الله بسمالرحيم الرحمن

االءستحساناالءستحسانThe important of Al-Istishan

& its controversial issues

Definition of Al- IstihsanDefinition of Al- Istihsan

Literally:Literally:To approve or in simple words to decide a To approve or in simple words to decide a preferable hukm for a case.preferable hukm for a case.

Technically:Technically:Refers to setting aside an established ruling Refers to setting aside an established ruling backed by dalil on a matter in favor of backed by dalil on a matter in favor of alternative ruling which is stronger and more alternative ruling which is stronger and more convincing than the former ruling, supported convincing than the former ruling, supported by dalil.by dalil.

From all these definitions it is obvious that Istihsan means the preference of a stronger evidence over analogy. It means:

The preference of qiyas khafi over qiyas jali

Follows the requirements of a stronger general principle that requires something different from strict analogy.

The creation of an exception to a general principle due to a stronger evidence when the general principle is based upon analogy.

LEGAL SCHOOLS

Shafi’i Maliki Hambali Hanafi

It has raised seriously objection against Istihsan.According to Shafi’i, Istihsan could not exist as an independent source of Islamic law as Islamic legal theory would not permitit.“Istihsan is thus a method for choosing between two possible legal solutions to a particularcase.”I consider to be form of man making law of pleasure seeking and arbitrary law-making religion.

The Malikis permitted slight uncertainty that will not lead to a dispute where the general principle requires the avoidance of uncertainty (gharar) that will lead to a dispute.As-syatibi comes with opinion that Istihsan is not pursuit the human or one’s desires,profound understand or intention of the law –given.

The Hanbali schoolof thought calls its Istislah (equity or public interest).

Istihsan is the label the Hanafi jurists have adopted. Hanafi’s have asserted that Istihsan is not an arbitrary exercise in personal preference(toward some matters).This type of ‘hukm’ is in the form of qiyas or branch of qiyas.It also not an independent sources of law.

1. It consist of departure from ‘qiyas jali’(effective cause) which is the new cases that come is greater or stronger than the original cases instead of (‘iilah) to ‘qiyas khafi’.

2. Based on the nass and text of Al-Quran.3. Based on the sunnah of the prophet

Muhammad s.a.w4. Authorized by the Ijma’ of the scholars.5. Based on the necessity (darurah) at that place.6. Authorized by the custom.7. Consideration of public interest.

ControvercyBased on surah an-nisa 59

O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything,

refer it to Allah and the Messenger, if you should believe in Allah and the Last Day. That is the best [way] and best in result

*From this ayah, it told us that a musleems has his responsibilities to obey Allah and Rasulullah saw as well as follow the injunction of shariah law which clearly enriched

in Quran, the vouched of Allah .

*Thinking about this ayah, other than obey Allah and Rasul, implicitly, it also shows the worried of As-Syafiee to another musleems if Al-Istishan being accepted as a method for power reasoning.

* He worried to see musleems doing their own preference without guidance that lead to destructions of aqidah as this

methodology has wider scope of interpretation .

BUT, The Hanafis jurists has their dalalah from nass:

Az-zumar 18

-From the ayah, Allah vouched that if musleems follow the best way or guidance in his life, Allah will guide him to the right way.

-Word (Al-Qawl)- verbal may comes from Allah,rasul and mujtahidun,so that they accept Istishan.

Tafsir al-Jalalayn:

who listen to the words [of God] and follow the best [sense] of it, which is that which contains [the means to] righteousness for them. Those, they are the ones whom God has guided; and those, they are the people of pith, the possessors of intellect.

قبيح الله فهوعند قبيحا المسلمون راة ما و حسن الله عند فهو حسنا المسلمون راة ما

What the musleems deem to be good is good sight of God and what to be bad for musleem is a bad sight of God.

)Al-bukhary(

Towards this 1st controvercy, a hadith narrated by Al-Bukhary also give defference istinbat from syafiees and hanafis scholars

Hanafis scholars

- State that Istishan is a form of Qiyas and a new doctrine for juristic preference

Syafiees scholars

-- Disagreed as the word `musleemun` in hadith gives kully meaning which it can consist of various level of musleems either ulema,public musleems or the musleems that just taqlid in religion.- Only authorised person can istinbat a hukm

In the case of SALAM & ISTISNA

Qiyas prohibits the contract of salam because it involves delay in the exchange of food items listed in the tradition of riba’. There is however, the tradition from the Prophet Muhammad (s.a.w) that’s says that, "he made an exemption in the case of salam

Istisna’ or the manufacturing contract with advance payment. Analogy prohibits it on the basis of the same rules as in the case of salam. It is,however,permitted on the basis of Ijma’ according to Hanafis.

In the case of `INTENTIONALLY EATING DURING FASTING`

He said “I would have said that he should repeat his fast.”

What he meant by this was that strict application of the rules of fasting requires that anyone eating food has broken the fast. A report from Prophet Muhammad (s.a.w) says that “liability for three things has been lifted from my Ummah; forgetfulness, mistake and duress.”This is a case of Istihsan where a text has been preferred over analogy, and by means of which an exception has been created.

Khiyar al-shart or stipulated option: The general principle requires that all contracts become binding on their conclusion. A tradition permits the stipulation of an option for three days as an exception to this principle.

Analogy requires that ritually pure water should be used for ablution. In the case of wells in which dirt or carcasses of animals have fallen, following strict analogy would mean the non-use of these wells, and this would cause hardship to the people. The principle of necessity requires that use of these wells be permitted. This is done after observing formal cleaning methods.

Al-Sarakhsi says: If Istihsan is based upon the text or upon Ijma ’,the derived rule can serve as a further basis for analogy.

In other cases, if Istihsan based upon necessity or concealed analogy, it is not possible to extend the new rule further.

“Ibn Tayimiyah called Istihsan the limitation of the cause either with its modification or with its nullification.”

Equity and Istihsan resemble in certain aspects both concepts incorporate the idea for a search for the good. The motivation for using either concept may stem initially from a mere feeling that an existing rule of law is not right.

As conclusion we can say that, Istihsan is an important branch of Ijtihad, and has played a prominent role in adaptation of Islamic law to the changing needs of society.

Istihsan has been validated by Hanafi, Maliki and Hanbali jurists while Shafi`i, Shi`i and Zahiri jurists have rejected it as a method of deduction. However, in effect majority have accepted Istihsan. So long as Istihsan seeks solutions that are harmonious with the Shari`ah and its definitives, its validity is undeniable.