Istihsan and Sharia Law

Basically, the opinions that had been made by the Companions and Successors were frequently based on their ain apprehension for the spirit and Shariah intent. So, the opinions that are made by the Companions and Successors are non in restricted mode and besides non in giving the exact significance of the regulations because they are non literalist. Therefore, istihsan has been made as the counterpoison to literalism which gives a broad reading of the jurisprudence in order to prolong equality and besides righteousness which is considered as the 5th function of istihsan. For case, unwritten grounds is the regular type of deriving the grounds and cogent evidence in Islamic jurisprudence [ 1 ] . Normally, in unwritten grounds it needs two vertical ( ‘adl ) witnesses except if the jurisprudence had stated otherwise for case in turn outing zina ( criminal conversation ) , it needs to hold four informants in order to turn out criminal conversation. Al-Quran had clearly stated sing the affair of figure of informants that are needed nevertheless as for the affair on how to derive the grounds it had been determined by utilizing consensus that it should be made verbally. The Muslim legal experts believe that the direct testimony of a informant in forepart of the justice without any intermediary is the best manner of detecting the truth. However, the inquiry that arises is that whether one should still take a firm stand on unwritten testimony at a clip when there are other methods like picture taking, sound recording, research lab analyses, etc. which provide every bit in order to set up the truth. Therefore, alternate opinion should be taken into history while going from the established regulation. By utilizing istihsan it would formalize these new techniques in order to continue the spirit of set uping the truth instead than merely utilizing unwritten testimony to set up the truth [ 2 ] .

By looking at the unwritten testimony illustration, it can be seen clearly that the Companions and Successors had given specific type of method in order to set up the truth which is unwritten testimony but by utilizing istihsan the methods of turn outing the truth should be broaden by non merely giving unwritten testimony but besides other methods like picture taking and sound recording. Therefore, it show us that istihsan does hold the function of as an counterpoison to literalism in which it had taken the broader manner in order to convey justness and equity.

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Another function of istihsan is thatit is a rule which approves the farewell from an established regulation with another opinion which is stronger compared to the old opinion.It can be seen clearly by looking at the definition that had been given byIbnTaymiyyahwhich is one of theHanbali’s legal expert. IbnTaymiyyah said thatistihsan is the abandonment of one authorised regulation ( hukm ) with another regulation which is more better or stronger on the footing of the Al-Quran, Sunnah or consensus[ 3 ].In add-on,Abu Zahrahwhich is one of the Hanafi’sjurist had stated that the kernel ofistihsan is to explicate a determination which sets apart an established analogy where by making such backdown to the opinion can keep the greater significance of the Shariah. In add-on, harmonizing to the bulk of legal experts,istihsan involves the going from qiyas jali ( obvious analogy ) to qiyas khafi ( concealed analogy ) .Qiyas Jali is a straightforward qiyas or clear qiyas where can be easy apprehensible to the head. Example of qiyas jali can be seen in the analogy between vino and herbal drink where herbal drink is considered as drink that can do poisoning. Both vino and the herbal drink had the same effectual cause ( illah ) which of being elating. However, qiyas khafi can be defined as a signifier of analogy where it is non clear or obvious which can non be seen to the bare oculus and it will merely be apprehensible through a deeper idea.Qiyas khafi which can besides be called as istihsan is better and besides more operative in maintaining off the adversity compared to qiyas jali. This is because qiyas khafi does non arrived from shallow idea of similarities but it had been done by traveling through deeper ideas and analysis[ 4 ].

When the legal expert faced upon a job which there is no opinion can be found in the Al-Quran or Sunnah so the legal expert can pursuit in looking for a opinion and besides seek to happen the best declaration by utilizing analogy. The act of legal expert to happen for the best options will stop up with two different declarations ; where 1 that are based on an obvious analogy and another one which is based on the concealed analogy. However, if there are any clangs between the two analogies so the anterior analogy must be overruled by the latter analogy. The concealed analogy is more preferred compared to the obvious analogy and this is one signifier of istihsan. An illustration of istihsan that consist of separating from qiyas jali to qiyas khafi is in waqf ( charitable endownment ) of cultivated land which comprises the assignment or transferring of all the extra rights which are attached to the belongings like the right of H2O, right of transition and right of flow. Even though, all the accessory rights are non explicitly stated in the waqf itself but it will be considered that the waqf is valid and this opinion is based on qiyas khafi ( istihsan ) [ 5 ] .

