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Kayadibi, Saim
Pool Finance Economic System: Law, Democracy, Alliance of
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Bibliography: 203
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Saim Kayadibi 152
Chapter 5
Abstract
Istisn (juristic preference) has played a crucial role in
intellectual heritage of Islamic law and the development of
Islamic legal reasoning by inserting a judges contribution into
judgments based on the primary principles of securing ease and
avoiding hardship. During the process of formulating istisn,
the main factor was qiys (analogy). If the result of qiys
caused hardship for the people, istisn was applied to give
preference to any unconsidered evidence that it could possibly
eradicate the hardship. No technical definitions of istisn have
reached us from the very early period Islamic legal history,
although it has been used from the beginning. This paper
investigates empirically the application of istisn over time
and critically discusses its application in Islamic law with a
special emphasis on itsi relationship with qiys.
Introduction
One of the main reasons for humanitys creation is to bring
about the best judgment for people: God is beautiful and likes
beautiful deeds,407 to serve Him first and then to discover the
greatness of God through investigating His creations408 and
407
Quran 51:56
408
See the verses on humanitys creation: Quran 2:28, 30; 3:6, 4:1; 6:2, 98;
7:11, 189; 35:11; 75:37-39; 76:1-2; 96:2. For natures creation, see Quran
Pool Finance Economic System: L, D, A of Civilization 153
7:54, 10:5, 25:61, 13:3, 16:15, 50:7, 79:30-33, 6:101, 31:10, 67/3, and 79:27-
29.
409
Elmall Muhammed Hamdi Yazr, Hak Dini Kuran Dili (Quranic
exegesis and translation) (Istanbul: Hikmet Neriyat, 2007). See 67:2.
410
George Makdisi, Ibn Taimyas Autograph Manuscript on Istisn:
Materials for the Study of Islamic Legal Thought, in Arabic and Islamic
Studies in Honor of Hamilton A. R. Gibb, ed. George Makdisi (Leiden: E. J.
Brill, 1965), 446.
Saim Kayadibi 154
411
J. Makdisi, Legal Logic and Equity in Islamic Law, The American
Journal of Comparative Law 33, no. 1 (1985): 67.
412
Muammad Hshim Kamali, Istisn Juristic Preference and Its
Application to Contemporary Issues (Jeddah: IRTI, 1997), 24; Amad b.
Al Ja, Al-Ful fi al-Ul, ed. jil Jasm al-Nashm (Kuwait: Wazart
al-Awkf wa al-Shun al-Islmiyyah, 1988), 4:234.
413
Amad asan, Analogical Reasoning in Islamic Jurisprudence
(Islamabad: Islamic Research Institute, 1986), 410.
414
Muammad Hshim Kamali, Methodological Issues in Islamic
Jurisprudence, Arab Law Quarterly 11, no. 1 (1996): 18.
Pool Finance Economic System: L, D, A of Civilization 155
415
Saim Kayadibi, Doctrine of Istihsan: Juristic Preference in Islamic Law
(Konya: Tablet, 2007), 87.
416
The Calendar converter is used
http://www.oriold.uzh.ch/static/hegira.html.
Saim Kayadibi 156
417
Muammad Khuar, Trkh Tashr al-Islmi, trans. into Turkish by
aydar atipoglu (Istanbul: Kahraman Yayinlari, 1974), 210.
418
Kayadibi, Doctrine of Istihsan, 88.
419
Ab Dwd, Sunan, 3:1019, hadith no. 3585.
420
Ibid.
