3. DEFINITION
The term Istihsan is derived from the root word hasuna. Literally it means
considering something good, preferable and beautiful.
Technically:-
According Abu’l-Hasan al-Karkhi, a Hanafi jurists:
to depart from the existing precedent, by taking a decision in a certain
case different from that on which similar cases have been decided, for
a reason stronger than the one that is obtained in those cases.”
Al-Sarakhsi:
Abandonment of an opinion to which Qiyas would lead in favor of a
different opinion supported by stronger evidence and adapted to what
is accommodating to the people.
4. CONT…
al-Halwani:
Giving up of analogy for a stronger evidence from al-Qur’an, Sunnah,
al-Ijma’ or etc
Ibn Taymiyyah and Ibn Qudamah al-Maqdisi, the Hanbali jurists:
the abandonment of one legal ruling for another which is considered
better on the basis of the Qur’an, Sunnah or consensus.
Ibn al-’Arabi, a Maliki jurist:
to abandon the requirement of the proof as an exception and to make
concession when the proofs conflict. He elaborated that the departure
in question may be justified by custom, public interest or Ijma’.
7. Hanafi school
Istihsan as a valid source of Shari’ah and a basis for the formulation of legal
rulings.
Maliki school
Recognize istihsan
Istihsan as departure from qiyas due to public interest.
Hanbali school
Imam Ahmad recognize istihsan
Shafi’i school
Rejects the principle of istihsan as a source of Islamic law.
“Whoever approves of jurisdistic preference is making himself the
lawmaker”
8. Zaydiyyah jurists
Recognize istihsan
The concept of istihsan among the Zaydiyyah thought is close to the Hanafis
Mu’tazilah jurists
Recognize istihsan
Shi’ah jurists
Do not accept istihsan at all and rejects the performance of qiyas.
11. Textually Based Istihsan (al Istihsan bi’l Nass
Consist of abandoning a principle or rule that would normally be
applicable to the issue at hand : for an alternative ruling for which
support can be found in the text of the Qur’an or Hadith.
Example : The contract of al Salam
anomalously as it fail to satisfy one of
the requirements of valid sale, namely that
the subject matter of sale must be physically
present at the time of contract.
12. Cont..
But it has been validate by the express term of Hadith, notwithstanding
the non existence of its subject matter at the time of contract.
General rule of qiyas, invalidate salam but the Sunnah approves it.
“whoever concludes salam, let him do over the specified
measure, specified weight and specified period of time.”
13. General rule : subject matter of sale must exist at the time of
contract is also based in the authority of hadith.
In this hadith, Prophet instructed the Companion, Hakim B. Hizam,
who asked the question whether he could sell a commodity prior
to purchasing it himself, and the Prophet to him to “sell not what
is not with you”.
14. Cont..
There are two ruling in the hadith
a) represent the normal principle of contract of sale
b) concerned with particular type of sale ; the former would
proscribe salam whreas the latter validates it.
It is then said that salam has been validate by the way of Istihsan
which is contrary to qiyas.
15. Istihsan and Ijma
An exception to the general rule of law may be based on the
authority of ijma’ in which case it is said that the istihsan in
question is validated by ijma’.
Example: Contract of Istisna
Someone place an order for some goods to be made, a
contract is concluded in the absence of its subject matter and
nothing changes hands at the time.
16. Cont..
Other example:
“there is consensus among the ulama that one who destroy one item of
a pair such as shoes, or one of the two panels of a door, or damage a part of
something that is considered a defect as to its whole will be liable to pay
compensation for both pair or the whole of a matching set as the case
maybe.”
The ruling of consensus here represent a departure from the rule of qiyas
which require compensation for the part that is actually damage or destroy.
17. Istihsan and Necessity (Darurah)
A person may be exceptionally permitted to deal with the
property of another person without permission or
authorization of the latter.
The normal rule : disallow such person from interfering with
the property of others.
But it is validated on the ground of Istihsan which is founded
in necessity and prevented from harm.
18. Cont..
Example:
a) it is lawful for the father or son, as the case may be, to sell
the property of the one who is afflicted with illness to the extend
of what is necessary for medication and treatment even without
permission. The normal rule does not allow interference in the
property of others without permission, but a departure from this
rule is here validated on grounds of necessity and Istihsan.
21. 4. Istihsan on the basis of Analogy (Istihsan al-
Qiyasi)
According to Kayadibi (2010), istihsan on the basis of analogy is basically a
departure from one type of qiyas (jali) to another type of qiyas (khafi).
Qiyas jali is an explicit analogy, meanwhile qiyas khafi is an implicit analogy.
The implicit analogy is considered to be more effective and therefore, is
preferred over the explicit if they are opposed to each other. This is because
istihsan is an evidence (dalil) which is established against explicit analogy.
22. Cont…
This istihsan (on the basis of qiyas/analogy) is agreed upon by all the scholars,
and opposition to it is unthinkable.
Hanafis divide qiyas into the jali (explicit) and the khafi (implicit).
Jali is an analogy where the ‘illah (effective cause) appears at first glance without
careful consideration needing to be given to it.
For example, the prohibition of nabidh appears to follow on by analogy from the
prohibition of wine.
23. Cont…
Meanwhile, qiyas khafi is one where the effective cause (‘illah) is understood after
careful consideration and reflection.
