Academic journal article Islamic Studies

Ibn Taymiyyah's Evaluation of Istihsan in the Hanbali School of Law

Academic journal article Islamic Studies

Ibn Taymiyyah's Evaluation of Istihsan in the Hanbali School of Law

Article excerpt


This paper is an attempt to outline Ibn Taymiyyah's approach to and treatment of istihsan within Ahmad ibn Hanbal's legal theory in addition to that of the early Hanbali jurists. The paper also draws attention to Ibn Taymiyyah's rejection of the claim that Ahmad ibn Hanbal held two conflicting positions with regard to istihsan, a notion suggested by some Hanbali jurists; in present author's view, he rather argues that Ahmad ibn Hanbal's two seemingly contradictory positions are in reality referring to different situations of its application because Ahmad ibn Hanbal accepts some types of istihsan and rejects others.

Ahmad ibn Hanbal's rejection and acceptance was dependent solely on the type of cause upon which the istihsan was based. It is also apparent from Ibn Taymiyyah's discussions regarding istihsan that it is not an independent source of law in the way that the Qur'an, Sunnah, consensus and qiyas are. Rather, it is a subsidiary legal principle employed to secure a 'fair' and 'correct' ruling regarding a given question.

There is some ambiguity and a degree of disagreement about istihsan in Islamic Law. This ambiguity arises due to various issues some of which include the definition of istihsan as well as its relationship with analogy (qiyas) and the 'particularization of the cause' (takhsais al-'illah). This ambiguity is also found in the Hanbali school of law itself in so far as there are two conflicting narrations attributed to the school's eponym, Ahmad b. Muhammad b. Hanbal (d. 241/855). Thanks to this, Hanbali jurists take conflicting positions regarding the legitimacy of istihsan as a legal notion in itself. Various Muslim scholars have endeavoured to tackle this complicated issue. One of them was the leading Hanbali jurist, Ahmad b. 'Abd al-Halaim Ibn Taymiyyah (d. 728/1328), who considered the need for these issues to be re-examined with respect to different aspects of Islamic law, its theoretical principles as well as its jurisprudential ramifications.1

There have been some attempts to study Ibn Taymiyyah's general contribution to the field of istihsan.2 In this paper, I will endeavour to analyse and outline his clarification and critical evaluation of the positions of Imam Ahmad b. Hanbal and the Hanbali school of law with regard to istihsan with cases of its application.

The Definition of Istihsan

Specialists in the field of usaul al-fiqh have attempted to eliminate the evident ambiguity surrounding istihsan by initially attempting to make clear and precise definitions of this legal notion. Some of the proposed definitions stress the comparative quality of istihsan as a process where the stronger of two pieces of evidence is favoured. Therefore, the function of istihsan is seen as disregarding one type of evidence for another,3 including abandoning one analogy for another analogy, such as abandoning an evident analogy (qiyas jalai) for a hidden analogy (qiyas khafai).4 There are, however, also other definitions in cases where the objective of istihsan is to shift from one ruling, which exists for similar cases, to another on the basis of special evidence related to the issue in question.5 Ibn Taymiyyah states that some of the supporters of istihsan among the early Hanbalis, such as Muhammad b. al-Husayn al-Farra' known as Abau Ya'la (d. 458/1066) and his followers, defined istihsan as "the abandonment of one ruling in favour of another ruling that is more relevant to the case in question."6 According to Abau Ya'la, this preference for one ruling to another had to be established on the basis of any of the following of the authoritative sources of evidence: the Qur'an, the Sunnah, or Consensus (ijma').7 Still other scholars see istihsan as simply "the particularisation of the cause,"8 which is defined as "the non-existence of a ruling in some cases in spite of the existence of the cause underlying the original ruling due to an impediment."9

While both these definitions generated much debate among Muslim scholars, none put the concept/practice of istihsan in jeopardy like the following: istihsan as "an evidence which occurs in the heart of the mujtahid who is unable to clarify it to others. …

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