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04/18/23 Copyright Reserved 2012@Mohd Zulkifli Muhammad
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AFS2023 USUL FIQH/ISLAMIC
JURISPRUDENCE
Istihsan (JURISTIC PREFERENCE)
04/18/23 Copyright Reserved 2012@Mohd Zulkifli Muhammad
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Contents
• Definition• Proof (Hujiyyah) of Istihsan• Varieties of Istihsan
04/18/23 Copyright Reserved 2012@Mohd Zulkifli Muhammad
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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.
04/18/23 Copyright Reserved 2012@Mohd Zulkifli Muhammad
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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.
04/18/23 Copyright Reserved 2012@Mohd Zulkifli Muhammad
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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).
04/18/23 Copyright Reserved 2012@Mohd Zulkifli Muhammad
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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…
04/18/23 Copyright Reserved 2012@Mohd Zulkifli Muhammad
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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.
04/18/23 Copyright Reserved 2012@Mohd Zulkifli Muhammad
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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.
04/18/23 Copyright Reserved 2012@Mohd Zulkifli Muhammad
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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.
04/18/23 Copyright Reserved 2012@Mohd Zulkifli Muhammad
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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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