Legal Logic and Equity in Islamic Law

Legal Logic and Equity in Islamic Law
Author(s): John Makdisi

Source: The American Journal of Comparative Law, Vol. 33, No. 1 (Winter, 1985), pp. 63-92
Published by: American Society of Comparative Law
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JOHN MAKDISI
Legal
Logic
and Equity in Islamic Law
THE IMAGE OF AN IRRATIONAL LAW
In the introductory chapter to his book on Islamic law, Joseph
Schacht wrote:
Islamic law is the epitome of Islamic thought, the most
typical
manifestation of the Islamic way of life, the core and
kernel of Islam itself. The very term fickh, 'knowledge',
shows that early Islam regarded knowledge of the sacred
Law as the knowledge par exellence.1
This characterization of Islamic law is commonly accepted among
Islamists,2 but a strange and mistaken image of the Islamic judge
(qadi) persists in American legal circles. U.S. judges have offhand-
edly used the term
qadi
justice to symbolize a total denial of the
law, namely, unprincipled, expedient and arbitrary lawmaking.
When Judge Dobie of the Fourth Circuit Court of Appeals re-
fused to construe the words of a Virginia statute against its legisla-
tive intent, he stated,
[W]
e cannot torture these words into fanciful meanings; we
cannot ignore what appears to have been a crisp legislative
distinction expressed in terms that are anything but uncer-
tain. We sit, after all, as an appellate court, administering
justice under the law, not as an ancient oriental cadi, dis-
JoHN MAxDisi is Assistant Professor of Law, Cleveland-Marshall
College of Law.
Funding for this study was provided through grants from the Harvard Law
School,
the University of Pennsylvania Law School (Franklin B. Gowen Memorial Fellow-
ship) and The American Research Center in Egypt (funded by the International
Communication Agency). A modified version of the paper was delivered as a lecture
at Ohio State University on 10 February 1983 and at Harvard Law School on October
11, 1983.
1. Schacht, An Introduction to Islamic Law 1 (1964).
Fiqh (also spelled
fikh)
is
the Arabic term for positive Islamic law. (Arabic terms are transcribed with diacriti-
cal marks in textual quotes and footnotes, but not in the text.)
2. See, e.g., Anderson, Law Reform in the Muslim World 1 (1976); Fyzee, Out-
lines of Muhammadan Law 16 (4th ed. 1974); Gibb, Mohammedanism: An Historical
Survey 7 (2d ed. with revisions 1970); Makdisi, The Rise of Colleges: lIstitutions of
Learning in Islam and the West 284 (1981); Ramadan, Islamic Law: Its Scope and
Eq-
uity 24 (2d ed. 1970).
The term "Islanist" is used in this article to describe the scholar wvho is a student
of
Islam;%
"Islamic jurist" or 'jurisconsult" describes the scholar who participated in
the elaboration and development of the Islamic legal system as opposed to the qadi
who only adjudicated cases within the system.
63
64 THE AMERICAN JOlURNAL OF COMPARATIVE LAW [Vol. 33
pensing a rough and ready equity according to the dictates
of his own unfettered discretion.3
Eight years later, Justice Frankfurter, in his dissent to Termi-
niello v. Chicago,4 asserted that the Court may not address a federal
claim which was neither before the state court nor presented to the
Supreme Court. He then added,
This is a court of review, not a tribunal unbounded by rules.
We do not sit like a kadi under a tree dispensing justice ac-
cording to considerations of individual
expediency.
Similar sentiments have been voiced by other courts.5
The judiciary's conception of qadi justice is reminiscent of Max
Weber's earlier description of Islamic law as a sacred law in which
he stated that "systematic lawmaldng, aiming at legal uniformity or
consistency, was impossible."6 According to Weber, the opinions of
the Islamic jurists "are given without any statement of rational rea-
sons
[and thus] actually increase the irrationality of the sacred law
rather than contribute, however slightly, to its rationalization."7
3. Clark v. Harleysville Mut. Casualty Co., 123 F.2d 499, at 502 (1941). It is inter-
esting to note that the institution of appeal is absent in Islam. See Shapiro, Courts:
A Comparative and Political Analysi 194-222 (1981).
4. 337 U.S. 1, at 11 (1949).
5.
E.g., Colonial Trust Co. v. Goggin, 230 F.2d 634, at 636 (9th Cir. 1955); Boston
and Maine Corp. v. fllinois Central R.R. Co., 396 F.2d 425, at 425 (2d Cir. 1968); U.S. of
A. v. Murray, 621 F.2d 1163, at 1169 (lst Cir. 1980).
The statements of American judges concerning qadi justice have recently met
with criticism by Islamists. Professor Farhat Ziadeh commented on the prejudicial
sentiments evinced by such references and pointed to "the meticulousness of the
qadi in protecting the rights of the parties according to strict rules of procedure and
evidence." "Presidential Lecture - MESA 1980," 15 M.E. Stud. Ass'n. Bull. 1 at 2 (July
1981). Lawrence Rosen has likewvise maintained that Justice Frankfurter's statement
indicates the limitations in our
understanding of qadi justice which is far from being
arbitrary or unsystematic. Rosen, "Equity and Discretion in a Modern Islamic Legal
System," 15 L. & Soc. Rev. 217, at 218 (1980-81).
6. Rheinstein (ed.), Max Weber on Law in Economy and Society 241 (1954)
(translation from Weber,
Wirtschaft und Gesellschzaft (2d ed. 1925). Max Weber's dis-
cussion of Islamic law has been severely criticized in Turner, Weber and Islam: A
Critical Study (1974).
7. Rheinstein (edL), id. at 241 (1954). The rational-irrational dichotomy in law-
making is described by Weber as follows:
Both lawmaldng and lawflnding may be either rational or irrational.
They are 'formally irrational" when one applies in lawmaling or lawflnding
means which cannot be controlled by the intellect, for instance when re-
course is had to oracles or substitutes therefor. Lawmaking and lawflnding
are "substantively irrational" on the other hand to the extent that decision is
influenced by concrete factors of the particular case as evaluated upon an
ethical, emotional, or political basis rather than by general norms. "Rational"
lawmaling and lawfinding may be of either a formal or a substantive ind.
All formal law is, formally at least, relatively rational. Law, however, is '"for-
mal" to the extent that, in both substantive and procedural matters, only un-
ambiguous general characteristics of the facts of the case are taken into
account. This formalism can, again, be of two different kinds. It is possible
that the legally relevant characteristics are of a tangible nature, i.e., that they
1985]
MAIISI ISLAMIC LAW 65
This image of qadi
justice
is truly mistaken, for in classical Is-
lamic law, the discretion of the judge is stringently controlled by the
highly developed and detailed doctrines of the school of law of
which he is a padt.8 With the exception of the very early years in
Islam,9 the judge has always been subject to these doctrines without
are perceptible as sense data. This adherence to external characteristics
of
the facts, for instance, the utterance of certain words, the execution of a sig-
nature, or the performance of a certain symbolic act with a fixed meaning,
represents the most rigorous type of legal formalism. The other type of for-
malistic law is found where the legally relevant characteristics of the facts
are disclosed through the logical analysis of meaning and where, accordingly,
deflnitely fixed legal concepts in the forn of highly abstract rules are formu-
lated and applied. This process of
"logical rationality" diminishes the signifi-
cance of extrinsic elements and thus softens the
rigidity of concrete
formalism. But the contrast to "substantive rationality" is sharpened, be-
cause the latter means that the decision of legal problems is influenced by
norms different from those obtained through logical generalization of ab-
stract interpretations of meaning. The norms to which substantive rational-
ity accords predominance include ethical imperatives, utilitarian and other
expediential rules, and political maxims, all of which diverge from the formal-
ism of the "external characteristics" variety as well as from that which uses
logical abstraction. However, the peculiarly professionaL legalistic, and ab-
stract approach to law in the modern sense is possible only in the measure
that the law is formal in character. In so far as the absolute formalism of
classification according to "sense-data characteristics" prevails, it exhausts it-
self in casuistry. Only that abstract method which employs the logical inter-
pretation of meaning allows the execution of the specifically systematic task,
i.e., the collection and rationalization by logical means of all the several rules
recognized as legally valid into an internally consistent complex of abstract
legal propositions. Id. at 63-64 (emphasis added).
Weber then gives five postulates from which, he claims, legal science with the highest
measure of
methodological and logical rationality would proceed:
... flrst, that every concrete legal decision be the "application" of an abstract
legal proposition to a concrete "fact situation"; second, that it must be possi-
ble in every concrete case to derive the decision from abstract legal proposi-
tions by means of legal logic; third, that the law must actually or virtually
constitute a "gapless" system of legal propositions, or must, at least, be
treated as if it were such a gapless system; fourth, that whatever cannot be
"construed" legally in rational terms is also legally irrelevant; and fifth, that
every social action of human beings must always be visualized as either an
"application" or "execution" of legal propositions, or as an 'infringement"
thereof.
Id. at 64.
8. The four Sunni schools of law are the Hanaft, Shflct, Maliki and Hanball
The shFct schools are the Ibadi,
Zaydct Ithna
CAshjart
and Imanit For their geographi-
cal location, see Schacht, supra n.l at 65-67; Liebesny, The Law of the Near & Middle
East 22, 44.45 (1975).
9. Joseph Schacht states in his Introduction to Islamic Law at 25-26 (1964):
The earliest Islamic k2dLs, officials of the Umayyad administration, by
their decisions laid the basic foundations of what was to become Islamic law.
We know their names, and there exists a considerable body of information on
their lives and judgments, but it is difficult to separate the authentic from the
fictitious. Legal doctrines that can be dated to the first century of Islam are
rare, but it is likely that some of the decisions which are attributed to those
kadis, and which are irregular by later standards, do indeed go back to that
eaily period. At a slightly later date we can actually see how the tendency to
impose an oath on the plaintiff as a safeguard against the exclusive use of the
66 THIE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 33
the authority even to develop and elaborate the law. The corpus of
Islamic law has been developed by Islamic junrsts who have em-
ployed various techniques of legal reasoning from the two primary
sources of the law, the Koran and the sunna,'0 and from a confirma-
tory source, consensus.11 The techniques of legal reasoning have in-
cluded primarily qiyas (reasoning by
analogy),
and secondarily
istishab (presumption of continuity), istislah (consideration of pub-
lic interest), and particularly in the Hanafi school, istihsan.
