Slides from Dr Mohd. Afandi Bin Awang Hamat, IIUM,UIAM

1. AL-ISTIHSAN

2. UTILIZATION
AGREED UPONAGREED UPON
AL-QUR’AN
AL-SUNNAH
DISAGREED UPONDISAGREED UPON
AL-IJMA’
AL-QIYAS
AL-ISTIHSAN
AL-’URF
AMAL AHL AL-MADINAH
MASALIH MURSALAH
AL-ISTISHAB
SAD DHARAI’

3. AL-ISTIHSANAL-ISTIHSAN
 MEANING
 TYPES
 EXAMPLES
 VALIDITY

4. THE MEANING OF AL-ISTIHSAN
 Literal Meaning
Derived from the root word of :
a. To deem something preferable
b. To consider something good

5. TECHNICAL MEANING
 There is no agreement between fuqaha’ on one particular
definition of al-istihsan.
al-Bazdawi: Moving away from the implication of analogy to an
analogy that it stronger than it , or it is the restriction of analogy by
an evidence that is stronger than it.
al-Halwani: Giving up of analogy for a stronger evidence from al-
Qur’an, al-Sunnah ,al-Ijma’ or etc
Al-Sarakhsi: A way of looking at the consequences of the
application of two legal rules and the selection of one that creates
ease and facility.

6. TECHNICAL MEANING
 Imam Ghazali defines Istihsan as something that is considered
good by scholars using reasons.
 Ibn Qudamah defines Istihsan as the abandonment of one legal
ruling for another ruling which is considered better on the basis of
the Quran, Sunnah, Consensus or etc
 Abu Hassan al-Kharkhi defines Istihsan as the departure from the
existing precedent, by taking a decision in a certain case different
from that on similar cases have been decided, for a reason stronger
than the one that is obtained in those cases.

7. THE MEANING OF AL-ISTIHSAN
 The Essence
To formulate a decision which sets aside an established dalil for a
reason that justifies such a departure and seeks to uphold a higher
value in the Shariah
 Objective of al-Istihsan
To avoid rigidity and inflexibility from literal enforcement of certain
ruling or hukm

8. TPYES OF
ISTIHSAN

9. GENERAL RULING  ANOTHER RULING [EXCEPTION]
 A general principles emerging from the texts may not permit
something, yet another text may provide an exception to this
broad principle.
 General rules
It is forbidden to sell an object which is not in possession
 The Contract of al-Salam
The sale of an object in which the price was paid in advance and the item is
to be delivered at a future date.
The rule of Bay al-Salam was established by a Hadith reported from the
Prophet s.a.w.
TYPE A: AL-ISTIHSAN THROUGH THE TEXT [AL-NASS]

10. GENERAL RULING  ANOTHER RULING [EXCEPTION]
TYPE A: AL-ISTIHSAN THROUGH THE TEXT [AL-NASS]

11. "Whoever wishes to enter into
a contract of Salam, he must
effect the Salam according to
the specified measure and
the specified weight and the
specified date of delivery."

12. General Rules
It is forbidden to sell an object which
is not in possession
The Contract of al-Salam
The sale of an object in which the price
was paid in advance and the item is to be
delivered at a future date.
ISTIHSAN

13.  The general principles forbids transactions in things that do
not exist at the time of contract.
 An exemption was made on the basis of consensus for the
manufacturing contract. [contract of al-istisna’]
TYPES B: AL-ISTIHSAN ON THE BASIS OF AL-IJMA’
General Rules
It is forbidden to sell an object which
is not in possession
The Contract of al-Istisna’
The sale of an object in which the price
was paid in advance and the item is to be
manufactured at a future date.
ISTIHSAN

14. Example is permission to allow the endowment (wasiat)
out of moveable property (al-manqul) such as books,
plates, cups and etc. The Original precedent that
endowment must be in the form of something
permanent (al-aqarat such as houses, lands, buildings
and etc).
TYPES C: AL-ISTIHSAN ON THE BASIS OF AL-’URF

15.  Example: the permission for the medical practitioner to look
at the ‘Awra of the sick for a treatment
 In principle Doctor is not allowed to see someone else aurat,
however, in the situation of al-Darurah, they are allowed.
TYPES D: AL-ISTIHSAN ON THE BASIS OF NECESSITY

16.  Widely used by the Malikites.
 The general principles required that the artisans were not to
be held liable for things handed to them unless there is proof
of negligence.
 However, the Fourth Caliph, Ali ibn Abi Talid changed the rule,
making the artisans liable for their negligence.(They were
required to show that there had been no negligence).
TYPES E: AL-ISTIHSAN ON THE BASIS OF MASLAHAH

17. THE CLEAR QIYAS  THE HIDDEN QIYAS
 The Waqf (Charitable endowments) of cultivated land includes the
transfer of all the supplementary rights:
a. Right of drinking (haqq al-shurb)
b. Right of passage (haqq al-murur)
c. Right of flow (haqq al-masil)
even if these rights are not specifically mentioned when the
contract of al-Waqf was made.
Because qiyas between the waqf to the sale and purchase contract
TYPES F: AL-ISTIHSAN THE BASIS OF AL-QIYAS AL-KHAFI

18. EXAMPLES OF AL-ISTIHSAN
 The departure from the clear Qiyas to the hidden Qiyas
because the latter is stronger and more effective in
repelling hardship
 The departure from a clear ruling to another ruling
because the latter is stronger and more effective in
repelling hardship

19. Original Case
SALE
New Case
Waqf
Effective Cause
Both Sale and Waqf involved
the transfer of ownership
Original Ruling
The attached rights will only
be included in the contract if
they are explicitly identified
?
THE CLEAR QIYAS – QIYAS AL-JALIYY
New Ruling
The attached rights will only
be included in the contract if
they are explicitly identified

20. Original Case
IJARAH
New Case
WAQF
Effective Cause
Both Ijarah and Waqf involved
the transfer of usufruct
Original Ruling
The attached rights included
in the contract even if they
are not explicitly identified
New Ruling
The attached rights included
in the contract even if they
are not explicitly identified
?
THE HIDDEN QIYAS – QIYAS AL-KHAFIYY

21. THE VALIDITY OF AL-ISTIHSAN
 al-Istihsan is a valid secondary source of Islamic Law to:
a. The Hanafites
b. The Malikites
c. The Hanbalites
A method of legal reasoning that:
a. Give importance to the consequences of the decision.
b. Identify general principles and exceptions
 al-Istihsan is not a valid secondary source of Islamic Law to
the Shafi’ites
“Istihsan is the following of one’s personal whim and amounts to
unjustified legislation”