LEARNING OUTCOME• Upon completion of this course,students will be able to:– Describe various principles and contentsof Islamic jurisprudence– Identify issues and problems incontemporary period and apply variousprinciples of Islamic jurisprudenceaccordingly
• Analyse development and changes in thelaws and Shariah as well as matters thathave impact on the law• Provide solution, advice and opinionpertaining to Islamic law effectively
Assessment• Test 1/OralTest/Presentation/Assignment 15%• Test 2 (Common Test) 15%• Class Participation 10%• Final Examination 60%
Definition• Literal meaning– To approve– To deem something preferable• Juristic meaning– A method of exercising personal opinionin order to avoid any rigidity andunfairness that might result from literalenforcement of the existing law
• Also referred to as juristic preference.• Juristic preference involves settingaside an established analogy in favourof an alternative ruling which servesthe ideals of justice and public interestin a better way.
Jurists‟ Definitions• Hanafis:– Istihsan is to depart from the existingprecedent, by taking a decision in acertain case different from that on whichsimilar cases have been decided, for areason stronger than the one that isobtained in those cases .– this is basedon al-kharki‟s definition
• Al-Sarakhsi adds:– The precedent which is set aside byistihsan normally consists of anestablished analogy which may beabandoned in a favour of a superiorproof, that is the Quran, the Sunnah,necessity (dorurah) or a stronger qiyas.
• Hanbali:– Istihsan is the abandonment of one legalnorm (hukm) for another which isconsidered better on the basis of theQuran, Sunnah, or consensus. –according to Ibnu Taymiyyah.
• Maliki:– Istihsan is to abandon exceptionally whatis required by the law because applyingthe existing law would lead to a departurefrom some of its own objectives – Ibnu al-Arabi.
Examples of Istihsani. The ruling of S.Umar in cases of theftduring a widespread famine – cuttingof hands of thieves was suspendedii. The ban imposed on sale of slave‟smother (ummahat al-aulad)iii. The ban on marriage with kitabiyyahsin certain cases-on grounds of public interest, equityand justice.
iv. The judgement of „Umar in the caseof Muhammad ibn Salamah.- Salamah‟s neighbour asked for apermission if he could extend a watercanal through Salamah‟s property, and hewas granted the request on the groundthat no harm was likely to accrue toSalamah
v. Permission to women to travelwithout mahram under exceptionalsituation.vi. Methods of proof in the law ofevidence extends to documentaryevidence, photography, soundrecording, laboratory analysis, DNAtest, etc. - due to changes in socialsituations
– the standard form of evidence in Islamiclaw is oral testimony. Normally two adilwitnesses are required and fourwitnesses in certain cases.
• According to Prof. Hashim Kamali, therationale of this istihsan would be thatthe law requires evidence in order toestablish the truth and not the oraltestimony for its own sake. If this is thereal spirit of the law, then recourse toistihsan would seem to offer a betterway in order to uphold that spirit.
• vii. Another example of the case ofIstihsan are the cases of himariyyaand umariyyatan decided by SayyidinaUmar.
• viii. Other examples where istihsan isapplicable:– looking at the private parts of people inmedical treatment. The general rule isthat it is unlawful to look at private parts,but it is recommended to avert harm.– granting trusteeship to someone withoutgood character in order to avert hardshipas was made clear under analogy.
Importance of istihsan• Important branch of ijtihad• Provider for Islamic law with necessarymeans to encourage flexibility andgrowth• Can be used for a variety of purposes
Why Istihsan?• Enforcing the existing law may proveto be detrimental in certain situationsand a departure from it may be theonly way of attaining a fair solution to aparticular problem.• Istihsan may offer a means of avoidinghardship and a solution which isharmonius with the higher objectives ofthe Shar‟iah.
• Istihsan is considered as being thecounterpart of equity in common law.• Istihsan is one of the methods/devices(apart from maslahah and siyasah as-Shar‟iyyah) to incorporate socialchanges into Islamic law, where thestrict requirements of Islamic lawwould not allow it.
