1800

Various Types of Istilisän 234means, a gift (mut`ah) of reasonable amount is a duty on the doers of good\". 9 Anotherexample is fixing the cost of the mother's food and clothing as indicated in \"The father ofthe child shall bear the cost of the mother's food and clothing on a reasonable basis.\"loand, \"For divorced women, maintenance (mut`ah) (should be provided) on reasonable(scale).\"\" In the Qur'än the maintenance (mut'ah) of women, and the cost of their foodand clothing has been made obligatory on those, responsible according to their financialcapacity. Fixing the exact amounts involved is entrusted to the discretion of themujtahid. 12 Approving suchijtihdd basedon prevailing opinion is called ray ghälib, which isthe prevailing opinion in istiMdn.13Other issues such as the types of punishment forkilling an animal in the protected places (Haram), the evaluating of an animal to besacrificed, or the evaluationof the blood money in the caseof injury have beenleft to thediscretion of thejurists, which is basedon the most prevalentopinion (ra'y ghalib).'44.1 Istiftdn in the senseof departing from one ruling to another ruling:As I have touchedon above,this canbe divided into threetypes asfollows'5:4.1.1 Departure from giyäsjalrto giy5s khan: Hanafis divide giyäs into the jail (explicit) and the khafi (implicit). Jail is ananalogy where the 'illah (effective cause) appears at first glance, without carefulconsiderationneedingto be given to it. For example,the prohibition of nabidh appearstofollow on by analogyfrom the prohibition of wine. However, giyäs khafi is one where the9 Qur'im: 2/236 lo Qur'an: 2/233 Qur'an: 2/241. 17Sarakhsi\",U. 2F',v: 2, p: 200. 13Ddnmez, \"Kaynak Kavrami\", p: 132; `Ali Bakkal, \"Islam Hukukunda Hikmet, filet veJclimn`i Väkra MunasebetlerininHukuki Neticelen\"', unpublishedPhD dissertation,Erzurum, 1986,p: 333. 14Ja$ý4, \"Fusül\", v: 4, p: 233. 15Khalläf, \"Masäde?', p: 72.

ChapterFour 235effective cause (111ah)is understood after careful consideration and reflection. 16In otherwords, giyäs khaf is preferred over giyäs jai if they are opposed to each other, onaccount of the effective cause (`illah) which is stronger in khaft. Therefore, it is called thegiyäs of juristic preference (istihsän al-giyäs). 17 Hanafijurists point out that the gyäs khaf(, which they called istihsän is in realitya kind of giyäs andtherefore,its ruling canbe moved referred (ta `diyah) to other cases1. 8In order to refer a ruling of giyäs, it must be related to an effective cause('illah) that isbasedon anothercause(`illah). Every ruling which is basedon `illah would be referredto other cases(furü `) which have a similar `illah. This is the ruling of the validated giyäs. Ta `diyah (referring a ruling to anothercase) is an indispensablefactor of an effective cause(`illah) accordingto the Hanafis19 We can seehow giyäs khaf is preferredover giyäsjali in the following examples: a- According to Hanaf-ri ulings, when transferring the ownership of agricultural land, all of the ancillary rights (/zzgqal-irtijq) attachedto the property, such asthe right of water (hagq al-shurb), the right of passage(taqq al-murür) andthe right of flow (fngq al-mash'),arealso transferred.This is indisputable,even if it is not stipulatedexplicitly in the document. Besidesthis, in the contract of lease(ijärah), even if the ancillary rights are also not explicitly mentioned in the document,the usufruct (intifa `) is consideredas part of the contract.So,the leaseholderis ableto benefit from theserights.16Hasan,\"Analogical reasoning\", p: 92.17Bazdawi, \"U$E\", v: 4, p: 6; Sarakhsi,\"U$21\", v: 2, p: 20318Sarakhsi,\"UWN, v: 2, pp: 202,203,206; BazdawT,\"UAl\", v: 4, pp: 3,6,10; Nasafi, \"Kashf', v: 2, p:296; Sadr al-Shari'ah, \"Taws 1', v: 2, pp: 162,169.19Karamasü,\"Al-Wajiz\" p: 185;Bazdawi, \"U l\", v: 3, p: 389; Sarakhsi,\"USÜC',v: 2, pp- 192,206;Bukhäri, \"Kash, ', v:3, p: 389; v: 2, p: 11.

Various Types of Istihsän 236 Another transaction, which resemblesboth contract sales and leases,is calledwaqf (charitable endowment). If it is considered from the point of view of the donor, waqfresemblesa contract of sale,becausethe ownership changeshands. Considering it fromthe side of the donee,waqf resemblesa contract of lease(ijarah), becauseboth involve atransferof usufruct (intime`).However, the ownershipis not transferredto the other party. According to theseexplanations,the contract faces two different giyäs (analogy)rulings when the property is donatedaswaqf (charitable endowment):if it is comparedtoa contract of sale,what is not included in the contract and is not specified in it, such asthe ancillary rights (haqq al-irtifäq) will not be included. If it is compared to a contract oflease, the ancillary rights will be included in the scope of waqf, even if these are notexplicitly mentioned and specified by the donee. Here, the first instinct is to comparewaqf with a contract of sale; comparing it to a contract of lease comes to mind only afterinvestigation. Therefore, comparing waqf to a sale is called an explicit analogy (giyäsjali), while comparing it to a lease is called implicit analogy (giyäs khan. Consequently,including the ancillary rights in the transactionof the waqf without requiring any statementor permission from the doneeis a ruling of istihsän. If, however the ancillary rights arenot included it is a ruling of giyäs (analogy)20The main reasonfor the preferenceof istihsän over analogy is that such analogy would lead to unfair results: the waqf of cultivated land without its ancillary rights would frustrate the basic purpose of waqf, which is to facilitate the use of the property for charitable purposes.Usufruct is the essentialpurposeof ijärah, andthis would enableus to say that waqf can be deemed20Sha'bän,\"Islam Hukuk Ilminin Esaslarc\",p: 168;Khalläf, \"Masäder\", p: 72.

Chapter Four 237valid even if it doesnot specify the ancillary rights to the property in detail. Therefore,itis compared to a lease in order to avoid hardship for the people.21As we see,the effective causeof the implicit analogy,which is not contrary to theShari `s (Law-maker) purposes,is stronger than the explicit analogy, and therefore it ispreferredover explicit analogysothat the benefits of the peoplewill be secured. b. if a husband tells his wife \"Consider yourself divorced if you aremenstruating\", andhis wife says\"I am menstruating\", accordingto the rule of giyäs, herstatement is not acceptedunless her husband approvesor it is made clear that she isdefinitely menstruating.However, the wife's statementis consideredtrue and the divorceis actualisedbasedon istitadn. The original case(au), basedon giyäs, is when a husbandsaysto his wife \"If youenter the houseyou aredivorced\" or \"if you speakto someoneyou aredivorced\", and thewife immediately says\"I enteredthe houseafter your stipulation\" or \"I have spokenwithsomeone\". After that, if husband denies her word, the wife would not be divorced.However, if shehas evidenceto verify it, or if her husbandhas confirmed her claims, sheis then divorced, even if anotheroriginal basis (ag) is found and its effective causeisstronger. The ruling of istiizsän is therefore based on the new asl (original case) asmentioned in the Qur'än: \"And it is not lawful for them to conceal what God has createdin their wombs, if they believe in God and the Last Day\"22 In addition, a narration from .`Ubay b. Kdb verifies this: \"To trust a woman of her honour is a necessity.s23The Qur'änand faadith advise women that concealing menstruation is forbidden. Therefore, it is21Ibn al-Humäm\",Fat 7al-Qadir\",v: 6,p: 215;Khalläf, \"Masäder\",pp:72-73;Sha`bän\"IslamHukukIlminin Esaslari' p: 168.22Qur'dn: 2/228.23Bayhägi, \"Al-Sonn al-Kubr-Y', v: 7, pp: 371,418; Ibn Fiajar,\"Fathal-Bari', v: 9, p: 392; Hakim, \"Al-Mustadrak\", v: 2, p: 458; Ibn Abi Shaybah,\"Al-Musnnaf', v: 4, p: 199.

Various Types of Isrihsdn 238necessary to trust women on those issues which can only be recognized by them. Theruling of the Qur'än and lvdith have become an a (original case) for the statement ofwomen on that issue. In addition, if woman says, \"my period has ended\" then herstatement must be taken as true. Therefore, her statement in the issue of divorce when shesays \"I have a period\" is also accepted on the basis of this asl (original case), according toisti hsän.24 c- If a group of people gain unlawful entry into a house, steal collectedcommodities and load them on one person's back and that person carries the commoditiesoutside while the others are not carrying anything, according to giyäs, the punishment isonly applied to the person who carried the commodities. However, according to isti, znanthe punishment is applied to all of those who were involved in the robbery.25 In this case, there are two contradictory asl (original cases): the first involves agroup of people who encourageone of their number to rape a woman. In this case,thereis no conflict among the jurists and the penalty is applied only to the rapist. This is aruling of giyäs as opposed to istihsän. The secondcaseis that of a group of people whocongregate with the intention to attack, kill and rob people of their commodities; in thiscase,the penalty of highway robbery is applied to all. This caseis not disputed by juristsbecausethey agree that the punishment must be applied to all who are involved in thehighway robbery. According to the Qur'än: \"The recompenseof those who wage war against God and His Messengerand do mischief in the land is only that they shall be killed or crucified or their hands and their feet be24Jaý§4, \"Fu,! \", v: 4, pp: 234-236, Sarakhsi, \"U Ir', v: 2, p: 202.' Sarakhsl, \"Uxl\", ii, 201; JaW4, \"Futil\", iv, 238.

Chapter Four 239 cut off from oppositesides,or be exiled from the land. That is their disgracein this world, and a great torment is theirs in the Hereafter. Except for those who (having fled away and then) came back (as Muslims) with repentancebefore they fall into your power; in that case, know that God is Oft-Forgiving, Most Merciful. \"26After investigating carefully, it becomesclear that comparing the house robbery to ahighway robbery offers a clearersolution than comparing it to rape.27The departurefromone original case(ate to anotherbecauseof the strongerreasonis a solution soughtbyistihrýin in orderto betterprotect society. d- If a man sells goods,such clothes, with a specific weight or measureunder acontract of forward sale(salam)25to someone,but then withdraws the offer of salebeforebeing paid, the transaction becomes null and void. However, if this transaction iscompleted in the normal way and the seller does not withdraw the offer of sale, thetransaction is valid according to istihsan becausethe customer is able to take his goodsany time he wants andthe possibility of illegal action is therefore avoided.This is in spiteof the fact that, according to giyäs both transactionsare similar. As is normal, the goodswill be delivered later in the forward sale (salam). If the money is not taken in advance,both parties may discontinuethe transaction,which then causesharm to either the seller26Qur'dn: 5/33-34277as555,\"Fu92f' iv, 239.28Salam.This is an investmentasa forward salecontractinvolving the current paymentfor assetsto bedelivered in thefuture. The goodsor assetsto be purchaseddo not needto be in existenceor in completedform at the time of contracting,but must be ascertainable.The Prophetsaid: \"Whoever concludessalam, lethim do so over a specifiedmeasure,specified weight and specifiedperiod of time\". See:Bukhäri, \". ahFN',v: 3, p: 243, ftadith no: 441.

Various Types of Istihsän 240or buyer or both. Paying in advanceis preferred asthe contract will be more secure.Thecondition29of aforward sale(salam)naturally includes guaranteeof security.30 We candraw a conclusionregardingimplicit analogy asfollows: a- Departing from explicit analogy to implicit analogy indicates that the explicitanalogy, at the appearanceof the effective cause(`illah), could not securethe benefit ofthe people andis thusunableto manifestthe wisdom of the shari `ah.31 b- To prefer the explicit analogy is to risk the occurrence of unexpected andunwanted results, which would not be conducive to the public good. When istihrän,which is the implicit analogy, is preferred, the purposesof the Shdri ` will obviously beachieved. c- While rulings based on explicit analogy are suitable for specific issueswithtextual (nass) evidence, implicit analogy is more suited to non-specific issues with no29Conditions of Salam:l. It is necessaryfor the validity of salam that the buyer pays the price in full to theseller at the time of the sale.In the absenceof full payment,it will be tantamountto saleof a debt againstadebt, which is expresslyprohibited by the Holy Prophet.Moreover, the basic wisdom for allowing salam isto fulfil the \"instant need\"of the seller.If it is not paid in fwulhl,icthhethbeasqiucapnutritpyoasnedwqilul anliotyt bceanacbheieevxeadc.2tl.yonly thosegoodscanbe sold through asalam contractinspecified. Preciousstonescannotbe sold on the basisof salambecauseeachstonediffers in quality, size,weight andtheir exactspecificationis not possible.3. Salamcannotbe effected on a particular commodityor on a product of a particular field or farm e.g. Supplyof wheat of a particular field or the fruit of aparticular tree sincethereis a possibility that the crop will be destroyedbefore delivery and given suchapossibility, the delivery remainsuncertain.4. All details in respectto quality of goodssold must beexpresslyspecifiedleaving no ambiguity which may lead to a dispute.5. It is necessarythat the quantity ofthe commodity be agreedupon in absoluteterms.It shouldbe measuredor weighed in its usual measureonly, meaningwhat is normally weighedcannotbe quantified and vice versa.6. The exactdate and placeofdelivery must be specifiedin the contract.7. Salamcannotbe effectedin respectof things which must bedelivered on the spot.8. The commodity for salam contractshouldremain in the marketright from the dayof contract up to the dateof delivery. 9. The time of delivery shouldbe at least fifteen days or onemonthfrom the dateof the agreement.The price in salam is generallylower than the price in a spot sale.Theperiod should be long enoughto affect prices. But Hanafifrgh doesnot specify any minimum period for thevalidity of salam.It is alright to havean earlier dateof delivery if the seller consentsto it 10. SincetherpvearqilciudeirpienrdosffaoitlrafmoarsistahlgaeemBnaiennrkao.lr1lyd1elo.rAwtoesreentchsuaurnirteythtihneaptthrtiheceefosirnemlaleosrfpdaoetlgisvuaealrersa,.1tnh2tee. edT,imhffeeorsretegnlalcegereainotrtthhheeypttiwmotoehepocrfiacdteieoslnimvmearayyybdbeeelaiverscommodities andnot moneyto thebuyer who would have to establisha specialcell for dealing incommodities. See:MeezanBank: salami httpJ/www. meezanbankc.om/knowledge-islamic-section-4-5a. sp.30Shaybäni,\"Al-Asl\", v: 5, pp: 42-43.31Bakkal, \"Neticelen\"', pp: 348-349.

