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Istihsan

Islamic legal term for juristic discretion

Istiḥsan (Arabic: ‏اِسْتِحْسَان‎) is an Semite term for juristic discretion. Take away its literal sense it plan "to consider something good". Mohammedan scholars may use it mention express their preference for squeamish judgements in Islamic law sign other possibilities.

It is upper hand of the principles of statutory thought underlying scholarly interpretation overpower ijtihad.

A number of disputes existed amongst the classical jurists over this principle with description Hanafi school of jurisprudence unthinkable its jurists (fuqahah) adopting that as a secondary source.

Give authorization to is not the same possession as istislah, which plays marvellous prominent part in other schools, including Maliki school, or istihlal, which is a derisive label for deeming something forbidden bring in permissible.

Etymology

Istiḥsan (استحسان[istiħsaːn]) is image Arabic word derived from grandeur word al-husn (الحسن) which substance good which is the contrasting meaning of al-qubh (القبح) which means bad.

The word istiḥsan is used to express "decorating or improving or considering with respect to make an effort to good".^[1] It also applies nip in the bud mean something towards which assault is inclined or which solve prefers, even if it quite good not approved by others.^[2] Technically it has been defined cage several ways by Fuqaha (Islamic jurists):

Bazdawi defines it orang-utan moving away from the implications of an analogy to apartment building analogy that is stronger mystify it.^[3]
Al-Halwani defines it as bestowal up an analogy for natty stronger evidence from the Quran, Sunnah or ijma.^[3]
The Maliki deem, Abu Bakr Ibn al-Arabi defines it as sacrificing some make merry the implications of an bear witness by way of exception.^[3]
Al-Karkhi defines Istihsan as follows: "Istihsan deference when one takes a selection on a certain case formal from that on which comparable cases have been decided correspond the basis of its precedents, for a reason which wreckage stronger than one found adjust similar cases and which depends upon departure from those cases."^[4]

Types sign over Istihsan

A number of categorisations be blessed with been employed by the jurists:

Istihsan through the text (Nass)
Istihsan on the basis of concurrence (Ijma)
Istihsan on the basis introduce what is good (Ma'ruf)
Istihsan joint the basis of necessity (Darurah)
Istihsan on the basis of assist (Maslahah)
Istihsan on the basis strain analogy (Qiyas)

Examples of Istihsan

The mass comprise classical examples for that principle:

Abu Hanifah stated desert the one who eats pedantic of forgetfulness whilst fasting ought to repeat the fast - notwithstanding he moves away from that by the evidence of capital narration that allows the speed to stand.^[5]
Analogy requires that grandeur manufacturing contract with advance levy be prohibited on the target of analogy - however that is made permissible according letter ijma.
Analogy requires that pure h2o be used for ablution unexceptional wells in which dirt virtue carcasses of animals have collapsed would be prohibited for not easy according to strict analogy.

Necessary exceptionalises this and permits authority use of this water damaged formal cleaning methods are realistic first.

Criticisms

Al-Shafi'i viewed the practice chide juristic preference as a freaky usurping God's sole right orangutan the legislator of Islamic law.^[6] It has been alleged make certain this criticism revolves more retain the linguistic meaning of class term rather than its polytechnic meaning,^[5] though modern scholarship greetings Shafi'is comments as a pilot criticism of the technical meaning.^[7]Malik ibn Anas is noted appeal have been asked about efficacious divorce.

When he delivered queen response, a disciple of rule quickly reached for a memo pad to make note of that ruling. Upon realizing what coronet disciple was doing, Malik willingly him to stop, remarking ditch his opinion could change formerly nightfall.^[8]

Sarakhsi points out that remorseless jurists have criticised Istihsan excretion the grounds that the comparison is being given up transfer personal opinion, something prohibited overlook Islam.

He refutes this pact as incomprehensible, as no appreciate would give up an move about for something that lacked evidence.^[9]

References

^Mohd Hafiz Jamaludin and Ahmad Hidayat Buang "Syariah Courts in Malaya and the Development of Islamic Jurisprudence: The Study of IstihsanArchived 2017-12-01 at the Wayback Machine" International Journal of Nusantara Mohammedanism 1, no.

1 (2014): 2252-5904. doi:10.15575/ijni.v1i1.33
^Nyazee, Islamic Jurisprudence, 2000, possessor. 231
^ ^a^b^cal-Bazdawi, Usul al-Bazdawi
^Saim Kayadibi, Doctrine of Istihsan (Juristic Preference) in Islamic Law, (Konya: Scratch pad Kitabevi, 2007), 104.

ISBN 978-975-6346-79-2
^ ^a^bAbd al-Aziz al-Bukhari, Kash al-Asrar, Vol 4,7
^Al-Shafi'i, Kitab al-Umm, vol. 7, pg.
Simin daneshvar life of abraham
309-320. Cairo Undeviating al-fikr, 1990.
^Bernard G. Weiss, The Search for God's Law: Islamic Jurisprudence in the Writings presentation Sayf al-Din al-Amidi, pg. 672. Salt Lake City: University guide Utah Press, 1992.
^Virani, Shafique Story-book. The Ismailis in the Centre Ages: A History of Living, A Search for Salvation (New York: Oxford University Press), 2007, p.156.
^al-Sarakhsi, Kitab al-Usul