| Summary: | <p>Abū Ḥanīfa (d. 150/767) notoriously used istiḥsān (juristic preference) to make apparently subjective rulings. In response, al-Shāfiʿī (d. 204/820) declared istiḥsān invalid. Later Hanafis retorted that al-Shāfiʿī had misunderstood the term, causing modern scholars to similarly disagree on its definition. To resolve this debate, this thesis analyses istiḥsān in early Hanafi practice. However, beyond just understanding the term itself, this dissertation uses it to explore early Muslim attitudes towards a universal legal question: can a jurist overrule the letter of the law based on their own sense of justice or social impact?</p>
<p>The dissertation argues that in early Iraq, subjectivity went from being embraced (8th cen., Chapters 1-3), to contested (9th cen., Chapter 4), to universally denounced (10th-11th cen., Chapter 5). As part of demonstrating the embrace, the dissertation analyses a dataset of every istiḥsān ruling (approx. 500) in the Kitāb al-Aṣl of Muḥammad al-Shaybānī (d. 189/804-5), mapping the pragmatic and moral considerations that early Hanafis incorporated into their doctrine. Analysing the period of contestation then reveals, among other things, a school of 9th- century Iraqis who prized juristic subjectivity but did not survive into classical Islam. The dissertation then explores how, in the period of denunciation, Hanafis theorised istiḥsān to make it abide by objective standards, while in practice it became a potent mechanism for legal change. Throughout these analyses, the dissertation also highlights how istiḥsān is an underutilised tool for addressing perennial questions in the field of Islamic law. In all, this dissertation tells the untold story of istiḥsān, and in so doing, tells a broader story about the rise of Islamic legal orthodoxy.</p>
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