This is the third article in a series based on the On Demand Course: The Hanafi Way: Lessons from Kawthari’s Fiqh Ahl al Iraq. It lays out the great defense of the Hanafi school in the 20th century by Imam Kawthari.
Legal preference (istihsan) is to deem something good or to deem something better. The claim that it is just a case of the jurist picking whatever opinion seemed better to him personally was wrong. This claim was retracted.
There are similar methodological principles in the other schools, with their distinct application.
إِنِ ٱلۡحُكۡمُ إِلَّا لِلَّهِۖ
“Judgement lies with Allah alone” [Keller, The Quran Beheld 6:57]
The servant must hear and obey. How can one prefer one understanding over another?
Legal preference is not simply choosing whatever you prefer on an issue. Rather it is merely the leaving of the most obvious line of legal reasoning for a second line of legal reasoning that is stronger due to secondary considerations.
One of the proofs of legal preference (used by Imam Jassas) is from the Quran itself.
وَٱلَّذِینَ ٱجۡتَنَبُوا۟ ٱلطَّـٰغُوتَ أَن یَعۡبُدُوهَا وَأَنَابُوۤا۟ إِلَى ٱللَّهِ لَهُمُ ٱلۡبُشۡرَىٰۚ فَبَشِّرۡ عِبَادِ
ٱلَّذِینَ یَسۡتَمِعُونَ ٱلۡقَوۡلَ فَیَتَّبِعُونَ أَحۡسَنَهُۥۤۚ أُو۟لَـٰۤىِٕكَ ٱلَّذِینَ هَدَىٰهُمُ ٱللَّهُۖ وَأُو۟لَـٰۤىِٕكَ هُمۡ أُو۟لُوا۟ ٱلۡأَلۡبَـٰبِ
“And those who shun the abomination of false gods to worship; And who always return to Allah in sincere love and repentance: Theirs are the great glad tidings: so give tidings of joy to My servants!
Those who listen to what is said and wholeheartedly follow the very best of it: Those are whom Allah has truly guided, and possessed of insight and mind.” [Keller, The Quran Beheld 39:17-18]
Meaning that when there is a statement, it has a sound meaning, but it can also have a better meaning. Following the better meaning, the meaning that is of the greater good, is what legal preference is.
This has to be based on principled evidentiary reasoning, not on whimsical personal preference.
Abdullah ibn Mas‘ud reportedly said, “Whatever the Muslims deem good is good with Allah and whatever the Muslims deem bad, is bad with Allah.” – “The Muslims” here means the scholars of the Muslims.
Scholars used legal preference in the time preceding Imam Abu Hanifa. It is made necessary by the Lawgiver in addressing many things that Allah and His Messenger (Allah bless him and give him peace) have not specified, to begin with.
The need to extend legal judgment beyond what the text plainly states is made necessary by the texts.
وَٱلۡوَ ٰلِدَ ٰتُ یُرۡضِعۡنَ أَوۡلَـٰدَهُنَّ حَوۡلَیۡنِ كَامِلَیۡنِۖ لِمَنۡ أَرَادَ أَن یُتِمَّ ٱلرَّضَاعَةَۚ وَعَلَى ٱلۡمَوۡلُودِ لَهُۥ رِزۡقُهُنَّ وَكِسۡوَتُهُنَّ بِٱلۡمَعۡرُوفِۚ لَا تُكَلَّفُ نَفۡسٌ إِلَّا وُسۡعَهَاۚ لَا تُضَاۤرَّ وَ ٰلِدَةُۢ بِوَلَدِهَا وَلَا مَوۡلُود لَّهُۥ بِوَلَدِهِۦۚ وَعَلَى ٱلۡوَارِثِ مِثۡلُ ذَ ٰلِكَۗ فَإِنۡ أَرَادَا فِصَالًا عَن تَرَاض مِّنۡهُمَا وَتَشَاوُر فَلَا جُنَاحَ عَلَیۡهِمَاۗ وَإِنۡ أَرَدتُّمۡ أَن تَسۡتَرۡضِعُوۤا۟ أَوۡلَـٰدَكُمۡ فَلَا جُنَاحَ عَلَیۡكُمۡ إِذَا سَلَّمۡتُم مَّاۤ ءَاتَیۡتُم بِٱلۡمَعۡرُوفِۗ وَٱتَّقُوا۟ ٱللَّهَ وَٱعۡلَمُوۤا۟ أَنَّ ٱللَّهَ بِمَا تَعۡمَلُونَ بَصِیر
“Mothers divorced shall suckle their children two full years, for parents who wish to complete the suckling; And their support and clothing shall be the charge of him to whom the child was born, in honorable measure: No soul shall be taxed but what it can comfortably bear. No mother shall suffer because of her child, nor father because of his; and should the father die, his heir shall bear the charges. So if the father and divorced mother want the child weaned in less than two full years, out of their mutual agreement and seriously conferring together, they incur no fault thereby. And if you fathers want other wet nurses instead for your children, you incur no sin thereby, when you deliver to them the wages you have stipulated for them in honorable fairness. And fear Allah, and know that Allah sees all you do.” [Keller, The Quran Beheld 2:233]
There is a duty to provide in a good way. How do you determine what is good? Sound judgment determines it. There is much more evidence for this.
Two Senses of Legal Preference
The general sense of legal preference is the mujtahid using his reasoning to determine the best interpretation of a text. However, the specific use of legal preference is leaving the primary line of legal reasoning for another secondary line due to preponderating considerations.
In that sense, legal preference is a subset of analogy. At first glance, one line of reasoning may appear to be the right line of legal reasoning but considering surrounding evidence, another line of legal reasoning would preponderate over it.
When the mujtahid engages in legal preference they are suggesting that “A full legal reasoning entails that the answer, objectively closest to what Allah deems good in this matter, is as follows…”
It has nothing to do with whim.