Islamic
Jurisprudence (Usul Al Fiqh): Istihsan
By
Shah Abdul Hannan
Istihsan
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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