#14030 - Istihsan - Islamic Law

ISTIHSAN

• ISTIHSAN:

• Means Juristic preference - to deem something preferable

• It is a method of exercising personal opinion and therefore a form of ijtihad

• Rigidly following the law would lead to hardship and preferable to do something else

• Source of islamic law is similar to equity. (The rigidity in the common law)

• Exercising ones personal opinion (ra’ay)

• 2nd Caliph in islamic law - Umar - suspended the application of the punishment of theft during a period of famine. (Often cited as an example of ihtihsan)

• Istihsan – Arabic word derived from ‘hasan’ – good – designates the preference of one object or idea over another.

• Associated with analogy (qiyas)

• Shafi’s concern with linking legal judgement to the text led him to reject the legal mechanisms which appear to be detached from it, such as istihsan. He feared that, by going beyond the methodologically secure and generally recognised principles of legal interpretation, a scholar might compromise the divine element of shari’ah

• In certain cases, it was found that it is preferable not to apply what seems to be the normal apparent analytical judgement but to revert to a less apparent analogy due to the existence of stronger evidence. E.g. it is evident in the scenario where a person takes food because he has forgotten that he is supposed to be fasting. By analogy to a person who does this deliberately, the fasting of that individual would be void. However, another view which is preferred (mustahsan) – one that takes in to account the prophetic tradition which states that the act of fasting would remain valid if eating was a consequence of forgetfulness or error.

• Amidi summarises the various definitions of istihsan – including those of Halwani (the Hanafi scholar), who highlights the relationship between qiyas and istihsan. He perceives istihsan as entailing the abandonment of a certain analogy in favour of one based on a stronger proof, for example on the Qur’an, Sunnah, ijma or other legal sources.

• Istihsan that is based on customs reflects the richness of regional practice, and for Muslims who reside outside the lands of Islam, it provides a source that could be employed to formulate new legal rulings of a different nature from those previously applied. E.g. allowing of some kinds of religious endowments to be temporary, such as the endowment of books and food utensils. In this case, preference overturns the general principle whereby, waaf, must be permanent. This is permissible due to the prevalent custom in certain societies, even though traditionally endowment is usually for immovable objects such as buildings.

• Preference can be based on necessity, e.g. in the case of wells that become ritually impure when an impurity comes into contact with their water; it is regarded by ordinary qiyas that all the water therein becomes ritually impure. However, this determination is bound to cause serious public hardship since it will deprive the people of the use of their water – therefore it was decided for reasons of necessity, that only a certain amount of water should be removed and thrown away and the rest of the well water may be used.

• Shafi – ‘he who practices istihsan is putting himself in the position of the divine legislator’ because in Islam legislation is the right of God alone and because istihsan can be seen as a form of judgement based on personal desire. To him, the rejection of one clear qiyas and preference for another that may be less clear would depend entirely on individual judgement. No doubt that despite Shafi’s reservations about istihsan he would accept a resulting injunction if it was clear that the injunction was based upon once of the valid sources that he accepted, such as the Quran and the Sunnah. Shafi does not reject all kinds of ihtihsan. 2 kinds of preferences: 1) the dutiful (wajib istihsan) – based on a valid source such as the Quran and Sunnah. 2) istihsan that rejects because it is based purely on individuals opinion.

• Shafi criticises the Hanafis’ overused istihsan which did not seem appropriate to him. According to Abu Zahra, such critique is not valid because the Hanafis also based istihsan on the sources of the Quran, Sunnah, ijma, qiyas or necessity.

• The main difference between the Hanafi’s and Shafi’s on istihsan is the recognition of the form of istihsan which is being based on local customs, ‘urf. Shafi does not consider ‘urf as a source of legislation, while the Hanafis do. It can be stated that Shafi’s criticism of the Hanafi istihsan as based on ‘urf is a natural consequence of the methodological difference between the two schools in the consideration of sources. It can also be stated that a recorded difference of opinion on the consideration of istihsan can exist within the same school. E.g. in the case of pick-pocketing (tarar) – Al Sarkhasi explains that, if the pickpocket lifts the object while it is kept inside a pocket in the sleeve of a garment, he becomes liable for the punishment of amptitution. However, if the money is kept outside the sleeve, without adequate hirz or protection, then the thief is not liable for this punishment. Abu Yusuf – well known Hanafi scholar gave a different opinion on the basis of preference, istihsan, for amputation in all cases.

• Malikis – base istihsan on public interest and on qasd al-sharia – the intention of the divine legislator. The maslaha which is referred to by the Maliki’s is the undefined interest, maslaha mursala, which is not specified by the text. Abu Zahra supports this claim by stating that we know that istihsan for Malikis meant undefined maslaha because Malik said ‘...