Reason for the Use of Istihsan Legal Maxim, Its Meaning

 Because the law fails to commend to the jurist owing to its
narrowness and inadaptability to the habits and usages of the
people, he instead accepts a rule which in his opinion would
better advance the welfare of men and the interest of justice.
 So this is resorted to in cases arising out of the complex
conditions of a growing society where a strict adherence to
analogy would fail to meet the want of the people.
Examples of Istihsan
 Bay bi al-wafa (A sale subject to future redemption – a type of
mortgage) was allowed because of necessity.
 It is a general rule which apply to all particular cases.
 An established principle or proposition.
 A principle of law universally admitted as being just and
consonant with reason.
Meaning of Custom
 It is what people has been accustomed to doing; such a usage
as by common consent and uniform practice has become the
law of the place.
Meaning of Rights (Hukuk)

Istihsan and Istislah, Distinguished
 The difference of Istislah from Istihsan is seen only when we
inquire into the guiding ideas which forms the positive
foundation for this principle which is negative in effects.
 Istislah is more limited and more closely defined in content
than Istihsan.
Essential Conditions for the Use of Istislah
1. The case should not be one relating to religious observances
2. The interest to be protected should be in conformity with
Shari’a without any conflict
3. It should be a necessity and not a luxury, or it should be for the
betterment of life, instead of mere show
 The power which a person may exercise over another for the
performance of a prestation, or require the compliance of an
act.
 A well founded claim of one over another
Extinguishment of Obligation
 May be either specific of substitutory or non-specific.
 It is specific when the very thing which is required has to be
carried out, and non-specific when what has to be carried out
is something similar to what is required.

Meaning of Istidlal

 It is a method of juristic deduction by means of inferring of one

thing from another in order to arrive at a rule
 It is a form of ratiocination or legal reasoning not covered by
Qiyas.

Examples of Istishab

1. The presumption of innocence until proof of guilt

2. Things are presumed halal in the absence of prohibition
3. A debt is presumed to subsist until its discharge is evidenced
4. Marriage is presumed to continue until its dissolution becomes
known

The Extraneous Sources of Muslim Law

 The third classification of sources of Muslim law, in that they

are other sources beside the primary and the subsidiary
sources.
 These are legal fiction, legal maxims, legislation, and customs

Legal Fiction, Its Meaning

 It means the legal assumption that something which are or

may be false is true.