Chapter Four 241clear textual evidenceto support them. Indeed, implicit analogy may realize the purposeof nass more effectively than explicit analogy.4.1.2 Departure from naffs to a specific ruling:Under this sub-heading,I will give some information about the `äm (general) the khäs(specific) and takhss (particularization).4.1.2.1 The `am (general): This is a term that involves generalprinciples or issuesratherthan details or particular issues:it is not confined to one particular case or amount andmay be generalizedto cover a wide rangeof different issuesand people. For example; in\"(as for) the thief, the male and the female, amputatetheir handsin recompensefor whatthey earned (i. e. committed) as a deterrent punishment from God. God is Exalted inMight and Wise. 02, the words \"al-säriqu wa al-särigatu\" (the male and the female thief)apply to all who commit that crime, and no-one in particular is specified.4.1.2.2 The khds (specific): This is a term that denotes detailed and exact meaningconnectedwith only one specific thing or person.For example, `Umar, man, woman etc.Besides this, even if it containsplurality, and that plurality is restricted, then the term isconsideredaskha for example;two, three,four, a hundred,two thousandetc. Scholars unanimously agree that the khhäss(specific) definitely indicates a determined meaning, so long as contrary evidence against its specificity doesnot exist. The specific meaning cannot define the term to be anything other than what it is.33For example, in \"God will not impose blame upon you for what is meaninglessin your oaths,but He will impose blame32Qur'an: 5/38;33Sha`bän,'Islam Hukuk liminin Esaslarf', p: 265.

Various Types of Isti/zsän 242 upon you for (breaking) what you intended of oaths. Therefore, expiation is the feeding of ten needy people from the averageof that which you feed your (own) families or clothing them or the freeing of a slave.But whoever can not find (or afford it) then a fast of threedays(is required)s34,The words \"raqabah\", (neck), \"`ashara\", (ten), and \"thaläthah\", (three) are khäss(specific) and denotethe expiation of broken oaths, namely the freeing of a slave, thefeeding of ten orphans,or fasting for three days. Indicating these with khdss(specific)terms excludesanypossibility of their having other meanings354.1.2.3 Takhsr4s(particularization)36: The thing or issuewhich prompts particularisationis called mukhasss: (particularising agent), while the thing or issue particularised isknown asthe mukhassas(particularizedagent).7 Departing from a generalruling to a specific ruling in order to uphold the spiritand purpose of the shari `ah is considered a type of istihrän. In the ruling of giyäs,particularization is not recognized under any conditions; however istirnan allows theparticularization of the 711ahin order for istihsänitself to be applied. As we know, one of the definitions of istilrsän given by the Hanafijurists is the \"abandoning of onejudgement in favour of another\"38. For example, according to the general rulings in the Qur'an, Muslims are prohibited to eat unlawful meat (nzaytata)which has not been slaughtered3' Qur'an: 5/89.35Sha`bän,ibid, p: 266.36This term wastranslatedasspecification,particularization, specializationor limitation. GeorgeMakdisi \"limitation\". See:Makdisi \"Ibn TaymiyyahAuthograph Manuscript on Istihrän\"usedit in the meaningfor StudiesIn Honor of Hamilton A. R. Gibb, Cambridge:Harward University Press,in the Arabic And Islamic1965,p: 446.37Atar, \"Fikih Usulü\", p: 195; Sha`bän,ibid, p: 297.38Ibn Taymiyyah, \"Mas'alah\", pp: 457-458.

Chapter Four 243ritually: \"Forbidden to you (for food) are: al-maytata (the dead animals-cattle beast notslaughtered)... s39.Here the word \"al-maytata\" (dead) is comprehensive and covers seaanimals as well as others. However, the Prophet's saying \"Huwa al-tzhüru mäuhu al-/i llumaytatuhu\"40, particularizes the word to mean all animals apart from sea animals 41 From a different perspective,if someone'slife is in danger and there is nothingfor him to eat except carrion (maytata), then the general ruling has to be reconsidered andput aside, since protecting the live of Muslims is considered to be one of the five essentialvalues of the shari `ah. The `illah (cause) of the particularization of the general rulinghere is starvation, which may lead to death. Hence, particularization is aimed at securing a better understanding of the general principles of the shari `ah and its proper implementation by means of isti1nan42 This kind of implementation, according to Hanafi thought, is considered part of istitnan, which is based on the na$,q of the Qur'an and Sunnah.43 More exampleshere will help to further illustrate this. According to the general text of the Qur'an, theft is absolutely forbidden and the thief is punished by the cutting off hands.\"And (asfor) the male thief and the female thief, cut off (from the wrist joint) their (right) handsas a recompensefor that which they committed, a punishmentby way of example from God. And God is All Powerful, All wise.\"44The naffsof the Qur'an requires that the thief's hand be amputatedif the condition of stealingis fulfilled. General rulings of Islamic law require the cutting off of the thief's hand even in the year of39 Qur'an: 5/3.40Abü Däwüd, \"Tahärah\", 41.41Sha`bän,ibid, p: 299.42Shätibi, \"Al-Muwdfagät\", v: 4, p: 208.43Ismä`i1,\"Usül\" , v: 2, p: 77.\"Qur'an: 5138.

Various Types of Istihsän 244famine, becauseof the generalizedmeaning of the word \"säriq\" (thief). However, thescholars are in agreementthat during a famine, no amputation would take place. As`Umarpracticedsuchparticularisation,no oneopposesthe consensus4.5 Nevertheless,the consensusis restricted by the condition that the person whostealswould not be ableto find food to eat.If he hassufficient rations andhe survives,hewill then be penalized.In spite of the ruling of giyäs, which requires amputationbecausethe text does not distinguish between the obligatory or non-obligatory nature ofamputation, scholars have said that it is not necessary, based on istihsän. Ibäd b.Shurahbil, narratesthe following anecdote:During a year of famine, hunger forced me to steal food, which I hid in my clothes. When the owner found out, he thrashedme and took me to the Prophet.The Prophet said: \"If he is uneducated,educatehim; and if he is starving, feed him.\" He then ordered the owner to return my clothes and gave me a container of food.46In the light of this hrrdith, Ibn Qudämahsaid that, as narratedfrom Ahmad Ibn Hanbal,if a needy person steals,his hand will not be amputatedduring the year of famine. It was also narratedby `Umar ibn Khattab that \"amputation will not take place during the year of famine\" and according to'Umar's practice, the penalty was avoided. 7 This is becausethe /add penalty was never carried out when there was doubt. Consequently,`Umar particularizedthe generaltext of the Qur'an becauseof the year of famine and avoidedthe cutting off of the handbasedon the conceptof istihsän. 4.1.3. Departure from the general rule of the existing law to an exceptional law: Exceptional istitu n is representedhere by the example of charitable endowment (wagf) made by someonementally defective (sash) who is under the protection of a asIbn Humam, \"Fath at-Qaä:r\", v: 4, p: 299; Khalläf, \"Masider\", p: 72; Ismäll, \"Ugrl, v: 2, p: 79. 46Abü Däwud, \"Sunan\", v: 3, pp: 426,427. 47Ibn Qudknah, \"Rawdat\",v: 10,pp: 288,289

Chapter Four 245guardian. This is basedon the istihsdn ruling which permits the mentally defective tomake such endowments regardless of whether or not they are under someone'sguardianship.It is basedon the benefits of the people becausepermitting it by way ofistihsän may encouragepeople to do charitable and good works. According to giyäs,however, a mentally defective personcannot make a charitable endowment(wagt) underprotection of a guardian.The charitableendowmentis a kind of donation (tabarru') and aperson under guardianshipis not eligible to give donations48 Istihsän departs from theestablishedruling andthusvalidatesthe donation. However, if the one under guardianshipdoesmake a charitable endowment,whatis the position? According to the general rule, which is giyäs, this donation is not valid if thementally defective (saflh) makes a donation. Al-Khussäf, a Hanafi jurist, observesthatthis donationmay causeharm to his self, andtherefore is not valid. However, Abi) Yüsuf is of the opinion that it is valid. However, all Hanafi scholars agreedthat if he donates somethingafter he leavesthe guardianship,it is valid 49 4.2. Isti/adn based on sanad in terms of the departure: Under this sub-heading,I am going to discuss the types of istihsän based on sand. We know that istihsän is invalid if it is not basedon dalil, in which caseit would be seenas acting accordingto one's own wishes and desires.Therefore, relating it to the evidence is vital, otherwiseit is not recognised.Juristsdivide istihsän into different types asI have mentionedearlier.aeZaydan, «Al-Wajiz' p: 232.49Ibn Huunm, \"Fath al-Qadir\", v: 6, p: 201.

Various Typesof Istitnan 246 We encounter,in general, three types of istihsän, which are based on explicitevidences,accordingto the Hanafisources.Theseare istitWin basedon athar (the Qur'änand the Sunnah); on ijmä ` (consensus);and on necessity (c(arürah). In addition, theyconsideredimplicit analogy as one of the types of istihsdn.50Beside this, we also comeacross kinds of istihsän based on the sayings of the Companions5, 1 on `urf; onmasla,nh; 52on raf al-t raj (avoiding hardship);53on precaution (ifxiyät); and on theconsiderationof currentneeds..a HanafiJuristshave also used the term athar (tradition)55more than the term nag(text), and include the sayingsof the Companions56in this term.57They usedto say, \"Weapprove istihsan on the ground of athar\" which is based on the sayings of theCompanions5. 85oMolla Jiwän, \"Sharp Nur aIAnwär\", v: 6, p: 164.51Sarakhsi,\"Ai-Mabsüc\", v: 4, pp: 93,130, v: 8, p: 140, v: 9, p: 121,v: 12, p: 129, v: 13,p: 99,137, v: 26,pp: 127,190.52Sarakhsi,\"AI-Mabsüt\", v: 3, p: 113, v: 4, p: 168,v: 10, pp: 126,127, v: 11, p: 5, v: 12, p: 62, v: 14, p:123, v: 15,p: 50, v: 17,p: 83, v: 23, p: 124.53Sarakhsi,\"Al-Mabsüt\", v: 10,pp: 36,75, v: 11,pp: 25,142,251, v: 12, p: 12,145, v: 14,p: 133,v: 15,p: 131, v: 19,p: 151,v: 23, p: 124.54AN Yüsuf, \"Al-Kharäj°', p: 189; Sarakhsi,\"Al-Mabsüt\", v: 9, p: 76, v: 11, pp: 27,88.55Athar literally meansthe remainsof somethingthe plural is äthär and uthür, See:lbn Manzar, \"Lisän al-'Arab\", v: 4, pp: 5-6; Al-Zäbidi, \"Täj al-`Arils min Jawähiral-Qämüs\", v: 10, pp: 12- 14,Firizabädi\"Qämus al-Muffl', pp: 435,436. In the scienceof i dith it is usedwith the samemeaningof khabar andtradition (? 2dith).Athar not only containsthe acta dicta, sayingsand tagrirs of the Prophet,but alsocontains akhbär which is relatedto the Companions.Somescholarshave namedtheir booksathar, e.g. asAl-Shaybäni s \"Al Athar\" which containsthe narrationsfrom the Prophet andthe Companions. AlsoTahawl called his book, \"Sharpal-Ma`ani athar\" which containsthe samej diths, al-Bayhäki(d.458/1066)also calledhis book \"Ma `rifah al-Sonn wa al-Athar\". See:Sahawi,Abü `Abd AllahMuhamad,\"Fathal-Mughis bi Shar/7[Alfiyat at-Madith Ii al-Irägiyyah\", edited by `Ali Husayn'All, Där al-Imätn al-Tabarl, 1992,v: 1, pp: 123-125;Jaläl al-Din `Abd al-RahmänSuyuti, \"Tadrib al-Rawl fi SharhtTagrb al-Räw?', editedby `Abd al-Wahhäb`Abd a1-Latif, Dar al-lhyä' al-Sunanal-Nabawiyyah,Beirut,1979, v: 1, pp: 184-185.56Sahaw7,\"Fat/7al-Mughith\", v: 1,pp: 124-125.57Bazdawi, \"Us37C'v, : `4a,lp-H: 5a,g1ä0iq, \"S,apd:r2a3l-4S;hKaarir`aamh\"aTsafiw; d`AdI1-W1',va:jT2i,',pp: :116837; J; Masosllya, \"Fu$ r', v: 4, p: 246,247; Hädi.rni, \"Majämi Husraw \"Mir'ät at-U 7l\", p: 336; Nasafi, \"Kashf', v: 2, pp: 290,296; Ibn Kamäl,\"Taghäyir al-Tangfh ft al-U97f', p: 192.59Sarakhsi,\"Ai-Mabsüt', v: 26, p: 127;AN Yüsuf, \"Al-Kharäf ', p: 178.

