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# One of The Founders of The Hanafi School Zufar Ibn Hudhayl's Approach to Istiḥsān [Hanefî Mezhebi'nin Kurucu İmamlarından Biri Olan Züfer b. Hüzeyl'in İstihsana Yaklaşımı]

Çiftci

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{
"publisher": "Zenodo",
"DOI": "10.5281/zenodo.1488612",
"language": "eng",
"title": "One of The Founders of The Hanafi School Zufar Ibn Hudhayl's Approach to Isti\u1e25s\u0101n [Hanef\u00ee Mezhebi'nin Kurucu \u0130mamlar\u0131ndan Biri Olan Z\u00fcfer b. H\u00fczeyl'in \u0130stihsana Yakla\u015f\u0131m\u0131]",
"issued": {
"date-parts": [
[
2018,
7,
31
]
]
},
"abstract": "<p>From the earliest times when schools of legal thought (<em>madhhab</em>) have started to form, there has been debate whether or not &ldquo;isti\u1e25s\u0101n (juristic preference; moving away from the implications of an analogy to an analogy that has a stronger evidence from the Qur\u02be\u0101n, Sunnah or ijm\u0101\u02bf)&rdquo; is a method of &ldquo;istidl\u0101l (inference)&rdquo;. At the basis of these discussions, the effect of the arbitrariness/subjectivity implied by the term &ldquo;isti\u1e25s\u0101n&rdquo;, which has not yet completed its conceptualization process, is far too much. Therefore, those who adopted &ldquo;isti\u1e25s\u0101n&rdquo; as a method were subjected to serious accusations. Hanaf\u012b jurists are at the forefront among those who adopted &ldquo;isti\u1e25s\u0101n&rdquo;. So much so that the &ldquo;isti\u1e25s\u0101n&rdquo; 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 &ldquo;isti\u1e25s\u0101n&rdquo;. 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 &ldquo;isti\u1e25s\u0101n&rdquo;; 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 &ldquo;isti\u1e25s\u0101n&rdquo;. As a result, it can be said that being bound to the Hanaf\u012b method in general terms, Zufar ibn Hudhayl has narrowed the framework for using &ldquo;isti\u1e25s\u0101n&rdquo; as a method of &ldquo;istidl\u0101l&rdquo;; on the issue of having recourse to analogies, on the other hand, he tried to broaden the boundaries as much as possible.</p>\n\n<p>SUMMARY</p>\n\n<p>Starting from Hijri 2<sup>nd</sup>century which was the beginning of the formation of idolatry, in terms of whether it is the nature and the method of stratification, isti\u1e25s\u0101n, generally described as &ldquo;Because of stronger evidence, it would be better to abandon the provision of similar powers to another ruling&rdquo;, has been argued. So much so that two different approaches have emerged in the form of supporters and opponents.</p>\n\n<p>The opponents of isti\u1e25s\u0101n 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 isti\u1e25s\u0101n, which has not yet completed its conceptualization process, arbitrary/subjective sense of this oppositional approach is too great.</p>\n\n<p>Imam Shaf\u012b was a strong opponent of isti\u1e25s\u0101n. However, Shaf\u012b, consulted isti\u1e25s\u0101n to regard the amount of &ldquo;mut&lsquo;a&rdquo; (consolation gift) thirty dirham and the period of the &ldquo;shuf&lsquo;a&rdquo;(right of pre-emption) as three days, he even used this concept by saying &ldquo;I am doing isti\u1e25s\u0101n&rdquo;. Therefore, it can be said that the opposition of Imam Shaf\u012b is aimed at the &ldquo;logic of exception&rdquo; which resides in isti\u1e25s\u0101n rather than the provision reached by the means of isti\u1e25s\u0101n.