ISTIHSAN

(EQUITY IN ISLAMIC LAW/JURISTIC

PREFERENCE)
 DEFINITION

• Literal : to approve/ to deem something preferable/

consider something good.
 
• Sharie : a method of exercising personal opinion in order
to avoid rigidity and unfairness that might result from the
literal enforcement of the existing law. It is a method to
approve or to deem something preferable.

• validated by Mazhab Hanafi, Maliki & Hambali

• Also referred to as juristic preference.
• Juristic preference involves setting aside
an established analogy in favour of an
alternative ruling which serves the ideals
of justice and public interest in a better
way.
 JURISTS DEFINITIONS:
• According al-Imam al-Karkhi, a Hanafi jurists:
• Istihsan is to depart from the existing precedent, by taking
decision in a certain case different from that on which similar
case has been decided, for a reason stronger than the one that
is obtained in those cases.”

• -While quoting al-Karkhi’s definition, Al-Sarakhsi added: the

precedent that is set aside by istihsan normally consists of an
established analogy which may be abandoned in favour of
superior proofs, namely the Qur’an, Sunnah, necessity or
stronger qiyas.
 (definition continue…)
• Al-Halwani defines it as “the giving up of analogy for stronger
evidence from the Book, the Sunnah or ijma’.

• Ibnal-Arabi, a Maliki jurist, has defined istihsan as to abandon

the requirement of the proof as an exception and to make
concession when the proofs conflict. He elaborated that the
departure in question may be justified by custom, public interest
or ijma’.

• Ibn Taymiyyah and also Ibn Qudamah, the Hanbali jurists,

istihsanis the abandonment of one legal ruling for another which
is considered better on the basis of the Qur’an, Sunnah or ijma’.
 (definition continue…)

• Zakiyal-Din Sha’ban, a contemporary Muslim scholar,

defines Istihsan as the jurist departs from a ruling of an issue
as according to the existing precedent, to another ruling on
account of specific proof which requires such departure as
according to his view, whether such specific proof is the text,
ijma’, necessity, custom, public interest or hidden qiyas, and
whether the ruling as according to the existing precedent is
based on the general text, established principle of fiqh or
apparent qiyas.
Thus according to Zakiyal-Din, Istihsan can be realized in two situations:

• First: in a situation where the jurist found an issue which

come under a general text or principle of fiqh and thus the
ruling of the issue and its existing precedent are based on
these general text and established principle of fiqh.

• In the same way, there are specific proofs for the issue namely,
legal text, ijma’, necessity, custom, public interest which
indicate another ruling different from the ruling based on
general text and established principle of fiqh.
• The jurists found that the ruling based on specific proofs is
more favourable and he act on it.
• Second: where the jurists found an issue which is no ruling in
the Qur’an, Sunnah and ijma’.
• But there are two conflicting proofs of analogies for the issue.
One is manifest analogy and another is concealed analogy and
he found that the concealed analogy is more stronger.
 EXAMPLES
• i. Non enforcement of hudud penalty i.e. amputation of the hand
for theft during a widespread famine.
• ii. Person who eats during fasting month out of forgiveness.
• iii. Contract of salam (advance contract) - permissible
• iv. Using contaminated water for ablution.
• v. The ban on marriage with kitabiyyahs in certain cases
(on grounds of public interest, equity and justice).
• vi. The judgement of ‘Umar in the case of Muhammad ibn
Salamah.
(Salamah’s neighbour asked for a permission if he could extend a
water canal through Salamah’s property, and he was granted the
request on the ground that no harm was likely to accrue to Salamah).
 (example continues…)

• vii. Permission to women to travel without mahram under

exceptional situation.
• viii. Methods of proof in the law of evidence extends to
documentary evidence, photography, sound recording, laboratory
analysis, DNA test, etc. (due to changes in social situations)
– the standard form of evidence in Islamic law is oral testimony.
Normally two ‘adil (credible) witnesses are required and four
witnesses in certain cases. According to Prof. Hashim Kamali, the
rationale of this istihsan would be that the law requires evidence in
order to establish the truth and not the oral testimony for its own
sake. If this is the real spirit of the law, then recourse to istihsan
would seem to offer a better way in order to uphold that spirit.
 (example continues…)

• ix. Other examples where istihsan is applicable:

– looking at the private parts of people in medical
treatment. The general rule is that it is unlawful to look
at private parts, but it is recommended to avert harm.