IMAGE OF EQUITY AS A SOURCE OF LAW
Our purpose is not to examine the image of qadi justice which
obviously understates the intellectual content of Islamic law. This
image has been amply rebutted and the rationality of Islamic law
well established.12 Rather it is to examine another interpretation of
evidence of witnesses grew out of the judicial practice at the beginning of the
second century of the hijra. The earliest Islamic kadLs gave judgment accord-
ing to their own discretion, or 'sound opinion' (r7a'y) as it was called, basing
themselves on customary practice which in the nature of things incorporated
administrative regulations, and taking the letter and the spirit of the Koranic
regulations and other recognized Islamic religious norms into account as
much as they thought flt. The customary practice to which they referred was
either that of the
community under their jurisdiction or that of their own
home district, and in this latter case conflicts were bound to arise. Though
the legal subject-matter had not as yet been Islamicized to any great extent
beyond the stage reached in the Koran, the office of kadf itself was an Is-
lamic institution typical of the Umayyad period, in which care for elementary
administrative efficiency and the tendency to Islamicize went hand in hand.
It will become apparent from the subsequent development of Islamic law
that the part played by the earliest kadfs in laying its foundations did not
achieve recognition in the doctrine 6f fegal theory which finally prevailed,
and that the concept of judicial precedent, the authority of a previous judicial
decision, did not develop.
10. The Koran is the holy book of the Moslems which they believe to be divinely
revealed through the Prophet Mohammad. "Sunna" means a way of life, and more
precisely in classical Islamic theory, is the model behavior of the Prophet. Schacht,
The Origin.s of Muhammadan Jurisprudence 58 (1953). The sunna is embodied in tra-
ditions (hadith) which appear in several collections, six of which are particularly au-
thoritative in sunni Islam: the works of Bukhar, Muslim, Ibn Maja, AbQ Dawad,
Tirmidhi, and Nasa't
11. Consensus (ijmdc) is the agreement of the legal scholars of the Muslim com-
munity. The first external justification of this source is given by Shaybani (Hanafl
jurist, 189/804) who stated with regard to a particular decision:
The Muslims are agreed on this and approve of it, and it is related on the au-
thority of the Prophet that everything of which the Muslims approve or dis-
approve, is good or bad in the sight of Allah
[God].
Id. at 86.
Islamic law is a closed system in Lawrence Friedman's terminology: The Legal
System.r A Social Science Perspective 234-247 (1975). The decision-makers must base
their decisions only on "legal" premises, i.e. the Koran and sunna. Yet, despite Fried-
man's attempt to classify Islamic law as a sacred law which denies innovation, Is-
lamic law falls within the category he calls Legal Science which accepts innovation.
As we will show in our discussion of istihsan, "[j]urists can 'discover' new proposi-
tions, improve old ones, and show fresh relationships." Id. at 241.
12. Numerous authors have described the process of reasoning by analogy in Is-
1985] MAKDISI: ISLAMIC LW 67
Islamic law. This latter interpretation suggests that, despite the pri-
macy of reasoning by analogy in developing the law from the Koran
and the sunna, a legal solution derived by such reasoning may be
rejected by the Islamic jurist in favor of one based on and justified
by "equity". Yet, the concept of equity as we know it in the West is
the antithesis of the Islamic view that all law is derived from God
through the Koran and the sunna. Equity is grounded in the
precepts of the conscience, a preconceived set of norms existing
apart from positive law. Although it can (and has in the U.S.) be-
come a complex of well-settled rules, principles and precedents
which are part of the positive law, equity derives its legitimacy from
the belief in a natural right or justice beyond positive law. This con-
cept contradicts one of the basic premises of Islamic law, the total
reliance on the revealed Word of God in the Koran and sunna as the
only primnary source of law.
Some observers of Islamic law have asserted that the notion of
equity is embodied in the concept of istihsan. Istihsan, in the literal
meaning of the term, finds its root in the word hasan (good) and
means "to deem (something) good", but the legal significance of is-
tihsan is elusive and has been the subject of debate even among Is-
lamic jurists. Nevertheless, as we shall show, istihsan has never
been maintained by Islamic jurists as reasoning based on an
equity
independent of the Koran and the sunna. This paper first examines
the works of Islamists who have misinterpreted istihsan as reason-
ing based on equity. It then inquires into the nature of istihsan as
seen through the eyes of Islamic jurists who used the concept
within the Islamic legal system. Finally, it attempts to formulate a
legal definition for istihsan derived from an analysis which meas-
ures istihsan against a comparable concept in American common
law.
Tyan
Among the Islamists who have promoted the interpretation of
lamic law and it has been compared to that used in the Greek and Roman legal sys-
tems. See, for example, Abdel-Rahman, "L'argument a maiori et l'argument par
analogie dans la logique juridique musulmane," Rivista Internazionale di
Filosofia
del Diritto 127 (1971); Aghnides, Mohammedan Theories of Finance with an Introduc-
tion to Mohammedan Law and a Bibliography (1916); Brunschvig, "Logique et droit
dans l'Islam classique," 2 Etudes d'Islamologie 347 (1976); Chehata, "Logique
juridique et droit musulman," 23 Studia Islamica 5 (1965); Goldziher, "Fikh," Shorter
Encyclopaedia of Islam 102 (1953); Kourides, 'Traditionalism and Modeinism in Is-
lanic Law: a Review," 11 Colum. J. Transnat'l L. 491 (1972); Makdisi, "The Scholastic
Method in Medieval Education: An Inquiry into its Origins in Law and Theology," 49
Speculum 640 (1974); Rabie, La Doctrine Comme Source Creatrice de la Rdgle
Juridique en Droit Musulman (1949?); 'ryan, "Mdthodologie et sources du droit en Is-
lam (Istihsan, Istislah, Siyasa garciyya)," 10 Studia Islamica 79 (1959); Weiss, "Inter-
pretationin Islamic Law: The Theory of Ijtihad," 26 Am. J. Comp. L. 199 (1978).
68 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 33
istihsan as reasoning based on equity, Emile Tyan has written one
of the seminal pieces on the subject.13 Tyan describes istihsan as a
method for admitting new rules into the
corpus juris
of Islamic
law,
or restricting or extending the interpretation of
preexisting rules, on
the basis of practical social considerations such as
necessity, need,
interest, convenience and ease.14 According to
Tyan,
istihsan devel-
oped to offset a restrictive use of the concept of qiyas. Qiyas was
originally a fluid concept of reasoning from prior sources through ar-
gument by analogy, argument a fortiori, argument a majore ad mi-
nus, argument a minore ad majus, or argument a contraria.15 This
method of reasoning through qiyas was broad
enough to
provide for
flexible development in the law; it permitted limitations and exten-
sions of preexsting rules by all its techniques. In time, however,
qiyas was restricted, through a misunderstanding of its real sense,
to a strict or literal interpretation of the law, and, according to Tyan,
istihsan developed to remedy this later restriction by promoting the
spirit and essential social end of the law which was to assure the
satisfaction of human interests.16
Tyan notes that istihsan was called a "hidden" qiyas by the Is-
lamic jurists as opposed to an "apparent" qiyas which required a
strict application of the law. He relates a classic example of istihsan
from the writings of the Islamic jurists:
A rule of principle holds that the remainiing water from
which a wild carnivorous animal has drunk is impure. By
qiyas, one would say that the remaining water from which a
carnvorous predatory bird has drunk is likewise impure, by
reason of the apparent analogy between the two cases: the
carnivore [bird] is a wild animal like the wild beast; its flesh
is impure like that of the carnivore [animal]. This is the so-
lution of "apparent qiyas." But the more careful examina-
tion of the question would permit one to note that the water
in which the carnivore [animal] has drunk is made impure
from the fact that the animal laps with its tongue which,
flesh covered with saliva, is itself impure, while the bird
takes the water with its beak which, made of bone, is not
impure. That is a "hidden" reason which would destroy the
preceding apparent reason of analogy. One would admit
then the purity of the water in the second case by istihsan,
which is to say by "hidden qiyas."17
13. T5ran, "MLthodologie et sources du droit en Islam," 10 Studia Islamica 79
(1959).
14. Id. at 84-85.
15. Id. at 82.
16. Id. at 85, 88, 93-94.
17. Id. at 88-89 (my translation).
1985]
WMYDISi IISLAMC LAW 69
By the mechanism of a "hidden" qiyas, the jurists could justify legal
solutions obtained by way of istihsan by attaching them to the rec-
ognized sources of Islamic law. Tyan interprets this attachment as
one which did not base itself on the letter of preexisting rules, but
rather on the spirit of the law which required a consideration of the
ends of these rules.'8
There is no problem with defining istihsan as a "hidden" qiyas
as opposed to an "apparent" qiyas. The Islamic jurists used these
terms themselves. What Tyan seems to suggest, however, is that
the "hidden" qiyas of istihsan was the application of the same prin-
ciple of equity as is practiced in Western legal systems.'9 Tyan indi-
cates that the equitable principles derivable from the Koran and the
sunna were vague, consisting of ideas of "public utility" and the
"common good". Istihsan, which based itself on these prnciples,
was thus "subjective" and "contingent", taking into consideration
different circumstances of practical needs, customs and usages20 to
provide a solution to a legal problem even when a different solution
was provided by reasoning by analogy or by a direct provision in the
Koran or sunna.21 (Tyan's interpretation of a "subjective" istihsan
appears to overlap the American judiciary's concept of qadi justice
at this point.22) According to Tyan, more than one solution by way
of istihsan was possible without falling into error; whereas there
could be only one solution by way of qiyas since it depended exclu-
sively on the text of a preexisting rule and did not vary with the cir-
cumstances of time.23 This interpretation of istihsan suggests that
the "equity" of the situation depended more on the jurist's con-
science than on direction from the Koran or sunna.
Other Islamicists
The notion of equity (otherwise expressed as public utility or
the common good) as a source of law finds support in the writings of
several other Islamists. Noel Coulson states:
Shafcl1's thesis became the basis of the classical exposition
of Islamic legal theory.