Chapter Four 247 As Shädbi shows,Mäliki scholarsalso divide istifzsäninto four types;59istihsänbasedon `urf (custom); on maýlaxh (benefit); on raf al-haraj and mashaqqah(avoidinghardship); and ijma' (consensus6)0 Comparing the Hanafi and Mälik viewpoints, we seethat they agreeon isti,isänwhich is based on custom (`urf), or on benefit (ma5lalxh). Khalläf adds that benefit(maýIaixsh) contains that which the Hanafis call necessity (ýkirürah), and which theMälikis refer to as avoidanceof hardship(raf al-faaraj). Departurefrom a ruling inferredby gryäsor from a generalruling or establishedruling to anotherruling on the ground ofcustom (`urj) or benefit (ma-4aizlh) which brings ease and avoids hardship is called isti/zsänby both schools6. 1 However, they disagreeasto what the evidenceis basedon, andwhether it is nass (text) or implicit analogy (giyäs khafi). However, to describe something as istihsän based on nag or implicit analogy does not make sense, since a ruling that is based on nass is established by nass (text) and giyäs too. Therefore, istihsän based on naffs is an exception. 2 Despite this disagreement,the scholars do not reject rulings that are inferred; their disagreementis purely academic. Consequently, we may consider isti/zsän based on sanad into five types: 1- Istihsän based on athar, which is the Qur'än, the Sunnah and the saying of the Companions. 2- Istifzsän based on ijmä` (consensus).3- Istiftän based on necessity59Shätibi, \"Ai-Muwäfagät\", v: 4, p: 208; Shätibi, \"Al-I`ti, 95m\",v: 2, p: 139.60The first three typesof Isti/zsänhavebeenmentionedin the book \"Al-I `titsäm\"v: 2, p: 139, and the lastone which is ijmä ` (consensus)is mentionedin the book of \"Al-Muwäfaq&', v: 4, p: 208.61Khalläf,\"Mac der\", p: 75.62Ibid.

Various Types of Istihsän 248(dzrurah) and the avoidanceof hardship (raf' al-laaräj). 4- Istihsdn basedon benefit orpublic good (ma.cla(i. h). 5- Istitudn based on custom (`urf).The Qur'an, the Sunnahandthe sayingof the Companionswill now be consideredin thecontext of textual evidence(nass).4.2.1Isti/aJn basedon athar: The meaningof isti?ndn basedon athar is the departurefrom the ruling of giyäsjäli (explicit analogy) to a ruling that is proved by nass which opposesthe ruling ofgiyäs.63The ruling of nass is considered as stronger evidence, whether it is from theQur'än or the Sunnahor from athar. The ruling of giyäs cannotcharge the opposition ofnass Considering many cases based on the general rulings and general texts usinganalogical reasoningis quite possible; however, it may opposethe Lawgiver's purposesand thus run counterto the public good64 There is no dispute among the scholars that mutawatir65 and mashhür hadith(well-known fv4Tth}6 narrated from the Prophet are preferred over giyäs.67 Isolated traditions (khabar al-wähid) arealso seenasa valid sourceof law 68However, in the case63Bazdawi, \"Kashf', v: 4, p: 5.6' Sarakhsi,\"U9il\", v: 2, p: 202.65Mutawatir: literally meanscontinuouslyrecurrent.In the presentcontext, it meansa report by anindefinite numberof peoplerelatedin sucha way asto precledethe possibility of their agreementtoperpetuatea lie. Sucha possibility is inconceivableowing to their large number, diversity of residence,andreliability. See:Karnali,\"Principles\", p: 68; Khudarl, \"U$W', p: 214; Aghnides Nicolas P. \"MuhammadanTheories of Finance\", New York, Longman Green&Co. 1916,reprint, Lahore: Premier Book House,1957, p'. 40.66Mashhir: is definedas a hadith which is originally reported by one, two or more Companionsfrom theProphet or from anotherCompanionbut which haslater becomewell-known and transmittedby anindefinite numberof people.See:Aghnides, \"MuhammedanTheories\",p: 44; Abü Zahrah, \"UXl\", p: 84.67SarakhST\",U 21\",v: 1, p: 282; Bazdawl, Vgl\", v: 2, pp: 360-369.68SarakhsI,\"Until\", v: 1, p: 321; Nasafl, \"Kashf, v: 2, p: 14; Bazdawl, \"USW', v: 2, p: 370.

ChapterFour 249of a dispute between a khabar al-wäfiid (isolated tradition) and analogy, which is asubject of disagreement among the scholars, the former is usually preferable. 9 However, Zargä criticises the kind of istilzsänwhich is basedon naV and athar,saying that isti/zsänwhich is basedon naV and ijmä ` could not be called istihsänbecausetheserulings are alreadybasedon nassand ijmä and have nothing to do with isti,isän orgiyäs. He says that istihsän is the departurefrom analogy due to the non-existenceofwritten legal rulings. Of course, the Qur'an, the Sunnah and ijmä ` have priority overgiyäs (analogy).Therefore, neither giyäs nor istihsän is neededand it is incorrect to callthis istihsänbecauseit causesconfusion70 DespiteZargä's comments,his view seemserroneousbecausegiyäs would not beapprovedwith the existenceof nassand ijmä `; only when nassand ijrnä ` are absentmaygiyas or general rulings be applied. 1 In fact, jurists who approved istihsän used thestatement \"We left this giyäs becauseof athar\"; \"If athar is not existent we would approveit accordingto presentgiyäs.\" 4.2.1.1Istilaän basedon the Qur'an: This kind of isti, sänis illustratedby the following examples: a- A highway robber repents after stealing goods and after a while recompenses the owner of the goods.According to giyds,he must be prosecutedbecauseof his original crime. This case refers to a thief and a highway robber; and on the basis of hiräbah (highway robbery), punishmentis obligatory. However, istihsän departsfrom this and no longer considersit highway robbery after repentance.Repentance(tawbah) releasesthe69Preferring an Isolatedtradition (khabar al-wähid), which is narratedby a just andhonestnarrator,togiyas (analogy)is also considereda kind of istihsän and thereforeit is disputable. ° Zargä, \"AI-Madkhal\", v: 1, pp: 85-86.71Taftazäni, \"Al-Talwih\" v: 2, pp: 163-164.

Various Types of Istiluan 250guilty party from the chargeof highway robbery and dropsthe punishmentof iaadd,basedon istihsän, as indicated in the Qur'an: `Except for those who return (repenting) beforeyou overcome (i.e. apprehend)them. And know that God is forgiving and Merciful\"72.This verse necessitatesthe departure from the ruling of giyäs and the dropping of thefiiadd.An exampleis that of Harithibn Zayd. He was a highway robber who later repentedand was not executed,even though he had committed the crime. `Ali ibn Abi Taubapprovedthe departurefrom the ruling of giyäs basedon the abovementionednag73 b- An elderly personis incapableof performing the obligatory fast. He is allowedinstead to pay a sum of money for each day of the missed obligatory fast, based onistihsän. However, he is not allowed to do this according to giyäs becausethere is noconnectionor similarity betweenfasting andthe feeding of poor people. Despitethe giyäsruling, God has shown leniency to those who are incapable of fasting: \"So whoeveramong you is ill or on a journey (during them) then an equal number of days (arc to bemade up). And upon those who are able (to fast, but with hardship) a ransom (assubstitute) of feeding a poor person (each day).997T4herefore, it is allowed basedon thetextual nass75 c- A Muslim does not have to pay upkeep to his father if the latter is a non-Muslim, accordingto analogybasedon the fact that they do not inherit from eachother after death.However, Hanafijurists basetheir judgment on the verse \"Accompany themin this world with appropriate kindness\"76and approve istihrän against the ruling of giyäs, thus departingfrom the establishedruling to one which saysthat a Muslim has to 72Qur'an: 5/34 73SarakhsT\",Al-Mabsa ', v: 9, p: 204. 74Qur'dn: 2/184. TSMarghinäiü, \"Al-Hidäyah\", v: 1, p: 127. 76Qur'dn: 31/15.

Chapter Four 251pay upkeepto his poor elderly parentswho are non-Muslims. In addition, Hanafijuristsbasetheir judgementson the following rational reason,namely that rights of upkeepandfinancial maintenancebetween parents and a child are a natural matter of birth rights(wilädah), andthat leaving parentsin poverty is anunkind act. 74.2.1.2Isti jaän basedon the Sunnah: This kind of isti/zsänis illustratedby the following examples: a- Eating and drinking in Ramadan by mistake nullifies the fast and requiresexpiation, according to giyäs. However, Abü Hanifah and his disciples observe thataccording to istihsän,eating or drinking by mistake do not nullify the fast78 Eating and drinking by mistake is comparedto cutting short the prayersby mistake,which doesnot nullify the prayer.79According to istihsän, the eating or drinking is not purposeful and thus doesnot nullify the fast. Therefore,istihsän is validated and preferredover the ruling of giyäs. It is based on nafs for the Prophet says \"Whoever eats or drinks by mistakes, let him complete his fasting because it is a gift from God. \" And: \"If a person who is fasting eats or drinks by mistake, it is a rizq which God feeds him with and no compensation is required\", similarly \"Whoever breaks his fast by mistake in the month of Ramackin is neither required to repeat the fast nor to pay karah (penance, expiation). \"\"' Consequently, giyäs is departed from on the grounds of naff (Padith), and isti/hsän is approved. Abü Hanifah says: \"I would have used giyäs if narrations had not been found\". 81 Naturally, eating or drinking by mistake is beyond one's power. Also a flyYavuz, \"Ictihad Felsefesi\"',pp: 313-314; Sarakhsi,\"Al-Mabsüt \", v: 5, p: 206.'B Jg5ä$, \"Fussel\"v: 4, p: 116;Sarakhsi,\"Al-Mabsüt\", v: 3, p: 65.79Ibn Rushd,\"Bidäyat al Mujtahid\" v: 1, p: 303.80Shawkani,\"Nay! al-Awl \", v: 4, p: 231.81K4 äff, `Badäi` a!-,Sanäi\"', v: 2, p: 90; Dihlawi, \",%. at Allah al-Bälighah\", v: 1, p: 161; Shaibäni,\"A! -Njah\" v: 1, p: 392; Haytami, \"A!-/hyät al-/7isän\", p: 104.

Various Types of Istilvan 252entering the mouth is considered the same as eating or drinking by mistake. Abt Hanifahsays that such incidents are beyond one's control whilst fasting, and dust entering aperson's mouth whilst speaking.82 b- Forward sale (salam), for example, is invalid becauseof failing to satisfy oneof the requirements of a valid sale, which is that the subject matter of the sale must bephysically present at the time of contract. According to giyäs forward sale is invalid. TheProphet was asked by one of the Companions, Hakim b. Hizäm, whether he could sell acommodity prior to purchasing it himself. The Prophet replied: \"sell not what is not withyou\". 83Despite the fact that giyas rejects forward sale, the is th approves salam with the following statement: \"Whoever concludes salam, let him do so in a specified measure, specified weight and specified period of time. \"84 Based on this liadith, Hanafi jurists validated forward sale (salam) according to istihsän as 4.2.1.3 Isti/tsan based on athar: The meaningof athar, asI have explained earlier, refers to the acta and dicta of the Prophet and the Companions8. 6Provided that there was no disagreementconcerning it, a Companion's opinion was acceptableby Hanafi jurists as a kind of implicit ijmä' (ijmä ` suküt» that waspreferredto giyäs.S7 Istihsän basedon athar will be illustrated by the following examples;a- A judge, ruler or political authority who witnesseswitness a crime of theft, adultery or the drinking of wine, may not judge or punish on the basis of his own witnessing and must wait until82Saraldisi,\"Al-Mabsü \" v: 4, p: 93.83AN Däwüd, \"Buyü \"', 70.94BukhärT,\",Sa/1 t', iii, 243, nth no: 441; Muslim, \"Muscigät\", 25; Abü Däw id \"Buyü\"', 57.85Nasafi, \"Kash, ', v: 2, p: 291; Sarakhsi,\"U i1\", v: 2, p: 203.86SuyütT,`T'adribal-Rawr ' v: 1,pp: 184-18; Sahawi,\"Fath al-Mughifh\" v: 1,pp: 123-125.87Nasafi, \"Kashf', v: 2, p: 177; Ibn Humäm,\"Tahrir\", v: 3, p: 133; An$äri, \"Fawdtia1al-Rahamüf', v: 2, p:186.

