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Saim Kayadibi 4

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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

Formation of the Concept of Istihsan in Islamic Law


Saim Kayadibi

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.

Keywords: Istisn (juristic preference); Islamic Law;


Legal Philosophy; qiys (analogy).

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

laws. According to the Prophet (pbuh), God is a secret treasure


who created the creation (universe) in order to be well
known.409 Thus, God created every beauty in the universe so
that humanitiy could know Him. Laws and norms exist, and it is
humanitys role to develop them so that justice and equity will
reign. This idea, in fact, caused a great judicial system to be
developed that would dispense judgements as close to perfect as
possible. Not all of the given judgments lead to the cases exact
nature, however, and thus an unexpected result or judgment
may not be righteous. Naturally, as all judges are only human,
they are always liable to making mistakes. Regardless of how
much they devote themselves to formulating a correct judgment,
sometimes this cannot occur if the evidence is imprecise or the
judge draws incorrect conclusions from the evidence presented.
The end result, in either case, would be less than ideal.
Investigating a righteous judgment was already embedded in
the notion of human being despite the evil apprehensions
always disturb each person.
Istisn entered the judicial sphere in order to reveal the
unseen justice that leads to an understanding of the law
ordained by the Lawgiver, Who provides the divine guidance
sought by all Muslims. It is also the lex divina, which is known
solely to God. The judiciary, whether Muslim or non-Muslim,
uses istisn to ensure justice and equity. In general, the notion
of equity in western law is the same as it is in Islamic law410;

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

however, in the latter equity is embodied in istisn, which is


derived from asan (to deem [something] good).411 Basically
istisn is a departure from a ruling of qiys (analogy) in
favour of another ruling which is considered preferable.412 Any
departure from an obvious analogical reasoning (qiys jal)413 to
an implicit analogy must be based on the legally recognized
sources, for the judges personal desire has no legal standing. In
addition, choosing one ruling over another should result in ease
and comfort, and the outcome cannot contradict the revelations
values and established rules.414
While human factors have always been present in every
aspect of the laws development, Muslim jurists and scholars
have also played an instrumental role. The human factor has
formulated all of its principles, systems of judgment, and
rulings. Thus they all function based on the actions of human
judges. To be accepted as a principle, istisn had to pass
through three significant stages: formation, development, and
maturation. This paper investigates its legal development,
questions its traces in the formation and the development states,
and shed lights on its strong connection with qiys.

Sleuthing for the Origin of Istisn


The concept of istisn can be traced back to the time of
revelation. Yet its exact use and implementation, in terms of

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

being an independent source of law, only occurred later. A


precise definition for it cannot be found among the scholars or
the madhdhib (schools of law). Most scholars had their own
specific definitions that, despite their differences, were very
close to each other. All of these various definitions may be
derived from that of Karkh (d.340/952), which is arguably
more comprehensive than the others. Among the anaf jurists,
Karkh, Sarakhs (d.483/1090), Ja (d.370/981), Bazdaw
(d.482/1089), Nasaf (d.710/1310), and Ibn Humm
(d.861/1457) formulated definitions. Jurists from the other
schools remained flexible. Of course those jurists living in the
ninth century CE were influenced by their predecessors. The
jurists mentioned above lived at widely different times.415
As regards its conceptual application, we cannot say
whether istisn was implemented during the Prophets (pbuh)
lifetime as a source of judiciary or not, because at that time the
sources of legislation were confined to the Quran, the Sunnah,
and personal opinion (ray) with the permission of a competent
authority. Moreover, the principles of ul al-fiqh (legal theory)
had not been systemized yet, although Umar (d.23/643)416, Ibn
Masud (d.32/652), Al (d.40/660), Ibn Abbas (d.68/687), and
other Companions employed notion of istisn in their
judgments. According to Khudar (d.1927), during the early
years of Islamic judiciary many important leaders appointed to
solve problems and eliminate obstructions to legislation applied
this unnamed method to issues facing the young community.
This was certainly the case with Umar at the first stage, as
well as Ibn Abbs, Rabah (d.136 AH), and Ibrhim al-Nakh

