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Lecture Notes 7 - Usul Fiqh

This document discusses the concept of Istihsan in Islamic jurisprudence. Istihsan refers to exercising personal judgment to avoid rigidity and unfairness that could result from literal enforcement of existing law. The document outlines different types of Istihsan, including those based on analogy, texts of the Quran and Hadith, consensus, necessity, custom, and public interest. Examples are provided for each type to illustrate how Istihsan is used to issue rulings in various legal cases.

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388 views

Lecture Notes 7 - Usul Fiqh

This document discusses the concept of Istihsan in Islamic jurisprudence. Istihsan refers to exercising personal judgment to avoid rigidity and unfairness that could result from literal enforcement of existing law. The document outlines different types of Istihsan, including those based on analogy, texts of the Quran and Hadith, consensus, necessity, custom, and public interest. Examples are provided for each type to illustrate how Istihsan is used to issue rulings in various legal cases.

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GT20302

USUL FIQH/ISLAMIC
JURISPRUDENCE

Istihsan (JURISTIC
PREFERENCE)

11/21/09 Copyright Reserved 2008@Mohd Zulkifli Muhammad 1


Contents

• Definition
• Proof (Hujiyyah) of Istihsan
• Varieties of Istihsan

11/21/09 Copyright Reserved 2008@Mohd Zulkifli Muhammad 2


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.

11/21/09 Copyright Reserved 2008@Mohd Zulkifli Muhammad 3


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.

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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).

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Proof (Hujjiyyah) of
Istihsan
• “No harm shall be inflicted or
reciprocated in Islam” (Ibn Majah).
3) Ijma’:
• from the contract of Salam sale.

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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…

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Varieties of Istihsan
• Such as=
a) the right of water (haqq al-shurb),
b) right of passage (haqq al-murur) and
c) the right of flow (haqq al-masil), even if
these are not explicitly mentioned in the
instrument of waqf.

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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.

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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.
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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.

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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.

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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.

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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.
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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.

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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.
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Varieties of Istihsan

• 5) Istihsan which is authorised by


custom. e.g: the object of sale be
accurately defined and quantified.

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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.

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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.

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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.

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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.

11/21/09 Copyright Reserved 2008@Mohd Zulkifli Muhammad 21


TAKE HOME TEST

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WALLAHU ‘ALAM
THANK YOU VERY MUCH
FOR YOUR ATTENTION

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