Chapter Four 253legal evidences are established. This kind of istihrän is based on a tradition (athar)reported from Abü Bakr and `Umar. However, according to giyas they are able to executethe judgement on the basis of their personal knowledge and witnessing. 88b- If a personis unconsciousandthe time for prayer passes,accordingto giyäs the personshould not have to make up the prayer later. However, Hanafijurists departedfrom theruling of giyäs to the ruling of isti, sän based on the behaviour of `Ammär, one of theCompanions.He was once unconsciousfor a whole day, then woke up and prayed theprayers he had missed.Therefore,the Hanafisruled that whoever missestheir prayer in such acircumstanceshouldmakeup that prayer.89c- A group of people attack a person andkill him; accordingto giyäs, retaliation (ga,Fäs) is not required against the whole group. The chief condition in retaliation is equality. Killing more than one person is consideredas transgressionand oppression.However, Hanafijurists departedfrom the ruling of giyäs basedon the practice of the Caliph `Umar. It is narratedthat sevenpeoplehad killed a personduring an attack. Umar was reported to have said \"I would have ordered retaliation against the whole of the population of San'ä if they hadjoined in the killing of oneperson\".90 4.2.2Istifisdn basedon consensus(ijma`): Ijmä` 91is the unanimousagreementof the mujtahidün of the Muslim community of any period following the demiseof the ProphetMuhammadon a religious issue. Istihsänbasedon ijmä' is illustrated hereby the following examples:89AN Yüsuf, \"Al-Kharäf\", p: 178; Hassan,\"The Early\" p: 146.89JaäS, \"Fu$cl\", v: 3, p: 361.90Mälik, \"Muwat0' \"', v: 2, p: 871; Bayhägi, \"Sunan\", v: 8, pp: 40-41; Ibn Abi Shaybah,\"Al-Musannaf,9v9:21F$5ao, dprr:m4ao1l-r0Se,h4aa2bn9o`;auShtij,am\"rAal.k-'ThsaseTwe\",iOAnll-tl'hM, eaIibin,stpüro:f\"4d,1u;cvBt:ou2rk6yhC, aphr:ai,1p\"2Kt7ea;rsZ.1afy',lävi,:\"iNii,aps:b2a2l-7R; äA'myaidhi\", v: 4, p: 353. 196; \"Ihkä,n\", I, p:GhazWT\",Mustaf' I, p: 110;Qarafr, \"Sharp', p: 141.

Various Types of Istiizsän 254a- Hanafi scholarsmainly illustrate this kind of istihsän by the concept of isticnä' (thecontract for manufacturingof goods)93 For example, if someoneplaces an order with acraftsmanfor certain goodsto be made at a price which is determinedat the time of thecontract, accordingto the generalrule of shari`ah, it is invalid. This is becausethe objectof the contract doesnot exist at the time the order was made.Making a transactionfor anon-existentobject is invalid accordingto the Prophet'sprohibition, \"Sell not what is notwith you\". 4 However, the danafis use istifsdn and depart from the establishedruling of giydson the groundsof the consensusof the Companions.During the time of the Companions,this customary transaction was prevalent and no one scholar rejected it. Dabbüsi (d.430/1039) says:\"They depart from the ruling of giyäs becauseof consensuswhich is based on the customary transactions, and it is accepted in, and uncontested by, the Muslim community.\"95A similar point hasbeenmadeby Sarakhsi:\"Qiyäs doesnot deem this contract valid, yet we left the ruling of giyäs on the grounds that the transaction in questionhasbeencustomarysince the time of the Prophet\".6 Peoplewere implementing this transaction, and none of the scholars rejected it; custom is a factor that must be considered in social and economic issues such as this. Following custom reflects the Prophetic Tradition: \"What the Muslims deemto be good is good in the sight of God\"9793Isti91Q'. This is the giving of anorder to a laboureror artisanto make a definite article with agreementto 'definite price for that article when made. See:$Ileh A. Nabil, \"Unlawfulpay a CambridgeUniversity Press,1986,p: 61. gain and legitimate profit inIslamic jaw',94Abo Däwüd, \"Buyü \"', 70; TahawT,\"Shares'v: 4, pp: 38,40.95Nasafi, \"Kashj', v: 2, p: 292; Ibn Malak, \"Shari1', p: 813.96Sarakhsi,\"U4W', v: 2, p: 203.97Sha ibi, \"1'tisäm\", v: 2, p: 319; Amid!, \"Ilicäm\", v: 1, p: 214; Ibn Hanbal,\"Al-Musnad\", v: 1, p: 379;Hin, \"Mustadrak\", v: 3, p: 83; Tabaräni\"Al-M `jam\", v: 4, p: 58.

Chapter Four 255and \"My community will not agreeon an error. When you seedisagreement,you shouldfollow the overwhelmingmajority.s98b- According to Sarakhsi,if a husbandand wife apostatizetogether, they must separate,accordingto giyäs.This is becausethe situation of apostasyis an obstaclefor performingnikäh (marriage) in the first place; and secondly, it hinders the continuance of nikäh.However, Abü Hanifahandhis disciples,Abü Yüsuf and Shaibäni,departfrom the rulingof giyäs becauseof the consensusof the Companions,based on the case of the BanüHanifah. It is known that the Banü Hanifah tribe had apostatizedin order not to payzakät.99Becauseof this, Aba Bakr declaredwar on them, while inviting them to repent.After their repentance,the Caliph did not ask them to renew their marriages(nikäh), andno other Companionsrequired it either.100The example indicates the consensus of the Companions with regard to this case. In fact,not all the Companions gave their opinion on this case, but expressed their tacit approvalby not rejecting Abn Bakr's decision. That is why this consensus is considered as a kindof tacit consensus (ijma' suküti)lol Hanafi Jurists apply istihsän based on consensuswithout indicating that it is a kind of tacit ijmä `.c- A man dressed in ihram102points out an animal to another man, who may or may notbe dressed in ilrram. The second man then slaughters that animal. Given that to slaughter an animal while in the state of ihram is forbidden, who is to be punished: the man who pointed out the animal in the first place, or the one who slaughtered it? According to the rulings of giyas, punishment is not required. However, punishment is required according98Ibn Mäjah,\"Sunan\",in abwäba1fitan, 8;Hakim,\"Mustadrak\"v: 1,pp: NO, 201.99Bukhäri, \"Zakin\", 1; Muslim, 8.100Sarakhsi,\"Al-Mabsut', v: 5, p: 49.101For moreaboutacitconsensus,eetheIntroductionChapter.102ihram: theritualgarmenwt ornfor tnj .

Various Types of Istihsän 256to the consensusof the Companions.Istilzrän departshere from the ruling of giyäs basedon the Companions' agreement. Someone asked Ibn `Umar: \"I pointed out a deer whilewe were in ihram, and then my friend killed the deer. What should I do?\" `Umar thenasked `Abd al-Rahmänibn Awf for his opinion. The latter replied that a sheepmust besacrificed as expiation. 'Umar said: \"I agreewith the opinion\". A similar casehas beenreportedfrom `Ali andIbn Abbäs.1034.2.3 Isti van based on necessity (V rürah) and the avoidance of hardship (raf al-Oardi): It is important to point out that Hanafi scholars use the term `necessity' whereMäliki scholarsusethe term `avoidinghardship'.104In order to understandthe concept of necessity, I shall first explore the meanings of cirürah. Linguistically, the word \"chrürah\" hasan oppositemeaningto the word ma,slaIiah (benefit). It is derived from the root pLr-r, one of the derivatives of which is chrar or `harm'. Früzabädi (d.81711414)explains \"duar'' as `straits', and then mentions the words ic'trär (harming) and pzrürah (necessity),which also are included in the meaning of i tiyäj (need, exigency, necessity) and muhtäj (needing, necessitous)I.OSThe word \"upWrra\" also appearsin the Qur'an with the meaning of `forced'106\".But whoever is forced (by necessity),neither desiring it nor transgressing(its limit), then indeed, your Lord is Forgiving andMerciful. s107103Sarakhsi, \"Al-Mabsüc', v: 4, p: 79.104Shätibi, \"A1-Muwäfagät', v: 4, p: 208; Shätibi, \"A1-1`tiscim',v: 2, p: 139.105Ftrüzabä&, \"Qcnnüs\",p: 550-106Ibn Manzür, \"Lisme\", v: 4, p: 484.107Qur'än: 6/145; also see:21173;16/ 115; 5/3.

Chapter Four 257 According to Jassas,¢arürah means necessity, and he interprets its meaningswhich come in the verse \"He has explained in detail to you what He has forbidden you,excepting that to which you are compelled. \"108The permissibility alluded to in this versemay be adapted to any kind of compulsion during danger. The necessity in that context isbecause it may cause danger to part of the body. It covers circumstances such as when astarving person cannot find anything to eat except a dead body, or when a person isforced to eat a dead body even though there is edible food present, provided that eatingthe edible food is riskier than eating the dead body. 109 HanceScholarsconsiderthe conceptof ikräh11°(coercion) in the field of darürahas a necessity too. If for example someone is threatened to be killed or maimed in orderto make him to eat or drink something unlawful, then in that context it becomes necessaryto carry out their commands.\" However, if the person is threatened with jailing for life or beating, then he is not allowed to commit unlawful things; the condition of `necessity' is that it be life-threatening. To commit unlawful acts in order to avoid non-life108Qur'an: 6/119.109Jassäs,\"Ahkäm\", v: 1,pp: 156,159.1LOlkräh: at-ikräh meansforcing someoneto do or saysomethingagainsthis will. See:Nyazee,\"Theoriescohf oIsiclaem, firceeLawwil\"lsp. :T1h0e0ju.Trihseticcosecrhcoeldaprsehrsaovneidsecfainlleeddi\"tmauskforallohw\".sI:ts\"Fooprpcoinsgitesiosmale-Ibkohdtiyytäor which means somethingwhichhe had never agreedto do, andneverwill desireto do while he had free choice.\" See:Taftazäni, \"TalwT\",tvh:r2e,apte: n1s9:a6;tahlrseoastweehiinch\"KthaeshcfoaelrAcesrddpre\"r:so\"tnhies personthreateningis really frightened of.\" capableof that thing which he See:v: 3, p: 1503.If this coercionaccompaniesthreatsto kill or destroysomeparts of the body, then it is called \"ikräh muljr'.Tortures by robbersor oppressorswould constitute'ikräh muljT'. At such instances,it becomesnecessaryto carry out their commands.Coercionthroughjailing or beatingis called light coercion.Anyone who isfaced with light coercionis not permitted to bow to the oppressor'scommands.Thus ikräh is divided in totwo types a: ikräh mulji: someonethreatsto kill or destroysomeparts of the body or deliver a strongblow,b: ikräh ghairi mulji: someonemakesa threatlower than that, for examplejailing or beating.There aresomeconditions: l- The personwho threatensmust be capableof carrying out the threat andmust be seriousin his in threat.2- The threatenedpersonhasoverpowering assumptionto go aheadwiththe action. 3- Coercionmust involve the threat to kill or destroysomeparts of the body. 4- The coercionmust be a serioushazard.5- It must be directedto the five essentialvaluesof human life, which arereligion, life, intellect, lineage,and property. 6- ikrah must be unjust, otherwise it is not consideredasanikräh. See:Saymen,\"Borclar Hukuku\", v: 1/1, p: 276; Bukhäri, \"Kashf', v: 4, p: 1502;Ibn al-Qudämah\"Al-Mughnr', v: 7, p: 120;Shiräzi, \"Al-Muhazzab\" v: 2, p: 83.111Bukhäri, \"Kashj' v: 4, p: 398.

Various Types of Istilzrän 258threatening consequencesis not accepted1. 12Thesekinds of ikrdh (coercion) are calledlight coercion. However, if a beatingwith lasheswere to reach to limit that would be unbearable,then the condition of necessity(dirürah) is fulfilled. The pain threshold of individualsdiffer andit is at the discretionof the personwho is in that situation.113 If an act reachesthe level of ckirürah (necessity), it naturally becomeslawful.This is enshrinedin fiqh maxim: \"Necessity renders prohibited things permissible.\"' 14Ansäri (d.1180/1767)indicates that 4YUrfirahmust reach the level of necessitybefore itbecomesvalid.115According to `Ali Hayd5rAfandi (d.1936) Oarürahrefers to a situationwhich involves doing something by force or eating things that are forbidden by thereligion. 116Consequently,phrürah is generally concernedwith fear of destruction andthreat to one of the five essentialvalues of human life, namely: religion, life, intellect,lineage andproperty\"7, which must be protectedfrom harm.lls The conceptof a(2riirahis closely related to legal conceptssuch as ihtiyäj (need), ¢arar (harm), raf al-/iiraj (avoiding hardship), mashaqqah (hardship, difficulty), and `umicmal-balwä (generalcalamities).Explanation of theseterms now follows. 4.2.3.1I{tiyäj (need): Technically the term ihtiyäj (need)here means\"a situation of facing difficulty andhardship, suchaswhen a hungry person cannot find food to eat.\" In the \"Fawäti#' it is describedas: \"a circumstancewhich does not reach the level of112BukhWi, \"Kashf' v: 4, p: 39813 Saraksi,\"AI-Mabsüc', v: 24, pp: 46,48,49-50.114Al-Majallah al-Ahkäm al-Adliyyah (the Ottomancourts manual(IIanafi): clause:21; Ibn Nujäm, \"AI-Ashbäh\", p: 85.lls Ansäd, \"Fawäti#', v: 2, p: 262.116`Ali Fiaydar,\"Sharhal-Qawaid', p: 76.117Shä ibi, \"Al-Muwafagät\", v: 1, p: 476.118Ibn Mubaak, \"Nazariyyät al-Qarürah\" p: 28.

