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Unformatted text preview: of its potential. Hence, it is not surprising to note that a certain gap between theory and practice has developed in Islamic Law. [53. Joseph Schacht has devoted a chapter to the subject, entitled `Theory and Practice' where he elaborates on how the gap between the law and social realities has widened: An Introduction, pp.76-86.] The potentials of istihsan could hardly be translated into reality unless istihsan is stripped of its unwarranted accretions. The only consideration that needs to be closely observed in istihsan is whether there exists a more compelling reason to warrant a departure from an existing law. The reason which justifies resort to istihsan must not only be valid in Shari`ah but must serve a higher objective of it and must therefore be given preference over the existing law which is deemed unfair. Since istihsan enables a choice between alternative solutions, it contemplates the relative merits and demerits of each of the alternatives. The existing law is always the base to which an alternative is devised through istihsan. In this sense, istihsan offers considerable potential for innovation and for imaginative solutions to legal problems. The question in istihsan is not merely to find a solution to a particular problem but to find a better solution to the one which already exists. It therefore calls for a higher level of analysis and refinement which must in essence transcend the existing law and analogy. The potential for new alternatives in istihsan would thus be considerably restricted if it were to be subjected to the requirements of qiyas. The two are essentially designed for different purposes and each must be allowed to function in its best capacity. Analogy essentially extends the logic of the Qur'an and the Sunnah, whereas istihsan is designed to tackle the irregularities of qiyas. Thus it would seem methodologically incorrect to amalgamate the two into a single formula. Istihsan has admittedly not played a noticeable role in the legal and judicial practices of our times. It has, as it were, remained in the realm of controversy, which may partly be explained by the dominance of the phenomenon of taqlid in shaping the attitude of lawyers and judges towards istihsan. Only the rulings of the jurists of the past have been upheld on istihsan, and even this has not been totally free of hesitation. Muslim rulers and judges have made little or no use of istihsan either in developing the existing law or in the day-to-day administration of justice. This is patently unjustified, especially in view of the eminent suitability of istihsan in the search for fair and equitable solutions. Istihsan can best be used as a method by which to improve the existing law, to strip it of impractical and undesirable elements and to refine it by means of making necessary exceptions. Istihsan, in other words, generally operates within the confines of the legal status quo and does not seek a radical change in the existing law, although it has considerable potential to effect innovatio...
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- Spring '13