Secondary souces of islamic law

Secondary sources are those wgich are development of the foundation

laid down by primary ssources. These are

1. Istihsan

2. Istislah

3. Fatwas

4. Precedents

5. Legislation

Istihsan as a sources of Islamic law

Introduction

Principle of istihsan is something to know about English doctrine of equity, justice

and good conscience. Istiḥsan (‫[ استحسان‬istiħsaːn]) is an Arabic word derived from the

word al-husn (‫ )الحسن‬which means good which is the opposite meaning of al-qubh (

‫ )القبح‬which means bad. The word istiḥsan is used to express "decorating or improving

or considering something good". It also applies to mean something towards which one

is inclined or which one prefers, even if it is not approved by others. Muslim scholars

may use it to express their preference for particular judgements in Islamic law over

other possibilities. It is one of the principles of legal thought underlying scholarly

interpretation or ijtihad.
A number of disputes existed amongst the classical jurists over this principle with the

Hanafite jurists adopting this as a secondary source. Contemporary proponents of

liberal movements within Islam have used istihsan and the similar idea of istislah

(Arabic for "to deem proper") as ethical principles to favour feminist and reformist

interpretations of the Qur'an and Sunnah, thus looking to reform Islamic law.

MEANING

1. Literal meaning,

-to approve

-to deem something preferable

2. juristic meaning

- a method of exercising personal openion in order to avoid any rigidity and

unfairness that might result from literal enforcement of existing laws.

- also reffered as to juristic preference.

- it involves the establishment of an anology in favor of alternative ruling

which serves the ideals of justice and public interest in a better way.

Definition

According to hanafis;

Istehsan is to depart from the existing precedents, by taking a decision in

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.

According to Hanbalis;
 Istishan is the abondenment of one legal norm for another which is considered

better on basis of Quran Sunnah or consensus.

Accordin to Malikis;

Istihsan is to abandon exceptionally what is required by law because applying the

existing law would lead to departure from some of its own objective.

CLASSICAL EXAMPLES OF ISTIHSAN

 Abu Hanifah stated that the one who eats out of forgetfulness whilst fasting

should repeat the fast - however he moves away from this by the evidence of a

narration that allows the fast to stand.

 Analogy requires that pore water be used for abolution so wells in which dirt

or carcasses of animals have fallen be prohibited to use according to strict

analogy.

Other example,

-looks in the private parts of people in medical treatment. The rule is that it is

unlawful to look in the private parts but it is recommended to avert harm.

TYPES OF ISTIHSAN

A number of categorisations have been employed by the jurists:

 Istihsan through the text (nass)

(Quran & Sunnah concept)

 Basis Al-Baqarah: 180

 “It is prescribed for you, when death aapproaches any of you, if he

leaves wealth, that he makes a benquest to parents and next to kin,

according to reasonable manner.”

 According to Sunnah,

“When you agree on the terms of the sale, you may say; it is not

binding and I have an option for three days”

 Istihsan on the basis of consensus (ijma)

The object or subject matter of the contract must be in existence at the time the

contract conducted.

- “do not sell any thing that is not in your possession.”

 Istihsan on the basis of what is good (maruf)

Accordin to general rule,the trustee is not responsible for loss or demage of

any property as it is due to negligence or personal fault of owner. But in

concept of istihatan the trustee id ressponsssible unless the loss or demage

cause by clamity or fire.

 Istihsan on the basis of necessity (darurah)

The case of less qualified Qadi. The general rule requires is that Qadi must be

a qualified person. But in concept of istihsan non-mujtahid can be appointes

as Qadi where no mujtahid is found for this post.

 Istihsan on the basis of benefit (Maslahah)

This concept includes that wether WAQF of cultivated land includes aciliary

rights or not. Analogy says that only the attached rights with the waqf property

included if they are explicitly identified.

 Istihsan on the basis of analogy (qiyas khafi)

 It is stonger and more effective in reppeling hardship because it is arrived

through deeper reflection and analysis and not through superficial observation

or similitudes.

PROOFS FOR ISTIĤSÂN

1) “So give glad tidings to my servants who listen to the word, then follow the best of

it”.

2) “And follow the best of what has been sent down to you from your Lord”.

Following the best speech and evidence is also the spirit of Istiĥsân because Istiĥsân

involves the forsaking of a weaker evidence for stronger evidence.

3) “God intends to facilitate ease for you. He does not intend to put you in hardship.”

4) “What the Muslims deem to be good is good in the sight of Allâh”.

5) “The best of your religion is the easiest.”

6) The Prophet Muĥammad instructed Muā’âdh upon his departure as a judge to

Yemen, to make things easier and not difficult and seek closeness not disaffection.

7) “No harm shall be inflicted or reciprocated in Islam”.

The crux of the above proofs for Istiĥsân is actually the essence of Istiĥsân and that is

to eradicate hardship and provide ease which is a normal principle of Islam.

IMPORTANCE OF ISTIHSAN

-It is important branch of ijtihad.

-provider for Islamic law with necessary means to encourage flexibility and gowth.
-can be used for variety of purposes.

SUPPORTER OF ISTIHSAN

 As-sarakhsi (Hanafi jurist)

That avoidance of hardship is the cardinal principal of principal which is

stated in Quran. E.g.

“Allah intends every facility for you, and he does not wants to put you in

hardship.”

(Al-Baqrah:185)

 According to hadith,

“the best of your religion is that which brings ease to people.”

 Istihsan is abandon the exceptionally existing law, not absolute or total

aabondenment.