INTERNATIONAL ISLAMIC UNIVERSITY ISLAMABAD

Submitted To: Dr. Naseem RaziSubmitted By: Sabeeka AshrafAssignment: Shafi Risala - IstihsanReg. No: 53/LLM/MFL/F14

SHAFI RISALAKitab al Risala Fi Usul al Fiqh, often abridged as Kitab al-Risala or simply al-Risala, is the best-known work of Imam Shafi, noted especially for its clear Islamic jurisprudence. The word Risala means letter. The background to the use of this word as the title of the book is that he wrote it in deference to the request of a student who wanted a written lesson on the principles of jurisprudence. The answer was a long letter. It deals in detail with such questions as; what is law? How it is formulated? What are its sources? How can differences be resolved in those sources? How can a new law be made? How to abrogate an old law? What is the way to interpret the revelent text and the terms used there in? Shafi Risala attempts to answer these questions. Objections have also been answered by Imam Shafi in a profoundly and scholarly manner.

JURISTIC PREFERENCE (ISTIHSAN)Istihsan is an Arabic term for Juristic Preference. Muslim scholars use it to express their preference for particular judgments in Islamic law over other possibilities. Istihsan literally means to deem something preferable. According to Imam Shafi, Istihsan means the subjective appreciation of a jurist regarding the interpretation of laws laid down in Quran and Sunnah. Therefore, it is similar to create a new Shariah. According to Imam Shafi, ijtihad (Ijtihad is the process by the use of which a Muslim jurist derives law from the legal text of Quran and Sunnah) should be exercised for a specified object and the object must be definite. Therefore, it is unlawful to exercise Istihsan when a narrative does not call for it. Nobody is allowed to give an opinion except through ijtihad. A rule of Shariah, according to Imam Shafi, is obtained from a text or on analogy of the text and Istihsan does not pertain any of them. He thought that Istihsan meant to hold a view based on personal opinion and does not depend upon a specified method or it is regulated by specific rules.In his Risala many questions have been asked from him. Is it permissible for anyone to exercise Istihsan by means other than analogy?Shafi told him that Istihsan is not permissible for a layman, only the scholars may give an opinion on the strength of a narrative. Shafi explain him by giving an example that if someone injures the slave of another, the scholars would not ask to a third party who does not even know the market price of the slave. Such pricing cannot be done except on the basis of ones knowledge of the similar cases on the strength of which he applies analogy. Shafi said that Istihsan is merely doing what is agreeable. Who can exercise analogy or ijtihad?Only the well-known scholars familiar with the binding narratives should exercise analogy. He has legal knowledge that is knowledge of Quran and Sunnah. He has command over the Quran, its prescribed duties, its abrogated communications, its general and practical rules. He should interpret the ambiguous communication by Sunnah of the Prophet, if not found then Ijma, if no consensus is possible then by analogical deduction. He is acquainted with the established Sunnah. He has the knowledge of Arabic language. He must be of sound mind and must not misled by personal biasness. He must be of good memory. State examples of binding narratives on the strength of which analogy might be applied?Shafi said that if a case arises for which there is no specific textual order as laid down in Quran and Sunnah of the Holy Prophet, it would be decided on the strength of the case identical to it in reason for which a specific order was laid down.Example 1:Prophet said Allah has prohibited the shedding of the believers blood and the taking away of his property, and ordered that only what is good should be thought of him.Allah says whoever has done a particles weight of good, he shall see it; and whoever has done a particles weight of evil, he shall see it.Therefore, Imam Shafi said that Allah has made lawful for us the life blood and property of combatant unbelievers, excepting those who have made a compact with us.Example 2:Allah says that mothers shall suckle their children two full years, for anyone who wishes the period of suckling to be complete. It is for the father to provide his daughters and clothe them honorably.Allah further says in Surah al Baqarah that and if you desire to seek someone to suckle your children, it is no fault of yours when you hand over what you have given honorably.The Holy Prophet ordered Hind, daughter of Atba, to take from her husband Abu Sufiyan the property what was needed for her and her children without asking her permission, since they were his children.It is held from Quran and Sunnah that father should feed or bear other expenses of his child. So, by analogy it is held that it is the reciprocal duty of both father and child to bear expenses in childhood and in old age respectively.Example 3:A person gave to another a slave with defect which became known when the slave is employed. The Holy Prophet gave the decision that slave should be returned to whom the slave was given and purchase profit should be given to the purchaser. What the slave has earned should be given to the purchaser. So the profit belongs to the purchaser because it was earned when the slave was in his ownership and under his liability. Shafi draw an analogy that same opinion be applied on the fruit of palm trees, the milk, wool, and young of cattle, the children of a slave women. He says that some jurist disagrees as they say the profit and property of both male and female slave, except the right to intercourse, belongs to the purchaser if defect is found. They further says that he has no right to return the female slave if he has had sexual intercourse with her. He is even not entitled to the fruits of palm trees or the milk and wool of cattle, the children of slave women because they are not included in the category of slave. Shafi said that profit belong to him who bear the responsibility and this can be done when the slave is employed. The master is entitled to slave profit but if a gift is given to the slave it should not be given to the purchaser but to the first owner.Example 4:The Prophet has prohibited exchange for gold for gold, date for date, wheat for wheat, and barley for barley unless in equal quantities and delivered immediately. For a valid analogy one thing should be analogous to another in decision in which one case would be the same as the other. If honey and butter were made analogous to dinar and dirhims and were only declaring the superiority of something over others would be unlawful when they are of one kind, on the analogy of gold and silver coin.Imam Shafi said that edibles are not analogous to the exchange of dinars for dihrims as they are not in the same category. Analogy applies to what is equivalent in measure and weight. He says that if I were to destroy someones belonging, I should pay in gold and silver coins because it deals with the prices of the property of the muslim. Example 5:It is agreed among the scholars that Prophet decreed that diyat for unintentional homicide by a free Muslim against another is one hundred camels to be paid by the aqila (killers male relative who are under an obligation to pay the diyat or blood money) but if done intentionally the compensation should be paid from his own property. According to Imam Shafi, other than diyat for all other damages responsibility lies on aqila. Some are of the view that aqila should pay one third of diyat for an offence of injury and upwards. Imam Shafi hold the view that I shall follow the ruling of Prophet that diyat should be paid by the aqila and anything less than diyat shall be paid from the offenders property. Since God has ordered that who commits an unintentional killing shall pay diyat and set free one slave, so the slave shall be paid from offenders property and diyat should be paid by aqila on Prophets ruling. Imam Malik said that the best opinion that I have heard is that the aqila should pay one third of the diyat and upward. Compensation for an offence committed against a slave is equal to the slaves price just as the compensation for an offence committed by a free man is equal to his diyat. Shafi narrated that sufyan told us from Ibn shihab al-Zuhri from saad bin al-Musayyib, who said: The blood money of the slave is equal to his price just as the compensation for an offence committed by a freeman is equal to the diyat. To this narration Imam Shafi said that it is an analogy based on the case of the criminal offence committed by freeman. Imam Shafi narrated that Malik told us from Zayd bin Aslam from Ata bin Yasar from Abu Rafi, who said: The Prophet borrowed a camel from a certain man. Upon receiving several camels later he ordered me to pay back the debt, but I told him: I find that every one of these camel was borrowed, for the best of men shall have the best in payment of the debt. Example 6:Whenever Allah has established a textual order for which Sunnah is provided, such an order of permission shall be obeyed provided it is not regarded as a precedent for another order of permission. The same applies to Sunnah which the Prophet may have laid down to qualify rules. Shafi said Allah has imposed the duty of ablution on all who rise up from sleep to perform prayer.Allah says: When you stand up for the prayer wash your faces and your hands up to the elbows and wipe your heads and your feet up to ankles.Imam Shafi said that Prophet has practiced the wiping of the shoes we should not wipe by analogy the turban, veil or gloves. He says Sunnah will not contradict Quran as it means that one should always wash his feet if the shoes were not worn in cleanliness. On the Prophet precedent that he performed two or more prayers with one ablution.