From the tenth century onward the
juristic consensus was that a rule of law must be derived
either from the Qur'an or the sunna or by analogical deduc-
tion therefrom. But by way of a postscript, classical legal
theory recognized that in some cases strict analogical rea-
soning might entail injustice and that it was then permissi-
18. Id. at 82-83, 87-88, 93-94.
19. See infra n. 109.
20.
Tyan, supra n. 13 at 95.
21. See, e.g., id. at 85-87.
22. Ie., expedient lawnmaking.
23. Id. at 95.
ble to use a more liberal form of reasoning. Although this
came close to being the same thing as the ra'y of the
ancients, it was now dressed up in more sophisticated ter-
miology and called istihsdn ("seeking the most equitable
solution"), or istislah ("seeking the best solution for the
general interest"). But this was no longer regarded, in the-
ory,
as
giving
human reason sovereign play. "Equity" and
"the public interest" were now seen as the
purposes
of Al-
lah which it was the task of jurisprudence to implement in
the absence of any more specific indication in the Qur'an or
the sunna.24
A. Qadri goes even further, stating that, "the principle of Istihsan
was developed to be fit for comparison with the English 'Equity'."25
Some Islamists avoid equating istihsan
explicitly
with
reasoning
from equity, but their ideas on the nature of istihsan leave the con-
cept unclear. S. Mahmassani defines istihsan as the "preference" of
texts and stronger bases of law over weaker and finds that the
Hanafis used this idea of preference as subtle analogy (distinct from
the clear and apparent analogy of qiyas):
They defined it as "a source (for law) which sparks in the
soul of the interpreter, and which he finds himself unable to
express by words or to bring out by other means", or "the
setting aside of analogy and seeking what is more suitable
for the people", or the setting aside of a certain source (for
law) on account of custom, public interest, necessity, or mit-
igating hardship.26 (footnote omitted)
Paret & Schacht
R. Paret notes that the supporters of istihsan among the Islamic
jurisconsults defined it as follows:
Their principle of diverging in certain cases from kiyas and
using istihsdn is-they say-not decided by personal incli-
nations or by a lack of methodical thinking but on the con-
trary by purely material considerations provided for in the
law. It is a "concealed kiyas" (kiyas khaft), a divergence
from an externally obvious kiycs to an inner and self-condi-
tioned decision. The reason for the preference of istihsdn
might be given in the Kur'an, in the Sunna, in the ijgjmC or
24.
Coulson, Conflicts and Tensions in Islamic Jurisprudence 6-7 (1969).
25. Qadri, Islamic Jurisprudence in the Modern World 77-78 (1963). See also
Goldziher, "Fikh," Shorter Encyclopaedia of Islam 102 at 105 (1953); Rahim, The Prin-
ciples of Muhcimmaden Jurisprudence 163-166 (1911); 1 Santillana, Istituzioni di dir-
itto musulmano malichita at 72 (1926).
26. Mahmassani Falsafat
al-Tashrtfi
al-Islam: The Philosophy of Jurisprudence
in Islam 85-86 (Ziadeh trans. 1961).
1985] MAXDISI: ISLAAIC LAW 71
in the principle of darara
[necessity],
but in any case it is
sanctioned by generally recognized methods of proof. Nor it
is
[sic]
true that istihsan can be traced back to the principle
of takhzis [limitation] and thus be brought within the
sphere of kiyas proper. It really lies outside of this narrow
sphere and must therefore be recognized as a special form
of deduction.27
Joseph Schacht at first followed Tyan when defining istihsan as
reasoning which "reflects the personal choice of the lawyer, guided
by his idea of appropriateness" and "came to
signify a breach of
strict analogy for reasons of public interest, convenience, or similar
considerations."28 Later, however, he moved closer to Paret's view:
However much considerations of fairness and appropri-
ateness entered into the decisions of the earliest lawyers, in
the fully developed system the principle of istihsan (and is-
tislah) is confined to very narrow limits and never super-
sedes the recongized rules of the material sources (Koran
and sunna), their recognized interpretations by the early
authorities, and the unavoidable conclusions to be drawn
from them; it often amounts merely to making a choice be-
tween the several opinions held by the ancient authorities,
that is to say, ikhtiyar.29
The
qualifying remark by Schacht and the brief description of
Paret, which indicate that istihsan was strictly controlled within the
bounds of the Koran and the sunna, diverge from the commonly
held notion that istihsan is equity. Is such a notion above the law,
as Tyan and others appear to indicate, or is it controlled by the law,
as Schacht and Paret seem to suggest? Chafik Chehata addresses
this question in a study of the doctrine and the cases which use the
concept of istihsan.30 His research indicates that Schacht and Paret
were closer to the truth.
Chehata
Chehata starts with the premise that "Islamic law excludes all
recourse to natural law."'3' The law had to be constructed on the ba-
sis of texts from the Koran and the sunna. Therefore, analogy could
27. Paret, "Istihsan and Istislah," 4 Ene. of Islam 255 at 256 (1978).
28. Schacht, supra n. 10 at 98-99. Accord, Schacht, supra n. 9 at 37.
29. Schacht, supra n. 9 at 204.
30. Chehata, "L'
lquitW' en tant que source du droit hanaflte," 25 Studia Islamica
123 (1966).
31. Id. at 123 (my translation). See also Chehata, "Logique Juridique et Droit
Musulman," 23 Studia Islamica 5 at 7-8, 24 (1965), where the basis for this premise is
developed at length.
be used to elaborate the law from particular cases in these texts,32
but sole reference to one's conscience to make law was impermissi-
ble. Because analogy sometimes led to severe
results, however, is-
tihsan was introduced as a mitigating agent.
According to Chehata, istihsan is a complex notion which en-
compasses the ideas of justice and utility.33 But is it reasoning on
the basis of equity? It cannot be if the concept of equity is defined
as a law of nature superior to any written or traditional legal rule
because there is no notion of natural law in Islamic law.34 There-
fore, Chehata does not define istihsan in this way, but rather as a
method for extracting the spirit of legal theonres-the ratio legis, as
he calls it-from the texts of the law with a view to regulating new
situations in harmony with these.35 According to Chehata, it is op-
posed to reasoning by analogy which makes use of the precise provi-
sions of the law to extract solutions near to those of the texts. It is
not even a hidden analogy as opposed to an evident analogy. It
adopts a solution which does not fit within the bounds traced by the
operation of analogy.36
Chehata's interpretation differs from that of Tyan. Tyan defines
istihsan as remaining within the spirit (esprit) of a rule, but alludes
to vague principles supposedly existing in a diffuse state in the law,
such as the principle of the satisfaction of human interests.37 Al-
though Chehata states that istihsan is a method for extracting the
spirit of legal theories (l'esprit des theories ldgales) from the texts of
the law, he emphasizes that this "spirit" must be sought within the
texts of the law itself.38 Chehata's approach thus places more em-
phasis than Tyan's on the direction given in the Koran and sunna
for the interpretation of their provisions, but it suggests that istih-
san may still be justified as a personal interpretation of the texts of
the law which is more fluid than reasoning by analogy.
From Chehata we may conclude that istihsan is not reasoning
from equity in the sense of a defined body of principles existing
apart from the law, but neither does it appear to him to be reasoning
by analogy from the texts of the law. It is a method for justifying, on
the basis of the spirit of principles from legal texts, legal solutions
which are opposed to solutions derived through reasoning by anal-
ogy. But then what is the method by which a solution is derived by
istihsan? What limits does the use of istihsan impose on reasoning
32. Chehata, supra n. 30 at 123.
33. Id. at 136.
34. Id. at 137.
35. Id. at 138. See the cases in the works on fiqh cited by Chehata. Id. at 129-135.
36. Id. at 135, 138.
37. Tyan, supra n. 12 at 88, 91-94.
38. Chehata, supra n. 30 at 136-38.
1985]
MAKDISI ISLAMIC LAW 73
by
analogy
and vice versa? What effect does the
opposition of
Zstih-
san to reasoning by analogy have on the status of the latter as a
technique of legal reasoning? If istihsan really predominates over
an otherwise valid qiyas, why is it not
recogniized in the same
way
as qiyas, at least in the Hanafi school?
CONCEPT OF ISTIHSAN HELD BY ISLAMC JUPISTS
It is the thesis of this article that an examination of the works of
Islamic juriStS39 will show that, contrary to general academic opin-
ion, istihsan is not reasoning from
equity.
Istihsan is the determina-
tion of a solution to a legal case based on either (1) a direct
provision in the Koran, sunna, or consensus, or (2) reasoning by
analogy from one of these three sources. The reason it is distin-
guished from qiyas (reasoning by analogy) as a technique of legal
reasoning is the added factor that a solution by istihsan may be op-
posed to a solution which another act of analogical reasoning pur-
ports to draw for the same case. A rule of the Koran, sunna, or
consensus may be superior to a proposed solution by analogy, or
one act of analogical reasoning may be superior to another. The
only reason for calling this process istihsan as opposed to reasoning
from the Koran, sunna, consensus or analogy is that it entails a "ju-
rstic preference"40 for one solution over the other. As will be
shown, however, this preference is determined by the Koran and
sunna and not by an appeal to conscience.
Shafici
The Islamic jurists of the four sunni schools were not always in
accord over the legal meaning of istihsa1a, and their disagreement
led to serious conflicts over the use of istihsan as either a source or
method of legal reasoning. According to Shafici, istihsan could not
exist as an independent source of Islamic law.41 Islamic legal theory
would not permit it. Every case involving a Muslim has a binding
legal norm (hukm lazim) drawn from the Koran, the sunna, or con-
sensus. If there is no legal norm directly on point, there is at least
39. Chehata disparaged the writings of the jurisconsults, claiming that for them
istihsan would be that instinct which tells us the best solution for a particular case.
Chehata, supra n. 30 at 127-128, 137. My study of the texts indicates that their analysis
of istihsan was much more perceptive than that which Chehata gives them credit for.
40. "Juristic preference" has been used by a number of Islamists to define istih-
san, but the crucial question is what is being preferred. See, e.g., Mahmassani, supia
n. 26 at 85.87; Schacht, supra n. 10 at 98; and Tyan, supra n. 13 at 84.
