Jurisprudence (Usul Al Fiqh): Istihsan
By Shah Abdul Hannan
literally means to deem something preferable. In its juristic sense,
Istihsan is a method of exercising personal opinion (ray) in order to
avoid any rigidity and unfairness that might result from literal
application of law. Istihsan as a concept is close to equity in
western law. However equity in western law is based on natural law,
whereas Istihsan is essentially based on divine law.
Istihsan is not independent of Shariah, it is integral part of Shariah. Istihsan is an important branch of Ijtihad, and has played a prominent role in adaptation of Islamic law to the changing needs of society. Istihsan has been validated by Hanafi, Maliki and Hanbali jurists. Imam Shafii, Shii and Zahiri Ulama have rejected it as a method of deduction. However, in effect Majority have accepted Istihsan.
It has been mentioned that decision of Umar Bin Khattab to suspend "hadd" penalty (penalty prescribed by the Quran and Sunnah) of amputation of hand during famine is an example of Istihsan. Here positive law of Islam was suspended as an exceptional measure in an exceptional situation. A major jurist Al-Sarakhsi considers Istihsan as a method of seeking facility and ease in legal injunctions and is in accord with the Quran (2:185). Kamali says that companions (Sahabi) and successors (Tabiun) were not merely literalist. On the contrary, their rulings were often based on their understanding of the spirit and purpose of Shariah. Dr. Hashim Kamali gives a new example. Oral testimony was the standard form of evidence in Islamic law. However, now in some cases photography, sound recording and laboratory analysis have become more reliable means of proof. Here is a case of Istihsan by which method we can prefer these means of proofs over oral testimony in many cases. (Dr. Hashim Kamali, Principles of Islamic Jurisprudence, Islamic Texts Society, Cambridge, UK).
Hanafi jurist Abul Hasan al Karkhi defines Istihsan as a principle which authorizes departure from an established precedent in favor of a different ruling for a stronger reason. The Maliki jurists are more concerned with Istislah (consideration of public interest) than Istihsan. They validate Istihsan as more or less similar to Istislah or as a part of Istislah.
There is no Qati (definitive) authority for Istihsan in the Quran and the Sunnah. However, verses 34:18 and 39:55 of the Quran have been quoted in support. Similarly a very famous Hadith : "La darara wa la dirara fil Islam" [no harm shall be inflicted or tolerated in Islam] has been quoted in support. Istihsan is closely related to 'ray' (opinion) and Qiyas (analogical deduction). Both in Qiyas and Istihsan, 'ray' is an important component, more heavily in case of Istihsan.
Sahabis were careful not to apply 'ray' at the expense of Sunnah. Ahlal Hadith mostly avoided using 'ray'. Most Fuqaha on the other hand liberally used 'ray' in deducing law and they came to be known as "Ahlur Ray".
Many hold that one kind of Istihsan is essentially Qiyas Khafi (Hidden analogy). They think that Istihsan is a departure from Qiyas Jali (obvious analogy) to Qiyas Khafi. There is another form of Istihsan in which exception is made to the general rule for the sake of equity and justice on the basis of some 'nass' (textual evidence), approved custom, darurah (necessity) or Maslaha (public interest).
Al-Shafii has criticized Istihsan on the basis of Quranic verses 4:59 and 75:36. However, these verses are not categorical on the issue of Istihsan. Al-Ghazali has criticised Istihsan but stated that Shafii's recognize Istihsan based on the Quran and the Sunnah. Al-Amidi ( a Shafii jurist) has stated that Al-Shafii also resorted to Istihsan. Modern jurists have stated that the essential validity of Istihsan is undeniable. Progress of Islamic law largely depends in the modern times on this source.
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