5/21/2015Copyright Reserved 2012@Mohd Zulkifli Muhammad 1 AFS2023 USUL FIQH/ISLAMIC JURISPRUDENCE Istihsan (JURISTIC PREFERENCE)

04/18/23 Copyright Reserved 2012@Mohd Zulkifli Muhammad

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AFS2023 USUL FIQH/ISLAMIC

JURISPRUDENCE

Istihsan (JURISTIC PREFERENCE)


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Contents

• Definition• Proof (Hujiyyah) of Istihsan• Varieties of Istihsan


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Definition

• Istihsan literally means ‘to approve, or to deem something preferable’. It is derivation from hasuna, which means being a good or beautiful.

• Istihsan is a method of exercising personal opinion in order to avoid any rigidity and unfairness that might result from the literal enforcement of the existing law.


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Definition

• The Hanafi jurist: considers istihsan to be a method of seeking facility and ease in legal injunctions.

• It involves a departure from Qiyas in favour of a ruling which dispels hardship and brings about ease to the people.


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Proof (Hujjiyyah) of Istihsan

1) al-Quran:

• “And follow the best (ahsan) of what has been sent down to you from your Lord” (al-Zumar,39:55).

2) al-Hadith:

• “What the Muslims deem to be good is good in the sight of God” (al-Bukhari).


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Proof (Hujjiyyah) of Istihsan

• “No harm shall be inflicted or reciprocated in Islam” (Ibn Majah).

3) Ijma’:

• from the contract of Salam sale.


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Varieties of Istihsan

1) Istihsan which is based on the qiyas khafi

• it may be noted that under Hanafi law, the waqf (charitable endowment) of cultivated land includes the transfer of all the ancillary rights (the so-called 'easements') which are attached to the property…


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• Such as=

a) the right of water (haqq al-shurb),

b) right of passage (haqq al-murur) and

c) the right of flow (haqq al-masil), even if these are not explicitly mentioned in the instrument of waqf.


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• It is a rule of the Islamic law of contract, including the contract of sale, that the object of contract must be clearly identified in detail.

• What is not specified in the contract, in other words, is not included therein.


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2) Istihsan which is based in the nass of the Qur'an and the Sunnah.

• e.g:

(a) the contract of ijarah (lease or hire). According to a general rule of the Shari'ah law of contract, an object which does not exist at the time of contract may not be sold.


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• However, ijarah has been validated despite its being the sale of the usufruct (i.e. in exchange for rent) which is usually non-existent at the moment the contract is concluded.


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• Analogy would thus invalidate ijarah, but istihsan exceptionally validates it on the authority of the Sunnah (and ijma'), proofs which are stronger than analogy and which justify a departure from it.


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(b) the option of cancellation (khabar al-shart). It is employed when a person buys an object on condition that he may revoke the contract within the next three days or so.


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• 3) Istihsan which is authorised by ijma’.

• e.g:

• the contract for manufacture of goods. Recourse to this form of istihsan is made when someone places an order with a craftsman for certain goods to be made at a price which is determined at the time of the contract.


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• Istihsan validates this transaction despite the fact that the object of the contract is non-existent at the time the order is placed.


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• 4) Istihsan which is based on necessity (darurah).

• e.g:

• the method adopted for the purification of polluted wells. If a well, or a pond for that matter, is contaminated by impure substances, its water may not be used for ablution.


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• 5) Istihsan which is authorised by custom. e.g: the object of sale be accurately defined and quantified.


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• However, popular custom has departed from this rule in the case of entry to public baths where the users are charged a fixed price without any agreement on the amount of water they use or the duration of their stay.


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• Another example is bay' al-ta ati, or sale by way of `give and take', where the general rule that offer and acceptance must be verbally expressed is not applied owing to customary practice.


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• 6) Istihsan which is founded on considerations of public interest (maslahah).

• e.g:

• the responsibility of a trustee (amin) for the loss of goods which he receives in his custody.


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• This istihsan has been justified on grounds of public interest so that trustees and tradesmen may exercise greater care in safeguarding people's property.


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5/21/2015Copyright Reserved 2012@Mohd Zulkifli Muhammad 1 AFS2023 USUL FIQH/ISLAMIC JURISPRUDENCE Istihsan (JURISTIC PREFERENCE)