In the name of Allah, the Most Gracious, the Most Merciful. All praise is due to Allah. I bear witness that there is no god but Allah, alone, without partner, and I bear witness that Muhammad is His servant and Messenger ﷺ.
The chapter on juristic preference (istihsan):
Imam al-Shafi’i devotes this chapter to juristic preference (istihsan), explaining his concept of it and the difference between it and analogy (qiyas). He affirms that ijtihad is only ever directed at something sought, which is the truth in the sight of Allah, and that istihsan is not permissible when it contradicts the report (khabar), that is, the Book and the Sunnah. He also explains the conditions of ijtihad.
The main points Imam al-Shafi’i addressed in this section:
- Ijtihad is only directed at something sought: Imam al-Shafi’i affirms that ijtihad is only directed at something sought, which is the truth in the sight of Allah, and that this truth is one, not multiple as in the “optional obligation” (al-wajib al-mukhayyar). He illustrates this with the issue of the qiblah: the Ka’bah is what is sought, and ijtihad consists in determining its direction when one is away from it.
- The difference between istihsan and analogy: Imam al-Shafi’i explains that istihsan is speaking according to one’s inclination (tashahhi), and speaking contrary to analogy, whereas analogy is seeking the truth through an indicator or a resemblance to an existing thing. He clarifies that istihsan opposes the report (the Book and the Sunnah), whereas analogy seeks it out and strives after it.
- Examples of blameworthy istihsan: Imam al-Shafi’i gives examples of blameworthy istihsan, among them:
- The manufacturing contract without the conditions of salam: Some permit the manufacturing contract (istisna’) with part of the price deferred, considering this good for the benefit of people, whereas analogy requires that the full price be paid in the session.
- Long-term supply and contracting agreements: Some permit these contracts with the price remaining fixed for a long period, considering this good for facilitating transactions, whereas analogy requires setting the price periodically to avoid uncertainty (gharar) due to changes in prices.
- Selling gold for gold in unequal amounts with delayed taking of possession: Some permit this on the argument that gold has become a commodity, whereas the text requires equality and taking possession in the session.
- The conditions of ijtihad: Imam al-Shafi’i explains the conditions of ijtihad, which are:
- Knowledge of the Book and the Sunnah: their obligations, their manners, what is abrogating and abrogated in them, what is general and specific, and their guidance.
- Knowledge of the consensus of the Muslims.
- Knowledge of the sayings of the early generations (Salaf) and their disagreements.
- Knowledge of the language of the Arabs.
- Soundness of intellect.
- Not hastening to speak before verifying.
- Being fair with oneself and listening to the one who disagrees.
- Exerting the utmost effort in seeking the truth.
- The illustration of valuation: Imam al-Shafi’i explains that the valuation of things, such as male and female slaves and cars, is permissible only for someone who has experience of the market and of the prices of comparable items; likewise, ijtihad is permissible only for someone who has knowledge of the Book and the Sunnah, the sayings of the Salaf, and the language of the Arabs.
- The difference between ijtihad and imitation: Imam al-Shafi’i clarifies that ijtihad is for seeking the truth through an indicator, whereas imitation (taqlid) is for when one is unable to exercise ijtihad, in which case the layperson is obliged to follow whomever he trusts among the scholars.
Additional clarifications:
- Istihsan: departing from an obvious analogy to a subtle analogy, or from a general ruling to an exceptional ruling, because of a proof that requires it. Al-Shafi’i rejected it when it is based on inclination and desire and contradicts a text or consensus.
- Analogy (qiyas): joining a derivative case to an original case in its ruling because of an effective cause (‘illah) common to both.
- The optional obligation (al-wajib al-mukhayyar): what is required to be done with a choice among specific things, such as the expiation for an oath.
- The salam contract: the sale of a thing described and owed as a liability, for a price paid immediately.
- The manufacturing contract (istisna’): a contract for the making of a described thing.
- Selling al-kali’ for al-kali’: selling a debt for a debt.
Final summary:
In this section Imam al-Shafi’i explains his concept of istihsan, and that it is not permissible when it contradicts the report. He clarifies the difference between it and analogy, and affirms that ijtihad is only directed at something sought, which is the truth in the sight of Allah. He explains the conditions of ijtihad and illustrates this with examples from real life. He warns against following desire and inclination in religion, and affirms the obligation of following the proof from the Book and the Sunnah, or sound analogy based on them.
All parts of Summary of the Explanation of al-Shafi'i's al-Risala by Dr. Yasir Burhami