Istihsan
Istihsan (استحسان) is an 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 Islamic law over other possibilities. It is one of the principles of legal thought underlying personal 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 Islamic law.
Etymology
Istihsan (استحسان [istiħsaːn], plural [] Error: {{Lang}}: no text (help) DIN ar) is an 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.[1] Technically it has been defined in several ways by Muslim jurists:
- Bazdawi defines it as moving away from the implications of an analogy to an analogy that is stronger than it[2]
- Al-Halwani defines it as giving up an analogy for a stronger evidence from the Quran, Sunnah or ijma[2]
- The Maliki jurist, Ibn al-Arabi defines it as sacrificing some of the implications of an evidence by way of exception[2]
Types of Istihsan
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 (maruf)
- Istihsan on the basis of necessity (darurah)
- Istihsan on the basis of benefit (Maslahah)
- Istihsan on the basis of analogy (qiyas khafi)
Examples of Istihsan
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.[3]
- 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.
Criticisms
Al-Shafi'i viewed the practice of juristic preference as a heretical usurping God's sole right as the legislator of Islamic law.[4] 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.[6] 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.[7]
Sarakhsi points out that some jurists have criticised Istihsan on the grounds that the analogy us 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.[8]
References
- ^ Nyazee, Islamic Jurisprudence, 2000, p. 231
- ^ a b c al-Bazdawi, Usul al-Bazdawi
- ^ Abd al-Aziz al-Bukhari, Kash al-Asrar, Vol 4,7
- ^ Al-Shafi'i, Kitab al-Umm, vol. 7, pg. 309-320. Cairo Dar al-fikr, 1990.
- ^ Abd al-Aziz al-Bukhari, Kash al-Asrar, Vol 4,7
- ^ 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.
- ^ 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.
- ^ al-Sarakhsi, Kitab al-Usul
- 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