ISTIĤSÂN

Introduction

Istiĥsân is an essential part of Islamic jurisprudence and undeniably of many other areas of human knowledge.[1] It is clear from various proofs that the companions were not literalists in the strict sense that they would seek an authority from the Qur’ân and Sunnah for every verdict they issued. Rather, their rulings were based upon their own understanding of the general spirit and objectives of Shariah and not merely restricted to the literal meaning of its principles. In this essence Istiĥsân has been articulated.[2]

 

In light of the above, the following things will be addressed in this essay; the meaning and definition of Istiĥsân, the theory of Istiĥsân, an evaluation of its legal significance with examples of its application in jurisprudence, critical arguments for and against Istiĥsân and finally a conclusion explaining the benefits of Istiĥsân.

 

Meaning and definition

The word Istihsân is derived from the root word ‘Ĥasuna’ which literally means good, fine, fitting, suitable, preferable and beautiful.[3]

 

The juridical meaning of Istiĥsân, like mentioned by Kamali (2003):

 

Reflects its literal meaning in that it refers to juristic preference, exercised by a qualified jurist, consisting of departure from an existing rule or principle of the law in a particular case, in favour of a different ruling which is considered preferable to that one that already exists. The preference so exercised is prompted by the desire to search for a more equitable solution because of the rigidity and unfairness that is brought about by strict adherence to the existing law.[4]

 

The scholars have somewhat differed in their definitions for Istiĥsân. This gives us an insight in to the numerous methods the scholars have taken to this principle.[5]

 

Definition according to the Ĥanafî school of thought

Abu’l Ĥasan al-Karkhî defines Istiĥsân as follows:

 

Istiĥsân 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 that the one that is obtained in those cases.[6]

 

Abû Bakr al-Jassâs defines Istiĥsân as “departure from obvious analogical reasoning in favour of another ruling which is considered preferable”.[7]

 

Abu’l Ĥusayn al-Baŝrî defines Istiĥsân as “forsaking one facet of Ijtihâd for another, the latter being the stronger of the two and it contains of fresh evidence not found in the former”.[8]

 

The definition of Istiĥsân according to the Ĥanafî school of thought could be concluded as follows: To leave analogical reasoning, due to a stronger proof.

 

Definition according to the Ĥanbalî school of thought

Istiĥsân is the forsaking of one legal ruling for another which is considered preferable on the basis of the Qur’ân, Sunnah or consensus. Like Kamali (1997) mentions, this definition seeks to relate Istiĥsân more closely to the Qur’ân and Sunnah. [9]

 

Definition according to the Mâlikî school of thought

Ibn al-Ārabî mentions, “Istiĥsân is to abandon exceptionally that which is required by the law because applying the existing law would lead to leaving some of its own objectives”. In other words acting on the stronger of the two proofs.[10]

 

Just like Kamali (1997) mentions, It is apparent from the above definition that, “the Mâlikîs view Istiĥsân as a broad doctrine which is less stringently confined to the Qur’ân and Sunnah than the Ĥanafîs and Ĥanbalîs have viewed it”.[11]

 

It is clear from the various schools of thought mentioned above that the common explanation of Istiĥsân is the preference of a stronger evidence over analogy; the establishment of an exception to a general principle due to stronger evidence when the general principle is based upon analogy. In a nut shell, this could be rounded off as leaving an existing precedent due to a more compelling reason.[12]

 

Theory of Istiĥsân & its legal significance

Istiĥsân is premised on Islamic law and the end result should not go against Islamic spirit. Furthermore, Istiĥsân does not recognise any law above divine revelation, as compared to equity law which is premised on the law of nature superior to all legal rules. Moreover, Istiĥsân gives preference to the best of the various solutions that may exist from a particular problem.[13]

 

In essence, Istiĥsân gives preference to the best solution to a problem due to stronger evidence. The legal significance of this can be gauged from the following examples.

