Judicial Authority and Private Person in Ḥanafī legal Thought

A Discussion on “Istiḥsān”

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In this essay, I will attempt to clarify the meaning of “istiḥsān” as discussed by early Ḥanafī jurists. Istiḥsān in this context may be rendered as the private judgment of a believer, as to whether a matter is licit (ḥalāl) or forbidden (ḥarām), according to the best of his opinion (akbar al-ra'y) or, more frequently, the highest probability (aghlab al-ẓan), without any evidence of strict law. On this scale, where any legal matter is subject to religious, as well as judicial qualification, istiḥsān had an impact on Ḥanafī legal thought, as will be demonstrated with regard to the law ofevidence. Istiḥsān therefore is a necessary instrument under religious law that enables the believer to act on his own judgement with certitude and ease. It is noteworthy that the Ḥanafīs discussed legal devises (ḥiyal) at the same level as istiḥsān, for both legitimate human actions religiously and judicially. In principle, istiḥsān, as a private judgment, is far removed from a judgment imposed by the judicial authority. However, in those cases in which a private person finds himself confronted with a judicial authority who would issue another judgment; the early Ḥanafīs attempted to accommodate the private judgment to the judicial system for the unity of norm in the Muslim Community.