EQUITY IN IALAMIC LAW

literally means considering something good, preferable and beautiful. The reference is to beauty, in its common sense, that appeals to the eye and inclines the heart. The word can be used in an objective sense or purely subjectively when, for example, a person, whether layman or jurist, likes something and considers it beautiful even if other people might think otherwise.

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. Abū al-Hasan al-Karkhī (d. 340/952) defines istihsān as follows: “istihsān is when one takes a decision on a certain case different from that on which similar cases have been decided on the basis of its precedents, for a reason which is stronger than the one found in similar cases and which requires departure from those cases”. Al- Jassās (d. 370/981) defines it as “Departure from a ruling of qiyas (analogy) in favour of another ruling which is considered preferable.”

” Sarakhsī (d.” . 482/1089) defines istisān as. “it is a particularization of qiyās (analogy) due to stronger evidence. 483/1090) defines istihsān as “abandonment of an opinion to which qiyās would lead in favour of a different opinion when supported by stronger evidence and adapted to what is acceptable to the public. points out that.    Bazdawī (d. „Abd al-„Azīz al-Bukhāri. “It is one of the two qiyās”.

  Istihsan in Islamic law and equity in Western law are both inspired by fairness and both authorise departure from a rule of positive law when its enforcement leads to unfair results. Istihsan is the nearest Islamic law doctrine to the notion of equity in western jurisprudence Equity is a Western law concept which is grounded in the idea of fairness and conscience. and derives legitimacy from a belief in natural rights and natural justice beyond positive law. .

with natural values. right and wrong are determined. -Right and wrong in natural law are inherent in nature. and of istihsan on the values and principles of the Shari‘a. But this difference need not be overemphasised if one bears in mind the convergence (assemblage) of values between the Shari‘a and natural law. and it differs with equity in that the latter recognises a natural law apart from. positive law. -Unlike equity which is founded in the recognition of a superior law.Is to be sought in the overall reliance of equity on the concept of natural law. and essentially superior to. and of Islam as din al-fitra (the natural religion). istihsan does not seek to constitute an independent authority beyond the Shari‘a. But from an Islamic perspective. because God has determined them as such. .

189) have directly given rulings using the concept of istihsān without giving any specific definitions or explanations. ‫د ه‬ ْ‫م ا‬ ْ‫م ا‬ ُ‫ب‬ ُ‫ب‬ “‫ر‬ ُ ‫ري‬ ُ ‫ري‬ َ‫س‬ ْ ‫ع‬ ُ‫ل‬ ُ ‫و ََل‬ َ ‫ر‬ َ‫س‬ ْ ‫ي‬ ُ‫ل‬ ُ” ُ‫ك‬ ُ‫ك‬ ِ ‫د‬ ِ ُ‫َّللا‬ ِ‫ي‬ ِ‫ي‬  . 182) and Shaybānī (d.  Abū Hanīfah and other early Hanafī jurists such as Abū Yūsuf (d. He does not intend to put you to hardship” (2:185). Their judgments were based on the fundamental principles of securing ease and avoiding hardship: “God intends facility and ease for you.

They are as follows: . The Hanafi jurists have mainly quoted two Qur'anic ayahs. and ahadiths which reflect the root word hasuna ‫ حسن‬. and enjoin the believers to follow the best of what they hear and receive.

Those are the ones God has guided and endowed with understanding (al-Zumar.” “‫“َل ضرر وَل ضرار في اإلسالم‬ . 39:18).1-who listen to the word and follow the best of it [ahsanahu]. ‫م ه‬ َ َ ‫ول‬ َ‫ل‬ ْ َ‫ال‬ ْ ‫م أُولُو‬ ْ ‫عونَ ا‬ َ‫س‬ ‫يه‬ َ‫س‬ َ ِ‫وأُولَئ‬ َ ِ‫ه أُولَئ‬ ُ‫ن‬ ِ ‫بب‬ ِ‫ت‬ ‫ة‬ ُ ‫ك‬ ُ ‫ك الهذِينَ هَدَا‬ َ‫ل‬ َ ُ ‫َّللا‬ َ ‫ح‬ ْ َ‫عونَ أ‬ ُ‫ب‬ َ‫ف‬ ْ‫ق‬ ُ‫م‬ ْ ‫ي‬ َ َ‫الهذِين‬ ْ‫ه‬ ُ‫ه‬ ِ‫ت‬ 2-And follow the best [ahsan] of what has been sent down to you from your Lord” (al-Zumar. 39:55)  ُ‫ب‬ ُ ‫زل َ إِلَ ْي‬ ‫وا ه‬ “‫م‬ ِّ ‫ر‬ َ ْ‫م مِن‬ َ َ‫سن‬ َ ‫ح‬ ْ َ‫عوا أ‬ ُ‫ب‬ َ” ْ‫ك‬ ْ‫ك‬ ِ‫ت‬ ِ ‫مب أ ُ ْن‬ The following two ahadith refer to support of istihsan: 1-“What the Muslims deem to be good is good in the sight of God” ”‫”مب رآه المسلمون حسنب فهو عند َّللا حسن‬ 2-“'No harm shall be inflicted or reciprocated in Islam.