 

Al-Shaybâni exercises Istiĥsân due to necessity which entailed departing from the ruling of Ĥadîth. For example, the Ĥadîth which prohibited the sale of non-existing objects at the time of contract which invalidates the advance sale of manufactured goods (Istiŝnā’). Contrary to this, al-Shaybâni held the opinion that Istiŝnā’ was valid due to necessity even though it contradicted the ruling of the Ĥadîth.[14]

 

Abû Yûsuf also resorted to Istiĥsân when he was of the view that if a woman renounces Islam and becomes apostate in her death-sickness (marad al-maut) then her husband will be entitled to inherit from her. In normal circumstances, it is impermissible in Shariah for inheritance to take place between Muslims and non-Muslims, hence normally a husband would not qualify to inherit from his deceased wife who has renounced Islam. Conversely, Abû Yûsuf was of the opinion that the husband is entitled to inherit from his deceased wife through Istiĥsân. He expounded on this by mentioning that there was a possibility that the woman’s apostasy during her mortal illness was due to malice to annul the husband’s right to inheritance. Thus, the ruling of Istiĥsân is favoured in this scenario because analogy did not facilitate a provision to distinguish between the two situations; normal illness and mortal illness. Through Istiĥsân a differing ruling can be provided for mortal illness.[15]

 

The spirit of Istiĥsân is to inhibit harm and alleviate hardship. While this is the general goal and essence of Shariah. Istiĥsân transforms that message in to a workable formula. The need for this is clear because of the fact that the goals of Shariah are several and it is normally a question of establishing an order of preference in values and this is what Istiĥsân is essentially intended to achieve.[16]

 

Examples of its application in Islamic jurisprudence

1) According to Abû Ĥanîfa, in principle, if a person eats forgetfully whilst fasting, then his fast would invalidate. However, there is a prophetic narration that states that liability for three things has been lifted from Muslims: forgetfulness; mistake; and duress. Hence, eating forgetfully whilst fasting would not invalidate the fast. In short, strict application of the rules of fasting suggest that eating food whilst fasting, invalidates the fast. However, this is a case of Istiĥsân, where an exception has been made and a text has been preferred over analogy.

 

2) Analogy prohibits the contract of Salam. Salam is a contract where one pays in advance and receives the currently non-existing food items at a later date. Analogy prohibits this due to the delay in the exchange of the non-existing food items. However, there is a prophetic narration where the Prophet Muĥammad made an exemption for Salam and permitted it. This is another example of Istiĥsân, where an exception has been made and a text has been preferred over analogy.

 

3) Just like Salam, analogy prohibits Istiŝnā’, which is a manufacturing contract with advance payment. Analogy prohibits it on the same basis of Salam like mentioned above. However, according to the Ĥanafîs it is permitted due to consensus (Ijmā’). In this example of Istiĥsân, exception has been made and consensus has been preferred over analogy.

 

4) Analogy suggests that pure water should be used for ablution. As such, a well in which carcasses of animals have fallen will make the water impermissible to use for ablution. However, this would cause hardship to people. Hence due to necessity, after observing formal cleaning methods the use of such wells will be permitted. This is an example of Istiĥsân, where an exception has been made due to necessity and necessity has been preferred over analogy.

 

In the examples mentioned above, the consequences of the application of strict analogy have figured significantly in the decision and the decision preferred was one that had more healthy consequences for the people.[17]

 

Critical arguments for and against Istiĥsân

The Ĥanafî, Mâlikî and Ĥanbalî jurists have validated Istiĥsân as a subsidiary source of law.

 

The Shâfï’î, Žahirî, Mü’tazilî and Shîï’î scholars have rejected it altogether and refused to give it any credence in their formulation of the legal theory of Uŝûl al-fiqh.[18]

 

Common instances of Istiĥsân in the sense of making exceptions to normal rules can be found in the Qur’ân and Sunnah. For example, regarding the obligatory nature of fasting in Ramadhân, the sick and the traveller are exempted.