ChapterFour 259darürah. \"119Zarkä defines it as: \"A case which necessitates ease in order to achieve agoal\". Need (ihtiyäj) is a less significant than pbrürah. The reason for this is that whilstrulings approved by need are continual, they are only temporarily accepted in the case of0irürah. 120 Needsare divided into two types: a- Generalneeds,both of the individual and ofthe whole Muslim community (Ummah), irrespective of ethnic group or classdistinctions. Examplesare:salam(forward sale),bay` wa shirä' (trading), ijära (leasing),wagyyah (will, testament)and so on. b- Specific needs,namely those of people who livein a particular country, or of a member of a particular occupational group. Otherexamples include the use of gold teeth becauseof illness; the wearing of silk; and adoctor examiningthe usually clothedparts of a woman's body.121The conceptof cfirürahbecamea law enshrinedin the Ottoman court manual: \"Any need,whether of a public orprivate nature,is so dealtwith asto meetthe exigenciesof the case\".122 4.2.3.2 ¢zrar (harm): This term is similar to cfirürah; however, it is used more comprehensively. Every pbrarah may be a ckzrar, but the opposite is not the case. Sarakhsi says that irürah has a close similarity with eirar, as the pkirarah is defined as \"Having fear that one may lose life or limb through lack of food. \" In addition, many such cases are based on the principle of raf al-piirar (avoiding the harm) to approve istihsan. l23119A145r7,\"Fawätil1', v: 2, p: 262.120Ahmad Zarkä (d. 1938),\"Sharp Qawäid al-Fighiyyah\", Beirut, 1983,p: 155.I1b2n1SNuuyjüä1y,m\",A\"tA-Al-sAhsbhäbhd\"h,\"vp: p1:,9p1: -19921.; Zarkä, \"Sharp Qawäid\" pp: 155-158; Ibn Humayd, pp: 175-182,122Al-Majallah al-Ahkäm: clause:32.123Sarakhsi,\"Al-Mabsü \", v: 11,p: 141, v: 12,pp: 62,139, v: 14, p: 133, v: 23, pp: 45-47.

Various Types of Istifzrän 260 Suyt4I consideredthe term darürah together with the term of (Eirar and pointedout that the fiqh maxim \"Necessity renders prohibited things permissibles124 was.derivedfrom the principle of avoidance of harm. 125Actually, all these maxims are derived fromthe Prophet's Judith: \"Harm must neither be inflicted nor reciprocated\". 126As we sec,chrar and Oariirah are virtually the same, and are involved in many cases, such asreturning goods due to a fault'27 and most contracts involving freedom of choice(Miyär). 128However there is some disagreement as to whether chrar and 4iarfirah coversissues such as fraud, bankruptcy of the buyer, hijr (limitation of someone's legalcompetence), shufah (right of pre-emption), retaliation (qa0 ), 129 al-hudüd(punishments) or kaffardt (expiation). 1304.2.3.3 Rafal-#araj (avoiding hardship): Linguistically the term \" 12raf' means tight, close, straitened, narrow, sin,prohibition, narrowness, and critical point. Beside those meanings, it is also means`forest'. The mostprevalentof all thesemeaningsis narrownessand closeness'.31 Technically, it is defined as\"A thing which causesimmoderateharm to life or anyparts of the body or properties, at present or in the future.\"132Therefore, \"avoiding\"'° Al-Majallah: clause:21.'25Suyüti, \"Al-Ashbäh\", v: 1,p: 165.'26Ibn Mäjah, \"Sunan\", v: 2, p: 784, nth No: 2340.'27Returning the goodsis only for the reasonof avoiding harm ((Yarar)for the customer.Mps1er2ael8lTgvebehrinea'lt'r,goeopoapnDlrooeäfpsrfstariieool-ennIsdathionllämdtt,choKhefaeycradhatooicnihncgieo,.TPtishbateeloiscfrtaoeavmenod,eidos1meh9pa9oar4fmr,acvhta:eont2ilid,lcpteot:his2pe7rybo2act.eshecotdoposeneo\"tp.hSleeeP'ser:hoFopanhzoel uta'srl-aKsnaadyriipmnrgo,\"p\"MeTrihstieheksbi,nuaynaedlr-taond129SeeQur'än: 2/179: \"And there is (a saving of) life for you in (A1-Qac $) the law of equality inpunishment,o men of understanding,that you may becomeAI-Muttaqün ( the pious).\"130SuyüG,\"A1Ashby h\", v: 1, p: 168.131Ibn Manzür, \"ii sin\", v: 2, pp: 233-235;Firüzabädi, \"Al-Qiunüs\", pp: 234-235; Zabidi, '749' v: 5, pp:473-476.132Ibn Humayd \"Raf al-I rfif', p: 47

Chapter Four 261hardship\" is the effort madeto keep away from all kinds of difficulties in the first place,or to try to makeit easyandmitigate it, andif it happens,then to seekto halt it.133 In the Hanafisources,the term was formulated in order to make things easierandthus facilitate humanneeds1. 34In addition to the term \"raf al-hiaraf, the terms \"daf' al-laraf', \"wad' al-/araf', and \"naf'y al-parat 135 are also used. The principle of \"avoiding hardship\" is especially consideredby the Lawgiver asa purposeof the generallaw when rulings are established.Hence the verse: \"God intendsfor you easeand doesnot intend for you hardship\"136Here the Lawgiver wishesto makethings easyandto avoid imposing hardshipson peopleand thus doesnot obligate anyonemore thanhis or her capacity:\"No one is chargedwith more than his capacitys137 Accordingly, the Prophet enjoined the Community (Ummah) to pursue easeandavoid hardship asfar aspossible,asseenin his saying, \"The best of religion is that whichbrings ease\".138Suyüh and manyjurists havetaken this principle into considerationbasedon the Shari `s purposes and have then applied it successfully, in accordance with themaxim \"Latitude should be afforded in the case of difficulty, that is to say, upon theappearance of hardship in any particular matter, latitude and indulgence must beshown\". 139Difficulty thus requires ease that is to say in times of hardship, considerationmust be shown, and cases which were not permissible by analogy must then bepermitted. 140133 Ibid. p: 48.134For more examplessee:SarakhsT\",Al-Mabsit', v: 11,pp: 25,159,251; v: 25, pp: 131,160135BAhusayn,\"Raf al-ffu4J\", p: 6.136Qur'än: 2/185; 4/28; 5/67; 30/30.J37Qur'an: 2/233. alsosee:2/286; 5/6; 7/42; 22/78; 24/61; 33/37138Ibn Hanbal, \"Al-Musnad', v: 3, p: 582, hadith no: 15942.139SuyüyT,\"Al-Ashbäh\", p: 157;Zarka, \"Sharhal-Qawdid', p: 111; Al-Majallah: clause: 18.140'Ali Haydar,\"Sharp al-Qawäid', p: 72.

Various Types of Isti/hsän 262 Suchpermissionis only allowed during a time of hardship.It is disallowed whenthe difficulties no longer exist. The original ruling is then restored as soon as theextraordinary situation finishes. This is in accordance with the maxim, \"When aprohibition is removed, the thing to which such prohibition attaches reverts to its formerstatus of legality. \"14' Many casesof Islamic jurisprudence,such as the transfer of debts and loans, arederived from this principle; the latitude andindulgenceshownby Islamic scholarsin theirrulings areall basedon this rule.142 4.2.3.4Mashaqqah (hardship): The dictionary definition of \"al-mashaqqah\" is \"hardship, difficulty, trouble,discomfort, inconvenience\".143In its technical sense,it became a very important norm(gäidah) in Islamic law as the basis of many shayi rulings. This norm is alluded to in the maxim, 'Difficulty begets facility\"144.Commenting on this maxim, Ali Haydar Afandi says, \"difficulty is the causeof facility and in time of hardship consideration must be shown; in anotherwords, it is necessaryto make easein the time of hardship.\"145It is basedoriginally on the verses:\"God intendsfor your ease,andHe doesnot want to make things difficult for youi146, and\"The best of religion is that which brings ease\".1471417a.,rkä,\"Sharhal-Qawäid' 17, .p: 111; `Ali Ilaydar, \"Sharhal-Qawäid\", p: 72; Al-Majallah: clause:24.142See:Al-Majallab: clause143Ibn Manzir, `Zisän\", v: 10,pp: 181-184;FirozabAdi,\"AI-Qämüs\", p: 1159;Zäbidi, \"Täjf°', v: 25, pp:511-512.144Al-MajallalL clause: 17.145Ali Fiaydar,\"Durar al-/ kkam\", p: 70.146Qur'dn: 2/185 andsee:22) 78.147Ibn Hanbal,\"Al-Musnad', 3/582, i. idith no: 15942; and the similar meaningssee:ibid, 5/314, hr dithno: 22354; ibid: 6/130, fxrdith no: 24908; TabarUni,\"Al-Awsat', 1/300-301,PadFthno: 1006;Bukhäri, \"Al-Wup4\", 1/386,nth no: 220; AN Däwüd, \"Al-Tahärah\", 1/101,fkudth no: 380; ibid, \"A171m\", 1/196,ftzdlth: 69; Muslim, \"Al-Jihdd', 3/1359, faadith8/1734.

Chapter Four 263 Suyüi suggeststhat all easeandlatitude in Islamic law canbe linked to this norm.The situations in which this principle is involved include such as travelling, illness,oblivion (forgetfulness), illiteracy (ignorance), general calamity ('umum al-balwä) anddeficiency (nagc).148 Not every difficulty or hardshipis consideredas a reasonfor leniency. Therefore,mashaqqah (hardship) is divided into different types: Shäibi considers mashaqqah ashaving two main categories; a- genuine hardships, b- imaginary hardships. 149Suyüii alsodivides it into two types, albeit slightly differently. First, he says there are hardshipswhich come from `ibädät (worship) itself. Examples of these include: making minor ormajor ablutions with cold water; fasting on long hot days; enduring long journeys to hajj;jihad; and the hardship of punishments such as the stoning of adulterers and thepunishing of murderers. Such hardships are seen as an inextricable part of these acts ofworship and obedience, and cannot be removed. 150 However, the permissibility of tayammumis1 because of fear of possible illness from taking ablutions with very cold water, is an exception. 152 Secondly, he considershardships which do not come from `ibddät (worship); thesehe divides into three: 1- Fear of disasteror loss of life or limb. 2- Insignificant hardships. Examples might include slight headaches,for example, or nausea. Such difficulties are insignificant and cannot be cited as a reason for the AsahemSaudyüZa, r\"kAäl-(dA.s1h9b3i8h)\",,\"Svh: a1r,ppapl:-Q15a8w-d1i6d2',;Ibpnp:N1u0ja5y-1m0,9\".Al-Ashbäh\", pp: 75-78; for more on this see: 149Shä ibi, \"Al-Muwdfagäe',, in Turkish translation,\"Islämi flimler Metodolojisi\"', by Mehmet Erdogan, iz yaymcdik, Istanbul 1999,v: 1, p: 336. 150Suyütl, \"Al-Ashbäh\", v: 1, p:162;Ibn Nujaym, \"Al-Ashbäh\", p:82; Zarkä, \"Shark al-Qawäid', p: 105; Jum`a\"Rarf`al-/hrd ', pp: 35-36. M Tayammum: to washwith cleansandor earthwhere water is unavailable. 152Suyüti, \"Al-Ashbäh\", v: 1, p:162.

Various Types of Istilzrän 264relaxation of laws. Gaining the benefits of worship is more important than repelling thesekinds of difficulty which are relatively unimportant.3- Intermediatehardships.For example,a sick personfasts in Ramacn and worries thatthe fast may delay his recovery. Under such circumstances,the person is allowed todiscontinuethe fast. Similarly, someonefor whom water may be dangerousis allowed tomake tayammumeven when water is available.153This third categoryof hardship is verydifficult to quantify, and so jurists tend to judge each case in the light of the criteriapertaining to the first two categoriesalone.1544.2.3.5 The Conditions of thrürah (necessity): To be valid, darürah(necessity)must fulfil certain conditions. 1- There must be absolutely no doubt as to the existence of darüra& or to the impossibility of escaping from the situation which invokes the principle without recourse to a change of ruling. The reason for invoking this principle must be a situation which is life threatening, or which jeopardizes the health or property of an individual. lss This concept is clearly alluded to in the Majallah in the words \"No weight is attached to mere is6 supposition\". 2- The compelled person must consider the general purposesof the lawgiver (Slow) while acting on something.The five essentialshari`ah values, which are religion, life, intellect, lineage,andproperty, must be given protection.'57'53Ibn Nujäym, \"AI-Ashbäh\", pp: 82-83.AsaZuhayli, \"Nazariyyät\", p: 202, for more on this see:Ibn Mubärak, \"Nazariyydt al-Airürah\", pp: 51-59;Ibn Humayd, \"Raf al-I hra ', pp: 33-41.155ZuhaylT,\"krah\", p:69; Ibn Mubarak, \"l k rürah\" p: 312.156Al-Majallah: clause:74.151Zuhayli,ibid,p: 70;Ibn Mubärak,ibid,p: 305.

