Xpert
12-12-2011, 12:07 AM
Istihsan
Q. Discuss and elaborate Istidlal and Istihsan. (1993, 1997, 2000)
Q. Why some jurists did not approve Istihsan? Did any important development of the law take place under this doctrine? Discuss (1993)
1. Introduction
Istihsan means preference of one over another considering the formed good.
When a rule of law deduced by analogy is either in conflict with Ijma or is likely to causes inconvenience owing to its narrowness. The Hanfi jurists refuse to follow it and give preference to rule, which in his opinion would better advance the welfare of man and the interest of justice.
2. Meaning and definition of Istihsan
(I) Meaning
In its literal sense Istihsan means
“to consider something good.”
(II) Definition
(i) By Kharkhi
“In case of some legal problem exception is created from its analogous precedent on the basis of some stronger argument which render it distinguishable.”
(ii) By Al Bazdawi
“Moving away from the implications of analogy to an analogy that is stronger than it, or it is the restriction of analogy by an evidence that is stronger than it.”
(iii) By Al Hawani
3. Recoginition of principal of Istihsan
The doctrine of Istihsan is accepted by the Hanafi and Maliki Schools only and not the others.
4. Reasons for Istihsan
(I) Quranic view
“Verily, we call upon you to be a man of judgement and do justice.”
“Those who intently listen to us, they follow the best of it, those are the ones whom Allah has guided and those are the ones endowed with understanding.”
(II) Ahadith perspective
“Don’t cause injury to other and don’t suffer a loss yourself.”
“What does Muslim consider better Allah also consider it better.”
5. Origin of Istihsan
Abu Hanifa was the expounder of this doctrine. He feel that the man has been endowed with intelligence to use his own common sense so that he does what he thinks fit. The Hanafi lawyers speak of this doctrine Asif it was a species of analogical deduction. They call it as hidden analogy.
6. Kinds of Istihsan
Following are different kinds of Istihsan:
(i) Istihsan- e- Qiyasi
(ii) Istihsan- e- Zarurat
(iii) Istihsan- e- Ijma
(I) Istihsan-E-Qiyasi
Under this type of Istihsan one can bend the law in favour of people and society by giving preference to one Qiyas over the other Qiyas i. e. preference of Qiyas Khafi over the Qiyas Jali.
(II) Isthsan-E-Zarurat
In this type it is to give preference to one Sunnah over the other Sunnah.
Example
Usually all Muslims say prayer by Standing, but there are more than one Sunnah about saying prayer i. e. by standing. By sitting or by lying on the bed or floor. One is at liberty to prefer one way over the other but according to his need.
(III) Istihsan-E-Lima
If two Ijma are available on a similar question of law’ then under Istihsan-e-Ijma one can adopt that one which is closer to Quran and Sunnah.
7. Importance of Isthsan as s source of law
Islamic legal system is not a rigid one rather is much flexible to be adopted according to the changing circumstances and needs of society the principal of Istihsan provides an opportunity to the jurists to interpret the law according to the spirit and true intention of Islam, and avoids inconvenience and, hardship within the limits prescribed by Quran and Sunnah Islamic Shariah is based on the principle of convenience equity and public good, which are also the main features of Istisan. It is the more effective mean than Qiyas for introducing new elements, since in its case the rules for determining the cause are even subtler than in the case of Qiyes, and consequently afford greater probabilities.
8. Examples of Istihsan
(i) According to Qiyas, the appointment of minor is invalid for the trustee as he should major. But according to Istihsan, a minor is recognized as trustee and the Qazi should appoint a competent person to act as his Guardian through whom the minor will administer the property till he attains the age of puberty.
(ii) Islam gives a great importance to the proper dress of a woman. No one except her husband can see her naked but on account of necessity a physician may be allowed.
( iii) Analogy require that ritually pure water should be used for ablution Isithsan requires that the use of wells, in which dirt or carcasses of animals have fallen, be permitted.
9. Criticism against Istihsan
Following criticism has been raised against the doctrine of Istishsan.