 

Those that are for Istiĥsân have stuck with the view that leaving an established ruling for an alternative ruling in Istiĥsân must and does have a basis in the other acknowledged proofs of Shariah. In other words it is a modification of Ijtihâd which injects a degree of flexibility into the rulings of the Shariah by creating indispensable concessions to ensure that technical conformity to particular rules does not obstruct the higher objectives such as justice and common good.[19]

 

Proofs for Istiĥsân

1) “So give glad tidings to my servants who listen to the word, then follow the best of it”.[20]

 

2) “And follow the best of what has been sent down to you from your Lord”.[21]

 

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.”[22]

 

4) “What the Muslims deem to be good is good in the sight of Allâh”.[23]

 

5) “The best of your religion is the easiest.”[24]

 

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.[25]

 

7) “No harm shall be inflicted or reciprocated in Islam”.[26]

 

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.

 

The critics of Istiĥsân have argued that none of the above mentioned proofs can be used as definitive authorities in support of this doctrine. For example, regarding the first of the two Qur’ânic verses, Âmidî points out that it only praises those who follow the best of what they hear. There is no indication in this Qur’ânic verse to render adherence to the ‘best speech’ an obligation. The second Qur’ânic verse also does not bind one to search for the best in the revelation. [27]

 

With regards to the tradition, ˝what the Muslims deem good is good in the sight of God”, both al-Ghazâlî and al-Âmidî are of the view that, if anything, this provides the authority for consensus (Ijmâā’). This tradition does not suggest that what a Muslim individual deems good is also good in the sight of God.[28]

 

Furthermore, Kamali (1997) states:

The critics of Istiĥsân have further suggested that this doctrine was initially introduced by Ĥanafî jurists in response to certain urgent situations. The Ĥanafîs then tried to justify themselves by quoting the Qur’ân and the Ĥadîth es-post facto. The Qur’ânic foundation of Istiĥsân, in other words, is weak, and no explicit authority for it can be found in the Sunnah either.[29]

 

Al-Shâfï’î one of the critics of Istiĥsân has actually devoted a whole chapter in his famous Kitâb-al-Um and Risâla, titled, “The chapter invalidating/nullifying Istiĥsân”. He calls it pleasure-seeking and arbitrary law-making in religion[30].

 

The Proponents of Istiĥsân have refuted all these objections and proved them as baseless. In reality, the difference of opinion is merely on terminology because al-Shâfï’î has actually used the word Istiĥsân himself. Hence, the Istiĥsân that has been severely criticised by al-Shâfï’î and the Shâfï’î jurists is that Istihsan which is based on one’s arbitrary opinion, not deriving its authority from any recognised source of law and even the exponents of Istiĥsân are against that. [31]

 

Conclusion

Just like al-Sarakhsî explains, Istiĥsân may not concur very much with the rules of logic. However, its consequences are beneficial and good.[32]

 

Strictly applying an established law to a specific situation sometimes causes loss of justice, human good and public interest. This only brings forth harm to society. Hence, there should be a tool, in the principles of legislation that can be used by a jurist, whereby he may leave an established rule of law and apply a law taking in to consideration justice, human good and public interest.[33]

 

It can be concluded that the term Istiĥsân used by the great Imâms, has a similar notion. Furthermore, the disagreement among them is merely on terminology. Moreover, the Istiĥsân rejected and severely criticized by al-Shâfï’î is not the Istiĥsân regarding which the proponents have discussed; rather it is a view in religion grounded on whim and desire not backed by evidence. It does not befit a Muslim to hold such a view, let alone Imâms on the calibre of Abû Ĥanîfa, who have a large following and from whom people acquire legal opinions on religions matters.[34]

 

By Muftî Sufyân Ibn Yākûb

 

 

Bibliography

Hasan, A., (1986). Analogical reasoning. Islamabad: Islamic research institute.

Hassan,H. H., (2007). An introduction to the study of Islamic law. Adam publishers & distributors.

Hussain, S. (2014) Unpublished lecture notes taken from lecture on principles of Islamic jurisprudence held on   18/11/2014   at MIHE.

Kamali, M. H., (2003). Principles of Islamic jurisprudence. Islamic texts society.

Kamali, M. H., (1997). Istiĥsân and its application to contemporary issues, Islamic development bank.