</p>\n\n<p>Imam Shaf\u012b&rsquo;s isti\u1e25s\u0101n opposition is more directed to the Hanafis, who are identified with isti\u1e25s\u0101n. Particularly, it is seen that the students Abu Y&ucirc;suf and Imam Muhammad and Abu Hanifa one of the founder imams of Hanafi School consulted isti\u1e25s\u0101n frequently. However, there are not sufficient and clear information about Zufar ibn Hudhayl&rsquo;s view of isti\u1e25s\u0101n. 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.</p>\n\n<p>Different determinations on Zufar ibn Hudhayl&rsquo;s approach to isti\u1e25s\u0101n were done by contemporary researchers. One of these is a proof that Zufar ibn Hudhayl was using isti\u1e25s\u0101n largely similarly to other founder of the Hanafi School; and the other is that he falled in line with Imam Shaf\u012b in terms of isti\u1e25s\u0101n. Since both studies are not directly related to Zufar ibn Hudhayl&rsquo;s approach to isti\u1e25s\u0101n, the researchers did not feel the need to point the arguments that they based these assumptions on.</p>\n\n<p>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&rsquo;s views of isti\u1e25s\u0101n. This necessitates the application of Hanafi resources from the initial period for further investigation.</p>\n\n<p>Especially in the examination of the classical period Hanafi School&rsquo;s method and fur\u016b\u02bf al-fiqh (substantive law) literature, we could not reach any knowledge about Zufar ibn Hudhayl&rsquo;s approach to isti\u1e25s\u0101n. However, almost all layered authors describe Zufar ibn Hudhayl as a &ldquo;<em>qiy\u0101s</em>(analogy) expert&rdquo; and emphasize his skill and expertise in using analogy. This is also quite remarkable. However, in the works of&nbsp;P\u012br\u012b-Z\u0101de and Kawthar\u012b, who directly examine Zufar ibn Hudhayl&rsquo;s fiqh, there is no information about what philosophical background of his was about what is meant by the qualifications of &ldquo;expert&rdquo; or &ldquo;qiy\u0101s expert&rdquo; about him.</p>\n\n<p>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 isti\u1e25s\u0101n where the different provisions can be obtained regarding fiqh matters unlike comparation.</p>\n\n<p>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.</p>\n\n<p>Muhammad Biltaji, one of the contemporary researchers, also, says things that confirm the second approach: &ldquo;<em>Zufar ibn Hudhayl was trying to reduce the field of judgments via isti\u1e25s\u0101n as much as possible; and in regard to qiy\u0101s he showed great effort to expand the boundaries as far as possible.</em><em>The fact that&nbsp;Zufar ibn Hudhaylalmost never applies isti\u1e25s\u0101n, does not leave him out of the general principles of the Hanafi School that was allied on. Because the method of&nbsp;Zufar ibn Hudhaylis in itself was the method itself.&nbsp;Zufar ibn Hudhayl&#39;sunderstanding of fiqh is shaped generally within this procedural framework. That is why his resources were also qiy\u0101s and isti\u1e25s\u0101n in the same manner. In practice, however, when applying the methods to the occasions, he preferred qiy\u0101s more frequently than isti\u1e25s\u0101n. He was dissent about applying isti\u1e25s\u0101n to the issues. This opposition, however, does not mean fundamentally opposing or rejecting it entirely, either about qiy\u0101sor about isti\u1e25s\u0101n.