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Tutorial 9

1. Discuss the views of jurists who accept Qawl al Sahabi or Fatwa al Sahabi as a source of Islamic law.

SUGGESTED ANSWER : (refer detail notes)

Mazhab Sunni

Jumhur Ulama’

Ulama’ Usul, there are 3 views :

(Imam Malik, Imam Shafie, Imam Hanbal & some of Hanafi jurists

(Al Asha’ari, Mu’tazilah, Imam Ahmad b. Hanbal, Hanafi)

(Abu Hanifah)

the only ruling of the Four-Caliphs commands authority.

2. List and discuss the various methods through which Istihsan is employed in legal reasoning.

SUGGESTED ANSWER : Definition : it is a method of exercising personal opinion in order to avoid rigidity and unfairness which might be result from the literal enforcement of the existing law. It involves setting aside an established analogical reasoning in favour of an alternative ruling which serves the ideas of justice and public interest in a better way. Types of Istihsan : 1. Istihsan Qiyas Khafi : the departure from the clear analogical reasoning(qiyas jail) to the hidden analogy(qiyas khafi) because the latter is stronger and more effective in repelling hardship and also it is arrived at through deeper reflection and analysis. Eg : Waqaf(charitable endowments). According to Imam Hanafi view, the waqf of cultivated land includes the transfer of all ancillary rights of water, right to passage and the right of flow, even if this rights are not specifically mentioned in the conditions and rulings related to waqf. The above ruling is made based on ‘hidden analogy’ which can be described as follows: it is a general rule of the Islamic law of contract, including the contract of sale, that the object of the contract must be clearly identified in detail. What is not specified in the contract is not included therein. In this instance, if we draw a direct analogy(qiyas jail) between sale and waqf as both involving the transfer of ownership, we must conclude that the attached rights can only be included in the waqf if they are explicitly identified. It is, however, argues that such analogy would lead to inequitable results as the waqf of cultivated lands without their ancillary rights, would

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frustrate the property for charitable purposes. To avoid such a hardship, recourse to an alternative analogy, that is to qiyas khafi(hidden nalogy) is therefore necessary. 2. Istihsan Istisna’ : it consists of making an exception to a general rule of the existing law. The exception to tebh general rules is due to the exception of the rulings in the text(AQ or Sunnah), public interest or custom. Eg: istishsan based on the custom of ppl can be noticed in the waqf of movable goods. Since waqf involves the endowment of property on permanent basis, and movable goods are subject to destruction and loss, they are, therefore, not to be assigned in a waqf. This general rule, has however, been set aside by the Hanafi jurists, who validate the waqf of movable goods such as books, tools and weapons on the ground of its acceptance by popular customs. The example of Istihsan based on then text of AQ can be observed regarding the permissible of the contract of salam(advance). The general rule stipulates that it is forbidden for a person to sell an object which he does not possess. However, the contact of salam which is the sale of an object in which the price was paid in advance and the article to be delivered at a future date is allowed according to a hadith of the Prophet : i.e. clearly permits the contract of salam even though it is against the general principle