Istihsan, which is also known as juristic preference, played an important role in the Islamic Legal reasoning. It basically depends on the contribution of a judge’s opinion into those matters that were not already discussed by the Holy Quran or Sunnah but were resolved with veritable interpretation of the versus of the Holy Quran and Hadees; followed to avoid hardships and secure ease of both the parties while deciding cases. It also played a pre-eminent role in the Intellectual heritage of Islamic law. Back then, people used to rely on Qiyas (analogy) which sometimes caused hardships, at those certain events Istehsan was applied in order to eradicate the problem. Although this term has been used from the very beginning but no technical definition exists.
The judiciary whether it is Muslim or non-Muslim uses istehsan to provide judgments as close to perfect as possible. Different laws and norms exist but with the evolving technologies the problems are evolving too, so to get rid of such problems we need to find modern solutions to it. While dispensing great judgments it is difficult to find laws or provisions that lead to the case’s exact nature, in the aforesaid cases judges depend entirely on istehsan to benefit the parties of the suit and reveal unseen justice that leads to a different but righteous understanding of law that we ordained by the Law-giver.
Concept of the term istehsan can be traced back to the time of revelation. In regards to its conceptual application, it cannot be said whether istehsan was implemented as a source of judiciary during the lifetime of Prophet (Peace be Upon Him), because the sources of legislation were confined to Holy Qur’an, Sunnah and personal opinion with the permission of competent authority for legislation. Maudh Bin Jabal’s answer to Prophet (P.B.U.H) could be an early signifier for the use of the term ‘Istehsan’. A small narration below shows how Prophet (P.B.U.H) tested Maudh’s ability to reason. Upon being inquired by the Prophet (P.B.U.H) that what he will do if he does not find any guidance in Holy Qur’an and Sunnah, Maudh answered, he will do his best and spare no pains. Prophet (P.B.U.H)’s objective was to teach his companions whom he appointed as judges to use their understanding and discretion in formulation correct and accurate judgments, he wanted to prove that criticial thinking was essentials in deriving close to perfect judgments that would not harm any person. The utmost importance of personal opinion is evident at the Battle of Badr – as a conceptual matter not a judicial term. Before the battle Prophet (P.B.U.H) decided a particular position for his army to settle and fight against the enemies which one of his companions thought to be unsuitable and upon inquiring if the place was chosen by revelation or chosen by Prophet (P.B.U.H) on his own judgment he suggested a more suitable place, his act of suggesting and personal interpretation gained credence and was also appreciated by the Prophet (P.B.U.H). In a nutshell, it can be said that the use of discretion and personal interpretation lead to the subsequent use of Istehsan.
The formation of the concept of Istehsan first took place in the earliest days of Islam, the founder of this term were the most prominent Hanafi jurists Abu Yousuf and Al-Shaybani. However, it was first introduced by Noman Ibn Sabit Abu Hanifa, the founder of Hanafi School of Thought. There’s no universally accepted definition devised for it.
WHAT IS ISTEHSAN?
It literally means to prefer or deem or consider something better. Istehsan is an Arabic term which means ‘to approve’ or ‘to sanction’. In Islamic law it is called juristic discretion, which means for determining the best solution a jurist uses his own judgment for a religious problem that cannot be solved by simply citing sacred texts.
Istihsan is not liberated from Shariah, it is integral part of Shariah. It is an important branch of Ijtihad, and has played a note worthy role in adaptation of islamic law to the transforming needs of the society. This as a concept is more related to Equity in western law. However based on natural law we have Equity in Western law. Istihsan is originally based on divine law. It is an important branch of ijtihad. Moreover, it is the provider for Islamic law with paramount means to encourage adaptability and growth and can be utilized for diverse purposes.
Hanafi jurist Abul Hasan al Karkhi describes Istihsan as a doctrine which enables the departure from settled antecedent cases in consideration of a distinct verdict for a stronger logic. The Maliki jurists are more privy to Istislah (consideration of public interest) than Istihsan. They ratify Istihsan as more or less identical to Istislah or as a part of Istislah.
Criticisms on Istehsan
Al-Shafi’i beheld the application of juristic preference as a unorthodox taking over of God‘s exclusive right as the lawgiver of Islamic law. It has been asserted that this opinion of Al-Shafi’i revolves more around the linguistic context of the term comparatively than its technical connotation, though modern cognition regards Shafi’is remarks as an explicit criticism of the technical meaning. Sarakhsi identifies that some jurists have censured Istihsan on the footings that the Qiyas (analogy) is being sacrificed for personal opinion, something that is illicit in Islam. He disproves this understanding as beyond comprehensible, as no jurist would ease off an authority for something that do not have any evidence.
