Third: Al-Istihsan (Juristic Preference)
The Literal Meaning of Al-Istihsan (Juristic Preference):
The Arabic word Al-Istihsan has been derived from the root-word Hasan, which denotes beauty or any good thing. Also Al-Istihsan means to regard something as good. (1)
Al-Istihsan (Juristic Preference) in Terminology:
Muslim scholars have different opinions on the definition of Al-Istihsan and they disputed on determining the meaning of this word. It was said that it means the following:
1- Grading something as good by a Muslim jurist through his personal opinion. (2)
It is noteworthy that Al-Istihsan in this sense is unacceptable in Islamic jurisprudence, as the consensus of the Muslim nation has been established that a jurist does not have the right to judge according to his personal opinion or self desire without looking into the proofs of Shari`ah. There is no difference between jurist and non-jurist in this issue. (3)
2- Al-Istihsan is a proof that is perceived by the mind of a jurist that is hard to be expressed by words. (4)
This type of self perceived proof by a jurist has one of two possibilities; whether the jurist is sure of it or reluctant, in both cases, the evidence is unacceptable, as the proof that could not be expressed could not be known by others. In addition to that, the possibility of making mistake in the juristic reasoning is unavoidable. In the first assumption, it would be said that the proof is an authority for the jurist himself only and not for others. (5)
3- Al-Istihsan is a ruling on some issue different from its analogues due to some special proof. (6)
Example: Jurists of the Hanafi School of jurisprudence have ruled out that when a donor donates an agricultural land it will include the right in the outlet of water, the right in the well and the right in the passage. The rights of these common sources would be included in the donated land automatically without mentioning them in the terms of donation. This exceptional rule is based on the principle of Al-Istihsan. On the other hand, the juristic reasoning concludes that they would not be included in the donated land unless they were mentioned in the donation like the case of selling a land. The ruling of Istihsan here is based on the purpose of the endowment or donation as the donor intends that his endowment will be beneficial for the people, and the agricultural land could not be used without water, street and outlet. That is why; they will be included in the endowment even if they were not mentioned in words, because, the aim can not be achieved without these basic sources, such as in the case of rent. (7)
Al-Istihsan (Juristic Preference) in this sense is acceptable to the majority of the experts of the juristic principles; however, Al-Istihsan (Juristic Preference) was explained in different words. (8)
Al-Mawardi said in this context: "Al-Istihsan (Juristic Preference) with evidence is acceptable, we deny only referring to Al-Istihsan (Juristic Preference) that is not accompanied by proof." (9)
In addition to that, Al-Qaffal(10) said: "If Al-Istihsan (Juristic Preference) was supported by proofs in the light of juristic principles then it is good, because, evidence has proved it. So, we do not refuse it; we refuse only the Istihsan that describes something with goodness or evilness basing on mere illusion not on the proof, such type of Istihsan is prohibited and could not be relied on." (11)
Istihsan has been regarded as an authority, because, a jurist avoids a weak proof when he becomes in front of a proof stronger than the first one. This sort of Istihsan is not disputed by anyone, because, referring to the stronger one is an agreed upon issue. (12)
The Authenticity of Al-Istihsan (Juristic Preference):
There is no dispute among the jurists on the permissibility of the word Al-Istihsan, as some forms of this word have been mentioned in the Glorious Qur'an and by the pious predecessors of Islam:
As to the Glorious Qur'an, Allah (Glory be to Him) says: “Who listen to speech and follow the best of it. Those are the ones Allah has guided, and those are people of understanding.” (13). And He (Glory be to Him) says: “And follow the best of what was revealed to you from your Lord before the punishment comes upon you suddenly while you do not perceive.” (14).
As for the Hadith, the Prophet (may the peace and the blessings of Allah be upon him) said: "Whoever establishes a good way (Sunnah Hasanah) in Islam, will have a reward for it, and a reward equal to that of everyone who does it after him, without that detracting from their reward in the slightest. And whoever establishes a good method (Sunnah Sayyi'ah) a bad way in Islam, will bear the burden for that, and a burden equal to that of everyone who does it after him, without that detracting from their burden in the slightest." (15)
Moreover, it was narrated through an authentic chain from `Abdullah ibn Mas`ud who said: “Whatever the Muslims view as good is good in the sight of Allah.” (16)
Furthermore, the word Istihsan has been referred by leading jurists of Muslims in many issues. (17)
However, the scholars have differed in their opinion about the juristic value of Istihsan (Juristic Preference) especially when it is used in its particular juristic sense. The origin of the dispute on the value of Istihsan (Juristic Preference) is represented in two things:
The first: the dispute on determining the meaning of this term. When some jurists deny Al-Istihsan(18) they deny in the sense of the particular term that is devoid of proof. And when some jurists assert they assert in some specific meaning not in an absolute sense. As the jurists agree unanimously that if Istihsan means to regard something as good or something as bad through the mere thought of a jurist without considering the evidence of Shari`ah then this sort of Istihsan is unacceptable.