Pool Finance Economic System: L, D, A of Civilization 157
residual heirs).424 The first group has clear priority over the
second in the distribution of such property, and so Umar gave
one-half of it to her husband, one-sixth to her mother, one-third
to her uterine brothers, and nothing to her half-brothers
(considered residual heirs). The half-brothers objected Suppose
our father was a donkey (himr). Do we not still have the same
mother as the deceased? This question initially caused Umar
to revise his ruling on the grounds of equity and justice. But
then he found a stronger reason, one that he used to depart from
the established ruling and to devise a new ruling. Iin other
words, he istasana (approved as the better judgment): one-
third of the remaining property should be distributed equally
among both full- and half-brothers after the husband and mother
had received their allotted shares.425
This decision, which appears to be a basic application of
istisn, brings to mind Karkhs definition, which differs from
the established one and is based on considerations of justice and
equity. Umar made qiys with regard to the Prophets (pbuh)
precept (athar), and the half-brothers objection caused him to
reconsider and thus depart from qiys and move toward
istisn. Was his judgment, we ask, based solely on personal
opinion, or did he seek to conform to the spirit of the Sharah?
When faced with such issues, he applied Ab Bakrs practice of
looking for the solution first in the Qurn and the Sunnah. If,
after much scrutiny and deliberation, no solution could be
424
Aabah: those who are entitled to the remainders of the shares. See Abd
al-Ramn I Doi, Sharah the Islamic Law (London: Ta-Ha Publishers,
1997), 277.
425
Noel J. Coulson, Succession in the Muslim Family (London: Cambridge
University Press, 1971), 73-74; Muammad Ab Zahrah, Imm Mlik, trans.
Osman Keskiolu (Ankara: Hilal Yayinlari, 1984), 324; Noel J. Coulson,
Conflicts and Tensions in Islamic Jurisprudence (Chicago: The University of
Chicago Press, 1969), 17.
Pool Finance Economic System: L, D, A of Civilization 159
426
Kayadibi, Doctrine of Istihsan, 90-91.
427
Ab Ysuf, Kitb al-Kharj (Beirut: Dr al-Marifah, 1970), 14.
428
Quran 5:38.
429
Ab Zahrah, Imm Mlik, 324.
430
Mlik b. Anas, Al-Muwa (Cairo: n.p., 1951), 2:748.
431
Ab Ysuf, Kitb al-Kharj, 13-15; Fazlur Ramn, Islamic
Methodology in History (Lahore: n.p., 1965), 180-81.
432
Shibli Numani, Omar the Great: The Second Caliph of Islm, trans.
Muammad Saleem, vol. 2 (Lahore: Ashraf Press, 1962).
Saim Kayadibi 160
433
C. Mallat, From Islamic to Middle Eastern Law. A Restatement of the
Field (Part II). The American Journal of Comparative Law 52, no. 1 (2004):
210; Kayadibi, Doctrine of Istihsan, 94.
434
Al- Jhiz, Al-Bayn wa al-Tabyn (Beirut: n.p., 1967), 1:49, quoted from
Amad asan, Analogical Reasoning in Islamic Jurisprudence (Islamabad:
Islamic Research Institute, 1986), 42; Muammad Khuar, Trkh Tashr
al-Islmi, trans. into Turkish by aydar atipoglu (Istanbul: Kahraman
Yayinlari, 1974), 143.
435
asan, Early, 21; Joseph Schacht, The Origins of Muammadan
Jurisprudence (London: Oxford University Press, 1950), 31.
436
Ab Ysuf, Kitb al-thr, with commentary by editor Shaikh Ab al-
Waf (Cairo: n.p.,1355 AH), 607; al- Shaybn, Kitab al-thr (Lahore: n.p.,
1329/1911), 22; al-Shaybn, Al-Muwa, 244, versions of Mlikis Al-
Pool Finance Economic System: L, D, A of Civilization 161
that encouraged its development. Irqi jurists used both ray and
qiys, which they saw as interesting intellectual challenges,
given that they were more interested in the theory of the law.
The Medina School, on the other hand, focused on the laws
actual practice.439 According to Amad assan, the term
istisn was not used in its technical sense until the era of the
aforementioned Irq scholars.440 The idea was prevalent in
juristic practice when we look at the application of istisn in
the early anaf School.441 While Irq jurists applied it by
departing from established rulings, they did not explain why
they did so.442 Abd al-Ramn b. Hujayrah (between 69-
83/688-702), Thawbah b. Nimr (between 115-20/733-37), and
Khayr b. Nuaym (between 120-27/737-44),443 all of whom
handed down rulings based on personal reasoning, never
referred to istisn in its strictly technical sense.