To explicate it in further, it can be seen that in Islamic jurisprudence of contract, the contract of sale must clearly mentioned the object of contract and if it is non specified so it will non be included. By looking at this opinion, we can do a direct analogy ( qiyas jali ) between sale and waqf because both involve in transportation of ownership. Therefore, it can be concluded that if the extra rights had been explicitly stated in the waqf so merely it will be included in the waqf but if it does non explicitly stated in the waqf so it will non be included in the waqf. The issue that arise is that this direct analogy ( qiyas jali ) if being followed, it will take us to unequitable consequences where the waqf of civilized lands that are without its extra or accessory rights would forestall the indispensable principle of waqf which is to ease the usage of belongings for charitable intents. Therefore, in order to avoid this adversity, an alternate analogy should be taken into history where it is called qiyas khafi ( istihsan ) . In this instance, the qiyas khafi is to pull similarity with the contract of rental ( ijarah ) and non with contact of sale. Both ijarah and waqf can be compared to each other because both besides involve the transportation of usufruct. By utilizing the alternate analogy, it can be said that waqf is included even without explicitly stipulate the accessory rights of the belongings [ 6 ] .

Other than that, there is another type of istihsan which is called as exceeding istihsan ( istihsanistithna’i ) wherethe function of this type of istihsan is to do an exclusion to the general regulation of the present jurisprudence when the legal expert believed that by doing such exclusion, justness and equity will be uphold better.The determination that the legal expert had made is as a consequence of the legal expert personal ijtihad or the exclusion had been supported by the sodium ( Al-Quran and Sunnah ) , ijma’ , approved usage, necessity ( darurah ) , or considerations of public involvement ( maslahah ) [ 7 ] .

One of the illustration of exceeding istihsan that had been supported by the Al-Quran is sing legacies to relations ( Surah Al-Baqarah 2: 180 ) . This Quranic poetry signifies the exclusion from the general regulation of Shariah where that a legacy ( heritage ) is fundamentally non valid because bequest controls the divider of the land one time the testate had died and the new regulation do non let the act of quicken the procedure of legacy. Since a legacy although had been made while the testate was alive but it will merely be effectual after the testate had died, it is fundamentally extremist vires and it is an equivalent to an intercession in the rights of the legal inheritors [ 8 ] . However, the Al-Quran had permitted bequest to be an exclusion to the general rule where it considers a just distribution of wealth in the household by manner of exceeding istihsan [ 9 ] .

Another illustration of exceeding istihsan can be seen based on necessity ( darurah ) where sing on the method of following for the purification of contaminated Wellss. Water in a well can non be used for ablution if it has been polluted by impure substances and the H2O in the well besides can non be purified by taking the portion which is impure. It besides can non be poured either because of the uninterrupted contact with the H2O that flows in the well. In order to work out this affair, it had been found through istihsan where wells that had been contaminated can be cleansed by extinguishing peculiar sum containers of H2O from the well. The precise sum of containers of H2O that should be eliminated from the contaminated good will be determined by looking at the type and the strength of pollution that had been made. In this affair, istihsan had prevented homo from traveling through adversity by ground of necessity [ 10 ] .

Furthermore,istihsan can besides be used as a method that can better the bing jurisprudence where it can deprive of the unreasonable and unwanted constituents in order to heighten it by doing necessary exclusions.In other words, fundamentally istihsan maps within the boundaries of the current state of affairs and it does non prosecute a cardinal amendment in the present jurisprudence even though it has the possible to consequence invention and polish. Usually Judgess and attorneies are unwilling to progress from the present jurisprudence or to do any exclusions even if there are grounds that clearly shows that the going will convey equity and justness. This is due to the judge’s function itself where they need to implement and follow the jurisprudence in whatever agencies. Therefore, it is advisable if the legislative assembly can let the Judgess to utilize istihsan in instances where that is the lone manner in order to accomplish justness and equity and it besides can better the bing jurisprudence to be much better [ 11 ] .



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