(I) By Imam Shafi
Imam Shafi has criticized Istihsan in his books Kitab-ul-Urn and Kitab-ul-Risala. He is of the view that Istihsan means the subjective appreciation of a jurist regarding the interpretation of laws laid down in Holy Quran and Sunnah. Therefore it is similar to create a new Sharaiah. He is reported to have said.
“Whoever restorts to Istihsan makes laws.”
(II) By Imam Ghazali
Imam Ghazail criticized Istihsan as a source of law. He said that Islam does not allow to neglect the laws laid down in Holy Quran and Sunnah but by exercising Istihsan , new Sharish can be created.
(III) By orientalists
They say that whet it is universally established that laws laid down in Holy Quran and Sunnah cannot be changed, then how Istihsan can be exercised by ignoring such laws. This objection is not justified because no Muslim could reject the law of Quran and Sunnah.
10. Istihsan as Equity
It has rightly stated by sir Abdur Rahim that Quran and Sunnah are legislation, and if analogy is common law, Istihsan is its equity. Just as in the case of English law, the concept of equity developed side by said with common law mainly designed to remedy the strictness of the law and to impart justice in the real sense of the word in the same manner, Istihsan developed as the watchdog of analogical deduction.
11. Differences between British concept of Equity and Istihsan
I. As to history
Istihsan is an olden concept.
Equity is not old as the principle of Istihsan.
II. As to basis
Istihsan does not basis on Arbitrary opinion.
Equity basis on Arbitrary opinion.
III. As to scope
Istihsan has wider scope.
Equity has less scope.
IV. As to sources
Sources of Istihsan are Quran, Sunnah, and Ijma.
V. As to meaning
Equity means natural justice.
Istihsan means preferring or considering a thing to be good.
12. Conclusion
To conclude , I can say, that the public interest is regarded in Sariah as a basis of law. The Hanafis call it “Istihsan”. Imam Abu Hanifa was of the opinion that strict adherence to Qiyas or analogy would deprive law of that elasticity and adaptability which alone makes it the handmaid of justice. So by exercising Istihsan the preference may be given to that law which is for the welfare of the people.
Q. Discuss and elaborate Istidlal and Istihsan. (1993, 1997, 2000)
Q. Why some jurists did not approve Istihsan? Did any important development of the law take place under this doctrine? Discuss (1993)
1. Introduction
Istihsan means preference of one over another considering the formed good.
When a rule of law deduced by analogy is either in conflict with Ijma or is likely to causes inconvenience owing to its narrowness. The Hanfi jurists refuse to follow it and give preference to rule, which in his opinion would better advance the welfare of man and the interest of justice.
2. Meaning and definition of Istihsan
(I) Meaning
In its literal sense Istihsan means
“to consider something good.”
(II) Definition
(i) By Kharkhi
“In case of some legal problem exception is created from its analogous precedent on the basis of some stronger argument which render it distinguishable.”
(ii) By Al Bazdawi
“Moving away from the implications of analogy to an analogy that is stronger than it, or it is the restriction of analogy by an evidence that is stronger than it.”
(iii) By Al Hawani
3. Recoginition of principal of Istihsan
The doctrine of Istihsan is accepted by the Hanafi and Maliki Schools only and not the others.
4. Reasons for Istihsan
(I) Quranic view
“Verily, we call upon you to be a man of judgement and do justice.”
“Those who intently listen to us, they follow the best of it, those are the ones whom Allah has guided and those are the ones endowed with understanding.”
(II) Ahadith perspective
“Don’t cause injury to other and don’t suffer a loss yourself.”
“What does Muslim consider better Allah also consider it better.”
5. Origin of Istihsan
Abu Hanifa was the expounder of this doctrine. He feel that the man has been endowed with intelligence to use his own common sense so that he does what he thinks fit. The Hanafi lawyers speak of this doctrine Asif it was a species of analogical deduction. They call it as hidden analogy.
