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TOPIC : ISTIHSAN (EQUITY IN ISLAMIC LAW/PREFERENCE). Definition :. Literal : to approve/ to deem something preferable. Sharie : a method of exercising personal opinion in order to avoid rigidity & unfairness that might result from the literal enforcement of the existing law.
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Definition : • Literal : to approve/ to deem something preferable. • Sharie : a method of exercising personal opinion in order to avoid rigidity & unfairness that might result from the literal enforcement of the existing law. • a juristic preference : involves setting aside an established analogy in favour of an alternative ruling which serves the ideals of justice & public interest in abetter way. • an inspiration by fairness & conscience base on the value & principles of the Shariah – its an integral part of the Shariah.
Cont’d • 'Equity' is a Western legal concept which is grounded in the idea of fairness and conscience, and derives legitimacy from a belief in natural rights or justice beyond positive law. Istihsan in Islamic law, and equity in Western law, are both inspired by the principle of fairness and conscience, and both authorize departure from a rule of positive law when its enforcement leads to unfair results.
Differences btn Istihsan & Equity in Western • The main difference between them is, however, to be sought in the overall reliance of equity on the concept of natural law, and of istihsan on the underlying values and principles of the Shari'ah. But this difference need not be over-emphasised if one bears in mind the convergence of values between the Shari`ah and natural law.
Notwithstanding their different approaches to the question of right and wrong, for example, the values upheld by natural law and the divine law of Islam are substantially concurrent. Briefly, both assume that right and wrong are not a matter of relative convenience for the individual, but derive from an eternally valid standard which is ultimately independent of human cognizance and adherence.
But natural law differs with the divine law in its assumption that right and wrong are inherent in nature. From an Islamic perspective, right and wrong are determined, not by reference to the 'nature of things', but because God has determined them as such.
The Shari'ah is an embodiment of the will of God, the Lord of the universe and the supreme arbiter of values. If equity is defined as a law of nature superior to all other legal rules, written or otherwise, then this is obviously not what is meant by istihsan. For istihsan does not recognise the superiority of any other law over the divine revelation, and the solutions which it offers are for the most part based on principles which are upheld in the divine law.
Unlike equity, which is founded in the recognition of a superior law, istihsan does not seek to constitute an independent authority beyond the Shari'ah. Istihsan, in other words, is an integral part of the Shari'ah, and differs with equity in that the latter recognises a natural law apart from, and essentially superior to, positive law.
A branch of ijtihad & has played a prominent role in the adaptation of Islamic law to changing needs of society. • Provided Islamic law with the necessary means with which to encourage flexibility & growth. • It remains flexible & can be used for a variety of purposes. • validated by Hanafi, Malikiki & Hambali.
Examples : • Saidina Umar not to enforce the hadd penalty of the amputatioin of the hand for theft during a widespread famine. • a ban which Saidina Umar imposed on the sale of slave-mother (ummul walad). • On these 2 e.g. Saidina Umar has set aside the established law in these cases on grounds of public interest, equity & justice.
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.
Proof/Hujjiah of Istihsan : • (Surah Al Zumar : 18) • “…& gv 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) • “ …& 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.”
Ra’Qiyas and Istihsan • Istihsan is closely related to both ra'y and analogical reasoning. As already stated, istihsan usually involves a departure from qiyas in the first place, and then the departure in question often means giving preference to one qiyas over another. Broadly speaking, qiyas is the logical extension of an original ruling of the Qur'an, the Sunnah (or even ijma') to a similar case for which no direct ruling can be found in these sources.
Qiyas in this way extends the ratio legis of the divine revelation through the exercise of human reasoning. There is, in other words, a rationalist component to qiyas, which consists, in the most part, of a recourse to personal opinion (ra'y). This is also true of istihsan, which relies even more heavily on ra'y.
Cont’d • It is this rationalist tendency verging on personal opinion in both qiyas and istihsan which has been the main target of criticism by al-Shafi'i and others. Hence the controversy over the validity of istihsan is essentially similar to that encountered with regard to qiyas.
