Istihsan
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Transcript of Istihsan
![Page 1: Istihsan](https://reader036.fdocuments.net/reader036/viewer/2022071704/55a7d8021a28ab9b638b474a/html5/thumbnails/1.jpg)
ISTIHSAN
![Page 2: Istihsan](https://reader036.fdocuments.net/reader036/viewer/2022071704/55a7d8021a28ab9b638b474a/html5/thumbnails/2.jpg)
Definition
• Literal meaning
– To approve
– To deem something preferable
• Juristic meaning
– A method of exercising personal opinion
in order to avoid any rigidity and
unfairness that might result from literal
enforcement of the existing law
![Page 3: Istihsan](https://reader036.fdocuments.net/reader036/viewer/2022071704/55a7d8021a28ab9b638b474a/html5/thumbnails/3.jpg)
• 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.
![Page 4: Istihsan](https://reader036.fdocuments.net/reader036/viewer/2022071704/55a7d8021a28ab9b638b474a/html5/thumbnails/4.jpg)
Jurists’ Definitions
• Hanafis:
– Istihsan is to depart from the existing
precedent, by taking a decision in a
certain case different from that on which
similar cases have been decided, for a
reason stronger than the one that is
obtained in those cases .– this is based
on al-kharki’s definition
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• Al-Sarakhsi adds:
– The precedent which is set aside by
istihsan normally consists of an
established analogy which may be
abandoned in a favour of a superior
proof, that is the Quran, the Sunnah,
necessity (dorurah) or a stronger qiyas.
![Page 6: Istihsan](https://reader036.fdocuments.net/reader036/viewer/2022071704/55a7d8021a28ab9b638b474a/html5/thumbnails/6.jpg)
• Hanbali:
– Istihsan is the abandonment of one legal
norm (hukm) for another which is
considered better on the basis of the
Quran, Sunnah, or consensus. –
according to Ibnu Taymiyyah.
![Page 7: Istihsan](https://reader036.fdocuments.net/reader036/viewer/2022071704/55a7d8021a28ab9b638b474a/html5/thumbnails/7.jpg)
• Maliki:
– Istihsan is to abandon exceptionally what
is required by the law because applying
the existing law would lead to a departure
from some of its own objectives – Ibnu al-
Arabi.
![Page 8: Istihsan](https://reader036.fdocuments.net/reader036/viewer/2022071704/55a7d8021a28ab9b638b474a/html5/thumbnails/8.jpg)
Examples of Istihsan
i. The ruling of S.Umar in cases of theft
during a widespread famine – cutting
of hands of thieves was suspended
ii. The ban imposed on sale of slave’s
mother (ummahat al-aulad)
iii. The ban on marriage with kitabiyyahs
in certain cases
-on grounds of public interest, equity
and justice.
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iv. The judgement of ‘Umar in the caseof Muhammad ibn Salamah.
- Salamah’s neighbour asked for apermission if he could extend a watercanal through Salamah’s property, and hewas granted the request on the groundthat no harm was likely to accrue toSalamah
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v. Permission to women to travelwithout mahram under exceptionalsituation.
vi. Methods of proof in the law ofevidence extends to documentaryevidence, photography, soundrecording, laboratory analysis, DNAtest, etc. - due to changes in socialsituations
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– the standard form of evidence in Islamic
law is oral testimony. Normally two adil
witnesses are required and four
witnesses in certain cases.