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

(d.96/714) at the second stage.417 For them, the fundamental


sources of Islamic law were the Qurn and the Sunnah, that
latter of which was developed via the personal judgments of
competent, guided, and intellectual jurists who interpreted those
sources according to the needs of the age. Serious consideration
of the fundamental sources can produce new meanings that, in
turn, give rise to new obstacles and different circumstances, all
of which challenge jurists to devise appropriate solutions. In
other words, after the legal principles have been formulated,
those jurists who used istisn as a method of legislation were
not engaged in bidah (innovation). In fact, they had only
codified a method that had been employed since Islams early
years.418
The answer of Muadh ibn Jabal (d.18/639) to the Prophets
question of how he reached his legal judgments could be an
early signifier of istisns use. The Prophets objective was to
teach those Companions he appointed as judges how to use their
own discretion and understanding to formulate correct
judgments. Most importantly, he wanted to show them that
critical thinking was essential for deriving such judgments. The
account of their conversation reveals that the Prophets
questions were concerned with Muadhs ability to reason. His
final question is most instructive What will you do if you do
not find guidance in the Sunnah of the Apostle of God and in
Gods Book?419 The Companions reply was also impressive I
shall do my best to form an opinion and spare no pains.420 This

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

pleased the Prophet (pbuh), who showed his satisfaction with it


by thanking God.421
Clearly, personal opinion and discretion are necessary tools
for deriving a correct judgment. For example, personal decision
was evident at the Battle of Badr not as a judicial term but as a
conceptual matter. The Prophet (pbuh) chose a particular battle
position for his army. Hubbb ibn al-Mundhr, however,
considered the place unsuitable and asked him if it had chosen
by revelation or his own judgment (ray). Upon learning that the
Prophet (pbuh) had relied on his own judgment, Hubbb
suggested a more suitable place. The Prophet replied You have
made a suggestion with your opinion (laqad asharta bi al-
ray).422 Consequently, personal interpretations gained
credence at a very early time. Such examples inspired jurists to
develop or formulate their understanding of religion and express
their feelings without any fear or obstruction. It could be
concluded that the examples given here indicate that the use of
personal opinion became a basis for the subsequent use of
istisn.
The Companions use of ray continued after the Prophets
(pbuh) death, as in the so-called case of the donkey (al-
himariyyah). This case, which involved Umars ruling on the
inheritance of two half-brothers, represents an exact usage of
istisn. In short, a woman died and left behind her husband
and mother, two half-brothers, and two full brothers. Umar
initially applied the usual ruling, based on the Propehts (pbuh)
established precedent: the ahl al-fari (those portions for
heirs designated in the Qurn)423 and the ahl al-aabah (the
421
Al-Mward, Al-Akm al-Sulniyya wal-Wilyah al-Dniyyah (Eygpt:
n.p., 1909), 55.
422
Ibn Hishm, Al-Srat al-Nabawiyyah, ed. Muaf al-Saq, Ibrhm al-
Abyr, Abd al-fi Shalab (Beirut: Dr al-Khayr, 1992), 2:210-11.
423
For more details, see Qurn 4:1-40.
Saim Kayadibi 158

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

derived, he then devised a ruling based upon his personal


understanding of what best accorded with the Sharah.426
There is also another example: Umars decision not to
amputate the hand of the thief caught during a year of famine.427
Instead, he suspended the prescribed punishment428 on the
grounds that this event429 was an exceptional circumstance. He
also did not amputate the hand of a slave who had stolen a she-
camel.430 Moreover, after one battle he distributed spoils among
new Muslims who lived in the conquered land instead of among
the Companions, despite of opposition of Abd al-Rahman ibn
Awf and others, in the interest of public welfare.431 These
cases signify that departing from established rulings to obtain
justice, equity, and the Muslims general welfare can be
considered compatible with the principles of Islamic law. In
terms of legal perspectives, Umar did not use ijtihd432 to
oppose the Sharah by attempting to alter its obligatory (far)
principles, but rather to discover its implicit aims.
As indicated earlier, it is quite difficult to determine the
applications of istisn during Islams early years. Umars
decisions have enabled researchers to acquire some indication
of how it was implemented at a time when it was mainly
understood of departing from an established rule for the sake of
equity and the public interest. Right from its initial appearance,
however, istisn could affect judicial and legal proceedings. In
fact, both the Umayyad (661-750) and Abbasid (750-1258)

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

might have used it to influence social and political issues.


