Istihsan

Question 1

Literal meaning of Istihsan

Answer 1

“to approve or deem something preferable”

Question 2

What is Istihsan?

Answer 2

Alternative ruling that is more flexible and gives Muslims options to do something in easier way

Question 3

Importance of Istihsan

Answer 3

1. Only method of Islamic jurisprudence developed as means of avoiding hardship
2. May provide solution that alleviates hardship while being in line with Maqasid Shariah
3. Enforcing existing law may be detrimental
4. Departure from existing law is only way to achieving solution that is fair for all parties
5. Promotes growth and evolution of Islamic law

Question 4

Proofs of Istihsan

Answer 4

1. AQ 39:18
2. AQ 39:55
3. Hadith – “Harm is neither inflicted or tolerated in Islam”

Question 5

Validity of Istihsan

Answer 5

1. Most jurists – accept Istihsan is valid source of Islamic law
2. Shafi’i school – do not accept Istihsan because they believe developing law based on Istihsan is arbitrary
3. Some jurists – accept Istihsan but not as independent source of Islamic law

Question 6

Istihsan Qiyas (analogical istihsan)

Answer 6

Departure from qiyas jalli (clear analogy) to qiyas khafi (hidden analogy) because qiyas khafi has stronger reasoning and more effective in repelling hardship

Question 7

Istihsan Istihna’ (exceptional istihsan)

Answer 7

1. Jurists deciding to apply exception because it better serves justice and equity
2. Decision made as result of personal ijtihad or the exception is already provided by Islamic legal sources

Question 8

Looking at private parts by person of opposite gender

Answer 8

1. GR - no person can look at the private parts of another person belonging to opposite gender
2. Exception - permissible only during medical treatment according to istihsan

Question 9

Waqf of cultivated land

Istihsan example

Answer 9

1. Waqf = Endowment made for charity
2. Waqf of land = Rights of passage and water transferred for public use
3. GR for contract of sale - Benefit must be identified in order to be transfered
4. Applying GR established by qiyas jalli will only frustrate waqf’s purpose of transferring land rights for public use
5. Rights in waqf cannot be identified so they cannot be transferred
6. Qiyas khafi on contract of lease more suitable because they shared same illah that rights do not have to be identified to be transferred

Question 10

Contract of salam

Istihsan example (order of non-existent goods)

Answer 10

1. Normally not permitted
2. GR - object of contract must exist at time of contract
3. Hadith - Do not sell something that is not in your possession
4. Exception - Contract for manufacturing goods
5. Ijma - Muslims are allowed to order goods which price is specified at time of contract but subject of contract is deferred

Question 11

Cancelling contract

Istihsan example

Answer 11

1. Normally not allowed
2. GR - Contract is binding after offer and acceptance is completed
3. Exception - Istihsan provides option to revoke contract
4. Hadith - When you agree on the terms of a sale, you may say: it is not binding and I have an option for three days
5. Means that a Muslim can buy things on the condition that he is granted the option to revoke contract within time period

Question 12

Making will for legal heir

Answer 12

1. Not permissible to make will for legal heir in Islam
2. Exception - legal heir is destitute and blocked by other heirs
3. Supported by AQ 2:180