Example 7:The Prophet decreed that the compensation for feoticide is a ghurra (the price of ghurra be five camels) whether for a male or female. Nothing can be narrated by Prophet distinguishing between the compensation for male and female foeticide, it is taken for granted that he had put them on an equal footing but if the feotus dies after abortion the compensation for male is one hundred camels and for female fifty camels. Imam Shafi says that it is not permissible to apply analogy of feoticide to other cases the compensation of which is specific. The compensation for feoticide should be paid whether dead or alive. When the Prophet has made a distinction in his decision between the dead and the living so the decision should be taken on the strength of and in obedience to Prophets order.

Is it possible that for one question two answers might be given?

Shafi gave an example that a woman marries another man after hearing the death of her husband but later the former husband returns. Separation between the spouses take place without resort to divorce. The woman has the right to keep the dower but she will wait for the period of iddah so if she is pregnant the child belong to the later husband. Upon this Shafi give two analogies :1. A decision in second husband favor since the marriage is lawful, as she keeps the bride price and the child belong to him.2. A decision against second husband since the marriage is unlawful, forbids intercourse after known of the first husband and prohibits inheritance between them and separation takes place without divorce because she is not a lawful wife.Conclusion:Imam Ahmad bin Hanbal says about Imam Shafi that of all the people he had the best understanding in Allahs book and Sunnah of His Messenger. Imam Shafi rejected Istihsan and re-approached its opponent severely and maintained that it was an assertion based on personal opinion and legislation by desire in his Risala. Istihsan is nothing more than the text nor outside them, for it is the mode of reasoning by text of Quran and Sunnah compared with analogy or a rule, or it is to give a probable analogy precedence over the improbable one and Imam Shafi is not opposed to that.