Istihsan and Maslaha
Istihsan (Juristic Preference): Istihsan literally
means to deem something preferable. In its juristic sense, Istihsan
is a method of exercising personal opinion (ray) in order to avoid
any rigidity and unfairness that might result from literal
application of law. Istihsan as a concept is close to equity in
Western law. However equity in Western law is based on natural law,
whereas Istihsan is essentially based on divine law.
Istihsan is not independent of Shariah, it is
integral part of Shariah. Istihsan is an important branch of
law to the changing needs of society. Istihsan has been validated by
Hanafi, Maliki and Hanbali jurists. Imam Shafi, Shii and Zahiri
Ulama have rejected it as a method of deduction. However, in effect
Majority have accepted Istihsan.
It has been mentioned that decision of Umar Bin
Khattab to suspend "hadd" penalty (penalty prescribed by the Quran
and Sunnah) of amputation of hand during famine is an example of
Istihsan. Here positive law of Islam was suspended as an exceptional
measure in an exceptional situation (for other examples see text
book). A major jurist Al-Sarakhsi considers Istihsan as a method of
seeking facility and ease in legal injunctions and is in accord with
the Quran (2:183). Kamali says that companions (Sahabi) and
successors (Tabiun) were not merely literalist. On the contrary,
their rulings were often based on their understanding of the spirit
and purpose of Shariah. Kamali gives a new example. Oral testimony
was the standard form of evidence in Islamic law. However, now in
some cases photography, sound recording and laboratory analysis have
become more reliable means of proof. Here is a case of Istihsan by
which method we can prefer these means of proofs over oral testimony
in many cases.
Hanafi jurist Abul Hasan al Karkhi defines Istihsan
as a principle which authorizes departure from an established
precedent in favor of a different ruling for a stronger reason. The
Maliki jurists are more concerned with Istislah (consideration of
public interest) than Istihsan. They validate Istihsan as more or
less similar to Istislah or as a part of Istislah. (See Maliki and
Hanbali definitions in the Text book).
There is no Qati (definitive) authority for Istihsan
in the Quran and the Sunnah. However, verses 34:18 and 39:55 of the
Quran have been quoted in support. Similarly, a very famous Hadith:
"La darara wa la dirara fil Islam" [no harm shall be inflicted or
tolerated in Islam] has been quoted in support. Istihsan is closely
related to 'ray' (opinion) and Qiyas (analogical deduction). Both in
Qiyas and Istihsan, 'ray' is an important component, more heavily in
case of Istihsan.
Sahabis were careful not to apply 'ray' at the
expense of Sunnah. Ahlal Hadith mostly avoided using 'ray'. Most
Fuqaha, on the other hand, liberally used 'ray' in deducing law and
they came to be known as "Ahlur Ray".
Many hold that one kind of Istihsan is essentially
Qiyas Khafi (Hidden analogy). They think that Istihsan is a
departure from Qiyas Jali (obvious analogy) to Qiyas Khafi. There is
another form of Istihsan in which exception is made to the general
rule for the sake of equity and justice on the basis of some 'nass'
(textual evidence), approved custom, darurah (necessity) or Maslaha
(public interest). Examples of Istihsan of the above two types may
be seen in the text book (Kamali - pages 254-257).
Al-Shafii has criticized Istihsan on the basis of
Quranic verses 4:59 and 75:36. However, these verses are not
categorical on Istihsan. Al-Ghazali has criticised Istihsan but
stated that Shafii's recognize Istihsan based on detail from the
Quran and the Sunnah. Al-Amidi (a Shafii jurist) has stated that
Al-Shafii also resorted to Istihsan. Modern jurists have stated that
the essential validity of Istihsan is undeniable.
Maslahah Mursalah: Maslahah literally means benefit
or interest. When qualified as Maslahah Mursalah it refers to
unrestricted public interest. Maslahah Mursalah is synonymous with
Istislah which is also called Maslahah Mutlaqah. Al Ghazali thinks
Maslahah consists of considerations which secure a benefit or
prevent a harm. Protection of life, religion, intellect, lineage and
property is Maslahah.
On the basis of Maslahah, the companions decided to
issue currency, to establish prisons and impose Kharaj (agricultural
land tax). The Ulama of Usul are in agreement that Istislah is not a
proof in respect of devotional matters (Ibadah) and in respect of
specific Shariah injunctions, for example, shares of inheritance. The
majority of Ulama maintain that Istislah is a proper ground for
legislation. Al-Shatibi points out that this is the purpose of
Quranic Ayat No. 107 of sura Al Anbiya that "We have not sent you
but as a mercy for all creatures". There is support for Maslahah in
the Quran in Sura Younus (10:7), in Sura Hajj (22:78) and in Sura
Al-Maidah (5:6).
The Ulama have quoted a number of Hadith in support,
such as the following :
- "No harm shall be inflicted or tolerated in
Islam".
- "The Prophet (SM) only chose the easier of two
alternatives so long as it did not amount to a sin".
- "Allah loves to see that His concessions
(rukksah) are observed, just as He loves to see that His strict
laws (azaim) are observed".
The above would confirm that no unnecessary rigour
is recommended in the enforcement of Ahkam and that the Muslims
should avail of the flexibility and concessions of
Shariah.
All the Khulafa-I-Rashidun acted in pursuance of
Maslahah. Abu Bakr (RA) compiled the Quran. Umar (RA) held his
officials responsible for abuse of public office. Usman (RA)
distributed the authenticated copy of the Quran and destroyed the
copies of variant texts. Ali (RA) held the craftsmen and traders
responsible for the loss of goods that were placed in their
custody.
Maslahah has been upheld by the majority of Ulama.
However, strong support for it comes from Imam Malik (See Kamali).
Maslahah has been divided into three types by Shatibi and some other
scholars -
- essentials [daruriyyat],
- the complementary [hajjiyat] and
- beautifications [tahsiniyaat].
From the point of view of availability or otherwise
of textual authority, Maslahah has been further sub-divided into the
following :
- al-Maslahah al-Mutabarah [accredited Maslahah]
which has been upheld in the Shariah such as defending the right
ownership by penalizing the thief.
- Maslahah Mursalah is that which has
upheld nor nullified by the Shariah such as provision in law in
many Muslim countries for documentary evidence to prove marriage
or ownership of property.
- Maslahah Mulgha which has been nullified either
explicitly or by indications in Shariah (for examples of all
these, see Kamali).
To validate Maslahah the following conditions have
to be met :
- Maslahah must be genuine,
- Maslahah must be general (Kulliyah) - that is it
secures Maslahah for all.
- it must not be in conflict with clear
Nass.
In his book "Masalih al Mursalah", Al Tufi maintains
that except for Ibadah (devotional matters) or specific Shariah
injunctions, Masalih (plural of Maslahah) should take precedence
over other proofs. [See Kamali for full explanation]. However, this
view is not held by majority.
As regards relation among Qiyas, Istihsan and
Istislah, it may be stated that Qiyas and Istihsan are essentially
based on Illah in the Nasus (hidden or obvious). Law is expanded by
Qiyas or Istihsan on the basis of Illah of Nasus. But when law can
not be made on the basis of Nasus or through Qiyas and Istihsan, law
is made on the basis of Maslahah or public interest. A group of
scholars have seriously disagreed with Maslahah. But they are a
minority and their arguments are not very solid (see Kamali). To
meet the new situations in the changing world, Maslalah is a major
instrument in the hands of jurists of Islam.