Istihsan & Equity• Similarities:– Inspired by the principle of fairness andconscience– Both authorise departure from a rule ofpositive law when its enforcement leadsto unfair results– Both assume that right and wrong are nota matter of relative convenience for theindividual but derive from eternally validstandard which is ultimately independentof human cognisance and adherence
DifferencesEQUITY• Reliance on the conceptof natural law• Right and wrong areinherent in nature• Equity is a law of naturesuperior to all other legalrules, written or otherwise• Equity recognises naturallaw apart from andsuperior to positive lawISTIHSAN• Reliance on divine law• Right and wrong aredetermined by God• Istihsan does not giverise for any other law tobe superior than thedivine revelation• Istihsan is an integral partof the shariah
Juristic views• The Hanafi,Maliki and Hanbali juristshave validated istihsan as subsidiarysource of law.• The Shafi‟i, Zahiri and Shi‟i jurist haverejected it altogether.
The opposition• Imam Syafie:– Istihsan involves personal opinion,discretion and the inclination of theindividual jurist, an exercise which is notin harmony with the Quranic ayah whichreads:• “Does man think that he will be left withoutguidance?” al-Qiyamah (75) : 36– If this is allowed then the result is selfindulgence and chaos in the community
• Istihsan amounts to a deviation fromthe principles of the Shari‟ah.• A form of pleasure-seeking.• Involve ijtihad which is not inconformity with the Quran• It is human‟s duty to follow whatexactly mentioned in the Quran andthe Sunnah of Prophet Muhammad.
Supporter of Istihsan• As-Sarakhsi (Hanafi jurist):- that avoidance of hardship is thecardinal principle of religion which isstated in the Quran.– E.g, “Allah intends every facility for you,and He does not want to put you inhardship”(al-Baqarah:185)– The hadith “the best of your religion isthat which brings ease to the people.”
• The supporter of istihsan also arguethat istihsan is a part of maslahah andalso based on the principle ofdharuriyyah.• Istihsan is to abandon exceptionallythe existing law, not absolute or totalabandonment
Textual proof (hujjiyyah)• “And give good tidings to those of myservants who listen to the word andfollow the best of it (ahsanahu). Thoseare the ones God has guided andendowed with understanding.” – alZumar (39) : 18
• “And follow the best (ahsan) of whathas been sent down to you from yourLord.” –al-Zumar : 55
• Another authority for the application ofistihsan:– Sayyidina Umar‟s letter to Abu Musa al-Asy‟ari:– “Research similar cases, and when you findsimilarities that affect the ruling, apply themethod of qiyas. Using the results of qiyas,select the ruling that adheres to the Islamicprinciples and ensures that your conscience issatisfied that justice has been served.”
• According to the first part, `Umarwanted qiyas applied as soon as thesimilarities were found and the resultwas deemed just. However, in thesecond part he says that if this is notpossible, then a ruling that accordswith the basic principles of justice andequity should be given.
• In other words, if the resulting qiyas isnot in keeping with the Shari`ah‟sspirit, then the ruling of similaritiesshould be abandoned to give a rulingaccording to the special evidence, thatis, justice and equity (istihsan)
Types of istihsan
ISTIHSAN ISTITHNAI• Making exception to the general rule of theexisting law when Muslim jurists areconvinced that justice and equity will bebetter served.• The jurists might have reached the decisionas a result of personal ijtihad or that theexception may have already beenauthorised by any of the following: Quranicverses, prophetic traditions, consensusopinion, custom, public interest andnecessity
IS IST based on Quran• General rule = “No bequest for an heir”– LA WASIYYATA LI WARITHIN• Exception - A will to a relative isallowed for fair distribution of wealth inthe family especially in cases where arelative is destitute and yet he isexcluded from inheritance in thepresence of other heirs.– Wasiyyah wajibah (obligatory bequest)?
• Basis - al-Baqarah:180– “It is prescribed for you, when deathapproaches any of you, if he leaveswealth, that he makes a bequest toparents and next of kin, according toreasonable manners.”
IS IST based on sunnah• General rule: A contract becomesbinding once the offer and acceptanceare completed.– A contract is binding and irrevocable oncethe contracting parties left the meetingplace
• Exception: based on istihsan there areoptions for cancellation (khiyar alsyart)• When a person buys an object oncondition that he may revoke thecontract within the next three days oras stipulated in the contract.
• Basis - Hadis• “When you agree on the terms of asale, you may say: it is not binding andI have an option for three days.”….3 days
IS IST based on Ijma‟• General rule - The object or subjectmatter of the contract must be inexistence at the time the contract isconcluded.– “Do not sell something that is not in yourpossession.”
• Exception = in the contract formanufacture of goods (Bay‟ al-Istisna‟)and bay‟ as-Salam.• Basis - is an ijma‟ that someone mayplace an order with a craftsman forcertain goods to be made at a pricewhich is determined at the time of thecontract, and the subject matter will bedelivered at a later date or time.
