مجلة ريحان للنشر العلمي مجلة علمية، محكمة، شهرية، مفتوحة الوصول
الضوابط الحسان في الترجيح بين القياس والاستحسان وأثرها الفقهي على مذهب النعمان – دراسة استقرائية تحليلية –
The preference between qiyas (analogical reasoning) and istihsan (juristic preference) is considered one of the most important principles of Islamic jurisprudence upon which the Hanafi school has largely been built. The well-known rule is to give precedence to istihsan over qiyas when they conflict, provided the causes for istihsan are fulfilled. However, there are certain specific issues where the Hanafis have given precedence to qiyas over istihsan. This research aims to clarify these issues in terms of their number, the reasons for preferring qiyas, and the relation to the rules of conflict and preference between qiyas and istihsan. The study defines key concepts like controls, preference, qiyas, and istihsan. It examines major cases of conflict between qiyas and istihsan in the Hanafi school, analyzing when istihsan is preferred over qiyas or vice versa. It outlines the controls used by Hanafis for determining preference between the two principles. The study emphasizes that preferring istihsan over qiyas is the standard Hanafi principle applied in thousands of cases. Preferring qiyas is an exception resorted to in specific instances for justifiable reasons. It concludes that preferring istihsan is akin to preferring an obscure qiyas cause over an obvious one based on evidence. Conversely, preferring qiyas is based on the strength of the cause’s influence on the ruling, regardless of its clarity.
Keywords: Measures, Preference, Conflict, Istihsan, Qiyas.
Dr. Mohammad Reza Khalili RUSTAQI, Department of Jurisprudence and Law, Sharia Faculty, Kabul University – AFGHANISTAN
