(Arabic: ) is an Arabic term for juristic discretion. In its literal sense it means "to consider something good". Muslim scholars may use it to express their preference for particular judgements in Sharia over other possibilities. It is one of the principles of legal thought underlying scholarly interpretation or ijtihad.
A number of disputes existed amongst the classical jurists over this principle with the Hanafi school of jurisprudence and its jurists ( fuqahah) adopting this as a secondary source. It is not the same thing as istislah, which plays a prominent part in other schools, including Maliki, or istihlal, which is a derisive term for deeming something forbidden as permissible.
Etymology
(استحسان ) is an Arabic language word derived from the word al-husn (الحسن) which means good which is the opposite meaning of al-qubh (القبح) which means bad. The word is used to express "decorating or improving or considering something good".
[Mohd Hafiz Jamaludin and Ahmad Hidayat Buang " Syariah Courts in Malaysia and the Development of Islamic Jurisprudence: The Study of Istihsan " International Journal of Nusantara Islam 1, no. 1 (2014): 2.. ] It also applies to mean something towards which one is inclined or which one prefers, even if it is not approved by others.
[Nyazee, Islamic Jurisprudence, 2000, p. 231]
Technically it has been defined in several ways by
Fuqaha (Islamic jurists):
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Al-Bazdawi defines it as moving away from the implications of an analogy to an analogy that is stronger than it.
[al-Bazdawi, Usul al-Bazdawi]
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Al-Halwani defines it as giving up an analogy for a stronger evidence from the Quran, Sunnah or ijma.
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The Maliki jurist, Abu Bakr Ibn al-Arabi defines it as sacrificing some of the implications of an evidence by way of exception.
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Al-Karkhi defines Istihsan as follows: " Istihsan is when one takes a decision on a certain case different from that on which similar cases have been decided on the basis of its precedents, for a reason which is stronger than one found in similar cases and which requires departure from those cases."
[Saim Kayadibi, Doctrine of Istihsan (Juristic Preference) in Islamic Law, (Konya: Tablet Kitabevi, 2007), 104. ]
Types of Istihsan
A number of categorisations have been employed by the jurists:
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Istihsan through the text ( Nass)
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Istihsan on the basis of consensus ( Ijma)
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Istihsan on the basis of what is good ( Ma'ruf)
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Istihsan on the basis of necessity ( Darurah)
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Istihsan on the basis of benefit ( )
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Istihsan on the basis of analogy ( Qiyas)
Examples of Istihsan
The following comprise classical examples for this principle:
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Abu Hanifah stated that the one who eats out of forgetfulness whilst fasting should repeat the fast - however he moves away from this by the evidence of a narration that allows the fast to stand.
[Abd al-Aziz al-Bukhari, Kash al-Asrar, Vol 4,7]
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Analogy requires that the manufacturing contract with advance payment be prohibited on the basis of analogy - however this is made permissible according to ijma.
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Analogy requires that pure water be used for ablution so wells in which dirt or carcasses of animals have fallen would be prohibited for use according to strict analogy. Necessity exceptionalises this and permits the use of this water provided formal cleaning methods are applied first.
Criticisms
Al-Shafi'i viewed the practice of juristic preference as a heretical usurping God's sole right as the legislator of
Sharia.
[Al-Shafi'i, Kitab al-Umm, vol. 7, pg. 309-320. Cairo Dar al-fikr, 1990.] It has been alleged that this criticism revolves more around the linguistic meaning of the term rather than its technical meaning,
though modern scholarship regards Shafi'is comments as a direct criticism of the technical meaning.
[Bernard G. Weiss, The Search for God's Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi, pg. 672. Salt Lake City: University of Utah Press, 1992.] Malik ibn Anas is noted to have been asked about binding divorce. When he delivered his response, a disciple of his quickly reached for a tablet to make note of this ruling. Upon realizing what his disciple was doing, Malik asked him to stop, remarking that his opinion could change before nightfall.
[Virani, Shafique N. The Ismailis in the Middle Ages: A History of Survival, A Search for Salvation (New York: Oxford University Press), 2007, p.156.]
Sarakhsi points out that some jurists have criticised Istihsan on the grounds that the analogy is being given up for personal opinion, something prohibited in Islam. He refutes this understanding as incomprehensible, as no jurist would give up an authority for something that lacked evidence.[al-Sarakhsi, Kitab al-Usul]
Further reading
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Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence (2)
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Nyazee, Imran Ahsan Khan. Islamic Jurisprudence
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Kayadibi, Saim. Istihsan: The Doctrine of Juristic Preference in Islamic law. Islamic Book Trust, Kuala Lumpur.