41. Shdfi'Cf Kitab ar-Risala at 66 (4-5, 18-20), 69 (17-18), 70 (31-33) (1321 H.)
(translated in Khadduri, Treatise on Moslem Jurisprudence (1961)); 7
ShdfiCt Kitdb
al-Umm at 270 (33) - 271 (3), 271 (15), 272 (30-33) (1325 H.). ShafI (died 204/820) is
the eponym of one of the four sunni schools of law in Islam. He has been called the
father of Muslim jurisprudence. Coulson, A History of Islamic Law 61 (1964).
an indication (dalala) of one in one of these three sources. In such
a case, the indication of the legal norm is sought through reasoning
from established cases. If the case at hand falls within the meaning
(macna) of an established case, the legal norm of that case governs;
if it resembles more than one established case, the norm of the case
with the nearest resemblance governs. This
process of
reasoning
was called ijtihad by Shafici and was equated by him with reasoning
by analogy (qiyas). There were no other means of reasoning per-
mitted in making a judgment (hukm) or delivering a legal opinion
(fatwa) in a case other than by way of the Koran, the sunna, con-
sensus or reasoning by analogy. Therefore, istihsan in any other
sense of the term was not permitted and was considered error
(khata). In so prohibiting the use of istihsan as an independent
source of law, Shafici declared himself against its use as an expres-
sion of arbitrary opinion (ray).42
Ghazali
The adherents of Shafici's doctrine continued the polemic
against istihsan. In the summer of 1109, the famous jurisprudential
work, Kitab al-Mustasfa, appeared. It was written by a Shafici juris-
consult, Ghazali, who described three different meanings for istih-
san and proceeded systematically to reject those wvhich incorporated
the idea of arbitrary opinion.43
The first definition which he claimed existed for istihsan was
"that which comes spontaneously to the understanding."44 Ghazali
rejected the validity of such an istihsan as a source of law on the
grounds that the divine law (sharc) did not define it as such, and,
furthermore, consensus (ijmac) teaches that the scholar may not
judge by way of his feelings and emotions alone without guidance
from the sources of the law (sharica). It is because the scholar dis-
tinguishes himself in knowledge of these sources that he is permit-
ted to exercise ijtihad (a strong effort of personal reasoning which is
permitted only to leading Islamic scholars).45
The second definition was "an indication arising in the mind of
the mujtahid [one who exercises
ijtihad],
which he cannot express
nor bring out in the open."46 This meaning was also rejected by
Ghazali because that which cannot be demonstrated may only be
42. Cf. Schacht, supra n. 10 at 120-122.
43. 1
Ghazalt, Kitab al-Mustasfa at 274-283 (1322 H.) [hereinafter cited as Mus-
ta.s/J. (I wish to thank Professoi Roger Arnaldez for his help in clarifying some of
the passages in Ghazali's Mustasfa.)
44. "Al-ladhI yasbiq ila 'I-fahn" Mustasfa at 274 (5).
45. Mustasfa at 275 (1)
- 276 (2).
46. "DalWl yanqadihu
ft nafsi 'I-mujtahid la tusdciduhu '-cibara Canhu wa la
yaqdir Cala ibrdzihi wd izh4rihi." Mustasfc at 281 (1).
1985] MAXDISI ISLAMIC IAW 75
part of the imagination. It must be tested on the basis of the
sources of the law if one is to know whether or not it is
legitimate.47
Although rejecting the first two "intuitional" definitions for istih-
san, Ghazali did accept the third: that which is based on an indica-
tion (dalil) from the Koran or sunna, even though it opposes a
particular reasoning by analogy.48 The dalil is something which in-
dicates that the legal norm to be applied to a case at hand should
not be taken from cases similar to it, but that the case at hand is
governed directly by a provision in the Koran or sunna. For exam-
ple, reasoning by analogy would lead one to the conclusion that all
one's goods should be given as alms when one says what is mine is
alms, but a specific Koranic verse allows him to limit his
almsgiving
to the specific amount of the alms tax called zakat.49
It is clear that Shafici and Ghazali were opposed to the use of
istihsan as a vehicle for arbitrary opinion. If istihsan existed at all
for the, it was merely the preference for applying the Koran or the
sunna to a case at hand, instead of the solution dictated by reason-
ing by analogy. From this perspective, it is easy to understand why
Ghazali called it one of the imagined sources (al-usul al-
mawhuma).50
Bazdawi & Sarakhsi
Opposed to the Shafici rejection of istihsan as a viable concept
of legal reasoning were the adherents of the doctrine of Abu
Hanifa.51 The works of Bazdawi (died 482/1089)52 and Sarakhsi
(died 483/1090)53 redefined and attempted to justify the concept in a
relatively detailed discussion replete with examples. For them istih-
san could be one of two things: (1) the abandonment of reasoning
by analogy (a) in favor of a tradition (athar) in the Koran or the
sunna (the meaning which Ghazali later accepted in his third defni-
tion) or (b) in favor of consensus or necessity (darura)54; or (2) the
47. Mustasfa at 281 (1-3).
48.
Mustawfa
at 282 (5).
49. MuwsStafd at 282 (4) - 283 (5). But cL T-yan, supra n. 13 at 87.
50. MAustasfa at 274 (4).
51. Abu H1anifa (died 150/767) is the eponym of a Sunni school of law in Islam.
52.
Bazdaw;, Kanz al-Wusial ila Macrifat
al-Usal,
in 4
Bukhwl, Kashf
al-Asrar at
1125 (1) - 1126 (10) (in the margin) (1307 H.) [here'inafter cited as Bazdawt (when re-
ferring to the margin) and Bukhar (when referring to the main
text)].
Bukhart's
work in the main text is a commentary on Bazdawt's in the margin.
53. 2 Sarakhzs UsZl as-Sarakhsf at 202 (20-21), 204 (1-2) (1973) [hereinafter cited
as Usill as-Sarakls1J: Sarakhst's date of death is uncertain. It has been variously
given as 438, 483, 490, and 500. See Brockelmann, Geschichte der Arabischen Litter-
atur, Supplementband I at 638 (1937).
54. Necessity is not a source of law but a legitimate basis for decision provided
by the Koran, sunna and consensus. See text infra at 76-77. From the cases on neces-
sity it appears to be strict necessity and not public policy.
stronger of two qiyas (reasoning by analogy). In both cases, istih-
san is really the preference for one source over another. It is not a
question of preferring the legal solution dictated by notions of eq-
uity over the legal solution dictated by a source of law in a particu-
lar case. The solution which is to govern is based on a recognized
source of Islamic law, and the preference of one source over another
is made either on the basis of predetermined priorities or through
reasoned elaboration of the law.
With regard to the first type of istihsan described by Bazdawi
and Sarakhsi, the preference for a solution dictated by the Koran,
the sunna, or consensus over a solution dictated by reasoning by
analogy from these sources is based on the priority of primary
sources over a derivative source. If one forgets and eats during a
fast, his fast is invalid according to reasoning by analogy, but a tra-
dition exists from the Prophet which allows him to continue his
fast.55 Likewise, reasoning by analogy, which requires that the ob-
ject of a contract be present at the time of the making of the con-
tract, is superseded by a tradition which permits the salam contract
(the sale of an object to be delivered in the future).56 Reasoning by
analogy would also reject the validity of the contract of hire since
payment in that contract is extended over time and commutative
contracts may not be extended over time, but a tradition counters
the reasoning in this particular case and permits the contract.57
The abandonment of reasoning by analogy in favor of consensus
is typified in the contract of hire for labor. If a person goes to a
shoemaker and asks him to make a pair of shoes, there is no sale at
that time according to qiyas because of the possibility of error which
might arise concerning the final product. Where there is uncertainty
concering the object of sale which might lead to controversy, the
contract is invalid. However, consensus established by the trade
practice of the people tolerates the degree of possible error in this
particular case and permits the sale.58
A solution dictated by necessity is also considered superior to
the solution dictated by reasoning by analogy. For instance, if a well
has been contaminated by impure substances, the question arises
55. Bazdawv at 1125 (3-4), with commentary in BukhA at 1125 (20-23); Usal as-
Sarakhst at 202 (21-24).
56. Bazdawt at 1125 (3), with commentary in Bukhar at 1125 (13-17);
Usfl
as-
Sarakhst at 203 (1-2).
57. Bazdawl at 1125 (3), with commentary in Bukharf at 1125 (17-20). Sarakhst
classifies this example under
necessity. Us-dl as-Sarakhsl at 203
(12-13).
See Mahmassani, Falsafat
al-Tashrtfi
al-Islam: The Philosophy of Jurisprudence
in Islam 85-86 (Ziadeh trans. 1961), which explains that "preference" in such a case as
this is to give priority to the texts and to the stronger bases of law over the weaker.
58. Bazdawt at 1126 (2), with commentary in Bukh&r at 1125 (24)
-
1126 (1); Usal
as-Sarakh,s-t at 203 (3-7).
1985] MAKDISI: ISLAMIC LAW 77
whether the water may be drunk. Ordinarily, impure water may not
be drunk according to law. Yet, in the case of the well, the water
cannot be purified by eliminating that part which is impure. The
water cannot be poured out, and water flowing into the well be-
comes unclean upon contact with the water within. Nevertheless,
because most people need this water, reasoning by analogy from the
ordinary legal solution for impure water is rejected in favor of
necessity.59
Necessity,
of course, is not a source of Islamic law in itself.
Bukhari (died 730/1329), in his commentary on Bazdawi's work,
pointed out that reasoning from necessity is justified by a tradition
(athar) drawn from the Koran and sunna.60 He also appears to have
justified it by consensus,61 although he used the tern ittifaq rather
than ijmac.62 To prefer a solution based on necessity, then, does not
cast the jurist off from an attachment to the recognized sources of
the law.
In the second type
of istihsan described by Bazdawi and
Sarakhsi in which the "stronger" of two qiyas is preferred over the
other, two reasonings by analogy appear to exist for a case at hand.