As well as, the majority of the jurists accept Istihsan in the sense of ruling on something different from the ruling of its analogues due to some special and particular evidence.
The second: the dispute on naming this kind of evidence as Istihsan, because, if it is accompanied with proof then it is a sort of applying the evidence that is an agreed upon issue among the majority of the experts of juristic principle.
It seems that Istihsan does not have any meaning that may entail any kind of dispute as was concluded by some scholars. (19)
Because, the particular and special evidence that leads a jurist to give a ruling different from its analogues, whether it is a religious text, consensus, the proof of benefit or necessity or a valid norm. As every one of them is an independent and separate proof in Islamic jurisprudence.
In addition, it is not necessary for Istihsan to be always disagreeing with Qiyas (juristic reasoning), rather, in many cases, Istihsan agrees with Qiyas (juristic reasoning). (20)
Al-Istihsan (Juristic Preference) and the Moral Values of Islam:
After, it has been proved that Istihsan (Juristic Preference) has no place for dispute and it is not an independent proof for Islamic provisions. Therefore, Istihsan (Juristic Preference) has no impact on the moral values of Islam.
(1) Ibn Manzur, Lsan Al-Arab (13/114), (1) Al-Ferozabadi: Al-Qamus Al-Muhit(4/213) and Al-Mu`jam Al-Wasit, the Arabic Language Academy, (1/174).
(2) Al-Ghazali, Al-Mustasfa, (1/174).
(3) Al-Aamidi, Al-Ihkam (4/157), Al-Ghazali, Al-Mustasfa (1 / 275-276).
(4) See: Ash-Shawkani, Irshad Al-Fuhul, p. 241.
(5) See: Ash-Shawkani, Irshad Al-Fuhul, p. 241, and At-Tayyib Al-Khudhari, As-Sayyid, Al-Ijtihad Fima La Nassa Fihi, (2/15) and Al-Bouti, Dhawabit Al-Maslaha, p. 238, Mu'assasah Ar-Risalah, Beirut, edition 4th, the year 1402 A.H..
(6) Al-Ghazali, Al-Mustasfa(1/275) Al-Aamidi, Al-Ihkam, (4/157).
(7) `Abdul-Wahhab Khallaf, `Ilm Usool Al-Fiqh, (The Science of the Principals of the Jurisprudence), p. 80.
(8) At-Tayyib Al-Khudhari, As-Sayyid, Al-Ijtihad Fima La Nassa Fihi, (2/16).
(9) At-Tayyib Al-Khudhari, As-Sayyid, Al-Ijtihad Fima La Nassa Fihi, p. 25.
(10) Muhammad ibn `Ali ibn Isma`il Ash-Shasi, Al-Qaffal, Abu Bakr, one of the great scholars of his time, who was born in 291 A.H. and died in 365 A.H. See: Al-I`alam (6/274).
(11) See: Ash-Shawkani, Irshad Al-Fuhul, p. 241.
(12) Ash-Shawkani, Irshad Al-Fuhul, p. 241, Al-Aamidi, Al-Ihkam (4/ 158-159), and Muhammad Abun-Nur Zuhayr, Al-Maktabah Al-Faisaliyyah,(4/405), the blessed Mecca, the year 1405 A.H..
(13) Az-Zumar: 18.
(14) Az-Zumar: 55.
(15) Reported by Muslim. See: Sahih Muslim with commentary of An-Nawawi, (5/531).
(16) Al-`Ajlouni, Kashf Al-Khafa'(2/245) with a commentary by Ahmad Al-Qulash, Foundation Ar-Risalah, Beirut, edition 4th, year 1405 A.H..
(17) See: Ibn al-Qayyim – Badaa'e`i Al-Fawa'id (4/124) without date and publishing house, Ash-Shatibi, Al-Muwafaqat (4/209) and Al-Aamidi, Al-Ihkam, (4/157).
(18) Muhammad Abun-Nur Zuhayr, Usool Al-Fiqh,(The Principles of Jurisprudence) (4/406).
(19) As-San`aani, Ijabat As-Sa'il Sharh Baqiyyat Al-Amal, edited by Hussein As-Suba`I and Hasan Al-Ahdal p. 220 , Mu'assasah Ar-Risalah, Beirut, edition 1st , 1406 A.H., Ash-Shawkani, Irshad Al-Fuhul, p. 241 and Muhammad Abun-Nur Zuhayr, Usool Al-Fiqh (4/407).
(20) See: Ibn Taymiyyah, Majmu`a Al-Fatwa, (20/505), Ibn Al-Qayyim, I`alam Al-Muwaqqi`in, (1/383).