Chapter Four 2653- Avoiding a situation of d2rürah must not lead to greaterevil or harm. In other words,doing somethingprohibited out of necessityshould not bring about a worse situation thanthe original one-15J8uristshave addedto the maxim \"Necessity rendersprohibited thingspermissiblei159the caveatthat the casefor Oarürahhasto be a compelling one. This condition is basedon the principle of choosing the lesser evil. (ahwan al-sharr). Obviously, if there aretwo benefits to choosefrom, the greaterand more generalgood is preferredover the minor and specific one.160However, if there is a benefit and aharm; then first the harm must be removed, and then the benefit pursned.The Lawgivergives more attention to the avoidance of the prohibited than implementation of theobligatory.161 An example of choice between evils is as follows. Consider three prohibited things; kufr (unbelief); gatl (murder); and zinä (adultery), all of which are forbidden in Islamic law. 162However, if someone is forced to deny his belief, he will be forgiven as long as he keeps his belief in his heart. To force others, on the pain of death, to commit murder is prohibited. If such coercion actually leads to murder, giAY will not be exacted from the killer, but from the one who forced him to kill. And similarly, if someone is coerced into committing adultery, he or she will not be punished by law, despite the fact that the law abhors such a crime and, considering its far-reacting social implications, deems it more destructive than the killing of a single individual under threat. 163lseIbn Mubärak, ibid, p: 319; Bähusayn,\"Raf ` al-Ikrär', p: 602.159A1-Majallah: clause:21.160Ibid, pp: 87-90.161Ibid p: 90.(62Zarkä, \"ý7agdacYaklasunlaIslam Hukuku\", tr. by ServetArmaltan, Tima¢, 1993,Istanbul, v: 2, p: 689,163Haskaf , \"Al-Duran\", elause:lkrah, Beirut, 1979,v: 5, p: 85.

Various Types of Isti, sän 266 This concepthas been articulatedby jurists in the following maxim: \"A privateinjury is toleratedin order to ward off a public injury. s164The prohibition from practiceof an incompetent physician is derived from this principle. Similar maxims include:\"Severeinjury is removedby lesserinjury\" 65,\"In the presenceof two evils, the greaterisavoided by the choosingof the lesser\", \"The lesserof the two evils is preferredi167a, nd\"Repelling anevil is preferableto securinga benefit\".1684- The limits of nfarürah should not be exceeded. The person who is in difficulty shouldbe content with a solution that is just enough to rescue him from darürah. 169For example,if a starving person can find only ritually impure food, he must eat as much as will allowhim to survive; exceeding the limits is prohibited, in accordance with the statement\"Necessity is estimated by the extent thereof '17o When the circumstances of ¢arürah are over, the permission to benefit from theprohibited is also terminated, in accordance with the ruling: \"A thing which ispermissible by reasonof the existenceof someexcusethereof, ceasesto be permissiblewith the disappearanceof that excuse\".1715- An evil cannotbe removedby anevil of similar gravity: when both areequal,choosing one in orderto removethe otheris prohibited. For example,a starving man is not allowed to take food from anotherman if it meansthat by depriving him, he too will starve.This164A1-Majallah: clause:26. for more on this see:ZarkA,ibid, v: 2, pp: 681-683. pp: 602-603.10 Al-Majallah: clause:27.166Ibid. 28.167Ibid: 29. Ibid: 30. ZuhaylT,\"LAirürah\", p: 71, Ibn Mubärak, \"Lärürah\", p: 336; Bähusayn,\"tarürah\",117701ISbuidy:fº23, \".Al-Ashbdh\", v: 1,p: 170;Al-Majallah: clause:22.

Chapter Four 267concept is in accordance with the juristic norm, \"an injury can not be removed by thecommission of a similar injury\". 172 Another exampleis that no one has the right to violate someoneelse's personalrights in order to satisfy his needs.Selfishnesscan never be a reason.In fact, if a persontakes someoneelse's food in a situation of necessity,under threat of force or withoutpermission,then the fkirar attachedto the victim hasto be compensatedfor. For example,if a hungry personeatsbreadbelonging to another,that person must later pay the value.This rule is basedon the following statement:\"Necessity doesnot invalidate the rights ofanother9.11734.2.3.6Examples of isti(an basedon necessity (QEzrarah): There are many examples of istihsdn based on pUrürah according to the HanaffSchool of law. Some of them are as follows: a- A letter is sentby a judge from one place to another in order to provide evidence in support of a court case, since he is unable to be there in person. Under the rule of dzrarah, the evidencegiven by letter is as acceptableasevidence given in personin this particular case, since it easeshardship and securesthe rights of those involved in, or affected by, the court case.According to giyäs, however, for a judge to provide evidence in this way is deemedinvalid: giyäs doesnot recognisethe personalinformation given by a judge to a court outside his jurisdiction. However, it is considered as evidence by d narah dueto the needsof the people.174 b- The cleaning of wells and pools. According to the established ruling of giyäs even if wells and pools have been totally emptied, they are still not considered ritually pure.117732SAlu-Myaaja, illbaihd:, v: 1,p: 178;Al-Majallah:clause2: 5. p: 312. clause:33; Hädimi, \"Majämi ` al-fiFigäiq\",04 Ibn al-Humäm, \"Fath al-QadF?', v: 7, pp: 461-462; Ibn Abidin, \"Radd al-Mukhtn? ', v: 5, p: 499.

Various Types of Istifuän 268Emptying someof the water doesnot mean that it cleansall of the water. Even if all ofthe water is takenout, thereis no difference.Freshspring water from the well, or droppedinto the well, will neverbe cleanif the fresh water mixed with the polluted water remainsadjacent to the wall of the well or pool and on the ground of the well _However, Hanafijurists have departedfrom the generalestablishedruling in this case,and have declaredthat the water will be consideredcleanby emptying just some of the water. This ruling,despite its opposition to giyds, is acceptedby Hanafijurists basedon isti, sän becauseofnecessityand avoidanceof difficulties for the people.l\"sc- If a flying or running animal collapsesand dies immediately after it has beenshot, thisanimal is edible accordingto istihsdn.According to giyds, however, it may not be eaten,since there is doubt that it may have died not from the actual shot but from the impactwith the ground. In this case, this kind of game is known as mutaraddiyah (dead by headlong fall),asindicated in the Qur'an: \"Forbidden to you (for food) are: al-maytata (the deadanimals-cattlebeastnot slaughtered),blood, the flesh of swine, and the meat of that which has been slaughteredas a sacrifice for others than God, or has been slaughteredfor idols etc., or on which God's Name has not been mentioned while slaughtering, and that which has been killed by strangling, or by a violent blow, or by a headlong fall, or by the goring of horns -and that which has been(partly) eatenby a 175Sarakhsi,\"Us r, v: 2, p: 203; Bukhäri, \"Kashf al-Asriir\", v: 4, p: 6.

Chapter Four 269 wild animal- unless you are able to slaughter it (before its death)- and that which is sacrificed (slaughtered)on numb (stonealtars)...\". 176Istihsim ignores the doubt concerningthe actual causeof death in such cases,since it isalmost alwaysimpossibleto tell.177d- The contract of sale on foodstuffs such as nuts, eggs, fruit, vegetablesand so on isvalid even when the buyer discovers that some of them are spoilt, provided that thedamagedfood is little. This is the ruling of istihrän; the buyer is always at risk of suchminor damages,which are unavoidable.However, if most of the food is spoilt, then thecontract is null andvoid. Despite the ruling of istii san,the contract is consideredinvalidby q yas, regardlessof the amountof damagedfood.1784.2.4 Isti jwan basedon benefit or public good (ma 'ajmh):179 As I have shown earlier, masia/aahis one of the most controversial sourcesofIslamic law. It is also a principle that is used to drive rulings based on isti4vdn. Some examplesare asfollows: a- According to the establishedruling in the HanafiSchool, even if someonehas not yet paid the dowry in full, he may establishtheir home wherever he wishes even if his wife disagrees-18H0owever, this ruling has been challenged by many scholars, who believe176Qur'an: 5/3.\"' Sarakhsi,\"Al-Mabsüt\", v: 11,p: 251; Marghinäni, \"AI-Hidäyah\", v: 4, p: 122.'S Ibn Huunäm,\"Fathal-Qadir\", v: 6, pp: 372-373.179For more on maOa1bhsee:Ramadanal-BGti, \"Dawdbit\"; Mustafa Zayd, \"AI-Ma,fiaf h\"; HusaynHamid Hasan,\"Nazariyydt al-Ma$a/Yh\"; Sener,\"Islam HukukununKaynaklarindan Kcyas,lsti/2sdnveIsti, lirh\", pp: 137-156;Zarki, \"Al-Isti$dhwa al-Mascilihal-Mursalah\"; Sa'd Muhammad al-Sanawi,\"Madai' t jät li al-A%klibi Nazariyyät al-Magafbh al-Mursalah fr al-Figh al-Islamr ', Cairo, 1981;FerhatKoca, \"Islam HukukundaMaslalbh Mursalah wa Najm al-Din al-Tüfi'nin bu konudaki görugerininde erlendirilmes?', ILAM ara$tirniadergisi, v: 1,n: 1 (January-June 1996), pp: 93-116; Jamalal-Din 'Abdal-Rahmän,\"Al-Mastalxih al-Mursalah wa makdnätuhäfc al-Tashri \"\", DAr al-KitAb al-Jämi', Cairo, 1983.180Marghinärn, \"Al-Hidäyah\", v: 4, pp: 211-212.

Various Types of Istilzsän 270that it often leadsto mental cruelty, with women being forced to live far from their placesof birth and families. Therefore,they rule, even if the dowry is paid in full, her husbandcannot force her to go anywhere.The new ruling is given in considerationof the needtoprotect from unforeseenhardships that may arise. This ruling has been chosen as thepreferredruling amongall the schools,and is basedon the principle of masla/7ah1.81b- According to the establishedruling of the HanafiSchool, a personis free to disposeofhis own property ashe wills. For example,onemay dig a well on one's own land or buildwhatever one wishes. Such activities cannot be stopped even if they might cause harm toone's neighbours. '82 However, despite this ruling, at some point during the 8th and 90'century183, Hanafi jurists declared that the rights of personal ownership are not absolute.Therefore, the condition must be that disposal of one's property is allowed so long as itdoes not harm others.184In order to avoid harm and protect the public good a new rulingis established based on the principle of maaal c, which is a major consideration inistihsin. While one may disposeof one's personalproperty asone wishes as far asgiyäs isconcerned,istilvan changesthis by consideringwhat is more beneficial for the majority.c- According to giyäs both contract of mucrabah (a contract of co-partnership) and thecontract of lease are nullified when either one of the partners dies. However, somesituations areconsideredas exceptionalin order to avoid hardship and securethe greatergood. For example, if the joint owner of a piece of agricultural land dies before the18'Ibn 'Abidin, \"Radd al-Mukhtdr\", v: 3, pp: 146-147;Ibn Humazn,\"Fach al-Qadi-r\", v: 3, p: 373.182Marghin-arg,\"Al-Hidäyah\", v: 3, p: 109;Sarakhsi,\"AI-Mabsiit\", v: 15,p: 21; KäsänT,\"Badäi al-San45i\"v: 6, p: 264, v: 7, pp: 28-29.183Saffet Köse, \"Islam HukukundaHaklan Köti$yeKulantimasi\", Istanbul, 1997,p: 199.194Ibn Humäm, \"Fathal-Qadir\", v: 7, pp: 326,327; ZaylaT,\"Ta'yin a1-fkgäiq\"Haskafi, \"Durar al-MukhW', v: 5, pp: 443-448. v: 4, pp: 195-196;

ChapterFour 271harvesthasbeencollected,his partneris not obliged to sell and for vacatethe land at thebehest of the dead partner's heirs, despite the general ruling which deemsthe contractnull andvoid. This istifasänruling is given in order to protect people's rights.185The sameruling is applicablefor the contractof musägät.1864.2.5Istifsün basedon custom (`urt):From the point of view its validity, custom ('urf) can be divided into two types:'urf, Xlnh (acceptable custom), which is a valid source of law according to the Qur'änand the Sunnah; and `urf fäsid (reprehensible custom), which is not accepted as a definitesource of 187Customis further defined asbeing either gawli (verbal) orfi'li (actual).188'Urf gawli consists of the agreement of people as to the meaning of words established forfunctions other than their literal meaning. Consequently, the agreed meaning can beunderstood by itself without any explanation. 189For example,the word \"dirham\" has beenused to mean money that is presently used ascurrency. As such,it points only to this meaningratherthan any other.190However, dirham in fact literally means\"silver coin\", a meaningwhich doesnot come tomind when it is usedon a day-to-daybasis.191Another exampleof verbal `urf is the word\"walad\", which literally meansoffspring, whether a sonor daughter,but which in popularusageis usedfor son only. It occurs in the Qur'än: \"God commandsyou as regardsyour185Sarakhsi,\"Al-Mabsüt\", v: 23, p: 45.181M6 usägdt: This is a lease contract for palm gardens in which one partner provides the land and seed andthe other the oxen and labour.187Khalläf, \"Magde? ', p: 146;Ibn `Abidin, \"Nashr al- `Urf', v: 2, p: 116.188AbU Sunnah,\"Al-'Urf wa al-`Adak\", p: 18;ZarkA,\"Al-Madkhar', v: 2, p: 845; `Ali Haydar,\"Sharp al-Qawäid a1-Ku11iyyah\"p,: 95; Izmirli, \"`Ilmi Khi110',p: 110.189Zarkä,\"ibid\", v: 2,p: 845.190Sarakhsi,\"U$il\", v: 1,p: 190.191Karaman,\"Adät\", Diyanet Islam Ansiklopedisi (DIA), v: 1,p: 370.