Throughout most of the Umayyad period, provincial governors
were entrusted with administering justice. The rulers also
appointed particular judges to act as the governors agents in
various regions.433
Umar appointed many Companions as legal practitioners
in various regions. When Shuray b. al-arith (d.78/697) was
appointed a judge of Kfa under the guidance of Ab Msa al-
Ashar (d.44/664), Umar advised him to follow his personal
discretion after resorting to the Quran and the Sunnah: Think
again and again over a point so long as it remains doubtful in
your mind a point which you do not find in the Quran or in
the Sunnah of the Prophet. Get yourself acquainted with
precedents and similar cases; then weigh up the matters (qis al-
umr). Then adopt the one that is more favorable in the eyes of
God and identical with the truth in your opinion.434
The opinions, judgments, and thoughts of Ibn Masd and
Al influenced the legal methods and doctrines of the Kfas
jurists.435 Moreover, the opinions of Iraqi jurists were likely to
coincide with the decisions of the Prophet (pbuh) on many
occasions, just as they coincided with the opinions of Ibn
Masd.436 Accordingly, the same notion and perception were

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

held to have been transferred from the Prophet (pbuh) to the


Successors via the Companions and the Traditions (adth).
The Successors inherited the Companions role, with such
scholars as Alqamah bin Qays (d.62/681), al-Aswad bin Yazd
(d.75/694), Shuray bin rith (d.78/697), al-Shbi ab Amr
(d.103/721), Ibrhim al-Nakh (d.95/713), and ammad bin
Sulaymn al-Ashar (d.120/737) all of whom lived in Irq, the
scholarly environment in which Ab anfah developed his
legal school. He studied fiqh under ammad b. Sulaymn, a
student of Ibrhim al-Nakh. Ibrhim learned fiqh from the
associates of Ibn Masd who, in turn, were students of such
Companions as Umar, Ibn Masd, and Al.437 Their opinions
were not expressed arbitrarily; rather, they were inspired by the
Qurn and the Sunnah, both of which they used as the main
sources for their decisions. By doing so, they ensured that their
rulings did not contradict either one.

The formation of istisn


Although the concept of istisn has been used from Islams
earliest days, no universally accepted definition was ever
devised for it. Its founder, Abu anfah and the early anaf
jurists Abu Yusuf (d.182/798) and al-Shaybn (d.189/804),
employed it but never provided a specific definition. In essence,
they used it to secure ease and avoid hardship438 without
violating the fundamental principles of Islamic law.
As the legal sources were being formulated, Iraq was
becoming a centre of science and art as well as of judicial
application. Hence the concept of istisn found an atmosphere

Muwa (Lucknow: 1297 and 1306) with a commentary by Abd Allahi


Laknaw. See in Schacht, Origins, 29.
437
Schacht, Origins, 32.
438
Kayadibi, Doctrine of Istihsan, 87.
Saim Kayadibi 162

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

istisn.445 Muwaffaq b. Amad al-Makk (d.568/1198) adds


If qiys leads to undesirable results, you should apply the more
accurate of the two opinions.446 The courts judgments have to
ensure that all rulings must be in line with the public welfare
(malaah) and provide justice and equity.
Although istisn appears during the first quarter of the
second Islamic century, this term was clearly used before Ab
anfahs time and was not confined to him. When Iys b.
Muwiyahs use of this term is compared to Ab anfahs, a
great deal of similarity can be seen. For example, both scholars
used it to avoid even the possibility of harming the public
interest and the negative results that often occurred when qiys
was applied incorrectly. However, istisn owes its very
existence to qiys and would not have superseded it had the
latter not proven to be ineffective in some cases.
On the other hand, the use of istisn appears in a different
guise during the early Abbsd period, namely as istiwb
(discretion). Ibn al-Muqaffa (d.137/756) observed that
discretion must be taken into account when there is no
established ruling and where guidance from the Quran and the
Sunnah is not forthcoming. In exceptional circumstances, the
guardians of the Sharah should be aware that qiys sometimes
results in unfair and unjust results. Therefore, istiwb is
necessary to ensure justice. He ruled that unreserved adherence
to qiys sometimes leads to injustice, and that the law needed to
be flexible to prevent an unjust ruling based upon that particular
legal tool.447

