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{{Short description|Islamic legal term for juristic discretion}}
{{Italics title}}
{{Usul al-fiqh}}
{{Usul al-fiqh}}
'''Istihsan''' (استحسان) is an [[Arabic language|Arabic]] term for juristic "preference". In its literal sense it means "to consider something good". [[Muslim]] scholars may use it to express their preference for particular judgements in [[Sharia|Islamic law]] over other possibilities. It is one of the principles of legal thought underlying personal interpretation or [[ijtihad]].
'''''{{transl|ar|DIN|Istiḥsan}}''''' ([[Arabic]]: {{wikt-lang|ar|اِسْتِحْسَان}}) is an Arabic term for juristic discretion. In its literal sense it means "to consider something good". [[Muslim]] scholars may use it to express their preference for particular judgements in [[Sharia|Islamic law]] over other possibilities. It is one of the principles of legal thought underlying scholarly interpretation or [[ijtihad]].


A number of disputes existed amongst the classical jurists over this principle with the Hanafite jurists adopting this as a secondary source. Contemporary proponents of [[liberal movements within Islam]] have used ''istihsan'' and the similar idea of ''[[istislah]]'' (Arabic for "to deem proper") as ethical principles to favour feminist and reformist interpretations of the [[Qur'an]] and [[Sunnah]], thus looking to reform [[Sharia|Islamic law]].
A number of disputes existed amongst the classical jurists over this principle with the [[Hanafi]] school of jurisprudence and its jurists (''fuqahah'') adopting this as a secondary source. It is not the same thing as [[istislah]], which plays a prominent part in other schools, including [[Maliki|Maliki school]], or [[istihlal]], which is a derisive term for deeming something forbidden as permissible.


==Etymology==
==Etymology==
''{{transl|ar|DIN|'''Istihsan'''}}'' ({{lang|ar|استحسان}} {{IPA-ar|istiħsaːn|}}, plural {{lang|ar|}} ''{{transl|ar|DIN| }}'' {{IPA-ar||}}) is an [[Arabic language|Arabic]] word that means "to consider something good". It also applies to mean something towards which one is inclined or which one prefers, even if it is not approved by others.<ref>Nyazee, Islamic Jurisprudence, 2000, p. 231</ref>
''{{transl|ar|DIN|Istiḥsan}}'' ({{lang|ar|استحسان}} {{IPA|ar|istiħsaːn|}}) is an [[Arabic language|Arabic]] word derived from the word ''al-husn'' ({{lang|ar|الحسن}}) which means good which is the opposite meaning of ''al-qubh'' ({{lang|ar|القبح}}) which means bad. The word ''{{transl|ar|DIN|istiḥsan}}'' is used to express "decorating or improving or considering something good".<ref>Mohd Hafiz Jamaludin and Ahmad Hidayat Buang "[http://www.dakwah.unisnu.ac.id/asset/webadmin/js/kcfinder/upload/files/Vol%201,%20No%201%20(2013)%20International%20Journal%20Of%20Nusantara%20Islam.pdf Syariah Courts in Malaysia and the Development of Islamic Jurisprudence: The Study of Istihsan] {{Webarchive|url=https://web.archive.org/web/20171201030953/http://www.dakwah.unisnu.ac.id/asset/webadmin/js/kcfinder/upload/files/Vol%201,%20No%201%20(2013)%20International%20Journal%20Of%20Nusantara%20Islam.pdf |date=2017-12-01 }}" International Journal of Nusantara Islam 1, no. 1 (2014): 2.{{ISSN|2252-5904}}. {{doi| 10.15575/ijni.v1i1.33}}</ref> It also applies to mean something towards which one is inclined or which one prefers, even if it is not approved by others.<ref>Nyazee, Islamic Jurisprudence, 2000, p. 231</ref>
Technically it has been defined in several ways by Muslim jurists:
Technically it has been defined in several ways by ''[[Fuqaha]]'' (Islamic jurists):
* Bazdawi defines it as moving away from the implications of an analogy to an analogy that is stronger than it<ref name="Bazdawi">al-Bazdawi, Usul al-Bazdawi</ref>
* [[Al-Bazdawi|Bazdawi]] defines it as moving away from the implications of an analogy to an analogy that is stronger than it.<ref name="Bazdawi">al-Bazdawi, Usul al-Bazdawi</ref>
* Al-Halwani defines it as giving up an analogy for a stronger evidence from the [[Quran]], [[Sunnah]] or [[ijma]]<ref name="Bazdawi"/>
* Al-Halwani defines it as giving up an analogy for a stronger evidence from the [[Quran]], [[Sunnah]] or [[ijma]].<ref name="Bazdawi"/>
* The Maliki jurist, Ibn al-Arabi defines it as sacrificing some of the implications of an evidence by way of exception<ref name="Bazdawi"/>
* The [[Maliki]] jurist, [[Abu Bakr ibn al-Arabi|Abu Bakr Ibn al-Arabi]] defines it as sacrificing some of the implications of an evidence by way of exception.<ref name="Bazdawi"/>
* Al-Karkhi defines ''Istihsan'' as follows: "''Istihsan'' is when one takes a decision on a certain case different from that on which similar cases have been decided on the basis of its precedents, for a reason which is stronger than one found in similar cases and which requires departure from those cases."<ref>Saim Kayadibi, ''Doctrine of Istihsan (Juristic Preference) in Islamic Law'', (Konya: Tablet Kitabevi, 2007), 104. {{ISBN|978-975-6346-79-2}}</ref>


