Pengertian istihsan dan contoh-contohnya

1. ISTIHSAN

2. Definition
• Literal meaning
– To approve
– To deem something preferable
• Juristic meaning
– A method of exercising personal opinion
in order to avoid any rigidity and
unfairness that might result from literal
enforcement of the existing law

3. • Also referred to as juristic preference.
• Juristic preference involves setting
aside an established analogy in favour
of an alternative ruling which serves
the ideals of justice and public interest
in a better way.

4. Jurists’ Definitions
• Hanafis:
– Istihsan is 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 .– this is based
on al-kharki’s definition

5. • Al-Sarakhsi adds:
– The precedent which is set aside by
istihsan normally consists of an
established analogy which may be
abandoned in a favour of a superior
proof, that is the Quran, the Sunnah,
necessity (dorurah) or a stronger qiyas.

6. • Hanbali:
– Istihsan is the abandonment of one legal
norm (hukm) for another which is
considered better on the basis of the
Quran, Sunnah, or consensus. –
according to Ibnu Taymiyyah.

7. • Maliki:
– Istihsan is to abandon exceptionally what
is required by the law because applying
the existing law would lead to a departure
from some of its own objectives – Ibnu al-
Arabi.

8. Examples of Istihsan
i. The ruling of S.Umar in cases of theft
during a widespread famine – cutting
of hands of thieves was suspended
ii. The ban imposed on sale of slave’s
mother (ummahat al-aulad)
iii. The ban on marriage with kitabiyyahs
in certain cases
-on grounds of public interest, equity
and justice.

9. iv. The judgement of ‘Umar in the case
of Muhammad ibn Salamah.
- Salamah’s neighbour asked for a
permission if he could extend a water
canal through Salamah’s property, and he
was granted the request on the ground
that no harm was likely to accrue to
Salamah

10. v. Permission to women to travel
without mahram under exceptional
situation.
vi. Methods of proof in the law of
evidence extends to documentary
evidence, photography, sound
recording, laboratory analysis, DNA
test, etc. - due to changes in social
situations

11. – the standard form of evidence in Islamic
law is oral testimony. Normally two adil
witnesses are required and four
witnesses in certain cases.