is generally disputed. See Ibn al-Hajib,
Mukhtasar, II, 485.]
But more to the point, the authority for an exceptional istihsan may be given either in the
Principles of Islamic Jurisprudence ~ Kamali 225[26.[27.nass, or in one of the other recognised proofs, namely consensus (ijma'), necessity (darurah), custom (
`urf or `adah), and public interest (maslahah). We shall illustrate each of these separately, as follows:
2.1. An example of the exceptional istihsan which is based in the nass of the Qur'an is its ruling on
bequests to relatives: `It is prescribed that when death approaches any of you, if he leaves any assets,
that he makes a bequest to parents and relatives' (al-Baqarah 2:180).
This Qur'anic provision represents an exception to a general principle of the Shari'ah, namely that a
bequest is basically not valid: since bequest regulates the division of the estate after the death of the
testator, the latter is not allowed to accelerate this process. A bequest made during the lifetime of the
testator is thus tantamount to interference in the rights of the heirs after the testator's death, which is
unlawful. However, the Qur'an permits bequest as an exception to the general rule, that is by way of an
exceptional istihsan. It sets aside the general principle in favour of an exception which contemplates a
fair distribution of wealth in the family, especially in cases where a relative is destitute and yet is
excluded from inheritance in the presence of other heirs.
[28. Cf. Sabuni, Madkhal, p. 123.]
2.2. Exceptional istihsan which is based on the Sunnah may be illustrated with reference to the contract
of ijarah (lease or hire). According to a general rule of the Shari'ah law of contract, an object which
does not exist at the time of contract may not be sold. However, ijarah has been validated despite its
being the sale of the usufruct (i.e. in exchange for rent) which is usually non-existent at the moment the
contract is concluded. Analogy would thus invalidate ijarah, but istihsan exceptionally validates it on
the authority of the Sunnah (and ijma'), proofs which are stronger than analogy and which justify a
departure from it.
Ibn Rushd, Bidayah, II, 220-221.]
[29. Cf. Musa, Madkhal, p.197; Khallaf, 'Ilm, p. 82. For ahadith which validate various types of ijarah (land, labour, animals, etc.) see
Similarly, the option of cancellation (khabar al-shart) represents an exceptional istihsan which is
authorised by the Sunnah. It is employed when a person buys an object on condition that he may revoke
the contract within the next three days or so. This kind of stipulation amounts to a departure from the
general rule of the Shari'ah law of contract, which is that a contract becomes binding upon its
conclusion. An exception to this rule has, however, been made, by way of istihsan, which is based on
the Hadith: `When you agree on the terms of a sale, you may say: it is not binding and I have an option
for three days.
[30. Sahih al-Bukhari (trans. Khan), III, 575. Hadith no. 893; Sabuni, Madkhal, pp. 123-24.]
2.3. To illustrate exceptional istihsan which is authorised by ijma`, we may refer to istihsan`, or the
contract for manufacture of goods. Recourse to this form of istihsan is made when someone places an
order with a craftsman for certain goods to be made at a price which is determined at the time of the
contract. Istihsan validates this transaction despite the fact that the object of the contract is non-existent
at the time the order is placed. This form of istihsan closely resembles the one which is authorised by
custom, as will later be discussed.
[31. See Abu Zahrah, Usul, p. 211.]
Principles of Islamic Jurisprudence ~
Kamali 226
2.4. An example of exceptional istihsan which is based on necessity (darurah) is the method adopted
for the purification of polluted wells. If a well, or a pond for that matter, is contaminated by impure
substances, its water may not be used for ablution. It will be noted, however, that the water in the well
cannot be purified by removing that part which is impure-and it cannot be poured out either, for it is in
continuous contact with the water which flows into the well. The solution has been found through
istihsan, which provides that contaminated wells can be purified by removing a certain number, say a
hundred, buckets of water from the well (the exact number is determined with reference to the type and
intensity of pollution). Istihsan in this case is validated by reason of necessity and prevention of
hardship to the people.
[32. See Abu Zahrah, Usul, pp. 211-12.]
In a similar vein, strict analogy requires that witnesses, in order to be admissible, must in all cases be
`adl, that is, upright and irreproachable. For judicial decisions must be founded on truth, and this is
facilitated by the testimony of just witnesses. However if the qadi happens to be in a place where adl
witnesses cannot be found, then it is his duty, by virtue of istihsan, to admit witnesses who are nor
totally reliable so that the rights of the people may be protected.
[33. Cf. Sabuni, Madkhal, p.124.]
Similarly with
regard to the qadi the general rule requires that he be a mujtahid, but a non-mujtahid may be appointed
as qadi where no mujtahid can be found for this office.
