Hanefî Fürûunda İstihsan – el-Hidâye Örneği

Year 2002, Issue: 23, - , 23.01.2014

Said Akgündüz

Abstract

Merğinani, a Hanefî jurist of AD VI. century, took up and justified Hanefî law in his famous work el-Hidâye. Study of istihsan, which is an important methodoligical concept, its
practice and examples in el-Hidâye, is topic of our article. İstihsan means that one should take a decision in a certain case different from that on which similar cases have been decided on the basis of its precedents, for a reason which is stronger than the one found in similar cases and which requires departure from those cases. İstihsan includes these ideas: to overcome of strict analogy, to be obtained justice and equity and to respect of necessity, law aims and public interest. There is many examples of istihsan in el-Hidâye, with its evidences. The division of istihsan examples in Hidaye as respect of evidence, point out that examples of each kind of istihsan exist in this work, kind of kıyas hafi (latent analogy) and kind which is based on the text, consensus, custom, necessity and interest. And there are examples of istihsan which its evidence is more subsidiary.

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