Juristic preference (istihsan)

1. 1. Introduction to Usul Al Fiqh (RKFQ 2161) Group members: Fasiha Binti

Bustami (1318146) Fitriani Binti Shifollah (1312440) Halimaton Mohamad
Hanafi (1412280) Haziqah Yusra Binti Abdul Razak (1413194) Nurul
Maizatul Shuhadah Binti Abu Zaid (1417710)
2. 2. ISTIHSAN ‫اإلستحسان‬ (JURISTIC PREFERENCE) AND ITS
APPLICATION TO CONTEMPORARY ISSUES
3. 3. DEFINITION The term Istihsan is derived from the root word hasuna.
Literally it means considering something good, preferable and beautiful.
Technically:-  According Abu’l-Hasan al-Karkhi, a Hanafi jurists:  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.”  Al-Sarakhsi: 
Abandonment of an opinion to which Qiyas would lead in favor of a different
opinion supported by stronger evidence and adapted to what is
accommodating to the people.
4. 4. CONT…  al-Halwani:  Giving up of analogy for a stronger evidence
from al-Qur’an, Sunnah, al-Ijma’ or etc  Ibn Taymiyyah and Ibn Qudamah
al-Maqdisi, the Hanbali jurists:  the abandonment of one legal ruling for
another which is considered better on the basis of the Qur’an, Sunnah or
consensus.  Ibn al-’Arabi, a Maliki jurist:  to abandon the requirement of
the proof as an exception and to make concession when the proofs conflict.
He elaborated that the departure in question may be justified by custom, public
interest or Ijma’.
5. 5. CONT… Objective of Istihsan To avoid rigidity and inflexibility from
literal enforcement of certain ruling or hukm
6. 6. Muslim scholars’ view whoever agree or disagree
7. 7.  Hanafi school Istihsan as a valid source of Shari’ah and a basis for the
formulation of legal rulings.  Maliki school Recognize istihsan Istihsan as
departure from qiyas due to public interest.  Hanbali school Imam Ahmad
recognize istihsan  Shafi’i school Rejects the principle of istihsan as a source
of Islamic law. “Whoever approves of jurisdistic preference is making himself
the lawmaker”
8. 8.  Zaydiyyah jurists Recognize istihsan The concept of istihsan among the
Zaydiyyah thought is close to the Hanafis  Mu’tazilah jurists Recognize
istihsan  Shi’ah jurists Do not accept istihsan at all and rejects the
performance of qiyas.
9. 9. TYPES OF ISTIHSAN
10.10. Type of Istihsan Textually Based Istihsan (al Istihsan bi’l Nass Istihsan
and Ijma Istihsan and Necessity (Darurah)
11.11. Textually Based Istihsan (al Istihsan bi’l Nass Consist of abandoning a
principle or rule that would normally be applicable to the issue at hand : for
an alternative ruling for which support can be found in the text of the Qur’an
or Hadith. Example : The contract of al Salam anomalously as it fail to
satisfy one of the requirements of valid sale, namely that the subject matter of
sale must be physically present at the time of contract.
12.12. Cont..  But it has been validate by the express term of Hadith,
notwithstanding the non existence of its subject matter at the time of contract.
 General rule of qiyas, invalidate salam but the Sunnah approves it. “whoever
 concludes salam, let him do over the specified measure, specified weight and
specified period of time.”
13.13. General rule : subject matter of sale must exist at the time of contract is
also based in the authority of hadith. In this hadith, Prophet instructed the
Companion, Hakim B. Hizam, who asked the question whether he could sell
a commodity prior to purchasing it himself, and the Prophet to him to “sell
not what is not with you”.
14.14. Cont.. There are two ruling in the hadith a) represent the normal principle
of contract of sale b) concerned with particular type of sale ; the former would
proscribe salam whreas the latter validates it. It is then said that salam has
been validate by the way of Istihsan which is contrary to qiyas.
