استحسان بحیثیتِ دلیلِ شرعی امام شافعیؒ کے مو قف پر امام جصّاصؒ کی تردید و تنقید

Juristic Preference as a Source of Islamic Law Refutation and Criticism of Imām Jaṣṣāṣ on Imām Shāfa‘ī’s Stance

Abstract

Based upon history of Islamic Jurisprudence, this article expresses the refutation and criticism of Imām Jaṣṣāṣ (RA, d. 370 A.H.) upon Imām Shāfa‘ī’s (RA, d. 204 A.H.) point of view on subsidiary source of Islamic law Istiḥsān (juristic preference or approbation), which helps in understanding the classical theory and gradual development of this principle in medieval period. This discussion entails that by using the word Istiḥsān in general, Imām Shāfa‘ī (RA) thought that this meant “to make law according to one’s own will or it is a pleasure-seeking”, so he strictly negates to adopt it. Whereas according to the believers of Istiḥsān, the actual spirit behind the principle of Istiḥsān was not clear to Imām Shāfa‘ī (RA) and his successors, whereas they regarded it as law-making without any authentic reason, that is why they strongly condemned its believers.

Certainly, based upon personal will or without any authentic reason, Istiḥsān does not qualify as a source of Islamic law. There is no difference of opinion among jurists regarding this. For believers, as Imām Jaṣṣāṣ (RA) defines, Istiḥsān is nothing but to depart from obvious analogical reasoning (Qiyās Jalī) and to adopt what is better than it. Imām Jaṣṣāṣ (RA) has stressed that our leaders had established this particular term and they were justified in its establishment. By analysing the work of Imām Jaṣṣāṣ (RA) on Istiḥsān, it can easily be determined that the definitions of Istiḥsān prevailed among Jurists later on, consisting more or less of the same words as were given by Imām Jaṣṣāṣ (RA) in his book of Islamic Jurisprudence “Al-Faṣul-Fil-Uṣūl”. Similarly, other details and different types of Istiḥsān available later on, are also concluded upon the details and types given by Imām Jaṣṣāṣ (RA), which is an obvious proof of the uniqueness of Imām Jaṣṣāṣ (RA) among jurists having inferential aptitude with deep knowledge and understanding of jurisprudential discussions.