12.2. QIYAS JALI QIYAS KHAFI AND ISTIHSAN
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). 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 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, but 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, suppose A buys a house and 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.
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. Of these two, expectational istisan is considered to be the stronger, for it derives support from another recognised source, especially when this is the Quran 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. But more to the point, the authority for an exceptional istihsan may be given either in the 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.
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.
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.
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.
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.
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. 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. 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 movable goods such as books, tools and weapons on grounds of its acceptance by popular custom. 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. 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 has been justified on grounds of public interest so that trustees and tradesmen may exercise greater care in safeguarding people’s property.
by M. H. Kamali.
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