Kamali, M. H.,(n.d). Istiĥsân and the renewal of Islamic law,(Malaysia : IAIS)

Kathir, I. I.,(n.d). Translated by Shafiq, F. Book of the end great trials and tribulations. Darusalaam.

Niyazee, I. A. K., (2002.) Islamic jurisprudence. International institute of Islamic thought.

Wehr, H., (1961). Dictionary of modern written Arabic. Wiesbaden:otto harrassowitz.

 

Arabic works

Abû Yûsuf, Y. I.I., (1972). Kitâb al-Kharâj. Cairo: al-Maţbā’ al-Salafiyya.

al-Âmidî, M.S., (1985). al-Iĥkâm. Dâr al-kutub al-ïlmiyyah.

al-Baŝrî, A.,(1965). al-Mü’tamad. Damascus.

al- Bukhârî, A.,(1997). Kashf al-Asrâr. Beirut: Dar al-Kutub al-ïlmiyyah.

al-Jassâs, A. A. I. A. R.,(n.d) Usûl al-Jassâs. Cairo:Dâr al-Kutub al-Miŝriyyah.

al-Sarakhsî,M. I. A. (1953). Usûl-al-Sarakhsî. Abû al-Wafâ al- Afghânî (Ed.).Cairo.

al-Sarakhsî, M. I. A.,(1993). al-Mabsût. Beirut: Dâr al-Kutub al-ïlmiyyah.

al- Shâfï’î, M. I. I.,(1979), al-Risâlah. Cairo: Dâr al-Turâth.

al- Shâfï’î, M. I. I., (1388)Kitâb al-Umm. Cairo.

al-Shâţbî, I.,(n.d). al-Muwâfaqât. Cairo: al-maktabah al-tijâriyyah.

al-Shaybâni, M.I.H, (1937). al-Siyar-ul-kabîr. Hyderabad.

al-Zuhaylî, M. W., (2001). Usûl-al-Fiqh-al-Islamî. Beirut: Dâr al-Fikr.

Taymiyyah, T. A. I., (1965). Masalah Istiĥsân, Maqdisî (Ed.). Arabic and Islamic studies.

 

Websites

Bukhâri. Ĥadîth 2873. Retrieved from: http://www.dailyhadithonline.com/2013/12/11/hadith-on-dawah-give-glad-tidings-make-it-easy-and-remain-united/ accessed on 04/01/2015.

Ibn Mâjah. Ĥadîth 2340. Retrived from: http://ahadith.co.uk/permalink-hadith-9713 accessed on 04/01/2015.

Qur’ânic sources retrieved from: http://quran.com accessed on 03/12/2014

 

 

 

[1] Hashim Kamali, Principles of Islamic jurisprudence. (Islamic texts society:2003). p326.

[2] ibid., p326.

[3] Hans Wehr, A dictionary of modern written Arabic. (Wiesbaden:otto harrassowitz:1961). P208.

[4] Hashim Kamali, Principles of Islamic jurisprudence. (Islamic texts society:2003). p326.

[5] Hashim Kamali, Istiĥsân and its application to contemporary issues. (Islamic development bank:1997)p23.

[6] al-Sarakhsî, al-Mabsût,(Beirut, Dâr al-Kutub al-ïlmiyyah:1993); v1,p23,145; Hashim Kamali, Istiĥsân and its application to contemporary issues.(Islamic development bank:1997)p23.

[7] al-Jassâs, Usûl al-Jassâs,.(Dâr al-Kutub al-Miŝriyyah:n.d).p229; Ahmad Hasan, Analogical reasoning.(Islamabad,Islamic research institute:1986).p410

[8] al-Baŝrî, al-Mü’tamad.(Damascus:1965). v2,p840; Hashim Kamali, ISTIĤSÂN and its application to contemporary issues.(Islamic development bank:1997).

[9] IbnTaymiyyah, Masa’lah al- Istiĥsân.(Ed.Makdisi)(Arabic and Islamic studies:1965) p446.; Hashim Kamali, Istiĥsân and its application to contemporary issues.(Islamic development bank:1997)p23.

