Istihsan, or Equity in Islamic Law
Istihsan, or Equity in Islamic Law
Introduction
‘Equity’
is a Western legal concept which is grounded in the idea of fairness and
conscience, and derives legitimacy from a belief in natural rights or justice
beyond positive law. Osborn’s Concise Law Dictionary, at page 124, defines
equity as fairness or natural justice. Similarly Istihsan in Islamic law is
inspired by the principle of fairness and conscience, and both authorises
departure from a rule of positive law when its enforcement leads to unfair
results.
The
difference between them is, as the Shariah is an embodiment of the will of God,
unlike equity which is defined as a law of nature superior to all other laws,
written or otherwise, this is not what is meant by istihsan. For istihsan does
not recognise the superiority of any other law over the divine revelation.
Issues
While
dealing with the theory of Istihsan, two main issue which arises are;
·
Whether or not
Istihsan is a form of analogical reasoning, and
·
The question of
validity of Istihsan because of Shafi’s strong opposition.
Istihsan
is an important branch of ijtihad, and because of its essential flexibility the
Hanafi, Maliki, and Hanbali jurists have validated istihsan as a subsidiary
source of law, the Shafi'i, Zahiri and Shi'i ulema have rejected it altogether.
Meaning
a) Literally
Istihsan literally
means; “to approve, or to deem something preferable”.
b) Juristically
In
its juristic sense, istihsan is a method of exercising personal opinion in
order to avoid any rigidity and unfairness that might result from the literal
enforcement of the existing law.
Historical illustration
In
the reign of “Umar b. al-Khattab”, he suspended the hadd penalty of the
amputation of the hand for theft during a widespread famine, were on grounds of
public interest, equity and justice.
Explanation
The
Hanafi jurist al-Sarakhsi considers istihsan to be a method of seeking facility
and ease in legal injunctions. He relied on Ayat that;
“God
intends facility for you, and He does not want to put you in hardship”
(al-Baqarah 2:185)
Example
The oral,
direct and personal testimony is the standard form of evidence in Islamic law,
but the question is whether one should still insist on oral testimony even when
have other methods e.g. photography, sound recordings etc being more reliable.
Here istihsan give preference to these new means.
Definition
a) The Hanafis
The
Hanafis have, adopted Abu'l-Hasan al-Karkhi's definition, which they consider
accurate. “Istihsan is accordingly a principle which authorises departure from
an established precedent in favour of a different ruling for a reason stronger
than the one which is obtained in that precedent”.
b) The Hanbali’s
According
to Ibn Taymiyyah, istihsan is the abandonment of one legal norm (hukm) for
another which is considered better on the basis of the Qur'an, Sunnah, or
consensus.
c) The Maliki’s
According
to Ibn al-'Arabi, 'istihsan is to abandon exceptionally what is required by the
law because applying the existing law would lead to a departure from some of
its own objectives.
Point
to be noted is that departure from an existing precedent, is common to all the
foregoing definitions.
Arguments For and Against Istihsan
a) For Itihsan (Proof of Ijtishan)
(i) In Quran
The Hanafi
jurists have mainly quoted two Qur'anic ayahs;
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“Those who listen to the Word and follow the best thereof
those are whom Allâh has guided and those are men of understanding.”
(al-Zumar, 39:18);
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“And
follow the best [ahsan] of what has been sent down to you from your Lord”.
(al-Zumar, 39:55)
(ii) In Hadith
The
following two ahadith have also been quoted in support of istihsan;
·
“What
the Muslims deem to be good is good in the sight of God”.
·
“No
harm shall be inflicted or reciprocated in Islam”.
b) Against Itihsan (Criticism)
The
critics of istihsan have argued, that none of the foregoing provide a definite
authority in support of this doctrine. Regarding two ayahs, Amidi points out
that it merely praises those who follow the best of what they hear.
And
for the Traditions both al-Ghazali and al-Amidi have observed that, this would
provide the authority for consensus (ijma). There is nothing in it that what a
Muslim individual deems good is also good in the sight of God.
Kinds of Istihsan
According to
Syed Riazul Hassan; there are two kinds of Isthisan;
a) Istihsan-e-Qiyasi
This is seeking
preference between more than one inconsistent analogical deductions on a
particular legal problem. Some significant features call for an argument from
the Shariah which enables a jurist to give preference to one analogy over the
other.
For example the
suspension of Hadd punishment of cutting hands in famine by Hazrat Umar R.A in
his reign.
b) Istihsan-e-Zarurt
When an object
can be achieved in more than one legal ways, and the prevalent way causes
serious practical problems, its form is changed into another legal way.
For example,
the common practice of a contract between artisans i.e. tailor and people is of
depository contract in nature. Under depository contracts, if the things lost
or damaged the depository is not liable unless proved guilty of negligence. So
artisans started to took undue advantage of this nature.
Caliph Ali R.A
availed himself to change the nature of such contract. He declared the nature
onwards will not be of depository contract, rather it will be in nature of
contract of Guarantee. Wherein the artisans will become liable even though
negligent or not.
He said;
“I have done it
in the interest of the common good of the society and thus the artisans will be
set right”.
Relationship of Istihsan with Ray and Qiyas
a) Istihsan and Ray (Opinion)
Istihsan
is closely related to both ra'y and analogical reasoning. Qiyas is the logical
extension of an original ruling through the exercise of human reasoning, which
also consists in personal opinion (ra'y). This is also true of istihsan, which
relies even more heavily on ra'y.
