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‫بسم ال الرحمن الرحيم‬

‫الءستحسان‬
The important of Al-Istishan
&
its controversial issues
Definition of Al- Istihsan

Literally:
To approve or in simple words to decide a
preferable hukm for a case.

Technically:
Refers to setting aside an established ruling
backed by dalil on a matter in favor of
alternative ruling which is stronger and more
convincing than the former ruling, supported
by dalil.
 From all these definitions it is obvious that Istihsan means the
preference of a stronger evidence over analogy. It means:

The preference of qiyas khafi over qiyas jali

Follows the requirements of a stronger general principle


that requires something different from strict analogy.

The creation of an exception to a general principle due


to a stronger evidence when the general principle is
based upon analogy.
LEGAL SCHOOLS

Shafi’i Maliki Hambali Hanafi

It has raised seriously The Malikis permitted


objection against slight uncertainty
Istihsan.
that will not lead to a Istihsan is the label
According to Shafi’i,
dispute where the the Hanafi jurists have
Istihsan
could not exist as an general principle adopted.
independent source of requires the Hanafi’s have
avoidance of The Hanbali asserted that Istihsan
Islamic law as Islamic
legal theory would not uncertainty (gharar) school is not an arbitrary
permit that will lead to a of thought calls its exercise in personal
it.“Istihsan is thus a dispute.As-syatibi Istislah (equity or preference(toward
method for choosing comes with opinion some matters).This
between two possible
public interest).
that Istihsan is not type of ‘hukm’ is in
legal solutions to a pursuit the human or the form of qiyas or
particular
one’s branch of qiyas.It also
case.”I consider to be
desires,profound not an independent
form of man making
law of pleasure seeking understand or sources of law.
and arbitrary law- intention of the law –
making religion. given.
1. It consist of departure from ‘qiyas jali’(effective
cause) which is the new cases that come is
greater or stronger than the original cases
instead of (‘iilah) to ‘qiyas khafi’.
2. Based on the nass and text of Al-Quran.
3. Based on the sunnah of the prophet
Muhammad s.a.w
4. Authorized by the Ijma’ of the scholars.
5. Based on the necessity (darurah) at that place.
6. Authorized by the custom.
7. Consideration of public interest.
Controvercy
Based on surah an-nisa 59

O you who have believed, obey Allah and obey the Messenger and
those in authority among you. And if you disagree over anything,
refer it to Allah and the Messenger, if you should believe in Allah and
the Last Day. That is the best [way] and best in result
From this ayah, it told us that a musleems has his*
responsibilities to obey Allah and Rasulullah saw as well as
follow the injunction of shariah law which clearly enriched
. in Quran, the vouched of Allah

Thinking about this ayah, other than obey Allah and*


Rasul, implicitly, it also shows the worried of As-Syafiee to
another musleems if Al-Istishan being accepted as a
.method for power reasoning

He worried to see musleems doing their own preference *


without guidance that lead to destructions of aqidah as this
. methodology has wider scope of interpretation
:BUT, The Hanafis jurists has their dalalah from nass
Az-zumar 18

:Tafsir al-Jalalayn

who listen to the words [of God] and follow the best [sense] of it, which is that
which contains [the means to] righteousness for them. Those, they are the
ones whom God has guided; and those, they are the people of pith, the
.possessors of intellect

From the ayah, Allah vouched that if musleems follow the best way or-
.guidance in his life, Allah will guide him to the right way

Word (Al-Qawl)- verbal may comes from Allah,rasul and mujtahidun,so-


.that they accept Istishan
Towards this 1st controvercy, a hadith narrated by Al-Bukhary also give
defference istinbat from syafiees and hanafis scholars

‫ما راة المسلمون حسنا فهو عند ال حسن و ما راة المسلمون قبيحا فهوعند ال قبيح‬

What the musleems deem to be good is good sight of God and what to be
.bad for musleem is a bad sight of God
)Al-bukhary(
Hanafis scholars Syafiees scholars

- State that Istishan is a form of -- Disagreed as the word


Qiyas and a new doctrine for juristic `musleemun` in hadith gives kully
preference meaning which it can consist of
various level of musleems either
ulema,public musleems or the
musleems that just taqlid in
religion.
- Only authorised person can
istinbat a hukm
 In the case of SALAM & ISTISNA
Qiyas prohibits the contract of salam because it involves delay in
the exchange of food items listed in the tradition of riba’. There is
however, the tradition from the Prophet Muhammad (s.a.w) that’s
says that, "he made an exemption in the case of salam
Istisna’ or the manufacturing contract with advance payment.
Analogy prohibits it on the basis of the same rules as in the case
of salam. It is,however,permitted on the basis of Ijma’ according
to Hanafis.

In the case of `INTENTIONALLY EATING DURING


FASTING`
He said “I would have said that he should repeat his fast.”

What he meant by this was that strict application of the rules of fasting
requires that anyone eating food has broken the fast. A report from
Prophet Muhammad (s.a.w) says that “liability for three things has been
lifted from my Ummah; forgetfulness, mistake and duress.”This is a case
of Istihsan where a text has been preferred over analogy, and by means of
which an exception has been created.
 Khiyar al-shart or stipulated option: The general
principle requires that all contracts become
binding on their conclusion. A tradition permits
the stipulation of an option for three days as an
exception to this principle.
 Analogy requires that ritually pure water should
be used for ablution. In the case of wells in which
dirt or carcasses of animals have fallen, following
strict analogy would mean the non-use of these
wells, and this would cause hardship to the
people. The principle of necessity requires that
use of these wells be permitted. This is done after
observing formal cleaning methods.
 Al-Sarakhsi says: If Istihsan is based upon
the text or upon Ijma ’,the derived rule
can serve as a further basis for analogy.
 In other cases, if Istihsan based upon
necessity or concealed analogy, it is not
possible to extend the new rule further.
 “Ibn Tayimiyah called Istihsan the
limitation of the cause either with its
modification or with its nullification.”
 Equity and Istihsan resemble in certain
aspects both concepts incorporate the
idea for a search for the good. The
motivation for using either concept may
stem initially from a mere feeling that an
existing rule of law is not right.
As conclusion we can say that, Istihsan is an important branch of Ijtihad, and
has played a prominent role in adaptation of Islamic law to the changing needs
of society.

Istihsan has been validated by Hanafi, Maliki and Hanbali jurists while Shafi`i,
Shi`i and Zahiri jurists have rejected it as a method of deduction. However, in
effect majority have accepted Istihsan. So long as Istihsan seeks solutions that
are harmonious with the Shari`ah and its definitives, its validity is undeniable.