. yet not identical. Imam Malik‟s statement is also  reminiscent of the relationship of istihsan with the other proofs of Shari„a: istihsan relates to the entire range of the recognised proofs and seeks to utilise the resources of Shari„a in search of more refined solutions to issues. "For it is the maslaha which accounts for the larger part of the nine-tenth.”19 This remarkable characterisation of Imam Malik might seem like an overstatement. then istihsan always aims at greater refinement and continuous improvement of the status quo. he included the broad concept of maslaha under the purview of istihsan.He often used expressions that were equivalent. but if istihsan requires persistent search for better solutions and alternatives to the ones that are already known. in the interest mainly of benefit and justice. to istihsan. such as ahabbu ilayya (more to my liking) instead of astahsinu (I prefer). Imam Malik has said that "istihsan represents nine-tenth of human knowledge .

the Shi'is and Mu„tazila have disputed the basic validity of istihsan. Zahiris. maslaha and necessity. Whereas the proponents of istihsan have seen it as a means of opening the ahkam of Shari„a to considerations of equity. the opponents of istihsan have seen it as a means of circumventing the ahkam on grounds merely of personal preference and opinion. .The Shafi„is.

He referred to the Qur‟anic verses (al-Nisa. in both the Risala and al-Umm.Imam Shafi„i has highlighted in his frontal attack on istihsan. which should be avoided. or ijtihad which draws an analogy to the nass. 75:36) and drew the conclusion that the mujtahid should give fatwa on the basis of a nass. bearing the title ‫" كتبة ابطبل اَلستحسبن‬Kitab Ibtal al-Istihsan” where he characterised istihsan as a form of arbitrary indulgence in personal preferences ‫تلذذ‬ ) ‫ وهوى‬taladhudh wa hawa). . He devoted a chapter. 4:59 & al-Qiyama. but anyone who indulges in personal preference and istihsan without reliance on nass or qiyas has deviated from the correct guidance.

Al-Bazdawi wrote that some people criticised Abu Hanifah and his disciples for abandoning qiyas in favour of istihsan saying that the recognised sources of Shari„a are the Qur‟an. Since istihsan consists neither of nass nor of analogy to the nass. . istihsan is not regulated as such. Sunna.   That unlike qiyas whose propriety can be measured by the methodology which it must follow. it is ultra vires and must be avoided. As for istihsan "no one other than Abu Hanifah and his disciples recognised it as a proof. ijma‟ and qiyas.” Abandoning qiyas was tantamount to abandoning a recognised dalil for what amounted to no more than fanciful opinion.

justice might be better served. .it is devided mainly Into two categories:  a: analogical istihsān. which consists of a departure from qiyās jalī to qiyās khafī  b: exceptional istihsān ( istihsān istithnā‟ī) which consists of making an exception to a general rule of the existing law. it is approved when the jurist is convinced that by making such an exception. Despite the controversy over the division of istihanit .

which is the textual evidences in the Qur‟an and Sunnah. d-Istihsan based on Maslaha .  c. a.istihsān based on ijmā„ (consensus).  b. istihsān based on darūrah (necessity). istihsān based on athar.