</em>&rdquo;</p>\n\n<p>In the research we have conducted on the classical Hanafi literature, we have found that Zufar ibn Hudhayl was consulting to isti\u1e25s\u0101n in a very limited area on only four subjects. Apart from these examples, we could not find any other use of isti\u1e25s\u0101n by him. Zufar ibn Hudhayl&rsquo;s preference for isti\u1e25s\u0101n here is not because there is no possibility to use qiy\u0101s; perhaps, qiy\u0101swas not responding to necessity, or was not able to provide the right result.</p>\n\n<p>However, when Zufar ibn Hudhayl&rsquo;s applications of isti\u1e25s\u0101n in fiqh practices are examined, it is seen that all three of the other imams or some of them have passed judgements based on qiy\u0101s. This situation makes it very difficult to determine a general rule of Zufar ibn Hudhayl&rsquo;s application of isti\u1e25s\u0101n regarding the situations and purpose.</p>\n\n<p>Moreover, Zufar ibn Hudhayl&rsquo;s application of isti\u1e25s\u0101n, even in a narrow field, reveals that the findings of researchers today, such as his frequent use or refusal of isti\u1e25s\u0101n as the other imams of the school, are far from reflecting the truth.</p>\n\n<p>To put it briefly, while qiy\u0101s was fundamental for Zufar ibn Hudhayl, even if for a limited and narrow field, he applied isti\u1e25s\u0101n as well.</p>",
"author": [
{
"family": "\u00c7iftci"
}
],
"note": "Mezheplerin te\u015fekk\u00fcl etmeye ba\u015flad\u0131\u011f\u0131 ilk d\u00f6nemlerden itibaren istihsan\u0131n bir istidlal y\u00f6ntemi olup olmad\u0131\u011f\u0131 tart\u0131-\u015f\u0131lagelmi\u015ftir. Bu tart\u0131\u015fmalar\u0131n temelinde kavramsalla\u015fma s\u00fcrecini hen\u00fcz tamamlamam\u0131\u015f olan istihsan teriminin \u00e7a\u011fr\u0131\u015ft\u0131rd\u0131\u011f\u0131 keyfili\u011fin/s\u00fcbjektivitenin etkisi \u00e7ok fazlad\u0131r. Bu y\u00fczden istihsan\u0131 bir y\u00f6ntem olarak benimseyenler, a\u011f\u0131r ithamlara maruz kalm\u0131\u015flard\u0131r. \u0130stihsan\u0131 benimseyenlerin ba\u015f\u0131nda Hanef\u00ee hukuk\u00e7ular gelmektedir. \u00d6yle ki istihsan y\u00f6ntemi Hanef\u00ee mezhebiyle an\u0131l\u0131r hale gelmi\u015ftir. Bununla birlikte mezhebin \u00f6nde gelen temsilcilerinden biri olan ve k\u0131yas metodunu kullanmas\u0131yla \u00f6n plana \u00e7\u0131kan Z\u00fcfer b. H\u00fczeyl'in istihsana yakla\u015f\u0131m\u0131yla ilgili iki farkl\u0131 yakla\u015f\u0131m tespitedilmi\u015ftir. Yapt\u0131\u011f\u0131m\u0131z ara\u015ft\u0131rma ve inceleme neticesinde her iki tespitinde isabetli olmad\u0131\u011f\u0131n\u0131; Z\u00fcfer b. H\u00fczeyl'ink\u0131yas yapmadaki becerisinin yan\u0131 s\u0131ra istihsana m\u00fcracaatta sonuna kadar k\u0131yas taraftar\u0131 oldu\u011funu; ancak k\u0131yas\u0131n meselelere \u00e7\u00f6z\u00fcm \u00fcretmede yetersiz kald\u0131\u011f\u0131 ya da do\u011fru sonu\u00e7 vermedi\u011fi durumlarda ise \u0131zd\u0131r\u00e2r\u0131n da bir gere\u011fi olarak meseleyi h\u00fck\u00fcms\u00fcz b\u0131rakmama ad\u0131na istihsana m\u00fcracaat etti\u011fi g\u00f6r\u00fclmektedir. Sonu\u00e7 olarak Z\u00fcfer b. H\u00fczeyl'in genel hatlar\u0131yla Hanef\u00ee usul\u00fcne ba\u011fl\u0131 kalmakla birlikte istihsan\u0131 bir istidl\u00e2l y\u00f6ntemi olarak kullanma hususunda \u00e7er\u00e7eveyi olduk\u00e7a daraltt\u0131\u011f\u0131n\u0131; k\u0131yasa ba\u015fvurma konusunda ise s\u0131n\u0131rlar\u0131 m\u00fcmk\u00fcn oldu\u011funca geni\u015f tuttu-\u011funu s\u00f6ylemek m\u00fcmk\u00fcnd\u00fcr.",
"type": "article-journal",
"id": "1488612"
}
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