Various Types of Istihsän 272children's (inheritance): to the male, a portion equal to that of two females......192Anexampleof actual(fl'li) 'urf is the \"bay' al-4a'ati\" (give-and-takesale) which is normallyconcludedwithout utteranceof offer and acceptance. Consequently,jurists have assertedthat \"the original meaning of the word isdeparted from with respect to current custom\". 193According to al-Majallah, \"In thepresence of custom, no regard is paid to the literal meaning of a thing\". 194For example, aman takes an oath and says: \"If such-and-such happens, I will make sure my clothes pressagainst Ka'ba. \" According to giyäs, however, no action needs to be taken, since there isno such act of worship as `pressing one's clothes against the Ka'ba. Where giyäs focuseson the literal meaning, istihsän adopts the customary interpretation of the oath. The literalmeaning of this oath is not that the person will give his clothes to charity, and indeedisti/nsän supports 195 Actual custom (`urf fc `lid consists of commonly recurrent practices that areaccepted by the people, such as the ways in which payment is made on houses and shops;the payment of dowry in marriage, where a certain amount is paid at the time of thecontract and the rest is paid later; the delivery of purchased commodities at a buyer'shouse or shop, and so on.196 'Urf, regardlessof whether it is gawli (verbal) orf `li (actual), is also divided intotwo types: al-`ämm (general) and al-khdV (particular): `urf am denotescustoms whichare practiced by all, regardlessof time and place; `urf khdcsdenotescustoms which are192Qur'än: 4/11193Sarakhsi,\"U,9il\", v: 1, p: 190;Nasafi, \"Kashf', v: 1, p: 267; Ibn Nujäym, \"Al-Ashbäh\", p: 93.'94A1-Majallah clause:40.195Bukhari, \"Kashf', v: 2, p: 97.196Zarka, \"Al-MadkhaF', v: 2, pp: 846-847.

Chapter Four 273particular to a certain country,locality or group.197 We now turn to examplesof situations in which custom may be invoked as areasonto overturnan establishedlegal ruling. The importanceof custom as a considerationin the formulation of law cannot beoverestimated.Becauseof the dynamic nature of human custom, consideration of thisprinciple is crucial.198 We havealreadyindicatedthat customis a valid sourceof Islamic law. Accordingto al-Majallah, \"Custom is an arbitrator: that is to say,custom, whether public or private,may be invoked to justify the giving of judgement\".199This in turn is derived from thesaying of the Prophet \"What the Muslims deem to be good is good in the sight ofGod.,, 200 Many issues fall within the remit of custom-based isti/zsän: contracts; waqf(endowment);public rights; personalrights and so on. a- Shaybänihas pointed out, under the subject of usury, loans and the borrowingof money, that lending and borrowing bread betweenneighbours is permitted, basedonthe principle of istihsän, since everyday need has made it into a custom. Later, rulingswere establishedby Hanafijurists based on the opinion of Shaybani. However, strictlyspeaking,and accordingto nass goodsexchangedmust be of the samekind and of equalvalue; if not, shortage or surplus may lead to unlawful usury, thus annulling thecontract-201However, even though the lending and borrowing of bread may not always'7 Abu Sunnah,\"ibid\", p: 19; 'Ali E1aydar\",Sharhal-Qawaid\" pp: 93-94; Ibn 'Abid-m \"Nashr al-'Urf', v:2, pp: 116,132; Izmirli \"Ilmi Khilif', p: 110.198Zarkä, \"Al-Madkhal\", v: 2, p: 850; Karaman,\"Ader\", DIA, v: 1, pp: 369-372.199AI-Majallah clause:36.200ShAAibi\",I'ticm\", v: 2, p: 319; Suyütj, \"AI-Ashbah\", v: 1, p: 193;Amid!, `! *d m\", v: 1, p: 214.201Ibn Humäm, \"Fath al-Qadir\", v: 7, p: 37; Ibn 'Abidin, \"Radd al-Mukhtä \", v: 5, p: 185.

Various Types of Istit'sän 274involve exactly equal exchange, istilasmnallows it on the ground of custom. Customignores small differences and only takes into the consideration the number of itemsinvolved, 202thus ensuring that these the transactions remain fair. In the example of thelending and borrowing of bread, a slight discrepancy in the amount exchanged is notenough to warrant a charge of usury. b- According to most Hanafijurists, the conditions and stipulations inserted intocontracts arerecognisedso long asthey are acceptedby society in general.This istibsänruling is clearly based on custom. In fact, conditions and stipulations which areunacceptableto the majority are deemedinvalid. This is in accordancewith the generalmeaning of the heidrth \"The Prophet has forbidden sales with stipulations\".203Forexample,to stipulatehandingback a houseafter staying in it for a month, or handing overa field after cultivating it for a year; selling something to someoneon the condition thatthey later sell it back-all of thesenullify the contract204However, Hanafijurists permittwo exceptions to this Prophetic norm: a- stipulation of the freedom to choose, b-stipulations which arecustomary205 According to most Hanafi scholars, such conditions should be recognised andconsidered.According to al-Majallah, \"A matter recognised by custom is regarded asthough it were a contractualobligation\".206For example,according to establishedrule offzgh, wagt' (charitable endowment) is a \"lasting\" endowment that can only involve112Ibn `Abidin,\"Radd al-Mukhtär\", v: 5, p: 185.203Zayläi, \"Nap al-Rä'ya\", v: 4, pp: 17-18;TirinIz , \"Buya-, 19.2'4Zarkä, \"Al-Madkhal\", v: 2, pp: 905-906.2eto0ss5aZecanortknia-dalci,t\"oiAonnId-Mistiaaondnckathitoatanl\"ce,hdvbe:yd2,bc,uopst:ht9os0ma6lee; sAatnla-dMblciasojhaneldladitahionndclraaerucesovega:n1liid8s)6e,:d1(isI8f 8aa:p(caInortntichtruealaccart oslofecaoafsliaatylse,aibsleoctchoonsncaclulleuddaeendddwsuithbjeacntcondition arevalid.), 300: (The vendor, or the purchaser,or both, may insert asale giving them anoption, within a fixed period, to cancelthe saleor to ratify condition in the contract ofthereof.). it by carrying out the term206Al-Majallah clause:43.

ChapterFour 275immovable property. Therefore, movable property, which is susceptibleto damageandloss, is not to be included in wagf.207However, Shaybäniput asidethis generalrule andvalidated the waqf of movablegoodssuch asbooks, in keeping with popular custom.Thereasonbehind this is to encouragepeople to practice charity and do good works. Here,Shaybänioverrulesgiyäs andchoosesistii sän,basedon popular custom.208c- Bay' bi al-wafä209(sale with right of return) was consideredinvalid before itwas recognisedby popular custom. Sucha saleis consideredto be permissible in view ofthe fact that the purchaserhasa right to enjoy the goodshe haspurchased.It is also in thenature of an avoidablesale in asmuch asthe two parties have the right to cancel it. It isalso in the nature of a pledge, in view of the fact that the purchaser cannot sell theproperty sold to any third party. 210This sale had been used commonly in the region of Bukhärä and Balkh as a validsale because of people's needs since the 6`hcentury. Nasafi (d. 537/1142) explains, saying\"This is a kind of sale which people were accustomed to in order to avoid usury;however, in fact, it is a kind of pledge\". 211In this context, nullifying nass (text) andignoring it is not an issue, since application of custom here is actually in keeping with thepurpose of nap' (text). 12d- According to most Hanafijurists, the right to water (hagq al-shurb) may not besold on its own, independentlyof the agricultural land which is irrigated by it, owing tothe ambiguity over the contract of such a sale. Obtaining ownership of water can occur2°1Zaydän, \"Islam Hukukuna Giri.s\"',tr. 'Ali Safak,Kaythan Yayuilari, Istanbul, 1985,p: 305.2'NSa'bän,`Islam Hukukllminin esaslarf', p: 170;Kamäli, \"Istihsän\", pp: 55-56.2,09A salesubjectto a right of redemptionis a salein which onepersonsellscertain sum of money,subjectto the right of redeemingsuchproperty, upon property to anotherfor a the price thereof beingreturned.210Karaman,\"AnahatlarcylaIslam Hukuku\", v: 3, p: 271; Al-Majallah clause: 118.211Ibn `Abidin,\"Radd al-Mukhtär\", v: 5, p: 276.212Ibn 'Abidin, \"Nashr al-'Urf', v: 2, p: 121;Zarka, \"A1-Madkhal\", v: 2, pp: 907-908.

Various Types of Istitnan 276only by actual possession; it can not be possessed while it is actually in the watercourse.However, some Hanafi jurists consider this permissible by way of istihsän, which is basedon the customary approval of such a sale. In fact, the selling of the water on its own isagainst the general established ruling. Therefore, the new ruling is preferred by way ofistifzsän in respect of the common custom, and departs from the rule of giyäs. 2134.2.5.1 Conditions of validity of `urff. Scholarsassertthat certain conditions must be fulfilled before custom (`urJ) canbe deemedvalid. a- The principle of `urf must be relevant and actually applicable; it must also beprevalent. As is indicated in al-Majallah, \"Effect is only given to custom where it is ofregular occurrenceor when universally prevailing\"214and \"Effect is given to what is ofcommon occurrence; not to what happens infrequently' .215These statements formimportant maxims of figh. b- 'Ur must be actually be in practice at the time of the casewhich is referred toit. To rule on the basisof past or future custom is invalid.216Ibn Nujaym says`\"Thc `urfconnected to a casemust be recent or current; possible future custom is not given any eº21?credence. c- Custom must not contradict evidence which is stronger than itself. If customopposes a ruling of naA and cannot be reconciled to it, then it is neither valid norrecognised. Hence,no ruling canbe adoptedon suchkinds of custom.218\"3 Sa`bän,\"Islam Hukuk 1lminin Esaslart\", p: 171214Al-Majallah, clause:41.2'Sibid: 42.216Abü Sunnah,\"Al-`Urß', p: 65; Izmirli, \"'11miKhiläf', p: 116.217Ibn Nujäym, \"Al-Ashbah\", p: 101.218Abü Sunnah\",Al-`Urf', pp:61-64;Khalläf,\"Ma$dde\",, PP:146-147K; araman\",Adet\",v: 1,p: 370.

Chapter Four 277 We now turn to those instances in which custom contradicts nag or otherprinciples. Cansuchcustomsstill be considereda valid sourceof law? In this context, `urf may contradict nac, in two ways. Firstly, it may contradict aspecific nag involving a specific situation andmeanings.Secondly,it may contradict thegeneralnassinvolving generalsituationsandmeanings.4.2.5.2 Opposition of `urf to a specific nah A specific na$$is one which involves specific matters, for example, adultery,gambling, alcohol, usury, and so on. If such acts are customary in a society, the fact thatthey are `urf carries no weight or credence: these are acts which are outlawed by theshari `ah, and they are thus non-negotiable. Islam aims to abrogate some customscompletely, to accept some of them as they are, or to rehabilitate some of them.219For example, regarding a contract which clearly contradicted a Indith, Sarakhsi says: \"An 'Urf which contradict a nagF. is not valid\" 220 The questionwhich arisesin this context is whether a specific naWcan change a custom?Abü Hanifahand Shaybänipreferred to follow a specific nassthan custom. Abü Yiisuf, however,tendedto prefer the custom.22' An exampleof scholarly disagreementconcernedthe nth aboutusury which stipulated that in lending andborrowing, the commoditiesexchangedhad to be the samekind, amount andvalue: \"Gold for gold, silver for silver, wheatfor wheat,barley for barley, datesfor dates,salt for salt and like for like' 222Abü Hanifahand Shaybäniwere of the opinion that the hrrdithmustbe followed to the letter. However, Abü Yüsuf points out 219Ibn 'Abid\"m,\"Nashr al-' Urf', v: 2, p: 116; Karaman,\"Adel' DIA, v: 1, pp: 369-372. 0 Sarakhsi,\"Al-Mabsüt\", v: 12,p: 196. 221Abü Sunnah,\"Al-'Urf', pp: 62-63; Ibn 'Abidin, \"Nashr al-'Urf', v: 2, p: 118;Karaman, \"Ädet', DIA, v: 1, p: 370. \"Abü Däwud, \"Buyül\", 12; Bukhäii, \"Buyü\"', 74,76,77,78; Muslim, \"Musagät\", 79,82.

