The theory of Istiḥsān (juristic preference) in Islamic law

• Main Author: Yūsuf, Riḍwān Arẹmu
• Format: Others
• Language: en
• Published: McGill University 1992
• Subjects: Islamic law
• Online Access: http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=39302

Istihsan(juristic preference) deviates from and sometimes contradicts well-established general precepts of law. It calls for a considerable amount of personal judgment on the part of the jurist who applies it. In the early period of Islam, istihsan was identified with ra'y (personal opinion) which frequently lacked systematic guide-lines. Abu Hanifah (d. 150/767) does not consider istihsan as a merely arbitrary opinion. He believes that it is a procedure of setting aside an apparently strict ruling of analogy in the interest of fairness and justice. === On the other hand, Shafi'i (d. 204/819) adopts a text-oriented approach; he believes that a Muslim jurist is guided, not by intuition, but by textual evidence (dalil). He therefore subscribes to qiyas (inference by analogy) and rejects istihsan. An Hanafi jurist, Sarakhsi (d. 490/1096) later wrote a chapter on the explanation of qiyas, istihsan and takhsis al-'illah (particularization of the cause) as a rebuttal to Shafi'i's criticism of istihsan. Ibn Taymiyah (d. 728/1327), and Hanbali jurist, not only agrees with the istihsan, but believes that it is in reality takhsis al-'illah. To this effect, he wrote a treatise on istihsan and called it Mas'alat al-Istihsan. === This thesis studies the concept of istihsan as described by the above mentioned jurists, and some of their works on the subject are translated into English. The purpose of this thesis is to offer an historical study on juristic preference, its relationship with qiyas and takhsis al-'illah. This study attempts to add to our knowledge of istihsan and leads us to further and fuller analysis of why Shafi'i rejected it.