Al-Shafii has criticized Istihsan on the grounds of Quranic verses. However, these verses are not absolute on Istihsan. Al-Ghazali has invalidated Istihsan but declared that Shafii’s acknowledgement of Istihsan established on details from the Quran and the Sunnah. Al-Amidi ( a Shafii jurist) has stated that Al-Shafii also rhad recourse to Istihsan. Modern jurists have settled that the essential validity of Istihsan is beyond doubt.
Istihsan and its recognition in Modern world
First of all, it remains to be determined what accurately is meant by the phrase ‘injunctions of Islam’. The Constitution does not construe this term and no superior court has ever considered interpreting this term. The Council, while affirming its statement of opinion in its Annual Report of 1986 on the ‘Shariat Bill’ approved by the Senate, defined shariat as: ‘Shariat means the rules of Islam as enunciated in the Holy Quran and Sunnah’. Still, the Report does not suggest any characterization of the ‘injunctions of Islam’. It, however, adjoins an explanation to the definition of ‘shariat’:
The following sources may be attributed to for the written
descriptions of the injunctions of Islam:
a) The Sunnah of the Prophet (P.B.U.H) ;
b) The conduct of the Companions of the Prophet (P.B.U.H) ;
c) Ijma (consensus of Muslim jurists) ; and
d) The statements and opinions of the jurists(Juristic Preference or Istihsan).
Istihsan in Islamic law must not be puzzled with ‘equity’ of English jurisprudence. Recorded as actually having happened, English ‘common law’ relied upon the long established customs and, as it was not made to be substituted in order to meet the interests of contemporary ages, it declined and was incapable to comply with the public demand for lawfulness and fairness. People to a greater extent believed that the law was incompetent for their requirements. People initiated pleading the king. The ruler or king, being the ‘Fountain of Justice,’ would compensate the injustice utilizing his own ‘discretionary authority for the establishment of justice. As more people entrusted the king for justice, he handed over some certain powers of the ‘use of discretion’ to Lord Chancellor who would carry out justice on the king’s behalf. As the difficulty increased still further, special courts had to be established in several domains of the area of the rule. They were to be acknowledged as ‘Chancery Courts’, and then later ‘Equity Courts’. The persistent usual procedure of these courts influenced to the advancement of their own distinctive laws which were referred to as ‘principles of equity’. These were comprised of many unique principles and methods of doing things. The significant fact to contemplate here is that the idea for the composition of these courts was the recurrent deline of common law.
Islamic law, in different circumstances, came up against a situation comprising of such problems. Thinking of qiyas with common law and Istihsan together with equity entails that the jurists of that time departed from the settled rule of Islamic law, thinking it was too binding, and alternatively came up with a ‘better’ and more impartial rule, by using the fundamentals of natural justice; and that this series of action to achieve fair and just result was called Istihsan because it was an enhancement upon the initial rule. If this is legitimate, then Shafi‘i jurists were correct to denounce it and form the opinion: ‘Whoever exercises Istihsan annexes the function of the Lawgiver’.
The Hanafis, who accept Istihsan as an authentic mean of deriving legal rules, recognize it a tool for the purpose of safeguarding peace and avoiding systematic constancy within the law. If something seems to be forbidden in the consideration of the accustomed principles of law, but has been particularly sanctioned by one of the texts, the Hanafis take the stance that it is allowed as a special case to the general principle. They use this formula: ‘forbidden under qiyas but permitted under istihsan’ for this objective. Exceptions to the general principles are made on the footings of the text, consensus, requirement or some other ‘camouflaged principle’.
EXAMPLE OF ISTIHSAN
Oral testimony is the approved pattern of evidence in Islamic Law. The Muslim jurists consider that the unambiguous testimony of a witness in front of the judge without negotiator is the ultimate way of exploring the truth. The question arises, whether one should entirely stand firm on oral testimony at a time when up-to-date methods, such as photography, audio and video recording, laboratory analyses, etc., provide equitably, if not more, dependable means of revealing the truth. Alternating to istihsan would ratify these new techniques. The intention of Shariah is to establish proof or evidence, unveil the truth and provide justice and not to produce oral testimony.
The concept Istihsan is adopted for the easement of the people around the world. We see many examples of it in our lives. This concept has its own pros and cons depending on how people utilize it. Around the world we see that judiciary in given some ‘discretionary powers’ that are more or less related to this very idea. The use of such powers gives right to the decision maker to judge in favor of both the alleged and victim, in order to prevail justice and spare no pain to any of them. Modern problems need modern solutions, binding ourselves to certain sources as Holy Quran and Sunnah will sometimes not lead to any solution therefore keeping in mind the rules laid down by the Almighty Allah the competent authorities form a just opinion. On the other those who intend to misuse this concept can mould the provisions in the name of istihsan for the sake of their benefit.