مصطلح الاستحسان في مصنفات الفقه الشافعي فقه المعاملات والأحوال الشخصية والجنايات أنموذجا دراسة تحليلية

Abstract

It is well known that al-Imam al-Shafi'e rejects Istihsan as a source of Islamic legislation. However, it is found that there are some Shafi'e works of literature attributed to al-Imam al-Shafi'e were found where he uses Istihsan in some issues on fiqh. This led to several argumentations between scholars where some acclaimed that Imam al-Shafi'e and the Shafi'e also rely on Istihsan in their ijtihad. Moreover, Istihsan terminology are also found in Shafi'e fiqh pieces of literature which raises a question: Do these terms deliver the meaning of al- Istihsan al-’UÎËlÊ or they deliver other meanings? As a result, the objective of this study is to examine Istihsan terminology which are found in Shafi'e fiqh literatures in 46 issues on al-Mu‘amalat, al-AÍwÉl al ShakhÎiyyah and al-Jenayat and to analyse them to determine its meaning. To reach the objective, this research used library research for data collection, which is by examining UÎËl al-Fiqh works of literature and Shafi'e fiqh pieces of literature where the Istihsan terminologies are recorded. The data collected are then analysed. As a conclusion, one of the main findings of this research is: The Istihsan terminologies which were found in Shafi'e fiqh pieces of literature in 46 issues on al-Mu‘amalat, al-AÍwÉl al-ShakhÎiyyah and al- Jenayat mainly refers to lingual (LughawÊ) application of the term and not al- Istihsan al-’UÎËlÊ. This research is hoped to contribute to studies that are related to Mazhab al-Shafi'e fiqh terminologies.