|In the first half of the 2nd century AH, the tendency to make wider use of reasoning and ijtihadi methods witnessed a sharp increase, especially in Kufah, which came to be known as the center for the so-called Partisans of Ra’y (personal opinion). Among the most influential personalities in the formation of the school of the Partisan’s of Ra’y in Kufah was Hamad b. Abi Sulayman, the most eminent living member of the school of Ibn Mas`ud, whose company was eagerly sought by men of learning, not so much because they were interested in receiving hadiths from him, but for gaining knowledge of his particular ra’ys (opinions). The next two individuals, in terms of prominence, among the followers of ra’y in Kufah were Ibn Shabramah and Ibn Abi Layli. However, the man who played the most seminal role in the formation of the school of ra’y and whose school of fiqh enjoyed relative systematization with regard to theoretical foundations was Abu Hanifah, the leader of the Hanafites.
As regards an analytical look at the views of the Partisans of Ra’y and those of Abu Hanifah, in particular, it may be noted that as far as religious rules and prophetic sunnah were concerned Abu Hanifah took a stringent stance and considered weak and variable (his term) akhbar (sing. khabar: report) as insufficient ground for proving the authenticity of a prophetic sunnah (practice). In cases of the existence of two conflicting khabars, he chose the permanent over the variable sunnah and showed little desire with regard to their reconciliation. He also considered himself as free in terms of deciding between two divergent views of the Companions. This method of critical selection though on the surface appears as one that feels itself bound by the letter of the religious text does, none the less, contain a hidden element of free thinking. As regards consensus (ijma`), the jurists of the 2nd century AH, in general, and Abu Hanifah, in particular, did not exhibit any eagerness to consider consensus as a distinct source of fiqhi decision-making. Even in the fiqhi school of Abu Hanifah, the emphasis placed on the authority derived from the consensus of the Companions on a particular issue does not stem from the consensus per se but from the respect accorded to them as men of status. Ibn Abi Layli (d. 148 Ah) was another partisan of reasoning who believed in the authority of the Qur’an and the sunnah, followed by that of the consensus among the Companions, and ijtihad in cases were there existed divergence among the latter’s views. It is worth noting that in the second half of the 2nd century AH the wider currency accorded to the notion of ijma` in the fiqh of the Partisans of Hadith met with the opposition of the proponents of ra’y, such as Abu Yusuf, who disagreed with what they deemed as inordinate weight assigned to the authority of consensus.
In the analysis of the status of ijma` and qiyas in the fiqh of the proponents of ra’y it should be borne in mine that in spite of their reputation for advocating personal reasoning they only made use of a limited number of methods. In brief, it may be stated that in the fiqhi system of Abu Hanifah rules of worship are to conform to the contents of religious texts and the widest use of personal reasoning is confined to those categories of shar`i rules that pertain to matters of daily living. Istihsan (juristic preference) as a means of refraining from qiyas – which in itself is another example of utilizing a rational method in fiqhi decision-making – is detected in its elementary from in Abu Hanifah’s fiqh, however, it was first used in it fully fledged form by Abu Yususf.
The most important report on the subject is by Sahl b. Muzahim who notes that Abu Hanifah resorted to istihsan in cases where ijma` was considered as an improper method. He is also said to have used the existing conventions of the Muslim community as a basis for his fiqhi decisions. In an analysis of Abu Hanifah’s uses of istihsan one encounters his reasons for refraining from qiyas. They include the disharmony between qiyas and normative social relations and the subject known as mu`amalat and the matter of `usr and haraj (undue burden). Abu Hanifah condemned the use of qiyas. At times, it appears that because of his rejection of general qiyas he restricted a subject to its particular case, based on a particular piece of evidence (athar: trace, a tradition from a Companion or Successor), and thus excluded the possibility of applying qiyas to it, a piece of evidence which in itself may have seemed as weak and as a pretext for the use of personal reasoning.
The writings of Qadi Abu Yusuf, as the oldest fiqhi sources of the Partisans of Ra’y, is replete with cases where an athar is used to exclude the use of qiyas, a method referred to by Abu Yususf as istihsan. In each case of istihsan, as a counterpoint to qiyas, there exists an athar or a fatwa from a faqih which by itself is insufficient as a basis for fiqhi decision-making, but which is bolstered by ra’y as an indispensable element making up for the weakness in the chain of transmission of the athar. An upshot of the istihsani method of Abu Yusuf is the variability it creates with regard to fiqhi rules, i.e. the fact that they change according to the circumstances of time and place. He was of the contention that norms were to constitute the basis for shar`i rules. In fact, he went as far as considering as permissible the legislation of a rule that went against the immediate sense of a religious text, provided the reason was clearly articulated.