1 / 10

Istihsan (Juristic Preference) and Maslaha

Istihsan (Juristic Preference) and Maslaha . Istihsan. literally means deem something preferable. Juristic sense method of exercising personal opinion ( ray ) to avoid any rigidity and unfairness that might result from literal application of law.

clove
Download Presentation

Istihsan (Juristic Preference) and Maslaha

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Istihsan (Juristic Preference) and Maslaha

  2. Istihsan • literally means deem something preferable. • Juristic sense method of exercising personal opinion (ray) to avoid any rigidity and unfairness that might result from literal application of law. • As a concept is close to equity in Western law. • Equity in Western law is based on natural law, whereas Istihsan is essentially based on divine law.

  3. Istihsan is an important branch of Ijtihad • In the changing needs of society

  4. Exa. – decision of Umar (RA) to suspend "hadd" penalty (penalty prescribed by the Quran and Sunnah) of amputation of hand during famine

  5. companions (Sahabi) and successors (Tabiun) were not merely literalist • their rulings were often based on their understanding of the spirit and purpose of Shariah • Istihsan is closely related to 'ray' (opinion) and Qiyas (analogical deduction)

  6. Many hold that one kind of Istihsan is essentially Qiyas Khafi (Hidden analogy) • Another form of Istihsan in which exception is made to the general rule for the sake of equity and justice on the basis of some 'nass' (textual evidence), approved custom, darurah (necessity) or Maslaha (public interest).

  7. Maslahah • literally means benefit or interest • Maslahah Mursalah refers to unrestricted public interest • Maslahah consists of considerations which secure a benefit or prevent a harm • Protection of life, religion, intellect, lineage and property is Maslahah. 

  8. Exa. – On the basis of Maslahah, the companions decided to issue currency, to establish prisons and impose Kharaj (agricultural land tax). – Abu Bakr (RA) compiled the Quran. – Umar (RA) held his officials responsible for abuse of public office. – Usman (RA) distributed the authenticated copy of the Quran and destroyed the copies of variant texts. – Ali (RA) held the craftsmen and traders responsible for the loss of goods that were placed in their custody. 

  9. Its not a proof in respect of devotional matters (Ibadah) and in respect of specific Shariah injunctions, like, shares of inheritance • Among Qiyas, Istihsan and Istislah, it may be stated that Qiyas and Istihsan are essentially based on Illah in the Nasus (hidden or obvious).

  10. Law is expanded by Qiyas or Istihsan on the basis of Illah of Nasus • But when law can not be made on the basis of Nasus or through Qiyas and Istihsan, law is made on the basis of Maslahah or public interest.

More Related