12.4. CONCLUSION
The attempt at linking istihsan with qiyas has involved tortuous reasoning which somehow remains less than convincing. One way to resolve some of the juristic differences on this issue may be to go back to the origin of istihsan and recapture the meaning that was given to it by Abu Hanifah and the early ulema of jurisprudence. On this point there is evidence to suggest that Abu- Hanifah (d. 150/767) did not conceive of istihsan as an analogical form of reasoning. About half a century later, when al-Shafi`i wrote his Risalah and Kitab al-Umm, there was still little sign of a link between istihsan and qiyas. Al- Shafi’i is, in fact, completely silent on this point. Had al-Shafi’i (d.204/820) known that istihsan was a variety of qiyas, one can imagine that he might have softened his stand with regard to it. Originally istihsan was conceived in a wider and relatively simple form which was close to its literal meaning and free of the complexities that were subsequently woven into it. One is here reminded of Imam Malik’s characteristic statement which designates istihsan as nine-tenth of human knowledge, a statement which grasps the true essence of istihsan as a method of finding better and more equitable alternatives to existing problems both within and beyond the confines of analogical reasoning. Istihsan is basically antithetical to qiyas and not a part of it. It enables the jurist to escape from strict conformity to the rules of qiyas when such conformity is likely to lead to unfair results. Istihsan was originally formulated, not as another variety of qiyas, but as a doctrine which liberated the jurist from the strait-jacket of qiyas, especially where conformity to qiyas clashed with the higher objectives of the Shari’ah.
It is well to remember that much of the juristic controversy over istihsan has developed under the pressure of conformity to the strict requirements of the legal theory once it was finally formulated by al- Shafi`i and gradually accepted by others. The thrust of al-Shafi’i’s effort in formulating the legal theory of the usul was to define the role of reason vis-à-vis the revelation. Al-Shafi’i confined the scope of human reasoning in law to analogy alone. In his well-known statement concerning ijtihad and qiyas, especially where he considered the two to be synonymous, one hardly fails to notice the attempt at confining the use of human reasoning to qiyas alone:
On all matters touching the life of a Muslim there is either a binding decision or an indication as to the right answer. If there is a decision, it should be followed; if there is no indication as to the right answer,it should be sought by ijtihad, and ijtihad is qiyas.
In this statement, al-Shafi`i reflected the dominant mood of his time. From that point onward, any injection of rationalist principles into the legal theory of the usul had to seek justification through qiyas, which was the only channel through which a measure of support could be obtained for istihsan. In order to justify istihsan within the confines of the legal theory, it was initially equated with qiyas and eventually came to be designated as a sub-division of it.
The next issue over which the fuqaha’ have disagreed is whether an istihsan which is founded in the Qur’an, Sunnah, or ijma` should be called istihsan at all. In cases where a Hadith authorises departure from an existing analogy in favour of an alternative ruling, then all that one needs to authorise the departure in question is the Hadith itself. It would therefore seem redundant to apply the word istihsan to this form of departure from the rules of qiyas. Whenever a ruling can be found to the Qur’an (or theSunnah), the jurist is obliged to follow it and should, basically, have no choice of resorting to qiyas or to istihsan. If the Qur’an provides the choice of an alternative ruling which seems preferable, then the alternative in question is still a Qur’anic rule, not istihsan.
It would appear that the fuqaha’ initially used the term istihsan close to its literal sense, which is to `prefer’ or to deem something preferable. The literal meaning of istihsan was naturally free of the restrictions which were later evolved by the fuqaha’. A measure of confusion between the literal and technical meanings of istihsan probably existed ever since it acquired a technical meaning in the usage of the jurists. This distinction between the literal and juristic meanings of istihsan might help explain why some ulema have applied istihsan to the rulings of the Qur’an, the Sunnah, and ijma’. When we say that the Qur’an, by way of istihsan, permitted bequests to be made during the lifetime of the testator, we are surely not using istihsan in its technical/juristic sense – that is, giving preference to one qiyas over another or making an exception to an existing legal norm – but merely saying that the Qur’an preferred one of the two conceivable solutions in that particular case. When the Qur’an authorises bequests, then one might say that it has established a legal norm in its own right regardless as to whether it can be described as an exception to another norm or not. To regard this Qur’anic ruling as an istihsan can only be true if istihsan is used in its literal sense. For as a principle of jurisprudence, istihsan can add nothing to the authority of the Qur’an and the Sunnah. Although one might be able to find the genesis of istihsan in the Qur’an, this would have nothing to do with the notion of constructing istihsan as an alternative to, or a technique of escape from, qiyas. Furthermore, to read istihsan into the lines of the Qur’an would seem superfluous in the face of the legal theory of the usul that there is no room for rationalist doctrines such as istihsan in the event that a ruling can be found in the nusus.