2.5. To illustrate exceptional istihsan which is authorised by custom, we may refer to the waqf of
moveable goods. Since waqf, by definition, is the endowment of property on a permanent basis, and
moveable goods are subject to destruction and loss, they are therefore not to be assigned in waqf. This
general rule has, however, been set aside by the Hanafi jurists, who have validated the waqf of
moveable such as books, tools and weapons on grounds of its acceptance by popular custom.
Madkhal, p.124.]
Similarly, a strict analogy would require that the object of sale be accurately defined and
quantified. However, popular custom has departed from this rule in the case of entry to public baths
where the users are charged a fixed price without any agreement on the amount of water they use or the
duration of their stay.
[35. Shatibi, I'tisam, II, 318.]
Another example is bay' al-ta ati, or sale by way of `give and
take', where the general rule that offer and acceptance must be verbally expressed is not applied owing
to customary practice.
2.6. And finally, to illustrate istihsan which is founded on considerations of public interest (maslahah),
we may refer to the responsibility of a trustee (amin) for the loss of goods which he receives in his
custody. The general rule here is that the trustee is not responsible for loss or damage to such property
unless it can be attributed to his personal fault or negligence (taqsir). Hence a tailor, a shoemaker or a
craftsman is not accountable for the loss of goods in his custody should they be stolen, or destroyed by
fire. But the jurists, including Abu Yusuf and al-Shaybani, have set aside the general rule in this case
and have held, by way of istihsan, the trustee to be responsible for such losses, unless the loss in
question is caused by a calamity, such as fire or flood, which is totally beyond his control. This istihsan
Principles of Islamic Jurisprudence ~ Kamali 227
[34. Cf. Sabuni,has been justified on grounds of public interest so that trustees and tradesmen may exercise greater care
in safeguarding people's property.
[36. Sabuni, Madkhal, p. 125.]
The Hanafi - Shafi'i Controversy Over Istihsan
Al-Shafi`i has raised serious objections against istihsan, which he considers to be a form of pleasureseeking
(taladhdhudh
wa-hawa)
and 'arbitrary law-making in religion'.
VII, 271.]
[37. Shafi'i, Kitab al-Umm, 'Kitab Ibtal al-Istihsan',
A Muslim must obey God and His Messenger at all times, and follow injunctions which are
enshrined in the clear texts (nusus). Should there arise any problem or difference of opinion, they must
be resolved with reference to the Qur'an and the Sunnah. In support of this, al-Shafi`i quotes the
Qur'anic nass in sura al-Nisa' (4:59): `Should you dispute over a matter among yourselves, refer it to
God and His Messenger, if you do believe in God and the Last Day.'
Al-Shafi`i continues on the same page: Anyone who rules or gives a fatwa on the basis of a nass or on
the basis of ijtihad which relies on an analogy to the nass has fulfilled his duty and has complied with
the command of the Lawgiver. But anyone who prefers that which neither God nor His Messenger has
commanded or approved, his preference will be acceptable neither to God nor to the Prophet. Istihsan
involves, according to al-Shafi'i, personal opinion, discretion and the inclination of the individual jurist,
an exercise which is not in harmony with the Qur'anic ayah which reads: 'Does man think that he will
be left without guidance [an yutraka suda]?' (al-Qiyamah, 75:36).
Commentators are in agreement that 'suda' in this ayah means a state of lawlessness in which the
individual is not subject to any rules, commands or prohibitions. With this meaning in mind, Imam
Shafi'i observes: if every judge and every mufti ruled according to their own inclinations, one can
imagine that self-indulgence and chaos would afflict the life of the community. Unlike qiyas, whose
propriety can be tested by the methodology to which it must conform, istihsan is not regulated as such.
Since istihsan consists neither of nass nor of an analogy to nass, it is ultra vires and must therefore be
avoided.
[38. Shafi'i, Kitab al-Umm, 'Kitab Ibtal al-Istihsan', VII, 272.]
In response to this critique, the Hanafis have asserted that istihsan is not an arbitrary exercise in
personal preference. It is a form of qiyas (viz., qiyas khafi), and is no less authoritative than qiyas. Thus
it is implied that, contrary to allegations by the Shafi`i jurists, istihsan is not an independent source of
law, but a branch of qiyas which has a firm grounding in the Shari'ah. If this argument is accepted, it
would imply that istihsan must be subjected to the same rules which are applicable to qiyas, and would
therefore lose its status as a juristic principle in its own right. The scope and flexibility of istihsan
would consequently be restricted as it would mean changing istihsan from a predominantly equitable
doctrine into a form of analogical reasoning. This would confine istihsan only to matters on which a
parallel ruling could be found in the primary sources. Having said this, however, it is doubtful whether
istihsan is really just another form of qiyas.
Principles of Islamic Jurisprudence ~
Kamali 228
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