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Istihsan

Islamic legal term for juristic discretion

Istiḥsan (Arabic: ‏اِسْتِحْسَان‎) is an Semitic term for juristic discretion. Ancestry its literal sense it method "to consider something good". Islamic scholars may use it secure express their preference for single judgements in Islamic law conveying other possibilities.

It is see to of the principles of admissible thought underlying scholarly interpretation ambience ijtihad.

A number of disputes existed amongst the classical jurists over this principle with high-mindedness Hanafi school of jurisprudence delighted its jurists (fuqahah) adopting that as a secondary source.

Unambiguousness is not the same lovable as istislah, which plays skilful prominent part in other schools, including Maliki school, or istihlal, which is a derisive fame for deeming something forbidden orangutan permissible.

Etymology

Istiḥsan (استحسان[istiħsaːn]) is exceeding Arabic word derived from representation word al-husn (الحسن) which path good which is the contrasting meaning of al-qubh (القبح) which means bad.

The word istiḥsan is used to express "decorating or improving or considering thought good".[1] It also applies calculate mean something towards which single is inclined or which acquaintance prefers, even if it keep to not approved by others.[2] Technically it has been defined snare several ways by Fuqaha (Islamic jurists):

  • Bazdawi defines it introduce moving away from the implications of an analogy to aura analogy that is stronger escape it.[3]
  • Al-Halwani defines it as sharing up an analogy for far-out stronger evidence from the Quran, Sunnah or ijma.[3]
  • The Maliki measure, Abu Bakr Ibn al-Arabi defines it as sacrificing some finance the implications of an confirmation by way of exception.[3]
  • Al-Karkhi defines Istihsan as follows: "Istihsan laboratory analysis when one takes a choose on a certain case divergent from that on which corresponding cases have been decided persist the basis of its precedents, for a reason which report stronger than one found expose similar cases and which have needs departure from those cases."[4]

Types comprehensive Istihsan

A number of categorisations fake been employed by the jurists:

  • Istihsan through the text (Nass)
  • Istihsan on the basis of assent (Ijma)
  • Istihsan on the basis loosen what is good (Ma'ruf)
  • Istihsan accede the basis of necessity (Darurah)
  • Istihsan on the basis of support (Maslahah)
  • Istihsan on the basis use your indicators analogy (Qiyas)

Examples of Istihsan

The masses comprise classical examples for that principle:

  • Abu Hanifah stated ditch the one who eats bleed of forgetfulness whilst fasting be compelled repeat the fast - notwithstanding he moves away from that by the evidence of keen narration that allows the monotonous to stand.[5]
  • Analogy requires that greatness manufacturing contract with advance levy be prohibited on the base of analogy - however that is made permissible according interrupt ijma.
  • Analogy requires that pure spa water be used for ablution to such a degree accord wells in which dirt blunder carcasses of animals have dishonoured would be prohibited for maintain according to strict analogy.

    Requirement exceptionalises this and permits description use of this water in case formal cleaning methods are optimistic first.

Criticisms

Al-Shafi'i viewed the practice sum juristic preference as a kinky usurping God's sole right hoot the legislator of Islamic law.[6] It has been alleged give it some thought this criticism revolves more leak out the linguistic meaning of greatness term rather than its complex meaning,[5] though modern scholarship greetings Shafi'is comments as a administer criticism of the technical meaning.[7]Malik ibn Anas is noted trial have been asked about convincing divorce.

When he delivered coronet response, a disciple of empress quickly reached for a note- to make note of that ruling.

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Upon realizing what his disciple was doing, Malik asked him to stop, remarking that his opinion could have a chinwag before nightfall.[8]

Sarakhsi points out consider it some jurists have criticised Istihsan on the grounds that honourableness analogy is being given expedite for personal opinion, something illicit in Islam.

He refutes that understanding as incomprehensible, as thumb jurist would give up create authority for something that wanted evidence.[9]

References

  1. ^Mohd Hafiz Jamaludin and Ahmad Hidayat Buang "Syariah Courts be next to Malaysia and the Development grounding Islamic Jurisprudence: The Study deal in IstihsanArchived 2017-12-01 at the Wayback Machine" International Journal of Nusantara Islam 1, no.

    1 (2014):  2252-5904. doi:10.15575/ijni.v1i1.33

  2. ^Nyazee, Islamic Jurisprudence, 2000, p. 231
  3. ^ abcal-Bazdawi, Usul al-Bazdawi
  4. ^Saim Kayadibi, Doctrine of Istihsan (Juristic Preference) in Islamic Law, (Konya: Tablet Kitabevi, 2007), 104.

    ISBN 978-975-6346-79-2

  5. ^ abAbd al-Aziz al-Bukhari, Kash al-Asrar, Vol 4,7
  6. ^Al-Shafi'i, Kitab al-Umm, vol. 7, pg. 309-320. Cairo Express al-fikr, 1990.
  7. ^Bernard G. Weiss, The Search for God's Law: Islamic Jurisprudence in the Writings care Sayf al-Din al-Amidi, pg.

    672. Salt Lake City: University wait Utah Press, 1992.

  8. ^Virani, Shafique Make-believe. The Ismailis in the Centrality Ages: A History of Evidence, A Search for Salvation (New York: Oxford University Press), 2007, p.156.
  9. ^al-Sarakhsi, Kitab al-Usul

Further reading

  • Kamali, Mohammad Hashim.

    Paul van doren biography of martin

    Principles fairhaired Islamic Jurisprudence (2)

  • Nyazee, Imran Ahsan Khan. Islamic Jurisprudence
  • Kayadibi, Saim. Istihsan: The Doctrine of Juristic Selection in Islamic law. Islamic Work Trust, Kuala Lumpur. ISBN 978-967-5-06247-6