In terms of technical use, no authentic source indicates that
the form of istisn was used before Umar ibn Abd al-Azz.
Iys b. Muwiyah (d.122/740), the judge of Bara (between
101-02/719-20, stated Use qiys as a basis for judgment so far
as it is beneficial to people. But when it leads to undesirable
results, use juristic preference (fastasin).444 In other words,
if the existing juristic rulings are not enough to prevent evil, use
istisn to arrive at more effective ones. According to him, all
court judgments should be based on istisn: I understand that
the judgments given in the courts should be in accordance with
439
Kamal A. Fruk, Islamic Jurisprudence (Karachi: Publishing House,
1962), 24.
440
asan, Early, 145.
441
Kayadibi, Doctrine of Istihsan, 153.
442
asan, Early, 146.
443
Schacht, Origins, 100-01.
444
Abd al-Ramn Ibrhm Ab Sulaymn, Al-Fikr al-Ul (Jedda: Dr al-
Shurq, n.d.), 152; Muwaffaq b. Amad Makk, Manqib al-Abu anfah
(Beirut: n.p., 1981), 1:84; Ja, Al-Ful, 4:229.
Pool Finance Economic System: L, D, A of Civilization 163
445
Ja, Al-Fusl, 4:229.
446
Makk, Manqib, 1:84.
447
Ibn Muqaff, Rislah f al-abah, ed. Muammad Kurd Al, 4th ed.
(Cairo: Rasil al-Bulagh, 1954), 125-26.
Saim Kayadibi 164
448
Fakhr al-Islalm al-Bazdaw, Ul al-Bazdaw on the Margin of Abd al-
Azz al-Bukhr Khashf al-Asrr (Istanbul: 1308/1890; reprint, Beirut: Dr
al-Kitb al-Arabi, 1394/1974), 1125.
449
Muammad Khuar , Ul al-Fiqh, 7th ed. (Cairo: Dr al-Fikr,
1401/1981), 210.
450
Al-Bazdaw, Kashf, 1126.
451
Ibn azm, Mulakhkhas Ibl al-Qiys wa al-Ray wa al-Istisn wa al-
Taqld wa al-Tall, ed. Sad al-Afghn (Damascus: Mabaatu Jmiah,
1960), 5. Ibn azm used asr (one hundred years) for generation. See also
Ibn azm, Al-Ikm, 6:289. The Prophet (pbuh) used it in the famous
Pool Finance Economic System: L, D, A of Civilization 165
Arbitrary law-making
Traditionalists always oppose that which is new, for this is
one of humanitys dogmatic features. Thus it is no surprise that
many scholars rejected the very concept of istisn before they
took the time to learn its exact nature. The Hanafs did not
invent a new religious creed, and yet the Shfi jurists,
especially Imm Shfi, vociferously attacked the concept and
declared that Shafi school did not consider it a basis of Islamic
law; rather, they dismissed it as arbitrary law-making in
religion. He went so far as to declare Whoever approves of
juristic preference is making himself the Lawmaker.459
However, his (Imm Shfi) dictum goes on to say that al-
Shfi was unaware of its true meaning and thus had judged the
issue rather hastily. This misunderstanding may be due to the
458
W. B. Hallaq, Considerations on the Function and Character of Sunna
Legal Theory, Journal of the American Oriental Society 104, no. 4 (1984):
686.
459
Ab Yay Zakaryyah Shaikh al-Islm al-Shfi Anr, Ghyt al-
Wul Shar Lub al-Ul (Cairo: Muaf al-Bbi al-alab wa-Awlduh,
1360/1941), 139; h Jbir al-Alwn, The Ethics of Disagreement in
Islam (Herndon, VA: The International Institute of Islamic Thought, 1993),
75; al-Ghazl, Al-Mustaf min Ilm al-Ul (Cairo: Al-Maktabah al-
Tijriyyah, 1356/1937), 274; al-Ghazl, Al-Mankhl min Talqt al-Ul,
2d printing (Damascus: Dr al-Fikr al-Arabi, n.d.), 374; Isnaw, Nihyat al-
Sl fi Shar al-Minhj al-Ul (Beirut: n.p., 1982), 4:399.