6. Kinds of Istihsan
Following are different kinds of Istihsan:
(i) Istihsan- e- Qiyasi
(ii) Istihsan- e- Zarurat
(iii) Istihsan- e- Ijma
(I) Istihsan-E-Qiyasi
Under this type of Istihsan one can bend the law in favour of people and society by giving preference to one Qiyas over the other Qiyas i. e. preference of Qiyas Khafi over the Qiyas Jali.
(II) Isthsan-E-Zarurat
In this type it is to give preference to one Sunnah over the other Sunnah.
Example
Usually all Muslims say prayer by Standing, but there are more than one Sunnah about saying prayer i. e. by standing. By sitting or by lying on the bed or floor. One is at liberty to prefer one way over the other but according to his need.
(III) Istihsan-E-Lima
If two Ijma are available on a similar question of law’ then under Istihsan-e-Ijma one can adopt that one which is closer to Quran and Sunnah.
7. Importance of Isthsan as s source of law
Islamic legal system is not a rigid one rather is much flexible to be adopted according to the changing circumstances and needs of society the principal of Istihsan provides an opportunity to the jurists to interpret the law according to the spirit and true intention of Islam, and avoids inconvenience and, hardship within the limits prescribed by Quran and Sunnah Islamic Shariah is based on the principle of convenience equity and public good, which are also the main features of Istisan. It is the more effective mean than Qiyas for introducing new elements, since in its case the rules for determining the cause are even subtler than in the case of Qiyes, and consequently afford greater probabilities.
8. Examples of Istihsan
(i) According to Qiyas, the appointment of minor is invalid for the trustee as he should major. But according to Istihsan, a minor is recognized as trustee and the Qazi should appoint a competent person to act as his Guardian through whom the minor will administer the property till he attains the age of puberty.
(ii) Islam gives a great importance to the proper dress of a woman. No one except her husband can see her naked but on account of necessity a physician may be allowed.
( iii) Analogy require that ritually pure water should be used for ablution Isithsan requires that the use of wells, in which dirt or carcasses of animals have fallen, be permitted.
9. Criticism against Istihsan
Following criticism has been raised against the doctrine of Istishsan.
(I) By Imam Shafi
Imam Shafi has criticized Istihsan in his books Kitab-ul-Urn and Kitab-ul-Risala. He is of the view that Istihsan means the subjective appreciation of a jurist regarding the interpretation of laws laid down in Holy Quran and Sunnah. Therefore it is similar to create a new Sharaiah. He is reported to have said.
“Whoever restorts to Istihsan makes laws.”
(II) By Imam Ghazali
Imam Ghazail criticized Istihsan as a source of law. He said that Islam does not allow to neglect the laws laid down in Holy Quran and Sunnah but by exercising Istihsan , new Sharish can be created.
(III) By orientalists
They say that whet it is universally established that laws laid down in Holy Quran and Sunnah cannot be changed, then how Istihsan can be exercised by ignoring such laws. This objection is not justified because no Muslim could reject the law of Quran and Sunnah.
10. Istihsan as Equity
It has rightly stated by sir Abdur Rahim that Quran and Sunnah are legislation, and if analogy is common law, Istihsan is its equity. Just as in the case of English law, the concept of equity developed side by said with common law mainly designed to remedy the strictness of the law and to impart justice in the real sense of the word in the same manner, Istihsan developed as the watchdog of analogical deduction.
11. Differences between British concept of Equity and Istihsan
I. As to history
Istihsan is an olden concept.
Equity is not old as the principle of Istihsan.
II. As to basis
Istihsan does not basis on Arbitrary opinion.
Equity basis on Arbitrary opinion.
III. As to scope
Istihsan has wider scope.
Equity has less scope.
IV. As to sources
Sources of Istihsan are Quran, Sunnah, and Ijma.
V. As to meaning
Equity means natural justice.
Istihsan means preferring or considering a thing to be good.
12. Conclusion
To conclude , I can say, that the public interest is regarded in Sariah as a basis of law. The Hanafis call it “Istihsan”. Imam Abu Hanifa was of the opinion that strict adherence to Qiyas or analogy would deprive law of that elasticity and adaptability which alone makes it the handmaid of justice. So by exercising Istihsan the preference may be given to that law which is for the welfare of the people.