– granting trusteeship to someone without good

character in order to avert hardship as was made clear
under analogy.
 ISTIHSAN AS A SOURCE OF
ISLAMIC LAW & ITS’ IMPORTANCE

• There are three different opinion of Muslim jurists on istihsan:

(1) The majority hold that istihsan is a source of Islamic law.
(2) However, the Shafi’ies have objected to the use of the
principle of istihsan. Imam al-Shafi’ie asserts that it means to
make law by its arbitrary opinion and a doctrine based on desire.
(3) According to some jurists, istihsan is a source of Islamic law
but it is not an independent source.
 IMPORTANCE OF ISTIHSAN:
• It is important as part of branch in ijtihad
• It is a Provider for Islamic law with necessary means to
encourage flexibility and growth
• It can be used for a variety of purposes.

• Why Istihsan?
• Enforcing the existing law may prove to be detrimental in certain
situations and a departure from it may be the only way of attaining
a fair solution to a particular problem.
• Istihsan may offer a means of avoiding hardship and a solution
which is harmonius with the higher objectives of the Shariah.
 (continue…)

• Istihsan is considered as being the counterpart of

equity in common law.
• Istihsan is one of the methods/devices (apart from
maslahah and siyasah as-Shar’iyyah) to incorporate
social changes into Islamic law, where the strict
requirements of Islamic law would not allow it.
 PROOF/HUJJAH OF ISTIHSAN :
• (Surah Al Zumar : 18)
• “…and give good tidings to those of my servants who listen to the word & follow
the best of it (ahsanahu). Those who are the ones God has guided & endowed with
understanding.”
 
• (Surah Al Zumar : 55)
• “ …and follow the best(ahsan) of what has been sent down to you from your Lord.”
 
• (Hadeeth)
• “What is muslim deem to be good is good in the sight of Allah .”
 
• (Hadeeth)
• “Harm is neither inflicted nor tolerated in Islam.”
 
 PROOF/HUJJAH OF ISTIHSAN (continue):
• Another authority for the application of istihsan:
– Sayyidina Umar’s letter to Abu Musa al-Asy’ari:
“Research similar cases, and when you find similarities that affect the
ruling, apply the method of qiyas. Using the results of qiyas, select the
ruling that adheres to the Islamic principles and ensures that your
conscience is satisfied that justice has been served.”

According to the first part, `Umar wanted qiyas applied as soon as the
similarities were found and the result was deemed just. However, in the
second part he says that if this is not possible, then a ruling that accords
with the basic principles of justice and equity should be given. In other
words, if the resulting qiyas is not in keeping with the Shari`ah’s spirit,
then the ruling of similarities should be abandoned to give a ruling
according to the special evidence, that is, justice and equity (istihsan)
 (continue…)
• Logic:
It is established by observation of the fact of the situation that
the application of the general principle of fiqh or general text to
some cases (issues) would cause disadvantage or not bring
benefit to the people. Because each issue has its own
characteristic and it is surrounded by different environment.
Therefore, it would be mercy and fair to the people that allow
the jurists to depart from the ruling which is based on general
text or general principle of fiqh to another ruling that would
bring benefit to the people.
VIEWS ON THE FEASIBILITY OF ISTIHSAN
• Al Sarakhsi (from Hanafi jurists ) :
 a method of seeking facility & ease in legal injunctions.
Involves a departure from qiyas in favour of a ruling which repels hardships & brings
about ease to the ppl.
Hujjah : (Surah Al Baqarah : 185) “Allah intends every facility for you, and He does
not want to put you in hardship.” – therefore istihsan is a cardinal principle of religion
which is enunciated in the AQ where we read.
Hujjah : (Hadeeth) “ the best of your religion is that which brings ease to the ppl.”
 
• Al Khudari :
in search for solutions to problems, the Companions & successors resorted to the AQ &
Sunnah – if didn’t find any answer, then it will use personal opinion (ra’yu) which they
formulated in light of the general principles & objectives of the Syariah.
Eg : judgement of Saidina Umar in the case of Muhamad bin Salamah – has asked for a
permission if he could extend a water canal through Salamah’s property, & he was
granted the request on the ground that no harm was likely to accrue to Salamah where
as extending a water canal was to the manifest benefit of his neighbour.
 TYPES OF ISTIHSAN

• The below categories are the various methods through which

Istihsan is employed in legal reasoning. The Hanafi scholars
divided it into 2 :

1. Istihsan Qiyas (Analogical Istihsan) :

The departure from the clear analogical reasoning (qiyas jalli) to
the hidden analogy (qiyas khafi) because the latter is stronger and
more effective in repelling hardship and also it is arrived at
through deeper reflection and analysis.
• Why qiyas khafi?
• It is stronger and more effective in repelling
hardship than qiyas jalli
• Presumably because it is arrived through deeper
reflection and analysis and not through superficial
observation or similitudes.
Example: Waqf property (charitable endowment) i.e. Waqf is an
endowment made by a Muslim to a religious, educational, or
charitable cause.

