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Unformatted text preview: s observation that `istihsan represents nine-tenth of human knowledge'. While quoting this view, Abu Zahrah adds that when Malik made this remark, he was apparently including the broad concept of maslahah within the purview of istihsan. `For it is maslahah which accounts for the larger part of the nine-tenth. IV. 208.] [9. Abu Zahrah, Usul, p. 207, and 215. Imam Malik's characterisation of istihsan also appears in Shatibi, Muwafaqat (ed. Diraz), Evidence suggests that the Companions and Successors were not literalists who would seek a specific authority in the revealed sources for every legal opinion (fatwa) they issued. On the contrary, their rulings were often based on their understanding of the general spirit and purpose of the Shari'ah, and not necessarily on the narrow and literal meaning of its principles. Istihsan has been formulated in this spirit; it is the antidote to literalism and takes a broad view of the law which must serve, not frustrate, the ideals of fairness and justice. To give an example, oral testimony is the standard form of evidence in Islamic law on which a consensus (ijma') can be claimed to exist. This normally requires two upright (`adl) witnesses unless the law provides otherwise (the proof of zina, for instance, requires four witnesses). The number of witnesses required in these cases is prescribed in the Qur'an, but the rule that testimony should be given orally is determined by consensus. Muslim jurists have insisted on oral testimony and have given it priority over other methods of proof, including confession and documentary evidence. In their view, the direct and personal testimony of a witness who speaks before the judge with no intermediary is the most reliable means of discovering the truth. The question arises, however, whether one should still insist on Principles of Islamic Jurisprudence ~ Kamali 219 [8. Khudari, oral testimony at a time when other methods such as photography, sound recording, laboratory analyses, etc. offer at least equally, if not more, reliable methods of establishing facts. Here we have, I think, a case for a recourse to istihsan which would give preference to these new and often more reliable means of proof. It would mean departing from the established rules of evidence in favour of an alternative ruling which is justified in light of the new circumstances. The rationale of this istihsan would be that the law requires evidence in order to establish the truth, and not the oral testimony for its own sake. If this is the real spirit of the law, then recourse to istihsan would seem to offer a better way to uphold that spirit. The jurists are not in agreement on a precise definition for istihsan. The Hanafis have, on the whole, adopted Abu'l-Hasan al-Karkhi's (d. 340/947) definition, which they consider accurate and comprehensive. Istihsan is accordingly a principle which authorises departure from an established precedent in favour of a different ruling for a reason stronger than the one which is obta...
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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.
- Spring '13