In determining the legal norm to govern the case, one solution may
be apparent by way of reasoning by analogy, but on closer examina-
tion, it becomes clear that the tradition on which it is based is weak
while another tradition which is not immediately apparent is
stronger, i.e., more appropriately applicable as a solution. The rea-
soning by analogy from this hidden but stronger tradition prevails
as an istihsan over the reasoning by analogy from the weak tradi-
tion. Strength or weakness in this case is decided by determining
whether the cause (cilla) generating the legal norm (hukm) in the
tradition has been properly determined and exists in the particular
case being solved, or whether there is only a superficial resemblance
between the tradition and the case at hand.63 It is on this basis of
reasoned elaboration that one qiyas is chosen over another.
59. Bazdawl at 1126 (3-4), with commentary in BukharI at 1126 (2-7); Usfl as-
Sarakhsf at 203 (8-12).
60. Bukh& at 1126 (7).
61. But see Tyan, supra n. 13 at 84.
62. Know that the opposition did not deny against Abti Hanffa, may God have
mercy upon him, istihsdn by tradition and consensus or necessity, because
the abandonment of reasoning by analogy (qiy2s) by these proofs (dala'il) is
approved (mustahsan) by general agreement (ittifdq). Rather, they deny
against him istihsan by opinion (ra7y).
Wa-Clam aydan an al-mukhaliftn lam yankira cala AbY
Hantfa-rahimahu
'llahl-istihsan bi 7-athar wa 'l.ijmdc aw ad-darara li-anna tarka 'I-qiyas
bi hadhihi 'c-dald'il mustahsan bi
'li-ttifaq
wa 'nnama ankas
Oalayhi
'Is-
tihsdn bi
'r-ra'y.
Bukh&r at 1124 (5-7) (my translation).
63. Bazdawt at 1122 (1)
- 1124 (5), 1126 (6-19), w%ith commentary in Bukh&r at 1122
For example, according to Bazdawi and Sarakhsi and recalling
the case related by Tyan as a "hidden" qiyas, Islamic law forbids the
eating of food left by predatory animals because the meat of such
animals is unclean
(najis)
and this makes the food they touch un-
clean. Through reasoning by analogy from this principle it is as-
serted that the food left by predatory birds, such as the hawk and
the falcon, is also forbidden because their meat is unclean. The
meat of these animals and birds is considered unclean because they
are predatory. However, Islamic law does permit certain uses of
predatory birds and animals; their skin, bone and hair are consid-
ered clean. It is merely their meat which is considered unclean and
forbidden to be eaten. Since a bird's beak is clean, why then should
the food it touches be unclean? Reasoning by istihsan probes
deeper into the real cause (cilla) of uncleanness in food left by
predatory animals. Since it is the meat in predatory animals and
birds which is unclean and saliva stems from this meat in predatory
animals, it is the mingling of saliva with the food which predatory
animals touch which makes it unclean and causes it to be forbidden.
This mingling of saliva does not occur with the food left by preda-
tory birds, because they eat and drink with their beaks which do not
emit saliva. Therefore, the food they touch is clean (tahir) through
this hidden (i.e., not immediately apparent) but stronger reasoning
by analogy. Istzhsan prevails over the apparent but weaker reason-
ing by analogy.rA
Amidi
Istihsan is thus a method for choosing between two possible le-
gal solutions to a particular case-legal solutions which are obtained
within the context of the recognized sources of Islamic law. At least
on a conceptual plane, there appears to have been no disagreement
between the Shaficis and the Hanafis over the use of this concept.
Rather, the Shafici attack appears to have been directed more at its
abuse, indeed, at its becoming a form of "qadi
justice." A later
Shafici author tried to reconcile the views of the two schools on this
(2) - 1123 (5), 1124 (22) - 1125 (8), 1126 (7-15); Us-al as-Sarakhst at 201 (18-20), 203 (16-
21), 204 (1-2); 10 Sarakhsf Kitab al-Mabsat at 145 (8-10) (1978).
Chehata did not give Bazdawl proper credit when he stated: "It is thus that for
al-Bazdawt,. .., istihsan is an analogy stronger than the analogy called qiyas....
To disguise the operation of the mind which consists of making a clean sweep of all
induction, it was dressed up with this qualificative: "khaft" In fact, one passed from
one solution to another, in two similar cases, without apparent reason: to wit, without
alleging any
similarity whatever." Chehata, supra n. 30 at 126-27 (my translation).
For a description of the constituent elements of qiy2s (asl (oxiginal case), far"
(new case), cilia (cause), and hukm (rule)), see Nour, "Qias is a Source of Islamic
Law," 5 J. Islamic & Comp. L. 18, at 22-30 (1969-76).
64. Bazdawl at 1126 (23) 1127 (12), with commentary in Bukh3rt at 1126 (20) -
1127 (27); Usal as-Sarakhsf at 204 (1-9).
1985]
MAKIDISI ISLAIC LAW 79
subject. Amidi (died 631/1233)65 agreed with Ghazali's rejection of
istihsan, defined as that which arises from feelings or emotions
without any support from the sharica, but pointed out that this was
not a subject of controversy among the legal scholars.66 Arbitrary
opinion was rejected by all. Amidi did find that some of the Hanafis
defined istihsan as an impression arising in the mind of the
mujtahid who is unable to
explain it, but unlike Ghazali, who had
rejected the valdity of this meaning of istihsan as being unjustified,
Amidi reached a different conclusion: Vhere it is doubtful whether
the impression in the mind of the mujtahid is supported by the law
or merely by an inclination, all agree that that opinion should be re-
jected. On the other hand, where it is certain that an indication
(dalil) supporting it in the sharica exists, there is no controversy
about permitting it. If there is any problem, it is simply a termino-
logical one in calling this istihsan.67 Likewise, in the case where one
reasoning by analogy is abandoned for another which is stronger,
Amidi found that the strength of the latter is dependent on a text
from the Koran, sunna or consensus, and there is no dispute over
this concept except in calling in istihsan.68
Shatibi
Tuming to the Malki school, the adherents to the doctrine of
Malik69 were not significantly concerned with the concept of istih-
san. They focused rather on the concept of istislah70 as a process of
legal reasoning used to fill the gaps in the law. To the extent that
65. 1 Amid?; Al-Thkamft
Usfl
al-Ahktlm 136-38
[hereinafter cited as Ihkemj.
66. tIhkdm at 136 (25-29).
67. Ikeam at 136 (30) - 137 (1).
68. Ilhkam at 137 (2-28). Custom ('add) is mentioned as a reason for abandoning
reasoning by analogy but is found to fall within the concept of consensus. Ihkdm at
137 (3, 8-9, 25-28).
69. Malik (died 179/795) is the eponym of a sunni school of law in Islam.
70. Tyan, in his article, supra n. 13 at 96, describes the concept of ististlh as
follows:
In its
original conception, this method can be summarized in the follow-
ing terrns. The matters, the general "interests" (masalih) which, in the gov-
ernment of the community, can prove the object of
reiulation,
are divided
into three categories. The first have been effectively recognized and regu-
lated by determined and precise texts of law,-the others, cited in the law,
have been nevertheless rejected by a precise text;-the third category is rep-
resented by the matters which have not been the object of a determined and
precise regulation neither in one sense nor in the other.
The interests of this last
category are called masalih mursala (lit.: "inter-
ests not tied" to a precise text). Therefore, in deiault of texts, the human
reason finds itself reduced to its own resources to find the diverse rules of
law which the protection of its interests necessitate; as well, the reasoning
which, under such conditions, results in the establishment of norms and ju-
ridical solutions, is qualified as a method of research "not tied: istidlal mur-
saP'. [my translation]
80 THE AMERICAN JOURNAL OF COMPARATIVE LW [Vol. 33
the concept of istihsan was discussed, the Maliki jurists regarded it
as a preference for one legal solution over another, but possible le-
gal solutions included those derived by way of istidlal mursal, the
method of legal reasoning for istislah (consideration of the
public
interest). One Maliki author, Shatibi (died 790/1388), claimed that
istihsan in the doctrine of Malik was "the adherence to a
particular
interest as opposed to a general proof. It necessitates recourse to
the preference of istidlal mursal over reasoning by analogy."71 Sha-
tibi defined istihsan as the abandonment of one source in favor of
another which was considered stronger, but he emphasized that the
stronger proof could be not only
explicit
but also implicit in the law,
and istislah fell within the second
category.72 Practically speaking,
the Maliki school added a new dimension to istihsan by preferring
solutions by way of istislah over possible alternatives. Although is-
tislah is not based on one's feelings alone but rather on what is
gathered from the intention of the Lawgiver as a whole,73 it does not
appear to be as stringently confined by the Koran and sunna as the
non-Maliki concept of istihsan.
For example, a loan is usurious in principle because dirhams74
are exchanged for dirhams over time, but the loan is allowed be-
cause of its element of kindness and generosity to those in need.
Otherwise, there would be stress on those under obligation.75 The
alleviation of stress is more important than the principle of
usury
because the spirit of the law, advocating the principle of kindness, is
more important than the letter of the law.
Without discussing the concept of istislah in detail, it may be
noted that the reference to the spirit of Islamic law in the Maliki
definition may be the closest that istihsan comes to notions of eq-
uity through its preference for istislah over other sources. Never-
theless, the general principles on which Zstislah is based are to be
found implicitly in the revealed sources and not through the exer-
cise of one's own conscience in itself. Admittedly, further research
needs to be done in this area to determine the extent to which istis-
lah is restricted from being a vehicle for arbitrary opinion.
Ibn Taymiya
The last of the four sunni schools which we will discuss is the
Hanbali school. Among the adherents of the doctrine of Ibn
71. 4 Sh4tib Al-Muwafaqatfl Usl ash-Sharta 205(17)-206(2) [hereinafter cited
as MuwafaqatJ: "Al-akhdh bi-maslaha juztya ft muqcbalat dalfl kullfy. Wa-
muqtadahu lr-rujac ile taqdfm al-istidlal al-mursal Cala 'l-qiyas."
72. See Muwafaqat at 207 (18) -
209 (2).
