A COMPARATIVE REVIEW OF THE JURISTS' ARGUMENTS ON THE JUSTIFICATION AND NON-JUSTIFICATION OF ISTIHSAN

Abstract

This study introduces an in-depth comparative discussion to the arguments of the jurists on the justification of non-justification of Istihsan (juridical preference) in Islamic jurisprudence. Istihsan is a very important methodological resource, which describes the discarding of general analogy (qiyas) in favor of a more radical, more contextually suitable evidence depending on justice, necessity or common good. The paper proceeds by considering the historical foundations of Istihsan with reference to origins of Istihsan, starting with the foundation of the practices of the companions including the suspension of the punishment of theft during a famine to the systematic development of Istihsan by jurists such as Imam Abu Hanifa. It also examines the terminological meanings and the different types of Istihsan such as Istihsan bi’l-nass (textual preference), Istihsan bi’l-urf (customary preference) and Istihsan bi’l-darurah (necessity-based preference). The paper then analyzes the supporting arguments of the Hanafis and the Malikis, who accept Istihsan as a secondary yet a valid source of law because of its malleability in solving complicated and emerging problems. Their sources are the Qur’anic injunction to act in accordance with the best of that which has been said and, as well, such Prophetic teachings as no harm and no reciprocating harm, and the rational assessment of maslahah (public interest). On the other hand the Shafi‘i and Zahiri scholars do not tolerate Istihsan since they criticize it as arbitrariness in law-making, or a form of subjective desire, which endangers the consistency of the law. The Hanbali school is very conservative, permitting Istihsan only under very limited conditions with a significant emphasis on the textual source. By use of comparative and analytical approaches, the paper highlights that the fundamental difference does not lie in the eventual goals Shariah justice, ease, and safeguard of human welfare, but in areas of methodologies and terminologies of interpretation. Istihsan can be of great relevance to contemporary situations as it provides a jurisprudential flexibility in resolving contemporary financial, medical or technological cases. The research closes by encouraging a moderate approach in that Istihsan should not be treated as a source in itself but rather a principle institutionalized in established goals of the Shariah thus striking a balance between the past and the present without being subjective.

Keywords: Istihsan, Islamic Jurisprudence, Qiyas (Analogy), Maslahah (Public Interest), Comparative Fiqh, Hanafi and Shafi‘i Schools, Contemporary Application