Al-Waadih Fee Usool ul-Fiqh by Muhammad Hussein Abdullah

We have already dealt with the Adillah Ash-Shar’iyah Al-Mu’tabarah (the evidences given consideration to) and these are four: Al-Kitaab, As-Sunnah, Ijmaa’ As-Sahaabah and the Qiyaas for which the ‘Illah is found within the Shar’a (i.e. text).

As for what some of the A’immah (Imaams) and Mujtahideen considered to represent Adillah and Islamic legislative sources, then they have not brought proof for the definite transmission (and authenticity) of these evidences in respect to them being from the Wahi. Rather they have only deduced their legitimacy by way of Zhanniy (indefinite) evidences which are not suitable or valid to be used as evidence in this area and context. That is because the Shar’iy Daleel represents an Asl (foundation) from the Usool of the Sharee’ah and as such it is like the Aqeedah which is not established and proven by other than Yaqeen (certainty). Consequently, there must be a Qat’iy (definite) Daleel that indicates and guides to it for it to be considered a Daleel (source).

Despite that, deduction that has been made using other than the four considered evidences, which contain a Shubhat Ad-Daleel (semblance of an evidence), is still considered to represent a Shar’iy deduction and the Ahkaam that are deduced in accordance to it are considered to be Ahkaam Shar’iyah because they have a Shubhat Daleel. Such a deduced Hukm is not binding upon the one who does not consider it a Daleel although it is not permitted to deny that it represents a Hukm Shar’iy.

Evidences of this type include: Al-Istihsaan, Al-Masaalih Al- Mursalah, Shar’u Min Qablinaa, Al-‘Urf and Madh’hab As-Sahaabiy amongst others.

To count/regard a thing or matter as being good. It is used for that which the human inclines towards and even if is not regarded as being good in the view of others.

The ‘Ulamaa have defined Al-Istihsaan in accordance to their stance towards it. The following are some of these definitions:

1 - The definition of the Hanafiyah: Abu-l-Hasan Al-Karkhi said: ‘Al- Istihsaan is that the Mujtahid departs from ruling in a Mas’alah (issue) with the like of what he ruled upon its likes due to a stronger aspect that dictates departing from the first’.

2 - The definition of the Maalikiyah: Ibn ul-Anbaariy defined it as: ‘Al-Istihsaan is the use of a Maslahah Juz’iyah (partial interest) as opposed to a Qiyaas Kulliy (comprehensive analogy)’.

3 – Al-Hanaabilah: Some of them defined it as: ‘Al-Istihsaan is the departure from the Hukm of a Mas’alah (issue) departing from its likes (i.e. what is similar) due to a specific (Khaass) Daleel Shar’iy.

From the above definitions it is apparent that two matters are intended in respect to Al-Istihsaan:

The First: Departure from a Qiyaas Jaliy (evident analogy) to the Qiyaas Khafiy (hidden or concealed analogy) and they call this Al- Ihtisaan Al-Qiyaasiy.

An example of this:

If two partners purchased a car from two partners in the form of a debt due upon them, then one of the two partners who were owed money took possession of a part of this debt and he then lost this amount that he had taken possession of before the partner took his share, what is the Hukm for that in respect to the Qiyaas Al-Jaliy and the Qiyaas Al-Khafiy which the followers of Istihsaan hold.

In respect to the Qiyaas Al-Jaliy:

The Qiyaas Al-Jaliy (which represents the sound Qiyaas) dictates that the money lost by one of the two partners is to be considered to be from the account of the two partners so that the loss is shared equally between the two of them.

In accordance to the Qiyaas Al-Khafiy:

The lost money is considered to be from the share of the one who took possession alone whilst the partner does not share in the cost of the loss as a result of Istihsaan. That is because, in their view, it was not binding for him to share with the one who took possession in origin but rather it was his right to leave the money that had been taken possession of by the possessor and then pursue the indebted for his share without paying any consideration to the lost money that his partner had taken possession of.

The Second: The exemption of a partial issue from a Kulliy Daleel due to a Daleel that the Nafs of the Mujtahid is contented by that dictates this exemption.

Example:

If the seller and buyer differ in regards to the price of a commodity or goods after its delivery, where the seller claims that its price is 50 Deenaar whilst the purchaser claims that it is 40 Deenaar, then what is the Hukm Ash-Shar’iy in respect to that?

The Kulliy Asl (origin):

That they are judged by the Qaa’idah Ash-Shar’iyah which is the text of the Hadeeth of the Messenger of Allah (saw):

Therefore, the Bayyinah (proof) would be upon the seller and if the buyer denies (his claim) then the Yameen (oath) is required of him.

The exemption to this issue using ‘Istihsaan’ is as follows:

That both the seller and the buyer swear an oath where each of them swears an oath upon the truthfulness of what he is saying and this is due to the statement of the Messenger of Allah (saw):

This Hukm has been considered by some to represent Istihsaan whilst in reality it represents referring back to the Sunnah of the Messenger of Allah (saw) and a specification (Takhsees) of the Asl Al-Kulliy (general origin) by the Hadeeth.