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

Despite the absence of a clear definiton and elaboration, the


validity of istisn was never challenged, as is clear from the
rulings of Umar and, later on, Iys b. Muwiyah, who
declared that qiys is valid so long as it benefits the people. If
this is not the case, then it must be abandoned so that the way to
reach an appropriate solution is always left open.
Istisn became a matter of great dispute after Ab anfah
proclaimed Qiys is such and such, but we apply istisn.
Unfortunately, he never explained why he applied those of his
judgments that were based on istisn.448 On the other hand
anafi jurists acted upon a adith, provided that they were
convinced that it was both reliable and proven, even if it
contradicted their schools principles. The application of this
ruling is called istisn.449 The following statements
demonstrate that Ab anfah based his rulings on adith, be
they the Prophets reported acts or words. Apart from prophetic
adith, he also relied on the practices of the Companions and
those who followed them. If it had not been for precedents
(athar), I would have judged here according to qiys and If it
had not been for the sake of riwyah (transmitted adith), I
would have judged the case by qiys.450
Ibn azm (d.456/1064) suggests that the term istisn first
appears in the third generation after the Prophet (pbuh),451 for

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

he discovered no proof of its use before Ab anfah. In fact,


he states that the anafis say Qiys is such and such, but we
apply istisn. He adds that even Imm Mlik performed
istisn on occasion.452 Schacht (d.1969) mentions Ibn al-
Muqaffas views, reiterating that the use of ray and istisn
might remove the undesired results of qiys.453 Goldziher
(d.1921) claims that the term istisn was first used by Ab
anfah, despite Schachts claim that a similar method and
concept existed before him. Schacht claims that Ab anfahs
pupil Ab Ysuf was the first to employ the technical use of
istisn.454 We do not have Ab anfahs works as evidence;
however, we do have the works of his pupils, especially those of
al-Shaybn, who attributed the term to Ab anfah.455 This
fact clearly indicates the weakness of Schachts claims. Hence,
this particular term was first used by Ab anfah.456
An alternative view, one proposed by Khaddr and
Liebesny, is that the Mliks practiced istisn but that it is now
more common among the anafs.457 This might be correct;
however, more supporting evidence is needed to support this
claim and somehow it is anachronic. When the concept of

praising three generations adith. See Bukhr, Fadil al-aabah, 1;


Rikk, 7; Muslim, Fadil al-aabah, 52; Ab Dwd, Sunnan, 10.
452
Ibn azm, Mulakhkha, 9.
453
Schacht, Origins, 112.
454
Ibid.; Z. I. Ansari, Islamic Juristic Terminology before Shfi: A
Semantic Analysis with Special Reference to Kfa, Arabica 19, no. 3
(1972): 294.
455
Al- Shaybn, Al-Al, ed. Abu al-Waf al-Afghn (Beirut: n.p., 1990),
1:55, 1:201-02, 1:368; 2:358-59; 4:465-66; 5:103-04, 128-29; Al- Shaybn,
Al-Jm al-aghr, ed. Abd al-ayy al-Laknaw, cited by Z. Isq Anr,
The Early Development of Islamic Fiqh in Kufah (unpublished PhD diss.,
Montreal: McGill University), 90, 212, 245, 295, 319.
456
asan, Early, 146.
457
Mjid Khaddr and J. Herbert Liebesny, Law in the Middle East
(Washington, DC: The Middle East Institute, 1955), 1:101.
Saim Kayadibi 166

istil is taken into consideration, it appears that the Mliks


used istisn at a much later time but called it istil instead.
No trace of istil has been found before the fifth/eleventh
century.458
In a nutshell, although the concept of istisn was used in
the very early days of juristic legislation, my research leads me
to believe that this term was not used in its technical sense
before Iyas bin Muwiyah.

