The Construction of Madhhab Authority: Ibn Taymiyya's Interpretation of Juristic Preference (Istihsān)

in Islamic Law and Society
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Abstract

This essay analyzes Ibn Taymiyya's discussion of juristic preference (istihsān) as a valid method of law-finding. Ibn Taymiyya rejects the interpretation of leading Hanbalīs of juristic preference as contrary to analogy and explains it instead as specification of the ratio legis (takhsīs al-'illa). His changed understanding of juristic preference leads him to re-interpret several of Ibn Hanbal's rulings that are based on this legal principle. How Ibn Taymiyya does this is illustrated with Ibn Hanbal's ruling on usurpation of agricultural land. Ibn Taymiyya does not question the actual ruling but rather rejects the rationalization adduced for it by previous Hanbalīs, such as Abū Ya'lā and Ibn 'Aqīl. By attributing his own position to Ibn Hanbal, Ibn Taymiyya undermines the authority of earlier prominent Hanbalīs, increases the authority of the eponym of the school, and enhances his own position as the living heir of Ibn Hanbal.

The Construction of Madhhab Authority: Ibn Taymiyya's Interpretation of Juristic Preference (Istihsān)

in Islamic Law and Society

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