==Types of Istihsan==
==Types of Istihsan==
A number of categorisations have been employed by the jurists:
A number of categorisations have been employed by the jurists:
* Istihsan through the text ([[Nass (Islam)|nass]])
* Istihsan through the text (''[[Nass (Islam)|Nass]]'')
* Istihsan on the basis of consensus ([[ijma]])
* Istihsan on the basis of consensus (''[[Ijma]]'')
* Istihsan on the basis of what is good ([[maruf (Islam)|maruf]])
* Istihsan on the basis of what is good (''[[Ma'ruf]]'')
* Istihsan on the basis of necessity ([[darurah]])
* Istihsan on the basis of necessity (''Darurah'')
* Istihsan on the basis of benefit ([[Maslahah]])
* Istihsan on the basis of benefit (''[[Maslaha|Maslahah]]'')
* Istihsan on the basis of analogy ([[qiyas khafi]])
* Istihsan on the basis of analogy (''[[Qiyas]]'')


==Examples of Istihsan==
==Examples of Istihsan==
The following comprise classical examples for this principle:
The following comprise classical examples for this principle:
* Abu Hanifah stated that the one who eats out of forgetfulness whilst fasting should repeat the fast - however he moves away from this by the evidence of a narration that allows the fast to stand.<ref>Abd al-Aziz al-Bukhari, Kash al-Asrar, Vol 4,7</ref>
* Abu Hanifah stated that the one who eats out of forgetfulness whilst fasting should repeat the fast - however he moves away from this by the evidence of a narration that allows the fast to stand.<ref name="ReferenceA">Abd al-Aziz al-Bukhari, Kash al-Asrar, Vol 4,7</ref>
* Analogy requires that the manufacturing contract with advance payment be prohibited on the basis of analogy - however this is made permissible according to [[ijma]].
* Analogy requires that the manufacturing contract with advance payment be prohibited on the basis of analogy - however this is made permissible according to [[ijma]].
* Analogy requires that pure water be used for ablution so wells in which dirt or carcasses of animals have fallen would be prohibited for use according to strict analogy. Necessity exceptionalises this and permits the use of this water subject to formal cleaning methods are applied first.
* Analogy requires that pure water be used for ablution so wells in which dirt or carcasses of animals have fallen would be prohibited for use according to strict analogy. Necessity exceptionalises this and permits the use of this water provided formal cleaning methods are applied first.