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

concepts different meanings, one of which is indeed connected


to the notion of personal desire.460 On the other hand, Imm
Mlik (d.179/795) gave high priority to the concept Istisn
represents nine-tenths of human knowledge.461
Nevertheless, anaf scholars consider most criticism of
istisn the product of misunderstanding, and the imputation to
Ab anfah this is because of ulterior motives. But despite this
criticism, they view it as a valid source of the Sharah, inter
alia, a basis for formulating legal rulings. However, it is
difficult to believe that Ab anfah would have abandoned a
ruling established on true shar foundations for his personal
preference.462 In fact, anafs are adamant that istisn is a
source of law and has nothing to do with ruling according to
personal desire. They understand istisn as acting according to
one of the two forms of qiys. Istisn may also be acted upon
based on athar (adth), ijm, or necessity. In other words, its
rejection is unwarranted since, as the anafs say, cases
resolved by it are resorted to when they are opposed to qiys
jal (explicit analogy), thereby making the departure from qiys
a priority. This means that istisn is agreed upon when it is
opposed to qiys jal and is acted upon if it is stronger than
qiys jal. Therefore there is no point in denying it,463 for

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

understanding the role of istisn requires that qiys must be


performed. If not, istisn cannot be resorted to.
In short, istisn can be defined as passing over a previous
ruling on a similar issue because particular evidence
necessitates doing so. But this can be done only if the jurist
rules in such a way. In addition, it does not matter whether the
relevant evidence is na (textual), ijm (consensus), darrah
(necessity), urf (custom), malaah (benefit), qiys khaf
(implicit analogy), or otherwise, and irrespective of whether the
method used to establish the earlier ruling was established by
dall m (general evidence), qidah fiqhiyyah (jurisprudence
rule) or qiys zahir jaly (apparent clear analogy).464 This is the
anaf and Mlik (as well as others) meaning of istisn.

Departure from qiys


Departing from the ruling arrived at by qiys in favor of a
stronger dall (evidence), contradictory to the first, is deemed
preferable to another ruling based on the legally recognized
sources of Islamic law. Islamic legal theory is, in general, based
on four sources465: the Qurn, the Sunnah, ijm, and qiys, all
of which are unanimously accepted by all Sunn legal schools.

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

However, Sh and hir legal theory are not included within


this unity.466
The Qurn is the first source of law for Muslims who seek
eternal guidance (lex divina). If one finds the answer therein,
there is no need to resort to other sources. If this is not the case,
one should consult the Sunnah, then ijm, and only then qiys.
The adth narrated from Mudh ibn Jabal (d.18/640)467 is
taken as a basis for inferring rulings.
Technically, according to the ul (juristic) definition, qiys
is the extension or application of a Sharah value from an
original case (al) to a new one (far) that has the same effective
cause (illah). The original case is regulated by a given text (the
Qurn and/or the Sunnah), and qiys seeks to extend the same
textual ruling to a new case.468 In such a case, human judgment
is taked with identifying a common illah. Once this has been
accomplished, the rules of qiys necessitate that the text-based
ruling be followed without any interference or change. In other
words, the new case must not be covered by na or ijm and
must not alter the law of the text, which would mean that qiys
would overrule na.469
466
Imran Ahsan Khan Nyazee, Theories of Islamic Law (Delhi: n.p., 1996),
131.
467
See Ab Dwud, Sunan, trans. Amad asan (Lahore: Sh. Muammad
Ashraf, 1984), 3:1019, hadith no. 3585.
468
Al-mid, Al-Ikm Ul Al-Akm, ed. Abd al-Razzq Aff, 2d ed.,
part 3 (Beirut: Maktabah al-Islmi, 1402/1982), 186; Shawkn, Irshd, 198;
Kaml, Principles, 198.
469
For example, Quran 5:90 elaborates briefly upon deducing the ruling
(ukm): O you who believe! Intoxicants (all kinds of alcoholic drinks), and
gambling, and al-ansb (idols), and azlm (arrows for seeking luck or
decision) are an abomination of Satans handiwork. So avoid (strictly all)
that (abomination) in order that you may be successful. Drinking wine is
clearly forbidden. If this prohibition is extended by analogy to nabdh, the
original case (al) would be that the Quran forbids wine. The parallel case
(far) is nabdh. The cause (illah) is intoxication, which is common to both
cases, and the rule of law of the original case (ukm) is prohibition. Thus
Saim Kayadibi 170

