istihsan

ISTIHSAN

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

• 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.

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

• 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.

• 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.

• 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.

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.

iv. The judgement of ‘Umar in the caseof Muhammad ibn Salamah.

- Salamah’s neighbour asked for apermission if he could extend a watercanal through Salamah’s property, and hewas granted the request on the groundthat no harm was likely to accrue toSalamah

v. Permission to women to travelwithout mahram under exceptionalsituation.

vi. Methods of proof in the law ofevidence extends to documentaryevidence, photography, soundrecording, laboratory analysis, DNAtest, etc. - due to changes in socialsituations

– the standard form of evidence in Islamic

law is oral testimony. Normally two adil

witnesses are required and four

witnesses in certain cases.