Pool Finance Economic System: L, D, A of Civilization 167
460
Ibn Amr al-ajj Muammad bin Muammad Shams ad-Dn (d.879), Al-
Taqrr wa al-Takhbr al Tarr al-Kaml ibn al-Humm f ilm al-Usl
(Bulq, Egypt: Matbaah al-Amriyyah, 1316/1898), 3:222-23.
461
Muammad Ab Zahrah, Ul al-Fiqh (Cairo: Dr al-Fikr al-Arabi,
1958), 207; al-Shtib, Al-Itism (Beirut: n.d.), 2:137. For an analysis of
Mliks saying, see Mohammad Fadel, Istisn is nine-tenths of the Law:
The Puzzling Relationship of Ul in the Mlk Madhhab, Studies in
Islamic Legal Theory (2001), 15:161.
462
Bukhr, Kashf, 4:3.
463
adr al-Sharah, Al-Tawd f all Jawmid al-Tanq (Cairo: Matbaah
Muammad Al abh, n.d.), 2:81-82. For the viewpoints of anafs, see the
discussions of Abd al-Azz al-Bukhr in Shar Kashf al-Asrr al Ul
al-Bazdaw (Beirut: Dr al-Kutb al-Arab, 1394/1974), 4:3,4, 5, 13.
Saim Kayadibi 168
464
Shabn Zaki al-Dn, Ul al-Fiqh al-Islm (Cairo: University Book
House, 1964-65), 144-45.
465
The Quran and the Sunnah are the two main sources of Islamic legal
theory. The majority of jurists, however, believe that Islamic law is based on
four sources. It took jurists considerable time to prove, through these two
sources, that ijm is a valid source of law and that any ukm (ruling) based
on it should be accorded the status of the ukm of God. Qiys was
successfully used to deduce the law from the Quran and the Sunnah. The
laws deduced via qiys and ijm depend on evidence from the two main
sources.
Pool Finance Economic System: L, D, A of Civilization 169
473
This is when the illah is common to both cases, as deduced by analogy.
For instance, Quran 4:25 proclaims If they commit illegal sexual
intercourse, their punishment is half that of free women. The Quranic text
prescribes half the punishment for a guilty bondswoman (slave women).
This rule will also apply to a male slave, by analogy, if they commit illegal
sexual intercourse (zin); the punishment is fifty lashes. Making the analogy
that the bondman (slave) should receive the same punishment as the
bondswomen accords with the Prophets practice. Therefore the equation
between the two cases is obvious and the disagreement between them is
removed by clear evidence.
474
This may be illustrated by referring to the two types of wine: nabdh
(from dates) and khamr (from grapes). The rule of prohibition is analogically
extended to nabdh, despite some difference that might exist between the
two. This is when the effective cause is less evident in the parallel case than
in the original case. The prohibition of nabdh, which is based on the
analogy of prohibiting wine and employing the same punishment for
drinking nabdh, falls under the category of qiys. In this example, the
intoxication of nabdh is less in severity than that of wine. See in Shawkn,
Ab Al Badr al-Dn Muammad bin Al, Irshd al-Ful il Taqq al-
aqq min Ilm al-Ul (Cairo: n.p., 1937), 222; Ibn Qayym, Ilm, 1:178.
See Kaml, Principles, 215 and asan, Analogical Reasoning, 83.
475
Qiys adn (inferior analogy) is based on the causes strength or
weakness. See Isnaw, Nihyt, 3:33; mid, Al-Ikm, 3:22; Ibn Abd al-
Shakr, Musallam, part 2, 320; Ibn Amr al-ajj, Al-Taqrr, 3:221;
Baidhaw, Al-Ibj, 3:18.
