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Unformatted text preview: ng that istihsan which is based on stronger grounds is acceptable to all. But istihsan which can find no support in the nass, ijma' or qiyas is generally disputed. See Ibn al-Hajib, Mukhtasar, II, 485.] But more to the point, the authority for an exceptional istihsan may be given either in the Principles of Islamic Jurisprudence ~ Kamali 225 [26. [27. nass, or in one of the other recognised proofs, namely consensus (ijma'), necessity (darurah), custom ( `urf or `adah), and public interest (maslahah). We shall illustrate each of these separately, as follows: 2.1. An example of the exceptional istihsan which is based in the nass of the Qur'an is its ruling on bequests to relatives: `It is prescribed that when death approaches any of you, if he leaves any assets, that he makes a bequest to parents and relatives' (al-Baqarah 2:180). This Qur'anic provision represents an exception to a general principle of the Shari'ah, namely that a bequest is basically not valid: since bequest regulates the division of the estate after the death of the testator, the latter is not allowed to accelerate this process. A bequest made during the lifetime of the testator is thus tantamount to interference in the rights of the heirs after the testator's death, which is unlawful. However, the Qur'an permits bequest as an exception to the general rule, that is by way of an exceptional istihsan. It sets aside the general principle in favour of an exception which contemplates a fair distribution of wealth in the family, especially in cases where a relative is destitute and yet is excluded from inheritance in the presence of other heirs. [28. Cf. Sabuni, Madkhal, p. 123.] 2.2. Exceptional istihsan which is based on the Sunnah may be illustrated with reference to the contract of ijarah (lease or hire). According to a general rule of the Shari'ah law of contract, an object which does not exist at the time of contract may not be sold. However, ijarah has been validated despite its being the sale of the usufruct (i.e. in exchange for rent) which is usually non-existent at the moment the contract is concluded. Analogy would thus invalidate ijarah, but istihsan exceptionally validates it on the authority of the Sunnah (and ijma'), proofs which are stronger than analogy and which justify a departure from it. Ibn Rushd, Bidayah, II, 220-221.] [29. Cf. Musa, Madkhal, p.197; Khallaf, 'Ilm, p. 82. For ahadith which validate various types of ijarah (land, labour, animals, etc.) see Similarly, the option of cancellation (khabar al-shart) represents an exceptional istihsan which is authorised by the Sunnah. It is employed when a person buys an object on condition that he may revoke the contract within the next three days or so. This kind of stipulation amounts to a departure from the general rule of the Shari'ah law of contract, which is that a contract becomes binding upon its conclusion. An exception to this rule has, however, been made, by way of istihsan, which is based on the Hadith: `When...
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