==Criticisms==
==Criticisms==
[[Al-Shafi'i]] viewed the practice of juristic preference as a heretical usurping [[God in Islam|God]]'s sole right as the legislator of [[Sharia|Islamic law]].<ref>[[Al-Shafi'i]], [[Kitab al-Umm]], vol. 7, pg. 309-320. [[Cairo]] Dar al-fikr, 1990.</ref> It has been alleged that this criticism revolves more around the linguistic meaning of the term rather than its technical meaning,<ref>Abd al-Aziz al-Bukhari, Kash al-Asrar, Vol 4,7</ref> though modern scholarship regards Shafi'is comments as a direct criticism of the technical meaning.<ref>[[Bernard G. Weiss]], ''The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi'', pg. 672. [[Salt Lake City]]: [[University of Utah Press]], 1992.</ref> [[Malik ibn Anas]] is noted to have been asked about binding divorce. When he delivered his response, a disciple of his quickly reached for a tablet to make note of this ruling. Upon realizing what his disciple was doing, Malik asked him to stop, remarking that his opinion could change by before nightfall.<ref>Virani, Shafique N. The Ismailis in the Middle Ages: A History of Survival, A Search for Salvation (New York: Oxford University Press), 2007, p.156.</ref>
[[Al-Shafi'i]] viewed the practice of juristic preference as a heretical usurping [[God in Islam|God]]'s sole right as the legislator of [[Sharia|Islamic law]].<ref>[[Al-Shafi'i]], [[Kitab al-Umm]], vol. 7, pg. 309-320. [[Cairo]] Dar al-fikr, 1990.</ref> It has been alleged that this criticism revolves more around the linguistic meaning of the term rather than its technical meaning,<ref name="ReferenceA"/> though modern scholarship regards Shafi'is comments as a direct criticism of the technical meaning.<ref>[[Bernard G. Weiss]], ''The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi'', pg. 672. [[Salt Lake City]]: [[University of Utah Press]], 1992.</ref> [[Malik ibn Anas]] is noted to have been asked about binding divorce. When he delivered his response, a disciple of his quickly reached for a tablet to make note of this ruling. Upon realizing what his disciple was doing, Malik asked him to stop, remarking that his opinion could change before nightfall.<ref>Virani, Shafique N. The Ismailis in the Middle Ages: A History of Survival, A Search for Salvation (New York: Oxford University Press), 2007, p.156.</ref>


Sarakhsi points out that some jurists have criticised Istihsan on the grounds that the analogy is being given up for personal opinion, something prohibited in Islam. He refutes this understanding as incomprehensible, as no jurist would give up an authority for something that lacked evidence.<ref>al-Sarakhsi, Kitab al-Usul</ref>
Sarakhsi points out that some jurists have criticised Istihsan on the grounds that the analogy is being given up for personal opinion, something prohibited in Islam. He refutes this understanding as incomprehensible, as no jurist would give up an authority for something that lacked evidence.<ref>al-Sarakhsi, Kitab al-Usul</ref>
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==References==
==References==
{{reflist}}
{{reflist}}

==Further reading==
* Kamali, Mohammad Hashim. ''Principles of Islamic Jurisprudence'' (2)
* Kamali, Mohammad Hashim. ''Principles of Islamic Jurisprudence'' (2)
* Nyazee, Imran Ahsan Khan. ''Islamic Jurisprudence''
* Nyazee, Imran Ahsan Khan. ''Islamic Jurisprudence''
* Kayadibi, Saim. "Istihsan: The Doctrine of Juristic Preference in Islamic law. Islamic Book Trust, Kuala Lumpur. ISBN 978-967-5-06247-6
* Kayadibi, Saim. ''Istihsan: The Doctrine of Juristic Preference in Islamic law''. Islamic Book Trust, Kuala Lumpur. {{ISBN|978-967-5-06247-6}}


[[Category:Fiqh]]
[[Category:Islamic jurisprudence]]
[[Category:Arabic words and phrases in Sharia]]

Latest revision as of 18:51, 19 September 2024

Part of a series on Islam
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Legal vocations and titles

Istiḥsan (Arabic: ‏اِسْتِحْسَان‎) is an Arabic term for juristic discretion. In its literal sense it means "to consider something good". Muslim scholars may use it to express their preference for particular judgements in Islamic law over other possibilities. It is one of the principles of legal thought underlying scholarly interpretation or ijtihad.

A number of disputes existed amongst the classical jurists over this principle with the Hanafi school of jurisprudence and its jurists (fuqahah) adopting this as a secondary source. It is not the same thing as istislah, which plays a prominent part in other schools, including Maliki school, or istihlal, which is a derisive term for deeming something forbidden as permissible.