• A waqf of of cultivated land includes a transfer of all the ancillary rights of

water, right to passage and the right to flow : even if these rights are not
specifically mentioned in the conditions and rulings related to waqf. These
rulings are made based on Istihsan which can be described as follows:
• Contract of Sale: It is a general rule of the Islamic law of contract that the
object of the contract must be clearly identified in detail. What is not specified
in the contract is not included therein.
• In this instance, if we draw a direct analogy btw sale and waqf as both
involving :”the transfer of ownership”, we must conclude that the attached
rights can only be included in the waqf if they are explicitly/clearly identified.
• It is however argued that such an analogy would lead to inequitable results as
the waqf of cultivated lands w/o their ancillary rights would frustrated
(invalidated) the basic purpose of the waqf, which is to facilitate the use of the
property for charitable purposes.
• Therefore, to avoid such a hardship, recourse to an
alternative analogy i.e. Qiyas khafi is therefore necessary.
The hidden analogy in this case is to draw a parallel, not
with the contract of sale, but with the contract of lease.
• For both these contracts involve a transfer of usufruct
(the right to use/enjoy the profits and advantages of
another’s property is not damaged/altered in any way)
and since the usufruct is the essential purpose of lease, this
contract is valid even w/o clear reference to the usufruct.
• This analogy with the contract of lease (ijarah) will
completely validate the waqf even if it does not specify the
attached rights to the property in detail.
 See below illustration:

• Qiyas Jalli

• Asl Far’u Illah Hukm

Contract Waqf Transfer of Valid?
of sale ownership

The above analogy is not valid because it doesn’t share similar type of
“transfer of ownership” i.e. in this case the object in the contract
must be clearly identified (but only in contract of sale), but not waqf?
–rights of water, rights to passage, rights to flow etc. (the practice in
setting conditions for waqf is valid although not specifically
mentioned/identified). So does this analogy proper and valid?
Therefore, recourse to another alternative qiyas i.e. Qiyas Khafi
(Hidden Analogy)
• Qiyas Khafi

• Asl Far’u Illah Hukm

Contract Waqf usufruct Valid
of lease

The above analogy is valid because both Asl and Far’u share
similar Illah i.e. transfer of usufruct (rights to use/enjoy the
profits and advantages of another’s propery as long as the
property is not damaged/altered in any way).
2. Istihsan Istithna’ (Exceptional Istihsan) :
• Making exception to the general rule of the existing
law when Muslim jurists are convinced that justice and
equity will be better served.
• The jurists might have reached the decision as a result
of personal ijtihad or that the exception may have
already been authorised by any of the following:
Quranic verses, prophetic traditions, consensus
opinion, custom, public interest and necessity.
 Examples
• (1) General rule = “No bequest for an heir”
Exception - A will to a relative is allowed for fair distribution of
wealth in the family especially in cases where a relative is
destitute and yet he is excluded from inheritance in the presence
of other heirs.

Basis (AQ, 2:180): “…It is prescribed for you, when death

approaches any of you, if he leaves wealth, that he makes a
bequest to parents and next of kin, according to reasonable
manners.”
• (2) General rule: A contract becomes binding once the offer
and acceptance is completed.
– A contract is binding and irrevocable once the contracting
parties left the meeting place.
Exception: based on istihsan there are options for cancellation
(khiyar al syart) i.e. when a person buys an object on condition
that he may revoke the contract within the next three days or as
stipulated in the contract.

• Basis (Hadith : “When you agree on the terms of a sale, you

may say: it is not binding and I have an option for three
days.”)
• (3) General rule - The object or subject matter of the contract must be in
existence at the time the contract is concluded.
– “Do not sell something that is not in your possession.”

Exception: in the contract for manufacture of goods (Bay’ al-Istisna’) and

bay’ as-Salam.

Basis (Ijma’ : that someone may place an order with a craftsman for certain
goods to be made at a price which is determined at the time of the contract,
and the subject matter will be delivered at a later date or time).
• • Examples: Sale and purchase of a house which is yet to be built, sale of
manufactured items such as furnitures/garments/food services/boat etc.
 RELEVANCE OF ISTIHSAN TO CONTEMPORARY LAW

• Sale and Purchase agreement - Contract to buy a

house that is yet to be built
• E-commerce transaction (Imam Shafi’e requires
ijab and qabul in one sitting) as long as not
contrary to syara’.
• Force entry into one’s premise to curb or solve a
crime.
• Vending machines