000 RM to B assuming that B will hand over C‟s portion to him.000 from B. . B loses the 2.000 RM would consequently become a part of the remainder of the price (or the debt) that A owes to both. The solution is based on the subtle analogy to the rule that one who is under no obligation should not have to pay any compensation either. in other words. C‟s portion of the 2. For C. B and C should share the loss. Only B is therefore to suffer the loss. A pays the first instalment of 2. But before this happens. was basically under no obligation to obtain his portion of the 2. is analogous to their status as partners in the first place. Their position in sharing the loss.000 RM payable in instalments . By applying qiyas jali. it was only his right/privilege and he would be at the liberty to waive it.Supposing A buys a house in a single transaction from B and C at a price of 40. although a partner. For this is a case of joint debt (al-dayn almushtarak) which means that B received the money on behalf of the partnership and not for himself alone.000 and the question arises as to who should suffer the loss. But by applying istihsan only B who received the money suffers the loss.

It is then stated that the Qur‟an permitted bequest by way of istihsan. The subject of bequest. the Qur‟an validated making a bequest in favour of one‟s parents and relatives (al-Baqarah. to postpone transfer of ownership to a time when the person who transfers it is no longer the owner. it is said to be basically ultra vires and tantamount to interference in the rights of the legal heirs. But the Qur‟an has validated making a bequest to relatives nevertheless. that is contrary to qiyas . This is because bequest consists of transfer of ownership after the death of the testator. 2:180) despite it being irregular to the normal rules of Shari„a. becomes effective only after his death.This type of istihsan consists of abandoning a principle or rule that would normally be applicable to the issue at hand . Since a bequest. It is not permissible. although made while the testator was alive.for an alternative ruling for which support can be found in the text of the Qur‟an or hadith. in other words.

which is why it is said that istisna„ is contrary to systematic analogy or qiyas. which is contrary to the normal rules of contract.To illustrate this one may refer to istisna„ or manufacturing contract. Yet the anomaly of istisna„ has been ignored and istisna„ is validated by general consensus. The ruling of consensus here represents a departure from the rules of qiyas which would require compensation for the part that is actually damaged or destroyed. . or the whole of a matching set as the case may be. there is consensus among the ulama that one who destroys one item of a pair such as a shoe. a contract is concluded in the absence of its subject matter and nothing changes hands at the time. On a similar note. When someone places an order for some goods to be made. or one of the two panels of a door. or damages a part of something that is considered a defect as to its whole will be liable to pay compensation for both odds of the pair.

By the same token. In a similar vein. the legally competent heirs of the deceased may spend. when a mosque is without a caretaker but it is recipient of income from a charitable endowment (waqf) the people of the locality may spend out of this income to repair any damages in the mosque or to build a fence around it. by way of Istihsan. But he may do so in situations of necessity if the depositor is out of reach and it is also difficult to obtain a judicial order for the purpose. .  The deposit holder is normally not entitled to spend out of the property that is entrusted to him without the permission of the depositor or the judge. on their minor relatives who have no legal executor (wasi) what is necessary out of their own (children‟s) property without any authorisation.

in the nature of preservation. of the existent assets hence they are validated by way of istihsan which encourages charity and good work . rather than wasteful expenditure.    An idiot (safih) who is under interdiction is permitted by way of istihsan to make a bequest or establish a charitable endowment (waqf) regardless of the interdiction. as such. The normal rules of fiqh do not permit such a person to make charitable dispensations but the exception here is based on the rationale that both bequest and waqf involve transfer of assets after the death of the testator and waqif and they are.

38 Similarly. But some Hanafi jurists have held it to be permissible by way of Istihsan which is founded in customary approval of this sale. This general rule was.          The established rules of fiqh designated waqf as a permanent endowment that can only be instituted over immovable property. Movable property which is liable to destruction and loss is consequently not to be assigned in waqf. the right of water (haqq al-shurb) may not be sold on its own. that is. independently of the agricultural land which is irrigated by it.39 . set aside by the Hanafi jurist al-Shaybani who validated the waqf of movable goods such as books. tools and weapons simply because popular custom accepted it. because of ignorance of the quantity involved and also uncertainty over the ownership of water that is not in one‟s possession nor custody. however.

  Consequently. including the ancillary rights in the transaction of the waqf without requiring any statement or permission from the donee is a ruling of istihsān. The main reason for the preference of istihsān over analogy is that such analogy would lead to unfair results: the waqf of cultivated land without its ancillary rights would frustrate the basic purpose of waqf. which is to facilitate the use of the property for charitable purposes . If. Therefore. comparing it to a contract of lease comes to mind only after investigation. Here. however the ancillary rights are not included it is a ruling of qiyās (analogy). the first instinct is to compare waqf with a contract of sale. comparing waqf to a sale is called an explicit analogy (qiyās jalī). while comparing it to a lease is called implicit analogy (qiyās khafī).