15.15. Istihsan and Ijma An exception to the general rule of law may be based
on the authority of ijma’ in which case it is said that the istihsan in question is
validated by ijma’. Example: Contract of Istisna Someone place an order
for some goods to be made, a contract is concluded in the absence of its subject
matter and nothing changes hands at the time.
16.16. Cont..  Other example: “there is consensus among the ulama that one
who destroy one item of a pair such as shoes, or one of the two panels of a
door, or damage a part of something that is considered a defect as to its whole
will be liable to pay compensation for both pair or the whole of a matching
set as the case maybe.”  The ruling of consensus here represent a departure
from the rule of qiyas which require compensation for the part that is actually
damage or destroy.
17.17. Istihsan and Necessity (Darurah) A person may be exceptionally
permitted to deal with the property of another person without permission or
authorization of the latter. The normal rule : disallow such person from
 interfering with the property of others. But it is validated on the ground of
Istihsan which is founded in necessity and prevented from harm.
18.18. Cont.. Example: a) it is lawful for the father or son, as the case may be,
to sell the property of the one who is afflicted with illness to the extend of
what is necessary for medication and treatment even without permission. The
normal rule does not allow interference in the property of others without
permission, but a departure from this rule is here validated on grounds of
necessity and Istihsan.
19.19. CONTINUATION FROM THE TYPES OF ISTIHSAN Haziqah Yusra
binti Abdul Razak 1413194
20.20. On the basis of Analogy (Qiyas) On the basis of Custom (Ma’aruf) On the
basis of Public Interest (Maslahah)
21.21. 4. Istihsan on the basis of Analogy (Istihsan al- Qiyasi)  According to
Kayadibi (2010), istihsan on the basis of analogy is basically a departure from
one type of qiyas (jali) to another type of qiyas (khafi).  Qiyas jali is an
explicit analogy, meanwhile qiyas khafi is an implicit analogy.  The implicit
analogy is considered to be more effective and therefore, is preferred over the
explicit if they are opposed to each other. This is because istihsan is an
evidence (dalil) which is established against explicit analogy.
22.22. Cont…  This istihsan (on the basis of qiyas/analogy) is agreed upon by
all the scholars, and opposition to it is unthinkable.  Hanafis divide qiyas
into the jali (explicit) and the khafi (implicit).  Jali is an analogy where the
‘illah (effective cause) appears at first glance without careful consideration
needing to be given to it.  For example, the prohibition of nabidh appears to
follow on by analogy from the prohibition of wine.
23.23. Cont…  Meanwhile, qiyas khafi is one where the effective cause (‘illah)
is understood after careful consideration and reflection.  That is why qiyas
khafi is preferred over qiyas jali if they are opposing to each other due to the
effective cause (‘illah) which is stronger in khafi. Therefore, it is called the
qiyas of juristic preference (istihsan al-qiyas).  The example of qiyas khafi
is preferred over qiyas jali is based on this situation, according to the Hanafis
rulings:
24.24. Cont…  Supposing A (Ahmad) buys a house in a single transaction from
B (Badrul) and C (Taufik) at a price of 40,000 dollars payable in installments.
Ahmad pays the first installment of 2,000 dollars to Badrul, assuming that
Badrul will hand over Taufik’s portion to him. But before this happens, Badrul
loses 2,000 and the question arises as to who should suffer the loss.  By
applying qiyas jali, Badrul and Taufik should share the loss. For this is a case
of joint debt (al-dayn al-mushtarak) which means that Badrul received the
money on behalf of the partnership and not for himself alone. Their position
in sharing the loss, in other words, is analogous to their status as partners in
the first place. But by applying istishan, only Badrul who received the money
suffers the loss.
25.25. Cont…  For Taufik, although a partner, was basically under no
obligation to obtain his portion of the 2,000 from Badrul; it was his right and
he would be at the liberty to abandon it. Taufik’s portion of the 2,000 dollars
would consequently become a part of the reminder of the price (or the debt)
that Ahmad owes to both.  Only Badrul is therefore suffer the loss. The
solution is based on subtle analogy to the rule that one who is under no
obligation should not have to pay any compensation either.