476
Bukhr, Kashf, part 2, 1122; Taftazn, Talw, 2:81; Ibn Abd al-
Shakr, Musallam, part 2, 320.
Saim Kayadibi 172
477
F. Opwis, The Construction of Madhhab Authority: Ibn Taymiyyas
Interpretation of Juristic Preference (Istihsan), Islamic Law and Society 15
(2008): 219-49.
478
Shtib, Ab Ishq Ibrhm bin Msa Al-Ghirn (d.790/1388), Al-
Muwfaqt f-Ul al-Sharah, ed. Abd-Allah Diraz (Beirut: Dr al-
Marifah, 1997), 1:40.
479
Ibid., 2:233.
480
Ibid., 4:206.
Pool Finance Economic System: L, D, A of Civilization 173
481
Sarakhs, Muammad bin Amad bin Sahl Ab Bakr Shams al-Aimmah
al-anaf, Al-Ul, ed. Abu al-Waf al-Afgan (Beirut: Dr al-Fiqr, 1991),
2:201; Ja, Al-Ful, 4:238.
482
Quran 5:33-34.
483
Ja, Al-Fusl, 4:239.
484
Ibn Badrn Abd al-Qdir b. Amad, Shar Rawdat al-Nazir wa Jannat
al-Manzir li Ibn Qudmah al-Maqdisi, part 1 (Cairo: Salaf Printing Press,
1342/1923), 497.
485
Shrz, Ab Ishq Ibrahm b. Ali b. Ysuf al-Fayrzabd, Shar al-
Luma, ed. Abd al-Majd Turk (Beirut: n.p., n.d.), 2:970.
486
Ghazl, Al-Mustaf, 1:283.
Saim Kayadibi 174
Conclusion
Linguistic meaning does not necessarily signify a terms
technical sense; it may, in fact, connote totally a different
meaning, one that depends in which the term is used and
intended to have it indicated to something or somebody for
specific sciences. Any term used in a technical sense must be
considered according to its scope and understanding, as well as
the judicial terms.
487
Sarakhs, Kitb al-Mabs 2d ed. (Beirut: n.p., n.d.), 10:145.
488
Taftazn, Talw, 2:163; Bukhr, Kashf, 4:3.
489
Yaqb Abd al-Wahhb Bhusain, Raf al-arj f al-Sharah al-
Islmiyah (Iraq: Lajnat al-Waaniyyah, n.d.), 378-79.
490
W. B. Hallaq, Considerations on the Function and Character of Sunn
Legal Theory, Journal of the American Oriental Society 104, no. 4 (1984):
683.
Pool Finance Economic System: L, D, A of Civilization 175
491
Muammad Ab Zahrah , Ul al-Fiqh (Cairo: Dr al-Fikr al-Arabi,
1958), 207; Shtib, Ab Ishq Ibrhm bin Msa Al-Ghirn (d.790/1388),
Al-Itism (Beirut: n.p., n.d.), 2:137. For an analysis of Mliks saying, see
Mohammad Fadel, Istisn is nine-tenths of the Law, 161.
492
mid, Al-Ikm, part 3, 186; Shawkn, Irshd, 198; Kaml, Principles,
198.
Saim Kayadibi 178
493
mid, Al-Ikm, 3:63; Taftazn, Masd bin Umar bin Abd Allah Sad
al-Dn al-Shfi (d.793/1390), Hshiyah ala Shar al-Q Ad al-Dn,
part 2 (Bulq: n.p., 1317/1899), 247; Ibn Abd al Shakr, Musallam, part 2,
320; Mollah usraw, Muammad bin Firmz, Mirt al-Ul Shar Mirkt
al-Wusl, (Istanbul: Matbaah al-Amrah, 1309 AH), 2:336; adr al-Sharah,
Al-Tawd, 2:82; Ibn Amyr al-ajj, Al-Taqrr, 3:222; asan, Analogical
Reasoning, 83.