Istihsan

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Istiḥsan (Arabic: ‏‎) is an Arabic term for juristic discretion. Istihsan_sentence_0

In its literal sense it means "to consider something good". Istihsan_sentence_1

Muslim scholars may use it to express their preference for particular judgements in Islamic law over other possibilities. Istihsan_sentence_2

It is one of the principles of legal thought underlying scholarly interpretation or ijtihad. Istihsan_sentence_3

A number of disputes existed amongst the classical jurists over this principle with the Hanafite jurists adopting this as a secondary source. Istihsan_sentence_4

Contemporary proponents of liberal movements within Islam have used istihsan and the similar idea of istislah (Arabic for "to deem proper") as ethical principles to favour feminist and reformist interpretations of the Qur'an and Sunnah, thus looking to reform Islamic law. Istihsan_sentence_5

Etymology Istihsan_section_0

Istiḥsan (استحسان [istiħsaːn) is an Arabic word derived from the word al-husn (الحسن) which means good which is the opposite meaning of al-qubh (القبح) which means bad. Istihsan_sentence_6

The word istiḥsan is used to express "decorating or improving or considering something good". Istihsan_sentence_7

It also applies to mean something towards which one is inclined or which one prefers, even if it is not approved by others. Istihsan_sentence_8

Technically it has been defined in several ways by Muslim jurists: Istihsan_sentence_9

Istihsan_unordered_list_0

  • Bazdawi defines it as moving away from the implications of an analogy to an analogy that is stronger than it.Istihsan_item_0_0
  • Al-Halwani defines it as giving up an analogy for a stronger evidence from the Quran, Sunnah or ijma.Istihsan_item_0_1
  • The Maliki jurist, Ibn al-Arabi defines it as sacrificing some of the implications of an evidence by way of exception.Istihsan_item_0_2
  • 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.Istihsan_item_0_3

Types of Istihsan Istihsan_section_1

A number of categorisations have been employed by the jurists: Istihsan_sentence_10

Istihsan_unordered_list_1

  • Istihsan through the text (nass)Istihsan_item_1_4
  • Istihsan on the basis of consensus (ijma)Istihsan_item_1_5
  • Istihsan on the basis of what is good (maruf)Istihsan_item_1_6
  • Istihsan on the basis of necessity (darurah)Istihsan_item_1_7
  • Istihsan on the basis of benefit (Maslahah)Istihsan_item_1_8
  • Istihsan on the basis of analogy (qiyas khafi)Istihsan_item_1_9

Examples of Istihsan Istihsan_section_2

The following comprise classical examples for this principle: Istihsan_sentence_11

Istihsan_unordered_list_2

  • 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.Istihsan_item_2_10
  • Analogy requires that the manufacturing contract with advance payment be prohibited on the basis of analogy - however this is made permissible according to ijma.Istihsan_item_2_11
  • 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.Istihsan_item_2_12

Criticisms Istihsan_section_3

Al-Shafi'i viewed the practice of juristic preference as a heretical usurping God's sole right as the legislator of Islamic law. Istihsan_sentence_12

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. Istihsan_sentence_13

Malik ibn Anas is noted to have been asked about binding divorce. Istihsan_sentence_14

When he delivered his response, a disciple of his quickly reached for a tablet to make note of this ruling. Istihsan_sentence_15

Upon realizing what his disciple was doing, Malik asked him to stop, remarking that his opinion could change before nightfall. Istihsan_sentence_16

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. Istihsan_sentence_17

He refutes this understanding as incomprehensible, as no jurist would give up an authority for something that lacked evidence. Istihsan_sentence_18


Credits to the contents of this page go to the authors of the corresponding Wikipedia page: en.wikipedia.org/wiki/Istihsan.