GT20302

USUL FIQH/ISLAMIC
JURISPRUDENCE

Istihsan (JURISTIC
PREFERENCE)

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 Contents

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

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 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.

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 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.

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 WALLAHU ‘ALAM
THANK YOU VERY MUCH
FOR YOUR ATTENTION

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