1. Klasik Dönem İstihsān Taksiminin Artırılmasının İmkânı: İstihsān bi’l-İhtiyât Örneği.
- Author
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ŞAHİN, Ünal
- Subjects
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PRUDENCE , *PRECAUTIONARY principle , *PROBLEM solving , *SYLLOGISM , *FATWAS , *PATIENT preferences - Abstract
Istihsān has been used as one of the ruling istinbat (reveal the meaning) methods in the Hanafi sect. Hanafi scholars of the classical period, on the other hand, discussed and analyzed istihsān under four main headings. According to the scholars of usul al-fiqh, istihsān is divided into "kıyas (syllogism) alhafi", " istihsān bi'l-eser", " istihsān bi'l-icma" and " istihsān bi'z-zarure”. The understanding of istihsān of the sect has gone through this classification until the modern period. However, the possibility of increasing the division made in the classical period for istihsān has recently been discussed. For example, it was emphasized that the aforementioned division made for istihsān by Shalabī (1910-1997) could be increased and explanations were made in the context of the subject. It has been stated that there is precaution in the background of some places where the fuqaha acted with istihsān. This has been effective in naming this type of istihsān. As in other types of istihsān, the naming was done in that way, since istihsān was used due to the precautionary principle. Because it is possible to say that the determining factor in the naming of istihsān types is the reason that leads to istihsān. As a matter of fact, this situation is clearly seen in the types of istihsān. In this article, istihsān bi’l-ihtiyât, which can be a different type of istihsān, is emphasized. Since this type of istihsān is not included in the classical period division, the possibility of this is discussed first. Because it is not in the classical period classification, it is necessary to determine whether this istihsān type to be put forward is among other types of istihsān. Therefore, in this study, first of all, it has been tried to define prudence and to show that istihsān bi’l-ihtiyât is different from other types. Afterwards, it has been tried to show the applicability of istihsān bi’l-ihtiyât by giving examples from different chapters. In this type of istihsān, prudence is the main reason for istihsān, and therefore, analogy is abandoned. Therefore, it should be noted that prudence, which is meant by istihsān bi’l-ihtiyât, does not mean avoiding the disagreement of the scholars. This disputation is more commonly referred to as al-hurūj min al-khilāf (avoid of dispute) or murā’at al-khilāf (observing separation). Because in istihsān bi'l-ihtiyât, the purposeful precaution is the precaution that creates the qiyas-i hafî, while in murā’at al-khilāf, it consists of avoiding the disagreement of the ulama and taking the stronger one if a choice is made between two fatwas. Wherever the fuqaha decrees with istihsān, there is the abandonment of qiyas. In istihsān bi’lihtiyât, istihsān is used for a reason not found in the other four types of istihsān. That justification was determined by the jurists as a precaution. However, this precaution should be understood as prudence, which means abandoning qiyas and preferring istihsān. In places where fuqaha resort to istihsān, they sometimes point to the background in the preference of istihsān with expressions such as “due to prudence” or “for the reason prudence”. However, no details are seen in the related works. This makes it necessary to understand this type of istihsān and to reveal its difference from the first thing that comes to mind when it seens to prudence. The possibility of seeing istihsān bi’l-ihtiyât as a new type of istihsān is discussed by considering this article. Although Shalabī emphasizes the possibility of expanding the types of istihsān, there is no study specific to the subject. This study, on the other hand, aims to both shed light on the subject and make a new contribution to the field. It should be noted that the applicability and internal consistency of the subject were tested by giving examples from different parts in particular istihsān bi’l-ihtiyât. Thus, it has been shown that this term can be applied in almost every talk of the sect when the conditions are met. It is possible to interpret this as an effort to expand on istihsān, which was highly exploited by both the founders and later jurists of the Hanafi sect. In addition, it fills an important gap in solving the problems encountered through the dynamics of the Hanafi sect without leaving the holistic, consistent and systematic structure of the sect. [ABSTRACT FROM AUTHOR]
- Published
- 2023
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