 If a group of people gain unlawful entry into a house. the punishment is only applied to the person who carried the commodities. However. . steal collected commodities and load them on one person‟s back and that person carries the commodities outside while the others are not carrying anything. according to qiyās. according to istihsān the punishment is applied to all of those who were involved in the robbery.

. In this case. there are two contradictory asl (original cases):  The first case.  In this case.  In this case. there is no conflict among the jurists and the penalty is applied only to the rapist. kill and rob people of their commodities.  The second case is that of a group of people who congregate with the intention to attack. This is a ruling of qiyās as opposed to istihsān. the penalty of highway robbery is applied to all according to the Qur‟an. involves a group of people who encourage one of their number to rape a woman.

. and so has Imam Shafi„i. especially the decisions of the Caliph „Umar Ibn al-Khattab who postponed the prescribed punishment of theft during the year of the famine on the ground evidently that applying the normal rules under such conditions would fail to be fair and may even amount to injustice. The name 'istihsan‟ was chosen with a view to distinguish one of the two relevant evidences on a particular issue as preferable.        The origins of istihsan can clearly be traced back to the Companions. Imam Malik has also used it. despite the fact that he has actually spoken against istihsan. The Companion „Abd Allah Ibn Mas„ud has employed the word istihsan and its derivatives on many occasions.

which is why under normal circumstances the husband would not qualify to inherit from his deceased wife who has renounced Islam. However. 182/798) exercised istihsan when he held that the husband of a woman who renounced Islam and became apostate in her death sickness (marad al-maut) was entitled to inherit from her. The ruling of istihsan is thus preferred here because qiyas did not make a provision to differentiate between the two states of normal illness and mortal illness and it is through istihsan . The normal rules of Shari„a do not permit inheritance between Muslims and non-Muslims.          Abu Yusuf (d. Abu Yusuf held that the husband is entitled. by way of istihsan. to inherit from his deceased wife. and explained that it was just possible that the woman‟s apostasy during her mortal illness was due to malice.

1372 H. Vol II.   . Ahmad ibn Hanbal and many others held that the germane brothers should be excluded and the Qur‟anic order of priorities between the various classes of heirs should strictly be applied. „Umar‟s solution took a comprehensive approach and addressed the basic issue of fairness whereas „Ali‟s solution. Usul al-Sarakhsi. This episode has in turn invoked the remark that „Ali„s solution was based on qiyas. Cairo: Matabi„ Dar al-Kitab al„ Arabi. 11 See for further details Shams al-Din al-Sarakhsi. Ibn „Abbas. was evidently less than satisfactory. 2 Vols. although correct to the letter of the text. the Imams Abu Hanifah. but that „Umar's solution was based on istihsan. pp.         It is reported concerning the same case that „Ali ibn Abu Talib. „Abd Allah ibn Mas„ud and a number of other prominent Companions. which was to apply the normal rules regardless of the results.

and the other in the abandonment of that qiyas for an alternative but preferable ruling. have been manifested in the equally extreme positions that were  taken by the two prominent imams. in  the subsequent development of juristic thought in almost all the leading schools of  fiqh. The strength of istihsan. a general acknowledgment of the very positive yet sensitive role that istihsan can  play in the adaptation of Shari‟a to social reality.  . This evidently involves speculative judgment whose accuracy can be readily open to question. Imam Malik and al-Shafi'i. These two aspects of istihsan. What is more is that the jurist must make a decision to abandon the existing law for an alternative ruling. one of whom spoke  highly of istihsan and the other rejected it altogether. Yet one hardly fails to notice.Both qiyas and istihsan depend on an effective cause („illah) and identification  of 'illah in both is basically a rational exercise which involves reliance on personal  opinion and ijtihad. one in the initial construction of qiyas.  But in the case of analogy-based istihsan there is a two-fold recourse to „illah. The jurist is thus more heavily involved in the exercise of ra‟y. representative at once of its inherent strength  and weakness. The jurist is convinced that an alternative and a more  appropriate solution must be found in order to serve the objectives of equity and  justice. however. lies in the essence of that elaborate process and the conviction  in which it must originate.

