12.3. THE HANAFI – SHAFI’I CONTROVERSY OVER ISTIHSAN
Al-Shafi`i has raised serious objections against istihsan, which he considers to be a form of pleasure-seeking (taladhdhudh wa-hawa) and ‘arbitrary law-making in religion’. 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.
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.
Ahmad Hasan has observed that istihsan is more general than qiyas khafi, as the former embraces a wider scope and can apply to matters beyond the confines of the latter. Aghnides has similarly held that istihsan is a new principle which goes beyond the scope of qiyas, whether or not this is openly admitted to be the case:
Abu Hanifah and his earliest disciples did not consider istihsan as a kind of qiyas […] nor did he use the word in any technical sense. Had that been the case, like so many of his views, it would probably have been placed on record. The fact is that he used the word istihsan in its usual meaning, namely, that of abandoning qiyas for an opinion thought to be more subservient to the social interest.
Aghnides goes on to suggest that when the Shafi’i jurists attacked istihsan on the grounds that it meant a setting aside of the revealed texts, the disciples of Abu Hanifah felt themselves forced to show that such was not the case. Hence they put forward the contention that istihsan was nothing but another kind of qiyas. According to another observer, the attempt to bring istihsan within the sphere of qiyas is unjustified. For `it really lies outside of this narrow sphere and must therefore be recognised as a special form of deduction’.
Al-Ghazali has criticized istihsan on different grounds. He has observed that the jurists of the Shafi`i school have recognised the validity of istihsan which is based on an indication (dalil) from the Quran or Sunnah. When there exists a dalil of this kind, then the case at hand would be governed not by istihsan but directly by the provision of the Quran or Sunnah itself.Furthermore al-Ghazali is critical of Abu Hanifah for his departure, in a number of cases, from a sound Hadith in favor of qiyas or istihsan. And finally, al-Ghazali rejects
istihsan which is based on popular custom, for custom by itself is not a source of law. He observes that approved customs are often justified with reference, not to istihsan, but to other proofs. While referring to the example of entry to a public bath for a fixed price without quantifying the consumption of water, al-Ghazali asks: `How is it known that the community adopted this practice by virtue of istihsan? Is it not true that this was the custom during the time of the Prophet, in which case it becomes a tacitly approved Sunnah (Sunnah taqririyyah) so as to prevent hardship to the people?’
Another Shafi’i jurist, al-Amidi, has stated that notwithstanding his explicit denunciation of istihsan, al- Shafi`i himself resorted to istihsan. Al-Shafi’i has been quoted to have used a derivation of istihsan on several occasions including the ruling in which he said, ‘I approve (astahsinu) mut’ah (gift of consolation) at the level of 30 dirhams’; and `I approve (astahsinu) the proof of pre-emption (shuf`) to be three days’ (following the date when the sale of the property in question came to the knowledge of the claimant). Al-Amidi thus draws the conclusion that there is no disagreement on the essence of istihsan between the two schools,’ which obviously means that their differences amount to no more than splitting hairs over words.
The Maliki jurist al-Shatibi has held that istihsan does not mean the pursuit of one’s desires; on the contrary, a jurist who understands istihsan has a profound understanding of the intention of the Lawgiver. When the jurist discovers that a strict application of analogy to a new problem leads to loss of maslahah and possibly to an evil (mafsadah) then he must set aside qiyas and resort to istihsan.
While discussing the controversy over istihsan, another observer, Shaykh al-Khudari, writes that anyone who is familiar with the works of the ulema of jurisprudence would agree that Abu Hanifah and his disciples are not alone in their reliance on istihsan. All jurists have resorted to istihsan in one form or another, and a reader of the various juristic schools of thought is bound to come across opinions which are founded in it.
This view finds further support from Yusuf Musa, who has tersely observed that juristic differences over istihsan essentially amount to no more than arguments over words. For the fuqaha’ of every major school have invariably resorted to istihsan in one form or another.
If this is accepted, then one naturally wonders as to the causes that might explain the controversy in question. Al-Taftazani has observed that neither of the two sides of the controversy over istihsan have understood one another, and that the whole debate is due to a misunderstanding. Those who argue in favour of istihsan have perceived this principle differently to those who have argued against it. Had istihsan been properly understood, al-Taftazani adds, its basic validity would never have been disputed.
Al-Taftazani’s assessment has been widely endorsed by modern writers on the subject, including Khallaf, Abu Zahrah and Yusuf Musa. In Khallaf’s opinion, the essential validity of istihsan is undeniable, for it enables a departure from the apparent or the general rule of law to a variant ruling which warrants such a departure. Every judge and jurist must consider the circumstances of an individual case, and occasionally decide not to apply a certain rule, or to make an exception, as he considers this to be required by maslahah and justice. And lastly, Abu Zahrah observes that, ‘One exception apart, none of al-Shafi’is criticisms are relevant to the Hanafi conception of istihsan‘. The one exception that may bear out some of al-Shafi’i’s criticisms is istihsan which is authorised by custom. For custom is not a recognised source of law and is, in any case, not sufficiently authoritative to warrant a departure from qiyas.
by M. H. Kamali.
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