INTERNATIONAL ISLAMIC UNIVERSITY

ISLAMABAD

Submitted To: Dr. Naseem Razi

Submitted By: Sabeeka Ashraf
Assignment:
Reg. No:

Shafi Risala - Istihsan

53/LLM/MFL/F14

SHAFI RISALA
Kitab al Risala Fi Usul al Fiqh, often abridged as Kitab alRisala 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 reapproached 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.