Fukahâ Metodunda İstihsân Kavramının Gelişiminde Cessâs’ın Rolü

• Main Author: Mehmet Aziz Yaşar
• Format: Article
• Language: English
• Published: Yediveren Press 2020-12-01
• Series: Marife Dini Araştırmalar Dergisi
• Subjects: Fıkıh Usulü, İstihsân, Cessâs, Kıyas, Hanefî
• Online Access: https://www.marife.org/marife/article/view/896

The proof of Istiḥsan is among the highly debated topics in Usûl(methodology) al-Fiqh. The most important reason for these debates is that the early scholars of Hanafî school have not laid down a systematic explanation for Istiḥsan. For Hanafî scholars, only studied the concept of Istiḥsan and tried to draw a framework to it after receiving harsh criticism about it from those who opposed it. Among the said scholars, Abu Bakr Ahmad b. Alî al- Razî al- Cassas is of great importance. Cassas who is known to be an expert of almost all of the Islamic sciences, earned his fame with his work al- Fusûl fî al-Usûl in Usul al- Fiqh. Cassas is the first scholar that systematically explained this understanding by giving a theoretical dimension to Hanafî methodology in his book. This book is the first methodology book which is written with a jurist method that survived till today. Therefore, Cassas pioneered the later Hanafî methodologists in terms of giving a conceptual dimension to topics related to usûl. It is not possible to mention all of the usûl related concepts that Cassas helped developing in this paper. For this reason, we tried to demonstrate the role of Cassas in developing usûl related concepts via his contributions to the concept of Istiḥsan. In our study, after a short biography of Cassas, a compilation of the information on Istiḥsan before him is presented. In this context, within the scope of historical process of Istiḥsan, some examples of ijtihads that are based on Istiḥsan during the times of Prophet, companions and al- Tabi’in are mentioned and by that it is tried to be determined who used Istiḥsan for the first time as a proof to reach judicial verdict. The methodologists’ definitions of Istiḥsan from both before and after Cassas are given and these definitions are evaluated by comparing them to his definition. Afterwards, Cassas’s opinions on the nature, definition, types and the validity of Istiḥsan and their effect on later period Hanafî Methodologists are examined. After the research, even though there is an existing belief that the first usage of the term Istiḥsan in a technical way goes back to Abu Hanifa himself, it is concluded that this does not reflect the truth. Besides, although some definitions -that can be used against Istiḥsan- were tried to be attributed to Abu Hanifa or his friends by opposing jusrists, it was concluded that this was not true. It is seen that Cassas played a key role in conceptualizing of Istiḥsan as a term and its active use in usûl literature. Cassas’s role in Istiḥsan’s development as a term happened within these points: -After Cassas, most of the methodologists acted on his definition of Istiḥsan. Those methodologists, just as in Cassas’s definition, position Istiḥsan against Qiyas and formed their definitions. None of these definitions though, reached to a level of conciseness and inclusiveness. - Cessâs made the division of Istiḥsan into types for the first time. Cassas who divides Istiḥsan into two main parts, traditional and terminological, divided the second into two types as “resembling two different essences” and “allocation of the cause”. The allocation of the cause also divided into three subcategories as Nass, İjmâ and Istiḥsan because of Qiyas. Next methodologists added necessity and custom to these subcategories. -The proofs of the legitimacy of the use of Istiḥsan as a term are brought to public by Cassas. He defines Istiḥsan as a stronger evidence than Qiyas and suggests that this term is to be used for such evidences as Nass and Ijma because he considers them to be stronger evidences than Qiyas. As proof of this opinion he not only shows the examples of Istiḥsan by famous mujtahîds but also uses these verse and hadith; “those who listen to what is said and follow the best of it.” (Qur’an 39:18) and “What Muslims consider to be good is considered good by Allah too.”