Journal article Open Access
From the earliest times when schools of legal thought (madhhab) have started to form, there has been debate whether or not “istiḥsān (juristic preference; moving away from the implications of an analogy to an analogy that has a stronger evidence from the Qurʾān, Sunnah or ijmāʿ)” is a method of “istidlāl (inference)”. At the basis of these discussions, the effect of the arbitrariness/subjectivity implied by the term “istiḥsān”, which has not yet completed its conceptualization process, is far too much. Therefore, those who adopted “istiḥsān” as a method were subjected to serious accusations. Hanafī jurists are at the forefront among those who adopted “istiḥsān”. So much so that the “istiḥsān” method has become known by the Hanafi School. However, we have come across with two opposing arguments about the approach of Zufar ibn Hudhayl, who is one of the leading representatives of the school, prominent with his analogical reasoning, to “istiḥsān”. As a result of our research and investigation, it is seen that neither of the claims is right; in addition to the skill of the Zufar to make analogies, he is in favor of analogical reasoning to the full extent on the issue of having recourse to “istiḥsān”; but in cases where analogies are inadequate in producing solutions to the issues or do not give correct outcomes, as a necessity for not to leave the issue without any verdict, he had recourse to “istiḥsān”. As a result, it can be said that being bound to the Hanafī method in general terms, Zufar ibn Hudhayl has narrowed the framework for using “istiḥsān” as a method of “istidlāl”; on the issue of having recourse to analogies, on the other hand, he tried to broaden the boundaries as much as possible.
Starting from Hijri 2ndcentury which was the beginning of the formation of idolatry, in terms of whether it is the nature and the method of stratification, istiḥsān, generally described as “Because of stronger evidence, it would be better to abandon the provision of similar powers to another ruling”, has been argued. So much so that two different approaches have emerged in the form of supporters and opponents.
The opponents of istiḥsān have accused the people who adopted and done sets of fiqh deductions accordingly of judging according to their desires and to establishing a new sharia. However, the effect of the concept of istiḥsān, which has not yet completed its conceptualization process, arbitrary/subjective sense of this oppositional approach is too great.
Imam Shafī was a strong opponent of istiḥsān. However, Shafī, consulted istiḥsān to regard the amount of “mut‘a” (consolation gift) thirty dirham and the period of the “shuf‘a”(right of pre-emption) as three days, he even used this concept by saying “I am doing istiḥsān”. Therefore, it can be said that the opposition of Imam Shafī is aimed at the “logic of exception” which resides in istiḥsān rather than the provision reached by the means of istiḥsān.
Imam Shafī’s istiḥsān opposition is more directed to the Hanafis, who are identified with istiḥsān. Particularly, it is seen that the students Abu Yûsuf and Imam Muhammad and Abu Hanifa one of the founder imams of Hanafi School consulted istiḥsān frequently. However, there are not sufficient and clear information about Zufar ibn Hudhayl’s view of istiḥsān. Zufar ibn Hudhayl, who is at this point also worth investigating and examining, because he is one of the founding imams of the school and has his own ideas.
Different determinations on Zufar ibn Hudhayl’s approach to istiḥsān were done by contemporary researchers. One of these is a proof that Zufar ibn Hudhayl was using istiḥsān largely similarly to other founder of the Hanafi School; and the other is that he falled in line with Imam Shafī in terms of istiḥsān. Since both studies are not directly related to Zufar ibn Hudhayl’s approach to istiḥsān, the researchers did not feel the need to point the arguments that they based these assumptions on.
Zufar ibn Hudhayl has passed away after a very short time (d. 158/775) from Abu Hanifa, and he spent the 6 of his last 8 years in Basra. Therefore, there is no detailed information about him like the other founding imams of the school. Moreover, the absence of any work or the lack of knowledge about it, makes it very difficult to determine Zufar ibn Hudhayl’s views of istiḥsān. This necessitates the application of Hanafi resources from the initial period for further investigation.
Especially in the examination of the classical period Hanafi School’s method and furūʿ al-fiqh (substantive law) literature, we could not reach any knowledge about Zufar ibn Hudhayl’s approach to istiḥsān. However, almost all layered authors describe Zufar ibn Hudhayl as a “qiyās(analogy) expert” and emphasize his skill and expertise in using analogy. This is also quite remarkable. However, in the works of Pīrī-Zāde and Kawtharī, who directly examine Zufar ibn Hudhayl’s fiqh, there is no information about what philosophical background of his was about what is meant by the qualifications of “expert” or “qiyās expert” about him.
Two conclusions can be reached from these characterizations about Zufar ibn Hudhayl: one of them is, he was quite successful and competent in using analogies against the matters where the provision is absent and the other one is his loyalty to istiḥsān where the different provisions can be obtained regarding fiqh matters unlike comparation.
It is highly probable that the second meaning was the one intended. Because the literature shows that other founding imams besides Zufar ibn Hudhayl also were at least as wise and skillful as Zufar ibn Hudhayl in making analogies. In addition, some information contained in the classical Hanafi literature supports this opinion.
Muhammad Biltaji, one of the contemporary researchers, also, says things that confirm the second approach: “Zufar ibn Hudhayl was trying to reduce the field of judgments via istiḥsān as much as possible; and in regard to qiyās he showed great effort to expand the boundaries as far as possible.The fact that Zufar ibn Hudhaylalmost never applies istiḥsān, does not leave him out of the general principles of the Hanafi School that was allied on. Because the method of Zufar ibn Hudhaylis in itself was the method itself. Zufar ibn Hudhayl'sunderstanding of fiqh is shaped generally within this procedural framework. That is why his resources were also qiyās and istiḥsān in the same manner. In practice, however, when applying the methods to the occasions, he preferred qiyās more frequently than istiḥsān. He was dissent about applying istiḥsān to the issues. This opposition, however, does not mean fundamentally opposing or rejecting it entirely, either about qiyāsor about istiḥsān.”
In the research we have conducted on the classical Hanafi literature, we have found that Zufar ibn Hudhayl was consulting to istiḥsān in a very limited area on only four subjects. Apart from these examples, we could not find any other use of istiḥsān by him. Zufar ibn Hudhayl’s preference for istiḥsān here is not because there is no possibility to use qiyās; perhaps, qiyāswas not responding to necessity, or was not able to provide the right result.
However, when Zufar ibn Hudhayl’s applications of istiḥsān in fiqh practices are examined, it is seen that all three of the other imams or some of them have passed judgements based on qiyās. This situation makes it very difficult to determine a general rule of Zufar ibn Hudhayl’s application of istiḥsān regarding the situations and purpose.
Moreover, Zufar ibn Hudhayl’s application of istiḥsān, even in a narrow field, reveals that the findings of researchers today, such as his frequent use or refusal of istiḥsān as the other imams of the school, are far from reflecting the truth.
To put it briefly, while qiyās was fundamental for Zufar ibn Hudhayl, even if for a limited and narrow field, he applied istiḥsān as well.