Principles of Islamic Jurisprudence by MH kamali

2 see for a discussion kerrs islamic reformp57 from

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Unformatted text preview: eld in the divine law. Unlike equity, which is founded in the recognition of a superior law, istihsan does not seek to constitute an independent authority beyond the Shari'ah. Istihsan, in other words, is an integral part of the Shari'ah, and differs with equity in that the latter recognises a natural law apart from, and essentially superior to, positive law. [3. See for a discussion John Makdisi, 'Legal Logic,' p.90.] While discussing the general theory of istihsan, this chapter also draws attention to two main issues concerning this subject. One of these is whether or not istihsan is a form of analogical reasoning: is it to be regarded as a variety of qiyas or does it merit to stand as a principle of equity in its own right? The other issue to be raised is the controversy over the validity of istihsan, which started with al-Shafi'i's unambiguous rejection of this principle. A glance at the existing literature shows how the ulema are preoccupied with the polemics over istihsan and have differed on almost every aspect of the subject. I shall therefore start with a general characterisation of istihsan, and then discuss the authority which is Principles of Islamic Jurisprudence ~ Kamali 217 quoted in its support. This will be followed by a brief account of the related concepts, ra'y and qiyas. The discussion will end with an account of the controversy over istihsan and a conclusion where I have tried to see the issues in a fresh light with a view to developing a perspective on istihsan. Istihsan is an important branch of ijtihad, and has played a prominent role in the adaptation of Islamic law to the changing needs of society. It has provided Islamic law with the necessary means with which to encourage flexibility and growth. Notwithstanding a measure of juristic technicality which seems to have been injected into an originally simple idea, istihsan remains basically flexible, and can be used for a variety of purposes, as will later be discussed. Yet because of its essential flexibility, the jurists have discouraged an over-reliance on istihsan lest it result in the suspension of the injunctions of the Shari'ah and become a means of circumventing its general principles. Istihsan has thus become the subject of much controversy among our jurists. Whereas the Hanafi, Maliki, and Hanbali jurists have validated istihsan as a subsidiary source of law, the Shafi'i, Zahiri and Shi'i ulema have rejected it altogether and refused to give it any credence in their formulation of the legal theory of usul al-fiqh. details see Sabuni, Madkhal, p. 119ff.] Istihsan literally means `to approve, or to deem something preferable'. It is a derivation from hasuna, which means being good or beautiful. In its juristic sense, istihsan is a method of exercising personal opinion in order to avoid any rigidity and unfairness that might result from the literal enforcement of the existing law. `Juristic preference' is a fitting description of istihsan, as it involves setting aside as established analogy in favour of an alternative ruling which serves the ideals of justice and public interest in a better way. Enforcing the existing law may prove to he detrimental in c...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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