12.1. RA’Y QIYAS AND ISTIHSAN
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 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. However, because of its closer identity with the Quran and the Sunnah, qiyas has gained wider acceptance as a principle of jurisprudence. But even so, qiyas and 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 rational 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.
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.
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 Quran or the Sunnah.
by M. H. Kamali.
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