AFS2023 USUL FIQH/ISLAMIC JURISPRUDENCE Istihsan (JURISTIC PREFERENCE) 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Contents Definition Proof (Hujiyyah) of Istihsan Varieties of Istihsan 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Definition Istihsan literally means ‘to approve, or to deem something preferable’. It is derivation from hasuna, which means being a good or beautiful. Istihsan is a method of exercising personal opinion in order to avoid any rigidity and unfairness that might result from the literal enforcement of the existing law. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Definition The Hanafi jurist: considers istihsan to be a method of seeking facility and ease in legal injunctions. It involves a departure from Qiyas in favour of a ruling which dispels hardship and brings about ease to the people. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Proof (Hujjiyyah) of Istihsan 1) al-Quran: “And follow the best (ahsan) of what has been sent down to you from your Lord” (al-Zumar,39:55). 2) al-Hadith: “What the Muslims deem to be good is good in the sight of God” (al-Bukhari). 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Proof (Hujjiyyah) of Istihsan “No harm shall be inflicted or reciprocated in Islam” (Ibn Majah). 3) Ijma’: from the contract of Salam sale. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan 1) Istihsan which is based on the qiyas khafi it may be noted that under Hanafi law, the waqf (charitable endowment) of cultivated land includes the transfer of all the ancillary rights (the so-called 'easements') which are attached to the property… 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan Such as= the right of water (haqq al-shurb), right of passage (haqq al-murur) and the right of flow (haqq al-masil), even if these are not explicitly mentioned in the instrument of waqf. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan It is a rule of the Islamic law of contract, including the contract of sale, that the object of contract must be clearly identified in detail. What is not specified in the contract, in other words, is not included therein. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan 2) Istihsan which is based in the nass of the Qur'an and the Sunnah. e.g: (a) the contract of ijarah (lease or hire). According to a general rule of the Shari'ah law of contract, an object which does not exist at the time of contract may not be sold. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan However, ijarah has been validated despite its being the sale of the usufruct (i.e. in exchange for rent) which is usually non-existent at the moment the contract is concluded. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan Analogy would thus invalidate ijarah, but istihsan exceptionally validates it on the authority of the Sunnah (and ijma'), proofs which are stronger than analogy and which justify a departure from it. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan (b) the option of cancellation (khabar al-shart). It is employed when a person buys an object on condition that he may revoke the contract within the next three days or so. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan 3) Istihsan which is authorised by ijma’. e.g: the contract for manufacture of goods. Recourse to this form of istihsan is made when someone places an order with a craftsman for certain goods to be made at a price which is determined at the time of the contract. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan Istihsan validates this transaction despite the fact that the object of the contract is non-existent at the time the order is placed. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan 4) Istihsan which is based on necessity (darurah). e.g: the method adopted for the purification of polluted wells. If a well, or a pond for that matter, is contaminated by impure substances, its water may not be used for ablution. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan 5) Istihsan which is authorised by custom. e.g: the object of sale be accurately defined and quantified. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan However, popular custom has departed from this rule in the case of entry to public baths where the users are charged a fixed price without any agreement on the amount of water they use or the duration of their stay. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan Another example is bay' al-ta ati, or sale by way of `give and take', where the general rule that offer and acceptance must be verbally expressed is not applied owing to customary practice. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan 6) Istihsan which is founded on considerations of public interest (maslahah). e.g: the responsibility of a trustee (amin) for the loss of goods which he receives in his custody. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

Copyright Reserved 2012@Mohd Zulkifli Muhammad Varieties of Istihsan This istihsan has been justified on grounds of public interest so that trustees and tradesmen may exercise greater care in safeguarding people's property. 4/16/2017 Copyright Reserved 2012@Mohd Zulkifli Muhammad

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