Definition istihsan

Istihsan is one way or source of taking Islamic law. In contrast to the Al-Quran, Hadith, Ijma 'and
Qiyas whose position has been agreed upon by the scholars as the source of Islamic law, istihsan is
one of the methodologies used only by some scholars, not all. Al-Imam Ash-Shafi'i in his mazhab is
among the scholars who do not accept istihsan in referring to Islamic sharia sources. On the other
hand, Al-Imam Abu Hanifah used it. beside the Hanafi school, including some of the Maliki school
and the Hambali madzhab.

So in short, istihsan is the act of leaving one law to another because there is an argument of syara
'which requires leaving it. For example According to the school of Abu Hanifah, if a person forgives a
piece of agricultural land, then by using istihsan, what is included is the right to irrigation, the right
to make water channels over the land and so on. Because according to qiyas (jali), these rights are
impossible to obtain, because it is not permissible to accept waqaf by buying and selling. In buying
and selling what is important is the transfer of property rights from the seller to the buyer. When
waqaf is applied to buying and selling, it means that what is important is the ownership rights.

Meanwhile, according to the istihsan, the right is obtained by accepting the waqaf to leasing. In
leasing what is important is the transfer of the right to benefit from the owner of the goods to the
lessee. Likewise with waqaf. What is important about waqaf is that the waqaf can be used. A paddy
field can only be used if it is properly irrigated. If waqaf is applied to buying and selling (qiyas jali),
then the purpose of waqf will not be achieved, because in buying and selling, the transfer of
ownership is prioritized. Because it is necessary to find another source, namely leasing Both of these
events have the same 'illat', namely prioritizing the benefits of goods or property, but the qiyas is
qiyas khafi. Because there is an interest, namely the achievement of the goal of waqaf, a transfer
from qiyas jali to qiyas khafi is carried out, which is called istihsan.

Various kinds of Istihsan

1. Istihsan with texts

Namely the case on each problem which shows a law that is contradictory and different from the
prescribed rules which have texts from Allah SWT.

2. Istihsan with Ijma '

Istihsan with ijmak is a transition from law on an issue that has become a general rule to law that is
restated through ijmak.

3. Istihsan with emergencies

That is when a mujtahid sees an emergency or benefit that causes him to leave qiyas, in order to
fulfill that emergency wish or prevent harm.

4. Istihsan with 'urf

That is leaving what is a consequence of qiyas to another law that is different because 'urf is
generally valid, both' urf which is word or deed.