     There is a considerable parity. The basic theme and philosophy of the maqasid are almost identical with that of istihsan. To secure justice. . and to find ways to remove and eliminate hardship as well as to accommodate the exigencies of necessity and „urf are at once the common themes and objectives of the maqasid and istihsan. both of substance and form. I therefore propose to highlight an aspect of istihsan which has not received attention in the conventional treatment of this doctrine. between istihsan and the ends and purposes of Shari‟a (maqasid alShari„a). benefit and istihsan.

inherently versatile. This is because as a discipline of Shari„a the maqasid is primarily concerned with the ends and objectives of Shari„a rather than conformity to technical details. .The maqasid are. as it were. which seem to be the dominant concern of the various doctrines of usul al-fiqh. on the other hand. even to this day. For one thing. Many a reputable text of usul al-fiqh does not even devote a chapter to the maqasid al-Shari„a among the otherwise familiar range of its topics. on the margins of the legal theory of the usul. in the history of Islamic jurisprudence. the maqasid represented a kind of a postscript or an afterthought. which emerged centuries after the crystallisation of the legal theory of usul al-fiqh. This might offer a partial explanation as to why the maqasid has remained. The usul al-fiqh and the maqasid al-Shari„a have remained separate and the two have not been consolidated to an extent as to present a unified methodology and approach to the understanding of Shari„a.

Istihsan. in other words. to strip it of impractical and undesirable elements and to refine it by means of making necessary exceptions. . generally operates within the confines of the legal status quo and does not seek a radical change in the existing law. although it has considerable potential for innovation and refinement. Istihsan can best be used as a method by which to improve the existing law.

in fact. Judicial decisions would. in turn. or to make exceptions to it. even in the face of evidence to the effect that a departure would be in the interest of fairness and justice. Or may be that the judges are. doing that is departing from the law when it seems patently unfair – without openly acknowledging what they are doing. Judges are normally expected to enforce the law at all costs and they often have little choice in the matter regardless of the circumstances or results. istihsan would hopefully find a place into the day-to-day administration of justice and would consequently encourage flexibility and fairness in law and judicial practice. . influence legislation and contribute toward attaining a more refined and equitable legal order. A clear and well-defined role for istihsan would hopefully mark a new opening in the evolutionary process of Islamic law. it would seem advisable if the legislature explicitly authorised the judge to resort to istihsan when he considers this to be the only way to achieving a fair solution in a case under consideration. In any case. Judges and lawyers are generally reluctant to depart from the existing law. In this way. Their reluctance is often due to the reticence in the law as to what role the judge has precisely to play in such a situation.

as he considers this to be required by maslahah and justice. For it enables a departure from the apparent or the general rule of law to a variant ruling which warrants such a departure. or to make an exception. Istihsan was originally formulated. The essential validity of istihsan is undeniable. but as a doctrine which liberated the jurist from the strait-jacket of qiyas especially where conformity to qiyas clashed with the higher objectives of the Shari‟ah.  . It enables the jurist to escape from strict conformity to the rules of qiyas when doing so is likely to lead to unfair results. Every judge and jurist must consider the circumstances of an individual case and occasionally decide not to apply a certain rule. not as another variety of qiyas.

The theory of istihsan is focused on finding a better alternative to a ruling or evidence of Shari„a when its application has frustrated one of the objectives or maqasid of the same. There should be no inherent contradiction in recognising both a primary and a residual role for istihsan in its capacity as an instrument of consolidation between the usul and the maqasid. The maqasid lacks this focus and does not provide for a modus operandi and istihsan can fill in this gap. In its primary and normative capacity istihsan may be utilised to ensure harmony between the textual proofs and the maqasid by reference to alternative evidence in the textual proofs themselves. .

whether conceptual or in terms of actual enforcement. . Istihsan can thus be applied as an instrument of harmony between the letter and the purpose of the Shari„a in regard to the entire range of the ahkam. Should there arise a conflict between these two aspects of the ahkam. in both its analogical and exceptional varieties that have been previously discussed. In its secondary or residual capacity. istihsan should be utilised to vindicate the preferable reading of the text. istihsan can be utilised much in the same way as it is.The emphasis here would be one of ensuring integrality and coherence between the text and the goal of Shari„a in that the one should not be read in isolation from the other.