• Examples:– Sale and purchase of a house which isyet to be built.– Sale of manufactured items such asfurnitures/garments/food services/boatetc
IS IST based on custom• The case of waqf of moveable goodsor personal properties.• General rule = by definition, waqf isendowment of property on apermanent basis, so the valid subjectmatter must be immoveable propertysuch as buildings, land or house.– Moveable goods are subject todestruction and loss, they are not to beassigned in waqf.
• Exception - waqf of movable propertyis accepted by popular custom.• Hanafis allowed the waqf of moveablegoods such as books, tools andweapons on ground of its acceptanceby popular custom.
IS IST based on necessity• The case of less qualified qadi.• General rule requires that the qadimust be a mujtahid• Exception - non-mujtahid may beappointed as qadi where no mujtahidcan be found for this post.
• Another example is as to thequalification of witnesses. In order fora witness to be admissible, he must beadil person. If there is no adil witnessthen by istihsan, a qadhi can admitwitnesses who are not totally reliableso that the rights of people could beprotected.
• What about female syar‟ie judge?
• Another example is in the case of wellsin which dirt or carcasses of animalshave fallen. Following strict analogywould mean the non-use of thesewells, and this would cause hardshipto the people. The principle ofnecessity requires that use of thesewells be permitted. This is done afterobserving formal cleaning methods.
• Other examples:– A deposit holder (trustee) is normally notentitled to spend out of the property thatis entrusted to him without the permissionof the depositor or the judge. But he maydo so in situations of necessity if thedepositor is out of reach and it is alsodifficult to obtain a judicial order for thepurpose.
– A legally competent heirs of the deceasedmay spend, by way of Istihsan, on theirminor relatives who have no legalexecutor (wasi) what is necessary out oftheir own (children’s) property without anyauthorisation.
– By the same token, when a mosque iswithout a caretaker but it is recipient ofincome from a charitable endowment(waqf) the people of the locality mayspend out of this income to repair anydamages in the mosque or to build afence around it
IS IST based on publicinterest• The case of responsibility of thetrustee (amin)• General rule - the trustee is notresponsible for loss or damage to suchproperty unless it is due to hispersonal fault and negligence.
• Exception = Abu Yusuf and as-Shaibani, have set aside the generalrule by way of istihsan.• They laid down that the trustee is to beheld responsible to the damage or lossof the property unless the loss iscaused by a calamity such as fire andflood which is totally beyond hiscontrol.
ISTIHSAN QIYASI• It is a departure from one qiyas toanother• Qiyas is of two types : Jalli (obviousanalogy) and Khafi (hidden analogy)– Istihsan qiyasi is a departure from QiyasJalli to Qiyas Khafi.
Why qiyas khafi?• It is stronger and more effective inrepelling hardship than qiyas jalli• Presumably because it is arrivedthrough deeper reflection and analysisand not through superficial observationor similitudes.
Example• Whether waqf (charitable endowment)of cultivated land may include allancillary rights (right of water, passageand flow etc) attached to the property?• Analogy is made to Islamic law ofcontract including the contract of sale.The general rule is the object ofcontract must be clearly identified indetail.
• What is not specified in the contract isnot included.• Analogy between sale and waqf (bothinvolve transfer of ownership) directanalogy (Qiyas Jalli) : the attachedrights can only be included in waqf ifthey are explicitly identified.
• Application of Qiyas Jalli leads toinequitable results: the waqf ofcultivated land, without its ancillaryrights, would frustrate the basicpurpose of waqf, which is to facilitatethe use of the property for charitablepurposes
• To avoid hardship, resort is made toQiyas Khafi• The parallel is drawn to the contract oflease (ijarah) since for both involve atransfer of usufruct (benefit).• Since usufruct is the essential purposeof ijarah, the contract of ijarah is valid,on the authority of a hadith, evenwithout a clear reference to theusufruct.
• By analogy to ijarah, waqf can bevalidly concluded even if it does notspecify the attached rights to theproperty in detail.
Relevance of Istihsan tocontemporary law.• Sale and Purchase agreement –contract to buy a house that is yet tobe built• E-commerce transaction (Imam Shafi‟erequires ijab and qabul in one sitting)as long as not contrary to syara‟.• Force entry into one‟s premise to curbor solve a crime