73. Muwafaq4t at 206 (2-3).
74. Silver coins.
75. Muwafaq4t at 207 (3-5, 7-8).
1985] MAIISI: ISLAMIC lAW 81
Hanbal76 the Shafici tendency to refute the concept of istihsan reap-
pears.77 However, the work of Ibn Taymiya (died 728/1328)78 indi-
cates that a number of Hanbali scholars accepted the concept. Ibn
Hanbal advocated the solution by way of istihsan over that by rea-
soning by analogy in the case of the mudaraba
contract,79
the
tayammum,80 the purchase of the land of Sawad,81 and the land
usurped for planting.82 Hanbali legal scholars, such as Judge Abu
Yacla (died 458/1066), Abu 'l-Khattab al-Kalwadhawi (died 510/1116)
and Ibn cAqil (died 153/1119) explained
this istilisan as the aban-
donment of one legal norm (hukm) for another which is considered
better on the basis of the Koran, sunna or consensus. It is the bet-
ter of two reasonings by analogy because deductive reasoning (is-
tidlat) from one source carries greater weight than from another.83
Ibn Taymiya indicated that there was no controversy over the
validity of this type of istihsan if, in a case, there was a meaningful
basis (macnan) on which to distinguish between the istihsan and
the reasoning by analogy. For example, in the case of meat not ritu-
ally immolated, its consumption is not permitted as a rule except by
those who are compelled to eat it on grounds of necessity. The
meaningful basis which requires the restriction of reasoning by
76. Ibn Hanbal (died 241/855) is the eponym of one of the four Sunni schools of
law in Islam.
77. See, e.g., Tbn Qudama (died 620/1223), who restates the substance of
GhazWll's tripartite description of istihsdn practically word for word. Ibn Qudama,
Rawdat an-Nazir wa Junnat al-Munoiir at 407411 (1343 H.).
78. lbn Taymlya, Mas'alat al-Istihsain edited by Makdisi, "Ibn Taimiya's Auto-
graph Manuscript on Istihsan: Materials for the Study of Islamic Legal Thought," in
Makdisi (edL), Arabic and Islamic Studies in Honor of Hamilton A. R. Gibb 446 (1965)
[hereinafter
cited as
Istihsan].
79. When the agent in the muddraba contract disobeys the principal and buys
other than what he ordered, the pr6fit should go to the latter and the equitable wage
to the forner according to reasoning by analogy. Istihsa2n would give both the princi-
pal and the agent a share in the profit. Ibn Hanbal wvas first of the opinion that the
proflt should go to the principal, and then he reasoned to a different conclusion by
istihsan. Istihsdn at 456 (14-16).
See Udovitch, Partnership and Profit in Medieval Islam 170-248 (1970), for a
description of this investment arrangement.
80. Tayammum is washing with clean sand or earth where water is not available.
The Holy Qur'an 242 n. 704 (AR transL and commentator, 1948). According to reason-
ing by analogy it has the status of water until water is found, but Ibn Hanbal rea-
soned by istihsan that the tayammum could be used for any prayer. Istihsdn at 456
(17-18).
81. The purchase of the land of Sawad is permitted, but not its sale. Reasoning
by analogy does not permit the purchase of an object from one who does not own it,
but Ibn Hanbal stated that istihsan is applied to permit the purchase in this case in
the same way that copies of theT Koran are permitted to be purchased despite the ban
on their sale. Istihsan at 456 (19)
- 457 (2).
82. Concerning one who usurps land and plants it, Ibn Hanbal stated that the
plant belongs to the landowner but he owes its cost to the
usuriper
in accordance wvith
istihsdn and against reasoning by analogy. Istihsan at 457 (3-4).
83. Istihsan at 457 (5-10).
analogy in this case is necessity (darura).84 However, where there
was no necessity nor any other justified basis on which the domain
of istihsan could be separated from that of
reasoning by analogy,
there was a controversy. It developed in the form of a dispute over
the meaning of istihsan as the limitation of the cause
(takhsis al-
Cilia).
The notion of the limitation of the cause appears earlier in Is-
lamic legal scholarship, and it is helpful to refer to this source
before turning to Ibn Taymiya's argument. Bazdawi and Sarakhsi
attributed the idea to an earlier Hanafi author, Karkhi
(died 340/
952).85 It was understood to mean "the existence of the cause in
conjunction with the nonexistence of the legal norrm (hukm) due to
an obstacle."86 In other words, the legal norm of a case in the Koran
or sunna may exist without the text
explicitly stating the cause on
which it is founded. Legal scholars may then attribute a cause to it,
and where this cause is found to exist in other cases, reasoning by
analogy dictates that the legal normn of the original case should be
applied. However, in some cases there may be an obstacle to apply-
ing the legal norm due to conflict with the provisions of another au-
thoritative source. Where this occurs, the cause is found to exist in
the new case, but the legal norm of the original case is not applied.
Put another way, the principles underlying the original case are
logi-
cally applicable in the new case, but a contradictory positive norm
from another source takes precedence.
Ibn Taymiya mentioned this notion of the limitation of the
cause and attributed it to the followers of Abu Hanifa. He also men-
tioned others who claimed that the limitation of the cause destroyed
the cause and who rejected the notion that istihsan was the limita-
tion of the cause although they accepted the concept of istihsan.87 It
appears that Bazdawi and Sarakhsi, who are not mentioned by Ibn
Taymiya, appear to fall within this second group, but they take the
analysis further. They rejected the notion of the limitation of the
cause, claimimng that the existence of the obstacle (to applying the
norm of the original case in the new case) means that the wrong
cause has been determined for the original case. The determination
of the cause is based on human reasoning which is subject to error,
and error is demonstrated when another source of law opposes the
application of the legal norm to a new case.88 A new cause must be
84. Istihsan at 458 (3-5).
85. Bazdawt at 1133 (9-11); Bukhar at 1123 (21-26), 1160 (9-14); Usial as-Sarakh.s
at 207 (19-20).
86. "Wujad alscilla maC Cadam al-hukm li-mani.'" Bukhari at 1160 (10-11).
87. Istihzsan at 458 (5, 13-17), 458 (19)-459 (4), 459 (10-11).
88. See Bazdawt at 1160 (1-21), with
commentary in Bukhar at 1160 (12-26); UsUl
as-Sarakhsi at 213 (4-13), 215 (8-16).
19851
ZiAKDISI: ISLAMIC LAW 83
found which will permit application of the legal norm to
every
case
in which the cause appears.
Ibn Taymiya's reasoning is in accord with that of Bazdawi and
Sarakhsi, but he adopts a new meaning for the limitation of the
cause and thereby makes it acceptable as a definition for istihsan.
For Ibn Taymiya, the conjunctive syllogism (tard) in reasoning by
analogy must be based on a valid cause (cilla sahiha), and a valid
cause may not stand in contradiction with a text from the sharica. If
it does, the text stands and the reasoning by analogy is invalid
(fasid).89 Any concept of istihsan which allows reasoning by anal-
ogy to stand in contradiction to a text from the shaica is thus inva-
lid.90 The reason for invalidating the reasoning by analogy in such a
case is the same as that noted by Bazdawi and Sarakhsi. The texts
of the sharica do not always
specify
the cause or
explain
the mean-
ing behind it which produces the legal norin in a particular case.
There may be an indication (dalil) in the sharica as to what the
cause may be, such as an affinity (munasaba) or some other type of
relationship between cause and legal effect which is considered the
determinant of the norm (manat al-hukm),91 but human opinion
which is subject to error ultimately determines the meaning behind
the cause on which the legal norm is based. Therefore, when the
cause is found to exist in a new case and the legal norm cannot be
applied without contradiction of another text from the sharca, the
cause may accordingly be limited in the sense that the meaning on
which the cause was originally determined to exist may be modified
or completely changed.
The factor which determines whether the cause is to be com-
pletely discarded or only modified to include certain cases is the
existence of a meaning (macna) for that cause which can be derived
from the sharica and which distinguishes the new case from the
orginal case. If the two cases can be so distinguished, the cause
89. Istihlsan at 455 (6.8).
90. See'Istihsan at 454 (22-24), 455 (2-5).
91. Note the concordance of rbn TaymIya with GhazaII's concept of Cilla, de-
scribed in Brunschvig, "Valeur et fondement du raisonnement juridique par analogie
d'aprts al,-(azali" 2 Brunschvig (ed.), 'tudes d'Islamologie 363 at 370-371 (1976):
The qiyOs al-illa, which is by far the more important and the more elabo-
rated [as opposed to the qiy2s ash-shabchJ, recognizes in turn an internal hi-
erarchy founded on that which decides the existence or the choice, in the
basic case, of a "cause" or cilla, which is the "determinant of the norm"
(man2t al-hukm). Of course, it is not a question of physical nor purely ra-
tional cause, but of legal motive, ratio legis, on the juridico-religious plane
which is that of Islam. The ways by which this 'ilia is recognized and estab-
lished-operation called taclil-are of three sorts, by decreasing order of
prestige and authority, recalling the ordinary classification of sources of Is-
lamic law: textual source
(naqi), consensus (ilmda), rational deduction (is-
tinbat). [my translation]
For an explanation of these three types, see id. at 371-386.
may be limited without changing the legal solutions to cases which
still fall within the now restricted meaning of the onrginal cause. If
no separation in principle can be made between the two cases, the
cause must fail for not being universally valid. Ibn Taymiya calls is-
tihsan the limitation of the cause either with its modification, or
with its complete nullification. It is not possible to admit an excep-
tion to the application of a legal norm in a case where its cause ex-
ists and cannot be
explained by a distinguishing factor.92
The true reasoning by analogy is the equalization between simi-
lar things and the separation between different things. Istihsan fits
within this framework as a methodological device for correcting a
mistake or omission which has been made in studying the sharica.93
It limits the cause which has been conceived too broadly and rede-
fines it to allow for the exceptional case.94 As Ibn Taymiya puts it,
"there is nothing in the shariCa opposed to a true reasoning by
92. See Istisan at 459 (21), 460 (4-11), 463 (1), 464 (6-8, 13-19), 468 (7-10), 469
(9-
13).
Compare GhazO's idea of takhsrs al-cilla, described in
Brunschvig, supra n. 91 at
383-384.