That is why qiyas khafi is preferred over qiyas jali if they are opposing to each
other due to the effective cause (‘illah) which is stronger in khafi. Therefore, it is
called the qiyas of juristic preference (istihsan al-qiyas).
The example of qiyas khafi is preferred over qiyas jali is based on this situation,
according to the Hanafis rulings:
24. Cont…
Supposing A (Ahmad) buys a house in a single transaction from B (Badrul) and C
(Taufik) at a price of 40,000 dollars payable in installments. Ahmad pays the first
installment of 2,000 dollars to Badrul, assuming that Badrul will hand over Taufik’s
portion to him. But before this happens, Badrul loses 2,000 and the question
arises as to who should suffer the loss.
By applying qiyas jali, Badrul and Taufik should share the loss. For this is a case of
joint debt (al-dayn al-mushtarak) which means that Badrul received the money on
behalf of the partnership and not for himself alone. Their position in sharing the
loss, in other words, is analogous to their status as partners in the first place. But
by applying istishan, only Badrul who received the money suffers the loss.
25. Cont…
For Taufik, although a partner, was basically under no obligation to obtain his
portion of the 2,000 from Badrul; it was his right and he would be at the liberty to
abandon it. Taufik’s portion of the 2,000 dollars would consequently become a
part of the reminder of the price (or the debt) that Ahmad owes to both.
Only Badrul is therefore suffer the loss. The solution is based on subtle analogy to
the rule that one who is under no obligation should not have to pay any
compensation either.
26. 5. Istihsan on the basis of Custom (‘Urf)
Custom (‘urf) can be divided into two types:
i. ‘urf sahih (acceptable custom)
ii. ‘urf fasid (inacceptable custom)
‘urf sahih is a valid source of law according to the Quran and the Sunnah.
‘urf fasid is not accepted as a definite source of law.
27. Cont…
The example for istishan on the basis of custom can be referred to the waqf of
moveable goods.
Basically, waqf by definition is the endowment property on a permanent basis,
and moveable goods are subject to destruction and loss. Thus, this makes the
moveable goods cannot be assigned in waqf.
However, this general rule has been set aside by the Hanafi jurists, who have
validated the waqf of moveable goods such as books, tools, and weapons on the
basis of its acceptance by popular custom.
28. Cont…
Other example is from Shaybani where he has pointed out that:
Under the subject of usury, loans and borrowing money, lending and borrowing bread between
neighbors is permitted, based on the principle of istihsan, since everyday need has made it into a
custom. However, according to nass, goods exchanged must be of the same kind and equal value.
If not, shortage may lead to unlawful usury, thus cancelling the contract.
But, even though the lending and borrowing of bread may not always involve exactly equal
exchange, istihsan allows it on the ground of custom. Custom ignores small differences and only
take into the consideration the number of items involved.
29. 6. Istihsan on the basis of Public Interest
(Maslahah)
According to the established ruling of Hanafi School, a person is free to dispose
of his own property as he wills.
For example, one may dig a well on one’s own land or built whatever he wishes.
Such activities cannot be stopped even if they might cause harm to one’s
neighbors. However, despite this ruling, at some point during 8th and 9th century,
Hanafi jurists declared that the rights of personal ownership are not absolute.
Therefore, the condition must be that disposal of one’s property is allowed so
long as it does not harm others. In order to avoid harm and protect the public
good, a new ruling is established based on the principle of maslahah, which is a
major consideration in istihsan. Istihsan here considering what is more beneficial
for the majority.
30. References
Kayadibi, S. (2010). Istihsan: The Doctrine of Juristic Preference in Islamic Law.
Islamic Book Trust Kuala Lumpur. 237.
Kamali, M. H. (1991). Principles of Islamic Jurisprudence. 217.
Kamali, M.H. (2004). Istihsan and the Renewal of Islamic Law. Islamic Studies 43:4.
561-581.
31. The validity of Istihsan
The Hanafi, Malik and Hanbali jurists have validated istihsan as
subsidiary source of law.
The Shafi'i, Zahiri and Shi'i are rejected it altogether.
There are no exact authority of istihsan as it is not exactly
stated in the Quran and the Sunnah.
32. Who listen to speech and follow the best of it. Those are the ones Allah has guided, and
those are people of understanding.
And follow the best of what was revealed to you from your Lord before the punishment
comes upon you suddenly while you do not perceive.
(Surah Az-Zumar, 39:18 & 55)
"La darara wa la dirar fil Islam"
No harm shall be inflicted or reciprocated in Islam
33. Istihsan is closely related to 'ray' (opinion) and Qiyas (analogical
deduction).
A method of legal reasoning that ensures analytical consistency in
the system and helps the jurist identify general principles and
exceptions besides giving importance to the consequences of the
decision.
Al-Shafi’i has critized Istihsan on the Quranic verses in surah al-
Nisa 4:59 and al-Qiyamah, 75:36.
34. Conclusion
It can be concluded that istihsan is a mujtahids’ preference of
the exceptional rule over the general rule because of other
evidence.
Istihsan offers considerable potential for innovation and for
imaginative solutions to legal problems.
Can best be used as a method by which to improve the
existing law, to strip it of impractical and undesirable elements
and to refine it by means of making necessary exception.
