Cumhuriyet İlahiyat Dergisi, cilt.21, ss.108-146, 2017 (ESCI İndekslerine Giren Dergi)
Mezheplerin teşekkül etmeye başladığı ilk dönemlerden itibaren istihsanın bir istidlal yöntemi olup olmadığı tartışılagelmiştir. Bu tartışmaların temelinde kavramsallaşma sürecini henüz tamamlamamış olan istihsan teriminin çağrıştırdığı keyfiliğin/sübjektivitenin etkisi çok fazladır. Bu yüzden istihsanı bir yöntem olarak benimseyenler, ağır ithamlara maruz kalmışlardır. İstihsanı benimseyenlerin başında Hanefî hukukçular gelmektedir. Öyle ki istihsan yöntemi Hanefî mezhebiyle anılır hale gelmiştir. Bununla birlikte mezhebin önde gelen temsilcilerinden biri olan ve kıyas metodunu kullanmasıyla ön plana çıkan Züfer b. Hüzeyl’in istihsana yaklaşımıyla ilgili iki farklı yaklaşım tespit edilmiştir. Yaptığımız araştırma ve inceleme neticesinde her iki tespitin de isabetli olmadığını; Züfer b. Hüzeyl’in kıyas yapmadaki becerisinin yanı sıra istihsana müracaatta sonuna kadar kıyas taraftarı olduğunu; ancak kıyasın meselelere çözüm üretmede yetersiz kaldığı ya da doğru sonuç vermediği durumlarda ise ızdırârın da bir gereği olarak meseleyi hükümsüz bırakmama adına istihsana müracaat ettiği görülmektedir. Sonuç olarak Züfer b. Hüzeyl’in genel hatlarıyla Hanefî usulüne bağlı kalmakla birlikte istihsanı bir istidlâl yöntemi olarak kullanma hususunda çerçeveyi oldukça daralttığını; kıyasa başvurma konusunda ise sınırları mümkün olduğunca geniş tuttuğunu söylemek mümkündür.
Anahtar Kelimeler: Hanefî mezhebi, Züfer b. Hüzeyl, Kıyas, İstihsan, İstidlâl.
Starting from Hijrī II. century which was the beginning of the formation of idolatry, in terms of whether it is the nature and the method of stratification, istiḥsān, generally described as “because of stronger evidence, it would be better to abandon the provision of similar powers to another ruling”, has been argued. So much so that two different approaches have emerged in the form of supporters and opponents.
The opponents of istiḥsān have accused the people who adopted and provided a set of fiqh deductions according to their desires and to establish a new sharia. However, the effect of the concept of istiḥsān, which has not yet completed its conceptualization process, arbitrary/subjective sense of this oppositional approach is too great.
Imam Shafi was a strong oppose of the istiḥsān. However, Shafi, consulted istiḥsān to regard the amount of “mut’a” thirty dirham sand the period of the şuf’a as three days, he even used this concept by saying “I am doing istiḥsān”. Therefore, it can be said that the opposition of Imam Shafi is aimed at the “logic of exception” which resides in istiḥsān rather than the provision reached by the means of istiḥsān.
Imam Shafi’s istiḥsān opposition is more directed to the Hanafīs, who are identified with istiḥsān. Particularly, it is seen that the students Abū Yūsuf and Imam Muhammad and Abū Hanīfa one of the founder imams of Hanafī sect consulted istiḥsān frequently. However, there are not sufficient and clear information about Zufar ibn Hudhayl’s view of istiḥsān. Zufar ibn Hudhayl, who is at this point also worth investigating and examining, because he is one of the founding imams of the sect and has his own ideas. Different determinations on Zufar ibn Hudhayl’s approach to istiḥsān were done by contemporary researchers. One of these is a proof that Zufar ibn Hudhayl was using istiḥsān largely similarly to other founding imams of the Hanafī sect; and the other is that he fell in line with Imam Shafi in terms of istiḥsān. Since both studies are not directly related to Zufar ibn Hudhayl’s approach to istiḥsān, the researchers did not feel the need to point the arguments that they based these assumptions on.
Zufar ibn Hudhayl has passed away after a very short time (d. 158/775) from Abū Hanīfa, and he spent six of his last eight years in Basra. Therefore, there is no detailed information about him like the other founding imams of the sect. Moreover, the absence of any work or the lack of knowledge about it, makes it very difficult to determine Zufar ibn Hudhayl’s views of istiḥsān. This necessitates the application of Hanafī resources from the initial period for further investigation.
Especially in the examination of the classical period Hanafī sect’s method and furūʿu fiqh literature, we could not reach any knowledge about Zufar ibn Hudhayl’s approach to istiḥsān. However, almost all layered authors describe Zufar ibn Hudhayl as a “comparative” and emphasize his skill and expertise in using comparative evidence. This is also quite remarkable. However, in the works of Pīrizādā and Kawsarī, who directly examine Zufar ibn Hudhayl’s fiqh, there is no information about what philosophical background of his was about what is meant by the qualifications of “expert” or “comparative expert” about him.
Two conclusions can be reached from these characterizations about Zufar ibn Hudhayl: one of them is that he was quite successful and competent in using comparations against the matters where the provision is absent and the other one is his loyalty to istiḥsān where the different provisions can be obtained regarding fiqh matters unlike comparation.
It is highly probable that the second meaning was the one intended. Because the literature shows that other founding imams besides Zufar ibn Hudhayl also were at least as wise and skillful as Zufar ibn Hudhayl in making comparisons. In addition, some information contained in the classical Hanafī literatüre supports this opinion.
Muhammad Biltaci, one of the contemporary researchers, also, says somethings that confirm the second approach: “Zufar ibn Hudhayl was trying to reduce the field of judgments via istiḥsān as much as possible; and in regard to comparations he showed great effort to expand the boundaries as far as possible.
The fact that Zufar ibn Hudhayl almost never applies istiḥsān, does not leave him out of the general principles of the Hanafi sect that was allied on. Because the method of Zufar ibn Hudhayl is in itself was the method itself. Zufar ibn Hudhayl's understanding of fiqh is shaped generally within this procedural framework. That is why his resources was also comparing and istiḥsān in the same manner. In practice, however, when applying the methods to the occasions, he was preferring comparation more frequently than istiḥsān. He was dissent about applying istiḥsān to the issues. This opposition, however, does not mean fundamentally opposing or rejecting it entirely, either about comparison or about istiḥsān.”
In the research we have conducted on the classical Hanafī literature, we have found that Zufar ibn Hudhayl was consulting to istiḥsān in a very limited area on only four subjects. Apart from these examples, we could not find any other use of istiḥsān by him. Zufar ibn Hudhayl’s preference for istiḥsān here is not because there is no possibility to use comparison; perhaps, comparison was not responding to necessity, or was not able to provide the right result.
However, when Zufar ibn Hudhayl’s applications of istiḥsān in fiqh practices are examined, it is seen that all three of the other imams or some of them have passed judgements based on comparison. This situation makes it very difficult to determine a general rule of Zufar ibn Hudhayl’s application of istiḥsān regarding the situations and purpose.
Moreover, Zufar ibn Hudhayl’s application of istiḥsān, even in a narrow
field, reveals that the findings of researchers today, such as his frequent use or refusal of istiḥsān as the other imams of the sect, are far from reflecting the truth.
To put it briefly, while comparison was fundamental for Zufar ibn Hudhayl, even if for a limited and narrow field, he applied istiḥsān as well.
Keywords: Hanafī sect, Zufar ibn Hudhayl, Analogy, Istiḥsān, Istidlāl.