93. See Istihsan at 464 (20-23), 469 (2-13).
94. With this clarification of the nature of istihsan, Ibn Taymlya proceeds to reex-
amine the cases of istilsan wvhich Ahmad ibn Hanbal had interpreted as contrary to
reasoning by analogy. bee supra n. 79-82. He reaches the following conclusions:
(a) In the case of the muddraba
contract, the
reasoning by analogy and the istih-
san, as well as the cause of thie former and the
separating meaning of the
latter, are
derived (mustanbat). One or both causes-that of the
original qiyas and that of the
new qiyas (istihsan)-might be invalid. In this case, it is the istihsan which is fol-
lowed, because the reasoning by analogy is based on the idea thai the agent is like
one acting for hire, but he is really a partner in the profit. This is the separating
meaning. The one acting for hire is not authorized to do other than he is directed, but
this does not mean that his act is without effect. It is conditional on the ratification of
the hirer. To get his profit the hirer must
ratify the free disposal by the agent; other-
wise the sale is null and void. Once the act of the agent is ratifled, the hired one gets
his right, ie., his wage, and the hirer gets his profit. Yet ratification in the case of the
agent who is a partner in the profilt means that he is authorized to take his right, i.e., a
share in the profit. Therefore he takes his share rather than the fair wage. Istihsan at
472 (16) - 474 (17). But see Udovitch, supra n. 79 at 245-246, in which ShaybanI (died
187/803), a Hanaft author, is cited for treating the mudaraba contract as a contract for
hire (ijara) when the agent violates a legitimate restiriction placed on him by the in-
vestor.
(b) In the case of the tayammum, the reasoning by analogy is correct and not the
istihsan. Istihsan at 469 (19)
-
472 (15).
(c) In the case of the one who usurps land and plants it, the istihsan is based on
a hadth (tradition) and the reasoning by analogy which is inconsistent with the istih-
sdn is invalid because there is no text which shows its authenticity. Concerning t}ie
cost owing the planter, reasoning by analogy considers him a usurper, but in fact he
is not because the seed with which he planted belongs to him. Therefore, he is enti-
tIed to receive back what he put into the land. Istihsan at 475 (10)
-
476 (9).
(d) In the case of the purchase of the land of Sawad, a separation is made be-
tween the purchase and the sale because the cause is existing in the latter and not
the former. The purchase is not for a worldly objective, so it is pernissible. Istihsan
at 476 (10)
- 477 (1).
19851
MADDISI: ISIAMIC LAW 85
analogy."95
The debate among the Islamic legal scholars over the use of is-
tihzsan in the process of legal reasoning reveals at least two premises
on which there is general agreement. Istihsan, in its proper usage,
is a method for choosing between two or more possible solutions for
a case at hand where those solutions are based on any of the four
recognized sources96 of Islamic law (with the exception of the Maliki
definition which includes istislah as a source which is based on the
implicit meaning of the Koran and the sunna97). Furthermore, the
method for making this choice must itself be rational, based on a
consistent set of priorities or on the logical analysis of the meaning
underlying the rules.
THE "REASONED DISTINCTION OF PRECEDENT1
The idea of conflict resolution is inherent in the nature of law,
not only between opposing parties through dispute settlement, but
also between opposing legal norms through legal decision-making.
If conflict arises between established legal principles, the notions of
consistency, coherence and
certainty
in the law require a reconcilia-
tion of these principles or a rejection of one in favor of the other. In
the United States this conflict may occur between a case precedent
and a newly enacted statute, in which case the statute will prevail as
the source of law having greater priority. Conflict may also occur
between two case precedents, in which case an attempt is made to
reconcile their principles before resorting to the rare phenomenon
of overruling one in favor of the other.98 The process of reconciling
the principles of two conflicting case precedents uses a widely-rec-
ognized technique of legal reasoning in the common law. This tech-
nique was described in 1958 by
Henry
Hart and Albert Sacks as the
"reasoned distinction of precedent."99 In order to provide a compar-
ative basis on which to evaluate istihsan as a rational method of le-
gal reasoning, we will first examine this technique as illustrated in
Berenson v. Nirenstein.100
95. "Laysafi 'sh-shart"a ma yukhdlifu qiycsan sahl han." Ibn Taymntya, Al-Qiycs
fi
'sh-Shmr= al-Islamf wa Ithbat annahu lam Yaridfl '-Iildm Nass Yukhc*lifu 1-Qiyds
as-Sahfh 7 (5-6) (1346 H.), translated into French by Laoust in Contribution d une
dude cde la m6thodologie canonique de Takl-d-DTn Ahmad b. Taimsya 113 at 115
(1939). Accord, Istihsan at 465 (4-5).
96. The Koran, Sunna, consensus and reasoning by analogy.
97. See text, supra n. 69-73.
98. Respect for the doctrine of "stare decisis" severely restricts the inclinations of
judges to overrule case precedents.
99. Hart & Sacks, The Legal Process: Basic Problems in the Making and Applica-
tion of Law at 407-426 (unpublished ed., 1958).
100. 326 Mass. 285, 93 N.E.2d 610 (1950). This case is used to illustrate the tech-
nique in the Hart & Sacks materials.
Berenson v. Nirenstein
Berenson involves a defendant who offered "'to act as agent and
broker for the plaintiff in seeking to buy"' the shares of stock of a
certain corporation. The plaintiff "'retained the defendant [Niren-
stein] as his broker and agent to effect a purchase of the shares ...
and the defendant [Nirenstein] agreed to act as such broker and
agent on behalf of the plaintiff and to use his best efforts to
purchase said shares of stock for him.'
"101
A firm offer of $70/share
to be made for 4704 shares was authorized by the plaintiff, but there-
after, the defendant, still representing to the plaintiff that he was
acting on his behalf, entered into a written agreement with certain
trustees of the corporation for the purchase of the shares himself.
Plaintiff prayed for injunctive and other relief, but the trial court de-
nied his request, citing Salter v. Beat'02 among other cases as prece-
dent. The case reached the Supreme Judicial Court of
Massachusetts which addressed the issue of an apparent conflict be-
tween the Salter line of cases and another set of cases including
Spritz v. Brockton Savings Bank.103
The Salter case held that no fiduciary obligation was shown by a
defendant who, despite the fact that he was employed by a plaintiff
to appraise certain machinery which the latter contemplated buying,
bought the machinery for himself. The principle of the case on
which this decision was made was "that a mere engagement to buy
in behalf of another without more is not deemed ... to create a fi-
duciary relation."104 On the other hand, the Spritz line of cases es-
tablished that the relation of broker to principal involves certain
obligations: "The plaintiff [broker] was bound to act solely for the
benefit of the defendant [principal] in procuring a customer and in
effecting a sale of the
property. He could not himself become the
purchaser, and he could not secretly enter into an agreement with
the buyer that would conflict in any way with the obligation he had
assumed of acting in entire good faith in the interest of the
defendant."105
Faced with reconciling these two lines of cases, the Supreme Ju-
dicial Court of Massachusetts reversed the lower court's decree by
qualifying the Salter line of precedent and classifying the instant
case under the Spritz line of precedent. Its legal argument reads as
follows:
The fiduciary obligation toward his principal of one who is
101. 93 N.E.2d 610, at 611 (1950).
102. 321 Mass. 105, 71 N.E.2d 872 (1947).
103. 305 Mass. 170, 25 N.E.2d 155 (1940).
104. Salter v. Beal, 321 Mass. 105, 71 N.E.2d 872, at 873 (1947).
105. Spritz v. Brockton Sav. Bank, 25 N.E.2d 155, at 156 (1940).
1985]
MAcKDISI ISLAMIC LAW 87
acting in the full sense as a broker in the sale or purchase of
property rests upon fundamental principles of business mo-
rality
and honor which are of the highest public interest,
and which it is the bounden duty of courts to preserve
unimpaired. We do not believe that in deciding the cases
[in
the Salter line of precedent] the court had in mind a
case where the full relation of principal and broker existed
... [Alt least where, by the conduct of the parties, the full
relation of principal and broker has come into existence, in-
cluding the
carrying
on of a negotiation between seller and
buyer, there has come into existence with it a confidential
and fiduciary relation which gives rise to a constructive
trust in favor of the principal in property which the broker
has acquired for himself in violation of his duty to his prin-
cipal. We by no means suggest that all of the cases in the
first list were wrongly decided, but we do hold that in so far
as broad expressions in some of them might be thought at
variance with what has just been stated such
expressions
must be deemed to be qualified by what is here said.'06
Thus the court found that the distinguishing factor between the
two lines of precedent existed in the nature of the relationship be-
tween the parties in the cases. For a fiduciary relation to exist, the
court reasoned that there must be a sufficient relationship of broker
to principal. There existed here a "full relation of principal and bro-
ker" which was found to exist in the Spritz line of cases but not the
Salter line. Therefore, the principal was allowed to bring suit
against the broker in this case.
Judicial Discretion
How rational is the "reasoned distinction of precedent" as a
technique of legal reasong in the Berenson case? By narrowing
the broadly stated principle in the Spritz line of cases so that it did
not conflict with the principle in the Salter line, the cases were rec-
onciled without disturbing the concept of precedent by overturning
one of the cases and yet still managing to preserve consistency in
the law. When one probes deeper, however, into the manner by
which legal principles are narrowed or broadened, it becomes appar-
ent that a significant amount of emphasis is placed on factual simi-
larities and differences in case precedents which are made legally
relevant for the case at hand even though they may not have been
so in the original cases. The judge has a certain leeway for using his
discretion in distinguishing between and choosing from the princi-
ples of prior cases those which he will apply to the case at hand, and
106. Berenson v. Nirenstein, 326 Mass. 285, 93 N.E.2d 610, at 612 (1950).
88 THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. 33
the limits to which he may go are not
clearly
defined. As Hart
and
Sacks point out:
Assuming that either some of the plaintiff's cases or
some of the defendant's cases had to be qualified or over-
ruled, which
party's?
Is it an overstatement to
say that, con-
sidering the function in primary private activity of the
arrangements in question, considering known community
attitudes, and considering established policies of the law in
relation to comparable problems, this question could be an-
swered with great assurance?'07
The discretion which the judge uses in deducing a legal decision
from precedent requires a distinct separation to be made between
the absolute
syllogism
and the legal syllogism. The former may be
exemplified in the statements: All men are mortal; Socrates is a
man; therefore, Socrates is mortal. Legal logic does not work in this
manner since there are a number of
competing variables which
must be taken into account. The priority of these variables in the
decision-making process may ultimately be determined by the
judge's own inclinations in the matter. In fact, the question has
been raised whether the judge makes his decision on the basis of in-
tuition and then finds a legal rationale to support it or whether the
judge discovers his decision through deduction from legal norms.
