AL-ISTIHSANاإلستحساناإلستحسان

UTILIZATION

AGREED UPONAGREED UPON

AL-QUR’AN

AL-SUNNAH

DISAGREED UPONDISAGREED UPON

AL-IJMA’

AL-QIYAS

AL-ISTIHSANAL-’URFAMAL AHL AL-MADINAHMASALIH MURSALAH

AL-ISTISHABSAD DHARAI’

AL-ISTIHSANAL-ISTIHSAN MEANING TYPES EXAMPLES VALIDITY

THE MEANING OF AL-ISTIHSAN Literal Meaning

Derived from the root word of :

إستحسن، يستحسن، إستحساناa. To deem something preferable

b. To consider something good

TECHNICAL MEANING There is no agreement between fuqaha’ on one particular

definition of al-istihsan.

al-Bazdawi: Moving away from the implication of analogy to an analogy that it stronger than it , or it is the restriction of analogy by an evidence that is stronger than it.

al-Halwani: Giving up of analogy for a stronger evidence from al-Qur’an, al-Sunnah ,al-Ijma’ or etc

Al-Sarakhsi: A way of looking at the consequences of the application of two legal rules and the selection of one that creates ease and facility.

TECHNICAL MEANING Imam Ghazali defines Istihsan as something that is considered

good by scholars using reasons.

Ibn Qudamah defines Istihsan as the abandonment of one legal ruling for another ruling which is considered better on the basis of the Quran, Sunnah, Consensus or etc

Abu Hassan al-Kharkhi defines Istihsan as the departure from the existing precedent, by taking a decision in a certain case different from that on similar cases have been decided, for a reason stronger than the one that is obtained in those cases.

THE MEANING OF AL-ISTIHSAN The Essence

To formulate a decision which sets aside an established dalil for a reason that justifies such a departure and seeks to uphold a higher value in the Shariah

Objective of al-IstihsanTo avoid rigidity and inflexibility from literal enforcement of certain ruling or hukm

TPYES OFISTIHSAN

بالنص

بالضرورة باإلجماع

بالمصلحة بالعرف

بالقياس الخفي

GENERAL RULING ANOTHER RULING [EXCEPTION]

A general principles emerging from the texts may not permit something, yet another text may provide an exception to this broad principle.

General rules It is forbidden to sell an object which is not in possession

The Contract of al-SalamThe sale of an object in which the price was paid in advance and the item is to be delivered at a future date.

The rule of Bay al-Salam was established by a Hadith reported from the Prophet s.a.w.

TYPE A: AL-ISTIHSAN THROUGH THE TEXT [AL-NASS]

GENERAL RULING ANOTHER RULING [EXCEPTION]

عيينة أخبرن+ا صدقة حدثن+ا نجيح أخبرن+ا ابن أبي ابنكثير ع++ن بن الله ع++ن عبد المنهال أ++بي ع++ن

عباس الن+بي ابن قدم قال عنهم+ا الل+ه رض+ييس+لفون وه+م المدين+ة وس+لم علي+ه الل+ه ص+لىص+لى الن+بي فقال والثالث الس+نتين بالتم+ر

” : وس++لم علي++ه شي++ء الل++ه ف++ي أس++لف م++نأج++ل إل++ى معلوم ووزن معلوم كي++ل فف++ي

معلوم“.

TYPE A: AL-ISTIHSAN THROUGH THE TEXT [AL-NASS]

"Whoever wishes to enter into a contract of Salam, he must effect the Salam according to the specified measure and the specified weight and the specified date of delivery."

General RulesIt is forbidden to sell an object which

is not in possession

The Contract of al-SalamThe sale of an object in which the price

was paid in advance and the item is to be delivered at a future date.

ISTIHSAN

The general principles forbids transactions in things that do not exist at the time of contract.

An exemption was made on the basis of consensus for the manufacturing contract. [contract of al-istisna’]

TYPES B: AL-ISTIHSAN ON THE BASIS OF AL-IJMA’

General RulesIt is forbidden to sell an object which

is not in possession

The Contract of al-Istisna’The sale of an object in which the price

was paid in advance and the item is to be manufactured at a future date.

ISTIHSAN

Example is permission to allow the endowment (wasiat) out of moveable property (al-manqul) such as books, plates, cups and etc. The Original precedent that endowment must be in the form of something permanent (al-aqarat such as houses, lands, buildings and etc).

TYPES C: AL-ISTIHSAN ON THE BASIS OF AL-’URF

Example: the permission for the medical practitioner to look at the ‘Awra of the sick for a treatment

In principle Doctor is not allowed to see someone else aurat, however, in the situation of al-Darurah, they are allowed.

TYPES D: AL-ISTIHSAN ON THE BASIS OF NECESSITY

Widely used by the Malikites.

The general principles required that the artisans were not to be held liable for things handed to them unless there is proof of negligence.

However, the Fourth Caliph, Ali ibn Abi Talid changed the rule, making the artisans liable for their negligence.(They were required to show that there had been no negligence).

TYPES E: AL-ISTIHSAN ON THE BASIS OF MASLAHAH

THE CLEAR QIYAS THE HIDDEN QIYAS

The Waqf (Charitable endowments) of cultivated land includes the transfer of all the supplementary rights:

a. Right of drinking (haqq al-shurb)b. Right of passage (haqq al-murur)c. Right of flow (haqq al-masil)

even if these rights are not specifically mentioned when the contract of al-Waqf was made.

Because qiyas between the waqf to the sale and purchase contract

TYPES F: AL-ISTIHSAN THE BASIS OF AL-QIYAS AL-KHAFI

EXAMPLES OF AL-ISTIHSAN The departure from the clear Qiyas to the hidden Qiyas

because the latter is stronger and more effective in repelling hardship

The departure from a clear ruling to another ruling because the latter is stronger and more effective in repelling hardship

Original CaseSALE

New CaseWaqf

Effective CauseBoth Sale and Waqf involved

the transfer of ownership

Original RulingThe attached rights will onlybe included in the contract ifthey are explicitly identified

?

THE CLEAR QIYAS – QIYAS AL-JALIYY

New Ruling The attached rights will onlybe included in the contract ifthey are explicitly identified

Original CaseIJARAH

New CaseWAQF

Effective CauseBoth Ijarah and Waqf involved

the transfer of usufruct

Original RulingThe attached rights included in the contract even if they are not explicitly identified

New Ruling The attached rights included in the contract even if they are not explicitly identified

?

THE HIDDEN QIYAS – QIYAS AL-KHAFIYY

THE VALIDITY OF AL-ISTIHSAN al-Istihsan is a valid secondary source of Islamic Law to:

a. The Hanafitesb. The Malikitesc. The Hanbalites

A method of legal reasoning that:a. Give importance to the consequences of the decision.b. Identify general principles and exceptions

al-Istihsan is not a valid secondary source of Islamic Law to the Shafi’ites

“Istihsan is the following of one’s personal whim and amounts to unjustified legislation”