Besides the four components of qiys, the anaf jurist


Bazdawi (d.482/1088) confined it to illah. Both he and mid
(d.631/1233) opine that the result of qiys, namely, the ukm al-
far (the ruling extended to the new case), should not be
included in the components (arkn) of qiys. On the other hand,
Isnaw includes the ukm al-far in the components of qiys.470
Scholars categorise qiys into different types depending upon
their assessment, which is based on the strength or weakness of
the illah.471 In fact, the type related to istisn and the scope of
the research is, as regards its clarity, is qiys jaly (obvious
analogy) and qiys khaf (latent, hidden analogy).472 The former
means that one cannot differentiate (nafy al-friq) between the
original case and the parallel case or one that the possibility of

nabdh is also forbidden because of the same cause, which is intoxication,


according to the na (text) Every intoxicant is khamr and every khamr is
forbidden. See Ab Dwd, Sunnan, 3:1043, hadith no. 3672. trans. Amad
asan (Lahore: Muammad Ashraf, 1984).
470
Al-mid, Al-Ikm, part 3, 193; Bukhr, Ul, part 3, 344; Jaml al-Dn
Abd al-Ram al-usayn Shfi Isnaw (d.772/1370), Sullam al-Wusl li-
Shar Nihyat al-Sl (Cairo: Matbaah al-Salafiyyah, 1345/1926), 4:53;
Kaml, Principles of Islamic Jurisprudence (Cambridge: Islamic Text
Society, 1997), 200-16.
471
Isnaw, Nihyt, 3:33; mid, Al-Ikm, 3:22; Ibn Abd al-Shakr, Muib
Allah al-Baary al-Hindy, Musallam al-Thubt maa Fawti al-Rahamt
f Ul al-Fiqh, part 2 (Cairo: n.p., 1906), 320; Ibn Amr al-ajj
Muammad bin Muammad Shams ad-Dn, Al-Taqrr wa al-Takhbr al
Tarr al-Kaml ibn al-Humm f ilm al-Usl (Bulq: Matbaah al-
Amriyyah, 1316/1898), 3:221; Baydhw, Nar al-Dn Abd Allah bin
Umar bin Muammad bin Ali al-Shyrazi, Al-Ibhj f Shar Al-Minhj
al Minhj al-Wul il Ilm al-Ul (Beirut: n.p., n.d.), 3:18.
472
mid, Al-Ikm, 3:63; Taftazn, Masd bin Umar bin Abd Allah Sad
al-Dn al-Shfi, 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, 1309/1891), 336; adr al-Sharah, Al-
Tawd, 2:82; Ibn Amyr al-ajj, Al-Taqrr, 3:222; asan, Analogical
Reasoning, 83.
Pool Finance Economic System: L, D, A of Civilization 171

differentiating is weak.473 The latter means that the possibility


of differentiating between the original and the parallel case is
strong.474 Removing any degree of uncertainty in the qiys khaf
between both cases is accomplished by means of presumption
(ann). Qiys khaf and qiys al-adn475 are significantly
parallel. In fact, anaf jurists used qiys khaf as istisn,
albeit with a name different, when they abandoned the obvious
analogy due to an evidence that was stronger (aqw) than the
other.476 According to Ibn Taymiyya (d.728/1328), doing so is
not acceptable because the divine law must be free from internal

