Unformatted text preview: ertain situations, and a departure from it may be the only way of attaining a fair solution to a particular problem. The jurist who resorts to istihsan may find the law to be either too general, or too specific and inflexible. In both cases, istihsan may offer a means of avoiding hardship and generating a solution which is harmonious with the higher objectives of the Shari'ah. It has been suggested that the ruling of the second caliph, `Umar b. al-Khattab, not to enforce the hadd penalty of the amputation of the hand for theft during a widespread famine, and the ban which he imposed on the sale of slave-mothers (ummahat al-awlad), and marriage with kitabiyahs in certain cases were all instances of istihsan. [5. Umm al-walad is a female slave who has borne a child to her master, and who is consequently free at his death. A kitabiyah is a woman who is a follower of a revealed religion, namely Christianity and Judaism.] For `Umar set aside the established law in these cases on grounds of public interest, equity and justice. [6. Cf. Ahmad Hasan, Early Development, p.145.] The Hanafi jurist al-Sarakhsi (d. 483/1090), considers istihsan to be a method of seeking facility and ease in legal injunctions. It involves a departure from qiyas in favour of a ruling which dispels hardship and brings about ease to the people. 'Avoidance of hardship (raf' al-haraj)' al-Sarakhsi adds, `is a Principles of Islamic Jurisprudence ~ Kamali 218 [4. For cardinal principle of religion which is enunciated in the Qur'an, where we read, in an address to the believers, that `God intends facility for you, and He does not want to put you in hardship' (al-Baqarah 2:185). Al-Sarakhsi substantiates this further by quoting the Hadith that reads: `The best of your religion is that which brings ease to the people.' [7. Sarakhsi, Mabsut, X, 145; Ibn Hanbal, Musnad, V. 22.] Al-Khudari has rightly explained that in their search for solutions to problems, the Companions and Successors resorted in the first place to the Qur'an and the normative example of the Prophet. But when they found no answer in these sources, they exercised their personal opinion (ra'y) which they formulated in the light of the general principles and objectives of the Shari'ah. This is illustrated, for example, in the judgment of `Umar ibn al-Khattab in the case of Muhammad ibn Salamah. The caliph was approached by Ibn Salamah's neighbour who asked for permission to extend a water canal through Ibn Salamah's property, and he was grafted the request on the ground that no harm was likely to accrue to Ibn Salamah, whereas extending a water canal was to the manifest benefit of his neighbour. Tarikh, p.199.] It thus appears that istihsan is essentially a form of ra'y which gives preference to the best of the various solutions that may exist for a particular problem. In this sense, istihsan is an integral part of Islamic jurisprudence and indeed of many other areas of human knowledge. Hence it is not surprising to note Imam Malik'...
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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