Thursday, 13 December 2018

Istihsan, or Equity in Islamic Law


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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