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

contradiction. Thus it may be only considered under the concept


of specifying the ratio legis (takhss al-illah).477
The principle of malaah is involved in this departure. In
fact, istisn represents nothing more than preferring the
principle of malaah to qiys.478 As such, it is not a judgment
based merely on ray and personal malaah, but a method of
applying the Sharah and the maqid al-mmah (general
purposes), because one who performs istisn must consider the
Sharahs overall purpose. For example, performing qiys in a
particular case would cause one to avoid malaah and bring
about mafsadah (harm) from a different angle.479 In unexpected
situations, istisn eventually replaces qiys.480 Additionally,
according to al-Karkh, any departure must be based on a
particular piece of evidence that warrants moving from an
established ruling to a different ruling on a similar case. The
purpose of the stronger reason or evidence requires that the
jurist depart from the former ruling.
This may be illustrated by the following example: If a group
of people break into a house, steal various items, have one
person carry all of him, and tell him to take them outside while
the others carry nothing, what should happen to them if they are
caught? According to qiys, only the person who carries the
items should be punished. Istisn, however, would punish all

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

of them.481 Or consider a case in which there are two


contradictory al (original cases): The first case involves a
group of men who encourage one of their members to rape a
woman. In this case, all of the jurists agree that only the actual
rapist is to be punished. This ruling based on qiys, which is
opposite to the ruling of istisn. In the second case, a group of
people gather together with the intent to attack, rob, and then
kill people. In this case, all of the jurists would agree to apply
the relevant text-based penalty to all of them.482 Bringing
istiwb (discretion) into the judgment, it could be argued that
comparing house robbery to highway robbery is a clearer
solution than comparing it to rape.483 Departing from one case
and moving to another one because of the presence of a stronger
reason is, according to Ibn Qudmah al-Maqdis (d.620/1223),
called istisn.484
On the other hand, the Shfi jurist Shrz (d.476/1083)
says If anaf and Karkh (d.340/952) say that Istisn is the
giving of a ruling with the stronger reason rather than the
weaker reason, then we agree with it, and therefore the dispute
between us have been solved.485 After quoting Karkhs
definition, al-Ghazl (d.505/1111) writes that there is no
dispute against the definition.486 While citing Karkhs
definition, Sarakhs opines that the precedent which is set aside

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

by istisn normally consists of an established qiys that may


be abandoned in favour of the superior proof, namely the
Qurn, the Sunnah, darrah, or a stronger qiys.487 Karkhs
definition has been criticized for giving a role to takh
(particularizing the general) and naskh (abrogation) even though
they have nothing to do with istisn.488 Muammad b. usayn
Bait (d.1354/1935) says that if Karkh definitely meant such a
particularization, then they would be right to accuse him;
however, he continues, Karkh actually meant the
particularization of qiys by the evidence of qiys khaf, na,
ijm, and so on. Istisn might be considered part of takh,
but can in no way be connected to concept of naskh, which is
confined to the revelation. Istisn seeks to move from
difficulty to ease, a process in which naskh has no role,489 and
serves as the cutting edge between qiys and istisn.
According to Ibn Taymiyya, qiys does not require that the
illah be specificed, whereas istisn does.490

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

Making law, especially, requires competency in the relevant


fields. In an attempt to block jurists from putting themselves in
the place of God, Islamic law contains certain controllers
(awbi) designed to point out the limits connected with this
activity. Despite of all the controllers, rigidity, sensitivity,
charges, accountability sides, expenditure of efforts to arrive at
righteous judgment, solving human problems, necessitating
easiness and fairness for human beings through making new
judgments and even trying to do so are persuaded by God via
the sayings of the Prophet (pbuh); investigating a righteous
judgment is vis--vis reality to arrive at equity and fairness in
order to gain the pleasure of God with His consent.
Nevertheless, we have to remember that human beings, some of
whom are judges, are imperfect and thus can make mistakes. If
a ruling is improper or has the potential to engender inequity
and injustice, it can be appealed. In such a case, the concept of
istisn justifies the formulation of a new judgment that can
better ensure equity and justice.
This is not a new phenomenon in Islamic law, for even the
Companions engaged in it. The examples presented above
indicate the significance of the concept of istisn and its role,
as well as how it was developed over time. The notion of
istisn has existed since the beginning of the revelation.
During the first quarter of the second Islamic century, its basic
formulation appeared. According to Khudar (d.1927), the early
years of the Islamic judiciary saw many important leaders who
applied istisn, even though no term existed for it. The
fundamental sources of Islamic law (viz., the Quran and the
Sunnah), were developed by such scholars as Umar (the first
stage), and then, during the second stage, by Ibn Abbs
(d.687), Rabah (d.136/753), and Ibrhim al-Nakh
(d.96/714), all of whom relied to one degree or another upon
Saim Kayadibi 176