Various Types of Istihrän 278that custom often dictates other ways of exchange in these circumstances, and that as longas it is acceptable to the people and considered normal, then there is nothing wrong withit. In this case, it is `urf and the habitual practice (`adat) of the people that has to be takeninto consideration. If the only difference between `urf and nass is, as in this example, oneof details only, then it cannot be considered as an actual contradiction of the purpose ofthe na.S, 223 . Abü Yüsuf's practice was to focus on the meaning of the text and understandtheexact purposeof it by application of `urf, not by preferring `urf to text, or ignoring thetext, or falsifying andconfining its limits? The first type of opposition of `urf to nas'is not consideredvalid since it is not inaccord with the aims of the shari`ah. Therefore, it is not included within the scope ofistihsan. The first thing for isti, zvdnis that there must be valid evidence. However, AboYüsuf sjudgementdoesnot amountto istihsan.4.2.5.3 Opposition of `urf to a general nahWhen a generalnasscontradicts an `urf qawli (verbal), the use of the latter in society isconsidered.For example,the peopleof a country may departfrom the literal meaning of aword and become accustomedto understandingthat word in a different context. Forexample, in somecommunities, the word `food' is understoodas referring to maybe nomore than one or two foodstuffs, andthey may be unawareof the vast range of things thatthe general word `food' actually signifies. Thus the nass becomes particularized inaccordancewith the specific `urf. That specific `urf is then consideredto be an exceptionto the generalmeaningof the nass Juristsarein agreementon this issue.In this case,the Ibn Humäm, \"Fat, i al-Qadi \", v: 7, p: 15; Sarakhsi,\"AI-Mabsüt \", v: 12,p: 142; `Abidin, \"Nashr al-'Urf', v: 2, p: 118;Karaman,\"Adel' DIA, v: 1,p:371224Koca, \"Takh$$', p: 256.

ChapterFour 279generalnassis interpretedaccordingto the custom. The generalnaffsis particularized bythe custom in that its indication to a particular meaning is approved,based on istihsänaccording to Hanafis225However, if the metaphorical meaning of a word becomes `urf,Hanafi jurists disagree as to which is to be preferred, the literal meaning or themetaphorical.According to Abü Hanifah,the actual meaning is the preferable one, whileAbu Ynsuf andShaybäniprefer the metaphoricalmeaningthat hasbecomecustomary. 26 For instanceif someonevows to walk to the Ka'ba, then he hasto fulfil either hajjor `umnah. This is the view point of Abü Yüsuf and Shaybäni. However, nothing isrequired according toAbn Hanifa based on giyäs. The reason why nothing is required isthat a vow becomes obligatory if there is a customary act of worship available throughwhich that vow may be fulfilled. In this context, there is no obligatory (wdjib) duty ofwalking to Ka'ba, and so the vow is nullified. However, Abii Yüsuf and Shaybanperformed isti, sän, claiming that `walking to the Ka'ba was a customary way of meaning /xajj or `umrah. Therefore, they preferred this custom to the actual meaning of theword 227 The main reason of the disagreementamong Abn Yüsuf, Shaybäni and Abü Hanifah concerns the availability of the one of the conditions of the validation of `urf, which is that \"`urf must be in existenceat the time a transaction is concluded\". For the customto be valid, it hasto fulfil certain conditions; otherwise,it will be invalid.228Zu Sarakhsi,\"Urstil\", v: 1, p: 190;Nasafii,\"Kashf', v: 1, p: 267; Bazdawi, \"U, 1\", v: 2, p: 95; Ibn 'Abd al-Shak5r, \"Musallamat al-Subüt\", v: 1,p: 345; SuyUG,\"AI Ashbäh\", p: 66; Abi Sunnah,\"Al-'Urfu wa al-Ädah\", pp: 122-123;Koca, \"Takhg$', p: 257.226Ibn Humäm, \"Ta/?r r\" v: 1, p: 317, v: 2, p: 57; Molla Husraw, \"AI-Mir'ät', v: 1, pp: 445,448; Nasafi,\"Kashf', v: 1,pp: 256-257,260-262,267-271227Sarakhsi,\"UXI\", v: 1, p: 191;Bukhän, \"Kashf, v: 2, p: 97; Bazdawi, \"Usur', v: 2, p: 97.228Baal, \"Kasltf', v: 2, pp: 97-98.

Various Types of Istiltsän 280 In actual custom (`urf `amal)i, the main point is to discover the Shäri`s objectives.`Ali HaydarAfandi explaining the maxim \"Custom is an arbitrator; that is to say,custom,whether public or private, may be invoked to justify the giving of judgement\"229,says\"'urf (custom) and ädat (tradition), whether general('ämm) or specific (klag), are as ajudge who validatesthe legal ruling\". 230Here it is indicated that 'urf would take a role indetermining legal rulings; however, it must not actually ignore nass or alter it. Wherethere are two contradictory proofs, the one which is more suitable and adequatetomaterialize the Shäri `spurposesis preferred to the other. In fact, the conflict here is notbetween `urf andnass,but ratherof two evidences. The questionwhich ariseshere is that if `urf is a type of specific custom, can itparticularize the generalnassor not? Most Hanaffscholarsclaim that a specific customwill not particularize the generalnass.In order for a specific custom to be a source oflaw, it hasto be in useeverywhere2. 3'According to al-Majallah, \"Effect is only given tocustom where it is of regular occurrenceor when universally prevailing\". 232Nevertheless,al-Nasafi (d.424/1033), and Ibn Nujaym (d.970/1562) claim that the generalnaffsmaybeparticularized by a specific `u1f. 233 However, specific `urf will not be valid if it contradictsnag 234Furthermore, if acustom does not wholly contradict a nass and there is thus a way to reconcile it with anaffsor a spari evidence,then it is consideredasvalid, basedon one of the principles of229A1-Majallah clause:36.230`Ali 0aydar, \"Shar/l al-Qawäid', p: 93.231Ibn Nujaym, \"Al-Ashbäh\", pp: 94-95; Abu Sunnah,\"Al-`Urf', p: 58; `Al Haydar,\"Sharha! -Qawäid\",2 105-106;Zarkä, \"Shari al-Qawäid\", p: 179.Al-Majallah clause:41.233Ibn Nujaym, \"Al-Ashbäh\", p: 103;Ibn 'Abidin, \"Nashr al- `Urf', v: 2, pp: 116-117; Abo Sunnah\"Al-`Urf', p: 58; 'Ali I1aydar\",Sharhal-Qawdid\", p: 95; Zarkä, \"Sharhal-Qawdid\", 166.23'Ibn 'Abidin, \"Nashr al- `Urf', v: 2, p: 132; Aba Sunnah,\"Al- `Urf', p: 60.

ChapterFour 281Sunnah Tagrirri, ijma' (ijmä' suküti) or ofnrurah,and as was practised in the example ofbay' al-wara235(sale with right of return) and istisnä `. Otherwise, it would be rejected 2364.2.5.4 Isti! isän basedon the opposition of 'urf to qiyas: This kind of istit än becomesrelevant when people are accustomedto practicesthat contradict a ruling of giyäs or an already established general ruling. Sarakhsiexpressesthe importanceof customby declaring that to obstruct people in their practiceof what is customaryis to do them much harm.237According to al-Majallah, \"A matterestablishedby customis like a matter establishedby law.\"238 In Hanaffworks there are many examplesof this type of istihsän, someof whichare included here:a- According to the general established ruling of Abü Hanifah, the endowment ofmovable property is not allowed. However, Abü Yüsuf allowed endowment of horses andwar equipment basedon the athar (practices) of the Companions.In addition, Shaybanicondoned the endowment of camels, axes, ropes, shovels, saws, cauldrons, clothes,funeral equipment, and the Qur'an- in short anything moveable which it was customaryto endow. In this respect,he departedfrom giyds in favour of custom. Later, many Hanafi scholarsfollowed Shaybäniand gavejudgementsaccordingto his opinion.239b- In the caseof bay' al- wad, the practice was prevalent in order to meet people's needswithout charging interest! In fact, in Islamic law, pledging a condition in advancein order to benefit from that pledge is consideredas a kind of ribä (interest) and is therefore'5 Karaman,\"IslamHukuku\", v: 3, pp: 270-271;Abü Sunnah,\"Al-'Urf', pp: 96-98,100-101.136Ibid. p: 95;23'Sarakhsi\",AI-Mabsüt\", v: 11,p: 159,v: 13,p: 14.23eAl-Majallahclause4: 5.239Ibn `Abidin, \"Radd al-Mukhta?', v: 4, pp: 363,365; Ibn al-Humam, \"Fathal-Qadir', v: 6, pp: 216,218.M0Ibn Humäm ,\"Fat/ al-Qadir\", v: 6, p: 291.

Various Types of Istitndn 282not permitted. One interpretation of it is that it is a kind of \"valid agreement\" which abuyer has the right to benefit from; it is a kind of \"nullified agreement\" in respect of thebuyer's right to nullify; and is a kind of \"pledge agreement\" in respect of the buyer'sinability to sell the commodity. However, later it became a custom because of people'sneed and is therefore, based on the principle of istil.ndn. 241A similar transaction is bay'al-istighläl (sale by sub-letting). According to al-Majallah, \"A person may make a validpledge of property borrowed from some third person, provided he has received thepermission of that person. This is known as a pledge of a borrowed article\". 242Thesekinds of transaction have become a customary and are thus permitted by isti, zudn2. 43c- According to Abü Hanzfah,selling bees and silkworms is not allowed, becauseat histime they were not a valuablecommodity. Abü Hanifahcomparedtheir saleto the sale ofreptiles such as snakes and lizards. Abü Yüsuf's opinion is similar to Abü Hanifah,although in the case of silkworms, he says that if they are used to make silk, then it ispermitted. Despite Abü Hanzfah's opinion, Shaybäni departs from giyäs to istihsän, basedon the judgment that the sale of such things had become customary among the people. 244Conclusion: Different scholarsposit different typologies of istilvan. On the whole, it is dividedinto two main types a: analogicalistitnin, which consistsof a departurefrom giyäsjali togiyäs khaf, and b: exceptional istihsan (istihsdn istithnäi) which consists of making anexception to a general rule of existing law, and which is approved when the jurist is241Ibn 'Abidin, \"Radd al-Mukhtde', v: 4, pp: 363,365; Bilmen, \"Is#1äfkiti Fighiyyah Kamusu\", v: 6, pp:126-129;Abü Sunnah,\"Al-'Urf', pp: 167-168;Karaman,\"Islam Hukuku\", v: 2, pp: 328-331; al-Maja]lah:clause: 118.242Al-Majallah: clause:726.243Ibn 'Abidin \"Radd al-Mukhtä \", v: 5, p: 279; Karaman,\"Islam Hukuku\", v:2, p: 331.144Ibn'Abidin, ibid v: 5, p: 68; Ibn a!-Humäm, \"Fathal-Qadir\", v: 4, pp: 419-421; Abu Sunnah,\"Al-'Ur 'f,103.

Chapter Four 283convinced that in making such an exceptions, justice might be better served245 Besidesthis main distinction, scholars divided isti/zrän into many different types and sub-types, asI have mentionedearlier.246We can see that istihsän which is based on na,5,5,ijmä ` and rrürah is notextendableto parallel caseswhen we comparethe two main types of istihsän, namely theanalogical and the exceptional. Hanafijurists point out that the giyds khafi, which theycalled istituan, is in reality a kind of giyäs (analogy) and therefore its ruling can beextended (ta`diyah) to other cases2. 47In order to move a ruling of giyäs, the `illah mustbe the samein both cases.This is the ruling of the validated giyds. Ta`diyah applying aruling to other casesis an indispensablefactor of ijtihäd. 248However, the ruling of giyäsis not extendableto similar casesif the applicability is uncertain or unreasonable.Despitethis, istii san which is basedon implicit (khan analogy is extendableby further analogyto parallel cases249 When we comparethe Hanafiand Mäliki views of istiisän, we seethat the Hanafiisti/zsän derives much of its substancelargely from necessity (trürah). The Mälikiapproachto istiMn, however, is basedon mac, lafiah and the removal of hardship (raf' al-/i ray). Despite the different methodsthey usedto approachthe problem, they eventuallyarrived at the sameresults.Their useof maaahah differs mainly in respectof the degreeof importance they accord it. Hanafis resorted to istihsän where there was conflictbetween obvious (jal fl and implicit (khayrzg) iyas which inclined to a stronger evidencez°sIbn al-Humäm, \"Tahrir\", v: 4, p: 78; Bazdawi, \"Kashf' v: 4, pp: 3,5-6; Ja$ s, \"A! -Fu$71\"v: 4, pp:234,243; $adr al-Shari'ah, \"Taws 1', v: 2, pp: 162-163.246See:at the beginningof the ChapterThree.247Sarakhsi,\"U,Sil\", v: 2, pp: 202,203,206; Bazdawi, \"Uý17C'v, : 4, pp: 3,6,10; Nasaff, \"Kashf' v: 2' p:296; $adr al-Shari'ah, \"TawQtt1',v: 2, pp: 162,169.2\" Karamasti, \"AI-Wajiz\" p: 185;Bazdaw-t,\"USW', v: 3, p: 389; Sarakhsi,\"U ü1\", v: 2, pp: 192,206;Bukhäri, \"Kashf', v:3, p: 389; v: 2, p: 11.249For an example,see;ChapterThreeunder the title of the departurefrom giydsjai to giyäs khaf:.