Etymology

[edit]

Istiḥsan (استحسان [istiħsaːn]) is an Arabic word derived from the word al-husn (الحسن) which means good which is the opposite meaning of al-qubh (القبح) which means bad. The word istiḥsan is used to express "decorating or improving or considering something good".[1] It also applies to mean something towards which one is inclined or which one prefers, even if it is not approved by others.[2] Technically it has been defined in several ways by Fuqaha (Islamic jurists):

  • Bazdawi defines it as moving away from the implications of an analogy to an analogy that is stronger than it.[3]
  • Al-Halwani defines it as giving up an analogy for a stronger evidence from the Quran, Sunnah or ijma.[3]
  • The Maliki jurist, Abu Bakr Ibn al-Arabi defines it as sacrificing some of the implications of an evidence by way of exception.[3]
  • Al-Karkhi defines Istihsan as follows: "Istihsan is when one takes a decision on a certain case different from that on which similar cases have been decided on the basis of its precedents, for a reason which is stronger than one found in similar cases and which requires departure from those cases."[4]

Types of Istihsan

[edit]

A number of categorisations have been employed by the jurists:

  • Istihsan through the text (Nass)
  • Istihsan on the basis of consensus (Ijma)
  • Istihsan on the basis of what is good (Ma'ruf)
  • Istihsan on the basis of necessity (Darurah)
  • Istihsan on the basis of benefit (Maslahah)
  • Istihsan on the basis of analogy (Qiyas)

Examples of Istihsan

[edit]

The following comprise classical examples for this principle:

  • Abu Hanifah stated that the one who eats out of forgetfulness whilst fasting should repeat the fast - however he moves away from this by the evidence of a narration that allows the fast to stand.[5]
  • Analogy requires that the manufacturing contract with advance payment be prohibited on the basis of analogy - however this is made permissible according to ijma.
  • Analogy requires that pure water be used for ablution so wells in which dirt or carcasses of animals have fallen would be prohibited for use according to strict analogy. Necessity exceptionalises this and permits the use of this water provided formal cleaning methods are applied first.

Criticisms

[edit]

Al-Shafi'i viewed the practice of juristic preference as a heretical usurping God's sole right as the legislator of Islamic law.[6] It has been alleged that this criticism revolves more around the linguistic meaning of the term rather than its technical meaning,[5] though modern scholarship regards Shafi'is comments as a direct criticism of the technical meaning.[7] Malik ibn Anas is noted to have been asked about binding divorce. When he delivered his response, a disciple of his quickly reached for a tablet to make note of this ruling. Upon realizing what his disciple was doing, Malik asked him to stop, remarking that his opinion could change before nightfall.[8]

Sarakhsi points out that some jurists have criticised Istihsan on the grounds that the analogy is being given up for personal opinion, something prohibited in Islam. He refutes this understanding as incomprehensible, as no jurist would give up an authority for something that lacked evidence.[9]

References

[edit]
  1. ^ Mohd Hafiz Jamaludin and Ahmad Hidayat Buang "Syariah Courts in Malaysia and the Development of Islamic Jurisprudence: The Study of Istihsan Archived 2017-12-01 at the Wayback Machine" International Journal of Nusantara Islam 1, no. 1 (2014): 2.ISSN 2252-5904. doi:10.15575/ijni.v1i1.33
  2. ^ Nyazee, Islamic Jurisprudence, 2000, p. 231
  3. ^ a b c al-Bazdawi, Usul al-Bazdawi
  4. ^ Saim Kayadibi, Doctrine of Istihsan (Juristic Preference) in Islamic Law, (Konya: Tablet Kitabevi, 2007), 104. ISBN 978-975-6346-79-2
  5. ^ a b Abd al-Aziz al-Bukhari, Kash al-Asrar, Vol 4,7
  6. ^ Al-Shafi'i, Kitab al-Umm, vol. 7, pg. 309-320. Cairo Dar al-fikr, 1990.
  7. ^ Bernard G. Weiss, The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi, pg. 672. Salt Lake City: University of Utah Press, 1992.
  8. ^ Virani, Shafique N. The Ismailis in the Middle Ages: A History of Survival, A Search for Salvation (New York: Oxford University Press), 2007, p.156.
  9. ^ al-Sarakhsi, Kitab al-Usul

Further reading

[edit]
  • Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence (2)
  • Nyazee, Imran Ahsan Khan. Islamic Jurisprudence
  • Kayadibi, Saim. Istihsan: The Doctrine of Juristic Preference in Islamic law. Islamic Book Trust, Kuala Lumpur. ISBN 978-967-5-06247-6
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