their personal opinions to meet the needs of people and the


requirements of the time.
The Companions and the Successors of the Companions
continued to use ray, and the different schools of Sunni
jurisprudence that gradually appeared adopted it. Even the
notion of istisn had been used in that era, even though the
term was not used before Umar b. Abdul-Azizs rule (r.99-
101/717-19), however, the findings of the use of istisn of Iys
b. Muwiyah, who was the judge of Basra (between 101-
02/719-20) was the exact term which had been used in the
judiciary later period after formation, indicate that istisns
technical term begins with him as he implied that when the
result of qiys leads to undesirable then the juristic preference
istisn would be used based on his saying when it leads to
undesirable results then use juristic preference (fastasin).
Therefore, according to the research and due to not having
further evidence to deny the claim that the term istisn was not
used in its technical sense before Iyas bin Muwiyah
(d.122/740).
On the other hand, Ibn al-Muqaffa (d.137/756) used the
closely related term istiwb (discretion) in the early Abbasd
period when he noted that that discretion must be taken into
account in cases where there is no established ruling. Yet the
term of istisn had been used among the jurists, there had not
been any disputes occurred among the jurists till Ab anfahs
famous saying, qiys is such and such but we apply istisn,
appeared. Despite of the use of istisn by Ab anfah, he
never used personal opinions on self desire or in vain, yet he
used to rely on the Prophetic adith and on the practices of the
Companions and those who followed them.
Accusing Hanafs of creating new religion or making
arbitrary law-making in the religion forced the scholars
Pool Finance Economic System: L, D, A of Civilization 177

especially Hanafs to identify istisns accurate role and


definitions in the judiciary; they spent much of time to defend
themselves from the place of lawmaker and tried to prove that
istisn is a valid source of law and it is not solely an ad hoc
method; despite Shaf school did not give any interest to
istisn as a basis of Islamic law, Mlik school, however, gave
extra attention to elevate its meaning and role with the famous
saying Istisn represents nine-tenths of human knowledge491
of Imm Mlik (d.179/795). Nonetheless, anaf scholars
considered most criticism of istisn as the product of
misunderstanding, and the accusation Ab anfah of this is
because of ulterior motives. And also despite of the criticism,
they see istisn as a valid source of sharah, inter alia, a basis
for the formulation of legal rulings.
In terms of istisns originality whether istisn is a part of
qiys or an independent source of law, the qiys as it was
identified in the discussion that it is the extension or application
of sharah value from an original case (al) to a new case (far),
where the latter has the same effective cause (illah) as the
former. The original case is regulated by a given text (the
Qurn and the Sunnah), and qiys (analogy) seeks to extend the
same textual ruling to a new case.492 However, among the
typology of qiys, the type which was related to the concept of
istisan and the scope of the research is of that in its clarity as
qiys jaly (obvious analogy) and qiys khaf (latent, hidden

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

analogy).493 In qiys khaf (latent, hidden analogy) the


possibility of differentiating between the original and the
parallel case is strong, hence the anaf jurists, developed the
version of qiys khaf and used it through a new inference and
named it as istisn despite there are some allegation that it is a
qiys khaf infact it is however a product of qiys; despite of the
fact that it is considered by anafs, Mliks and some others
among different schools of thought as an independent source of
Islamic law in the judiciary.

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.