26.26. 5. Istihsan on the basis of Custom (‘Urf)  Custom (‘urf) can be divided
into two types: i. ‘urf sahih (acceptable custom) ii. ‘urf fasid (inacceptable
custom)  ‘urf sahih is a valid source of law according to the Quran and the
Sunnah.  ‘urf fasid is not accepted as a definite source of law.
27.27. Cont…  The example for istishan on the basis of custom can be referred
to the waqf of moveable goods.  Basically, waqf by definition is the
endowment property on a permanent basis, and moveable goods are subject
to destruction and loss. Thus, this makes the moveable goods cannot be
assigned in waqf.  However, this general rule has been set aside by the
Hanafi jurists, who have validated the waqf of moveable goods such as books,
tools, and weapons on the basis of its acceptance by popular custom.
28.28. Cont…  Other example is from Shaybani where he has pointed out that:
 Under the subject of usury, loans and borrowing money, lending and
borrowing bread between neighbors is permitted, based on the principle of
istihsan, since everyday need has made it into a custom. However, according
to nass, goods exchanged must be of the same kind and equal value. If not,
shortage may lead to unlawful usury, thus cancelling the contract.  But, even
though the lending and borrowing of bread may not always involve exactly
equal exchange, istihsan allows it on the ground of custom. Custom ignores
small differences and only take into the consideration the number of items
involved.
29.29. 6. Istihsan on the basis of Public Interest (Maslahah)  According to the
established ruling of Hanafi School, a person is free to dispose of his own
property as he wills.  For example, one may dig a well on one’s own land or
built whatever he wishes. Such activities cannot be stopped even if they might
cause harm to one’s neighbors. However, despite this ruling, at some point
 during 8th and 9th century, Hanafi jurists declared that the rights of personal
ownership are not absolute. Therefore, the condition must be that disposal of
one’s property is allowed so long as it does not harm others. In order to avoid
harm and protect the public good, a new ruling is established based on the
principle of maslahah, which is a major consideration in istihsan. Istihsan here
considering what is more beneficial for the majority.
30.30. References  Kayadibi, S. (2010). Istihsan: The Doctrine of Juristic
Preference in Islamic Law. Islamic Book Trust Kuala Lumpur. 237. 
Kamali, M. H. (1991). Principles of Islamic Jurisprudence. 217.  Kamali,
M.H. (2004). Istihsan and the Renewal of Islamic Law. Islamic Studies 43:4.
561-581.
31.31. The validity of Istihsan The Hanafi, Malik and Hanbali jurists have
validated istihsan as subsidiary source of law. The Shafi'i, Zahiri and Shi'i
are rejected it altogether. There are no exact authority of istihsan as it is not
exactly stated in the Quran and the Sunnah.
32.32. Who listen to speech and follow the best of it. Those are the ones Allah
has guided, and those are people of understanding. And follow the best of
what was revealed to you from your Lord before the punishment comes upon
you suddenly while you do not perceive. (Surah Az-Zumar, 39:18 & 55) "La
darara wa la dirar fil Islam" No harm shall be inflicted or reciprocated in Islam
33.33. Istihsan is closely related to 'ray' (opinion) and Qiyas (analogical
deduction). A method of legal reasoning that ensures analytical consistency
in the system and helps the jurist identify general principles and exceptions
besides giving importance to the consequences of the decision. Al-Shafi’i
has critized Istihsan on the Quranic verses in surah al- Nisa 4:59 and al-
Qiyamah, 75:36.
34.34. Conclusion It can be concluded that istihsan is a mujtahids’ preference
of the exceptional rule over the general rule because of other evidence.
Istihsan offers considerable potential for innovation and for imaginative
solutions to legal problems. Can best be used as a method by which to
improve the existing law, to strip it of impractical and undesirable elements
and to refine it by means of making necessary exception.