[10] al-Shaţbî, al-Muwâfaqât.(al-maktabah al-tijâriyyah:n.d) v2,p208; Kamali, Hashim Kamali, Istiĥsân and its application to contemporary issues.(Islamic development bank:1997)p25.

[11]Hashim Kamali, Istiĥsân and its application to contemporary issues.(Islamic development bank:1997)p25.

[12]Imran Ahsan khan Niyazee, Islamic jurisprudence.(International institute of Islamic thought:2002). pg 231.; Hashim Kamali, Istiĥsân and its application to contemporary issues.(Islamic development bank:1997)p26.

[13] Dr Shahrul Hussain. Unpublished lecture notes taken from lecture on principles of Islamic jurisprudence held on   18/11/2014   at MIHE.

[14] Shaybânî,al-Siyar-ul-kabîr. (Hyderabad: 1937).v1,p270; Hashim Kamali, Istiĥsân and the renewal of Islamic law,(Malaysia, IAIS:n.d), pg6.

[15] Abû Yûsuf, Kitâb al-Kharâj.(Cairo,al-Maţbā’ al-Salafiyya:1972). p182-183; Hashim Kamali, Istiĥsân and the renewal of Islamic law,(Malaysia, IAIS:n.d), pg6,7.

[16] Hashim Kamali, Istiĥsân and its application to contemporary issues.(Islamic development bank:1997)p69.

[17] Ābd al-Āziz al-Bukhâri, Kashf al-Asrâr.(Beirut, Dâr al-Kutub al-ïlmiyyah:1997).vol. 4,pg7; Imran Ahsan khan Niyazee, Islamic jurisprudence.(International institute of Islamic thought:2002). pg 233,234.

[18] Muŝtafâ Wahba az-Zuhaylì,Usûl-al-Fiqh-al-Islamî.(Dar al-Fikr,Beirut,Lebanon:2001). v2,pg748;Hashim Kamali, Principles of Islamic jurisprudence. (Islamic texts society:2003). p324.

[19] Hashim Kamali, Istiĥsân and its application to contemporary issues.(Islamic development bank:1997).p69,70.

[20] Qur’ân,39:18.

[21] Qur’ân,39:55.

[22] Qur’ân,2:185.

[23] Aĥmed, quoted by al-Âmidî, al-Iĥkam.(Dâr-al-kutub al-ïlmiyah:1985). v3-4,p391,

[24]Aĥmed, taken from Muĥammed Ibn kathîr, Book of the end-great trials and tribulations. (Darusalam:n.d).p123.

[25] Bukhârî , Ĥadîth 2873.

[26] Ibn Majah, Ĥadîth 2340.

 

[27] al-Âmidî,al-Iĥkâm,( Dâr-al-kutub al-ïlmiyah:1985). v3-4,p393,394; Hashim Kamali, and its application to contemporary issues.(Islamic development bank:1997).p70.

[28] al-Amidi,al-Ihkam,( Dar-al-kutub al-ilmiyah:1985). v3-4,p393; Hashim Kamali, Istiĥsân and its application to contemporary issues.(Islamic development bank:1997).p70.

[29] Hashim Kamali, Istiĥsân and its application to contemporary issues.(Islamic development bank:1997).p71.

[30] al- Shâfï’î, al-Risâlah.(Cairo, Dâr al-Turâth:1979).p70; al- Shâfï’î, Kitâb al-Umm,(Cairo:1388).v1, p 207; Ahmad Hasan, Analogical reasoning, p419-420,Islamic research institute.

[31] Ahmad Hasan, Analogocal reasoning in Islamic jurisprudence. (Islamabad,Islamic research institute:1986).p420.

[32] al-Sarakhsî, Usûl al Sarakhsî. (Ed. Abû al-Wafâ al- Afghâni ).(Cairo:1953). v2, p202.

[33]Ahmad Hasan, Analogocal reasoning in Islamic jurisprudence. (Islamic research institute:1986).p422.

[34] H. H. Hassan, An introduction to the study of Islamic law. (Adam publishers & distributors:2007)p179.

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Tayyib HMC FInder

Munadil Islaam

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