The process appears to be a combination of both approaches:
As a matter of fact, men do not begin thinking with
premises. They begin with some complicated and confused
case, apparently admitting of alternative modes of treat-
ment and solution. Premises only gradually emerge from
analysis of the total situation. The problem is not to draw a
conclusion from given premises; that can best be done by a
piece of inanimate machinery by fingering a keyboard. The
problem is to find statements, of general principle and of
particular fact, which are worthy to serve as premises. As
matter of actual fact, we generally begin with some vague
anticipation of a conclusion (or at least of alternative con-
clusions), and then we look around for principles and data
which will substantiate it or which will enable us to choose
intelligently between rival conclusions. No lawyer ever
thought out the case of a client in terms of the
syllogism.
He begins with a conclusion which he intends to reach,
favorable to his client of course, and then analyzes the facts
of the situation to find material out of which to construct a
favorable statement of facts, to form a minor premise. At
107. Hart & Sacks, supra n. 99 at 420.
1985] MAKDISI: ISLAMIC LANV 89
the same time he goes over recorded cases to find rules of
law employed in cases which can be presented as similar,
rules which will substantiate a certain way of looking at and
interpreting the facts. And as his acquaintance with rules of
law judged applicable widens, he probably alters perspec-
tive and emphasis in selection of the facts which are to form
his evidential data. And as he learns more of the facts of
the case he may modify his selection of rules of law upon
which he bases his case.
I do not for a moment set up this procedure as a model
of scientific method; it is too precommitted to the establish-
ment of a particular and partisan conclusion to serve as
such a model. But it does illustrate, in spite of this defi-
ciency, the particular point which is being made here:
namely, that thinking actually sets out from a more or less
confused situation, which is vague and ambiguous with re-
spect to the conclusion it indicates, and that the formation
of both major premise and minor proceed tentatively and
correlatively in the course of analysis of this situation and
of prior rules. As soon as acceptable premises are given and
of course the judge and jury have eventually to do with their
becoming accepted-and the conclusion is also given. In
strict logic, the conclusion does not follow from premises;
conclusions and premises are two ways of stating the same
thing. Thinking may be defined either as a development of
premises or development of a conclusion; as far as it is one
operation it is the other.'08
A CorPARATrvE ANALYSIS
If one accepts the notion that legal reasoning is the syllogistic
interpretation of precedent and that premises must be shaped as
much as the conclusion, the process may nevertheless be identified
as rational. As noted in the discussion of the "reasoned distinction
of precedent," there is an adherence to a certain amount of logic
which provides for
consistency and continuity with the past in the
application of legal principles which lends stability to the system.
When precedent is abandoned, the judge leaves himself open to the
charge that his decision is unprincipled, expedient or
discretionary,
but obedience to the doctrine of stare decis-i removes this charge
108. Dewey, "Logical Method and Law," 10 Cornell L.Q. 17 at 23 (1924). Dewey
later compares this process to an ocean in a storm with a series of waves: "sugges-
tions reaching out and being broken in a clash, or being carried onwards by a cooper-
ative wave." Dewey, Art as Experience 38 (1934).
despite the freedom which the judge ultimately has in
making his
decision.
By comparison, the use of istihsan in Islamic legal reasoning
may also be identified as a rational method for the determination of
decisions when conflicting principles compete for consideration.
The basis for decision-making through istihsan rests on a valid rec-
ognized source of Islamic law; istih.san merely determines the choice
of that source, and it does so either through a system of priorities or
through a logical analysis of meaning in concepts. The analysis of
meaning may not be strictly logical. In the Berenson case, the exist-
ence of a fiduciary relationship between principal and broker pro-
vided the cause or reason (in Islamic terms, the cilla) for the
decision in the case in much the same way as the absence of contact
with unclean meat provided the reason for the decision in the case
of food left by predatory birds. The mere engagement to buy in be-
half of another, albeit a fact existing in both the disfavored line of
cases and the Berenson case, was not determinative, just as the
predatoriness of the birds in the Islamic case was considered not de-
terminative. Different arguments can be made to arrive at different
conclusions depending on the weight which is attributed to various
considerations in the case. Yet this leeway for discretion in Islamic
law does not make the law irrational. It exists in the Amexican com-
mon law and in every system where legal development attempts to
keep pace with society. The notion of istihsan as a technique of le-
gal reasoning stands in
sharp contrast to the concept of equity. Eq-
uity is not an acceptable basis for deternining law in Islam. Yet
perhaps there is some basis for finding a resemblance between istih-
san and equity. Both concepts incorporate the idea of a search for
the good. The motivation for using either concept may stem initially
from a mere feeling that an existing rule of law is not right. Once
that feeling has motivated a search for the good, however, the re-
semblance stops there.
Equity finds the basis for its legal authority
in a set of preconceived norms existing apart from the legal sys-
tem.'09 Istihsan finds its basis in
a determination of the causes un-
109. Black's Law Dictionary 634 (rev'd 4th ed. 1968), defines equity as:
In its broadest and most general signification, this term denotes the spirit
and the habit of fairness, justness, and right dealing which would regulate
the intercourse of men with men,-the rule of doing to all others as we desire
them to do to us; or, as it is expressed by Justinian, "to live honestly, to harm
nobody, to render to every man his due." Inst. 1, 1, 3. It is therefore the syno-
nym of natural right or justice. But in this sense its obligation is ethical
rather than jural, and its discussion belongs to the sphere of morals. It is
grounded in the precepts of the conscience, not in any sanction of positive
law.
In a restricted sense, the word denotes equal and impartial justice as be-
tween two persons whose rights or claims are in conflict; justice, that is, as
ascertained by natural reason or ethical insight, but independent of the for-
19851
MAKDISI: ISLAMIC LAW 91
derlying exsting legal rules and in reconciling apparent conflicts
between rules based on this determination.
Istihsan is not a new source of law. It is not a concept which
stems from the sole exercise of one's conscience. It may be moti-
vated by an interest in promoting the public good, taking into con-
sideration need, necessity, interest, convenience and ease, but it
must be justified by a provision in the Koran, sunna, or consensus,
or by a cause (cilla) found through a study of texts from these
sources.'10 It is not sufficient to justify istihsan as a subjective inter-
pretation of vague general principles in the spirit of the law, such as
the satisfaction of human interests as Tyan indicates. Contrary to
Tyan's definition, istihsan is not subjective nor contingent, unless
those terms are used to signify the human element which is in-
volved in interpreting the sources. Theoretically, two solutions are
not possible by way of istihsan for the same problem. Ibn Taymiya
maintains that there can be only one valid qiyas, and not a "hidden"
and an "apparent" qiyas in the same case. Although the human ele-
ment introduces uncertainty into the problem, making it possible for
two different jurists to derive two different solutions to a legal case,
only one solution theoretically can be correct.
Chehata poses the specific problem of the conflict between istih-
san and equity: Islamic law does not accept the notion of a natural
law. Therefore, there can be no such concept as equity in Islamic
law, and he mentions that istihsan is a method for extracting the ra-
tio legis from the texts of the law. However, Chehata's description
becomes clouded when he refuses to assimilate istihsan to reason-
ing by analogy."'1
A study of the juiisconsults, particularly Bazdawi and Sarakhsi
in the Hanafi school and Ibn Taymiya in the Hanbali school, reveals
that istihsan may be the abandonment or modification of a reason-
mulated body of law. This is not a technical meaning of the term, except in
so far as courts which administer
equity
seek to discover it by the agencies
above mentioned, or apply it beyond the strict lines of positive law.
110. It is interesting to note that Becker, in an article on "Analogy in Legal Rea-
soning," 83 Ethics 248 at 255 (1972-73), made the following comment about a decision
(Hynes v. N.Y. Central Railway Co., 231 N.Y.229 (1921) by Justice Cardozo:
My point is not that policy considerations, convenience, and justice did
not figure in the decision-merely that they did not enter in opposition to
logic, and more specifically, not in opposition to analogical argument. Indeed,
they entered, and quite properly, as elements in the evaluation of two com-
peting dynamic analogies. To recognize this is to take a significant step, I
think, toward understanding judicial reasoning more accurately, and toward
understanding how one might begin to explicate criteria of validity for the
analogical arguments found in judicial decisions.
111. Chehata, supra n. 30 at 125, asked why the label of istihwan should be applied
when a text from the Koran, sunna or
ijmC
opposes a qiyas (supra n. 30 at 125). It
would seem to be because istihscn is a corrective method and not merely the solution
which derives from this meth6d based, to be sure, on a text.
ing by analogy based on a provision in the Koran, sunna, or consen-
sus which opposes it, or a conflicting reasoning by analogy.
Whether it be abandoned or modified depends on whether a distinc-
tion can be made between the two conflicting arguments on the ba-
sis of an indication in the Koran, the sunna, or consensus. If no
such distinction can be found, then the reasoning by analogy must
be abandoned. Istihsan in this context becomes a useful method for
resolving conflict between existing provisions in the law.
Is istihvsan a rational element in Islamic law? In Weberian
terms,12 Islamic law itself is irrational to the extent that it depends
on divine sources without rational justification. The provisions of
the Koran and the sunna need no further justification in Islamic law
than that they are divinely revealed. Yet, on the whole, these provi-
sions are few and, for the most part, of a general nature. The rules
of law which are derived from these sources through reasoning by
analogy and modified through istihsan, use a process which is quite
rational. Rules derived in this way compose the vast majority of
rules in the corpus juris of Islamic law. Contrary to the opinions of
certain American scholars,13 the method of legal reasoning in Islam
is not arbitrary, discretionary or unsystematic. In the form of istih-
san, it compares very closely with the American concept of reasoned
distinction of precedent. If istihsan is to be given a translation
within the context of American legal terminology, it might be called
the "reasoned distinction of qiyas (reasoning by
analogy)".
112. See supra n. 7.
113. See text, supra at 63-64.

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