Notwithstanding the fact that many observers have considered Abu’l-Hasan al-Karkhi’s definition to be the most acceptable, my enquiry leads to the conclusion that the Maliki approach to istihsan and Ibn al- `Arabi’s definition of it, is wider in scope and probably closest to the original conception of istihsan, for it does not seek to establish a link between istihsan and qiyas.
Istihsan has undoubtedly played a significant role in the development of Islamic law, a role which is sometimes ranked even higher than that of qiyas. Notwithstanding a measure of reticence on the part of the ulema to highlight the role of istihsan, it in reality features most prominently in bridging the gap between law and social realities by enabling the jurist to pay individual attention to circumstances and the peculiarities of particular problems. But for reasons which have already been explained, the fuqaha’ have exercised restraint in the use of istihsan, which, as a result, has not been utilised to the maximum of its potential. Hence, it is not surprising to note that a certain gap between theory and practice has developed in Islamic law. The potentials of istihsan could hardly be
translated into reality unless istihsan is stripped of its unwarranted accretions. The only consideration that needs to be closely observed in istihsan is whether there exists a more compelling reason to warrant a departure from an existing law. The reason which justifies resort to istihsan must not only be valid in Shari`ah but must serve a higher objective of it and must therefore be given preference over the existing law which is deemed unfair. Since istihsan enables a choice between alternative solutions, it contemplates the relative merits and demerits of each of the alternatives. The existing law is always the base to which an alternative is devised through istihsan. In this sense, istihsan offers considerable potential for innovation and for imaginative solutions to legal problems. The question in istihsan is not merely to find a solution to a particular problem but to find a better solution to the one which already exists. It therefore calls for a higher level of analysis and refinement which must in essence transcend the existing law and analogy.
The potential for new alternatives in istihsan would thus be considerably restricted if it were to be subjected to the requirements of qiyas. The two are essentially designed for different purposes and each must be allowed to function in its best capacity. Analogy essentially extends the logic of the Qur’an and the Sunnah, whereas istihsan is designed to tackle the irregularities of qiyas. Thus it would seem methodologically incorrect to amalgamate the two into a single formula.
Istihsan has admittedly not played a noticeable role in the legal and judicial practices of our times. It has, as it were, remained in the realm of controversy, which may partly be explained by the dominance of the phenomenon of taqlid in shaping the attitude of lawyers and judges towards istihsan. Only the rulings of the jurists of the past have been upheld on istihsan, and even this has not been totally free of hesitation. Muslim rulers and judges have made little or no use of istihsan either in developing the existing law or in the day-to-day administration of justice. This is patently unjustified, especially in view of the eminent suitability of istihsan in the search for fair and equitable solutions.
Istihsan can best be used as a method by which to improve the existing law, to strip it of impractical and undesirable elements and to refine it by means of making necessary exceptions. Istihsan, in other words, generally operates within the confines of the legal status quo and does not seek a radical change in the existing law, although it has considerable potential to effect innovation and refinement.
Judges and lawyers are generally reluctant to depart from the existing law, or to make exceptions to it, even in the face of evidence to the effect that a departure would be in the interests of fairness and justice. Their reluctance is often due to the reticence in the law as to precisely what role the judge has to play in such a situation. Judges are normally expected to enforce the law at all costs, and often have little choice in the matter regardless of the circumstances or results. Alternatively, it may be that the judges are, in fact, doing this- departing from the law when it seems patently unfair – without openly acknowledging what they are doing. In any case, it would seem advisable if the legislature explicitly authorised the judge to resort to istihsan when he considers this to be the only way of achieving a fair solution in a case under consideration. In this way, istihsan would hopefully find a place in the day-to- day administration of justice and would consequently encourage flexibility and fairness in law and judicial practice. Judicial decisions would, in turn, influence legislation and contribute towards attaining a more refined and equitable legal order. A clear and well-defined role for istihsan would hopefully mark a new opening in the evolutionary process of Islamic law.
by M. H. Kamali.
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