From
an historical vantage point in their recourse to personal opinion, the Companions
were careful not to exercise ra'y because of possible violation of the Sunnah
was greater in those days when the Hadith had not yet been compiled. Fear of
isolating the Sunnah led the jurists to lay down certain rules for free
recourse to ra'y, i.e. ra'y must derive its authority from the Shari'ah and
qiyas was initially a disciplined form of ra'y the exercise of which led to
considerable disagreement among the fuqaha'.
Those
who called for a close adherence to the Hadith, are called the Ahl al-Hadith
and on the other hand, the fuqaha' of Iraq, resorted more liberally to personal
opinion, which is why they are known as Ahl al-Ra'y. The Ahl al-Ra'y are thus
known for their frequent resort to analogical reasoning and istihsan.
And
istihsan reflects an attempt on the part of the fuqaha at regulating the free
exercise of ra'y in matters of law and religion.
b) Qiyas Jali, Qiyas Khafi and Istihsan
Qiyas
jali or “obvious analogy”, is a straightforward qiyas which is easily intelligible
to the mind But qiyas khafi, or “hidden analogy”, is a more subtle form of
analogy that it is not obvious to the naked eye but is intelligible only
through deeper thought. Qiyas khafi, is also called istihsan or qiyas mustahsan
(preferred qiyas).
(i) Forms of Istihsan
· Istihsan-e-qiyasi
According
to the majority of jurists, istihsan consists of a departure from qiyas jali to
qiyas khafi. This is one form of istihsan.
For
example, contract of sale under Islamic Law enjoins that the object of contract
must be clearly identified in detail. And under Hanafi law, the waqf
(charitable endowment) of cultivated land includes the transfer of ancillary
rights with it, based on Istihsan, which if not transfer with ancillary rights
would frustrate the whole purpose of contract.
· Istihsan istihsanai (Exceptional istihsan)
Which
mainly consists of making an exception to a general rule of the existing law
when the jurist is convinced that justice and equity will be better served by
making such an exception, also called “exceptional istihsan”.
For
example, the Qur'an is its ruling on bequests to relatives:
“It
is prescribed that when death approaches any of you, if he leaves any assets,
that he makes a bequest to parents and relatives” (al-Baqarah 2:180)
This
Qur'anic provision represents an exception to a general principle of the
Shari'ah, namely that a bequest is basically not valid. However, the Qur'an
permits bequest as an exception to the general rule, especially where a
relative is destitute and yet is excluded from inheritance in the presence of
other heirs.
The Hanafi-Shafi'i Controversy over Istihsan
· Shafi’s criticism
Al-Shafi’s
has raised serious objections against istihsan, he quoted sura al Nisa (4:59):
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“Should
you dispute over a matter among yourselves, refer it to God and His Messenger,
if you do believe in God and the Last Day”.
They
continues that anyone who prefers that which neither God nor His Messenger has
commanded or approved, his preference will not be acceptable
According
to al-Shafi'i, personal opinion, discretion and the inclination of the
individual jurist is an exercise which is not in harmony with the Qur'anic ayah
which reads:
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“Does
man think that he will be left without guidance”. (al-Qiyamah, 75:36)
Imam
Ghazali rejects it on ground that if it is based on dalil in Quran and Sunnah
then the would be governed directly by text itself and finally rejects istihsan
which is based on popular custom, for custom by itself is not a source of law.
· Istihsan as Qiyas khafi and Hanafi’s response
In
response to this critique, the Hanafis have asserted that istihsan is not an
arbitrary exercise in personal preference. It is a form of qiyas (viz., qiyas
khafi), and is no less authoritative than qiyas, however, it is doubtful whether
istihsan is really just another form of qiyas.
·
Ahmad Hasan has
observed that istihsan is more general than qiyas khafi, as the former embraces
a wider scope and can apply to matters beyond the confines of the latter. Further
Abu Hanifah and his earliest disciples did not consider istihsan as a kind of
qiyas.
·
Aghnides goes
on to suggest that when the Shafi'i jurists attacked istihsan on the grounds
that it meant a setting aside of the revealed texts, the disciples of Abu
Hanifah felt themselves forced to show that such was not the case. Hence they
put forward the contention that istihsan was nothing but another kind of qiyas.
Furthermore
other Ulema’s observed in favour of Istihsan;
·
Shaykh
al-Khudari, writes that anyone who is familiar with the works of the ulema of
jurisprudence agree that all jurists have resorted to istihsan in one form or
another.
·
Yusuf Musa
observed that the fuqaha of every major school have invariably resorted to
istihsan in one form or another.
And
finally,
·
Al-Taftazani has
observed that neither of the two sides of the controversy over istihsan have
understood one another. Those who argue in favour of istihsan have perceived it
differently to those who have argued against it.
Conclusion
The
attempt at linking istihsan with qiyas involved such reasoning which is less
convincing. To resolve this issue one way is to go back to the origin of
istihsan. And for this there is no evidence that Imam Abu Hanifa did use the
word of qiyasi khafi for istihsan.
Furthermore
even after half century later, when Imam Shafi wrote Risalah and Kitab-ul-ilam,
there was little sign of a link between istihsan and qiyas.
As
istihsan was formulated not as another variety of qiyas but as a separate
doctrine liberating the jurist from strait jacket of qiyas and it can be said
that istihsan is basically antithetic to qiyas not a part of it.
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