Introduction;
Istihsan literally means to deem or consider something good. Technically, there are many definitions given by the jurists. Istihsan is a word taken from Hassan/Mohsin which means a better/ preference to better. Istihsan is the secondary source of Islamic Jurisprudence and the doctrine of which was given by Imam Abu Hanifa.
Earlier many people passes the negative comments against his concept, but later on it was realized that Istihsan on is not against Islam concept but it is the term through with the solution for many cases can be made.
Definition:
Istihsan involves preferring one legal opinion over another based on what is considered more reasonable and just, even if it contradicts the literal interpretation of primary source. In Istihsan there is conflict between two analogies that clash with each other. Jurists then prefer the soft analogy over a strict analogy. “Istihsan is giving up the analogy and adoption of what is easier for the people.”
Analogy 01
ASL:Considered as original case for which there is guidance in primary source. E.g Wine
Illat: Show the property of that thing which is present in primary source. E.g Intoxicant
Hukum:Rule or order imposed upon case whether it is halal or haram. E.g Haram
Far: It is new case needing decision for which there is no direct\explicit guidance in primary source. E.g. Cocaine
Analogy 02
Far; Medicine, Illat; Intoxicant, Hukum; Hala.
E.g. 02
Eating out of forgetfulness in fast will not break the fast. This statement is not found in the Quran but Prophet Muhammad S.A.W said “Liability for three things has been lifted from my ummah: forgetfulness, mistake and duress”
E.g. 03
Pure water should be used for ablution. In the case of well which is often dirty. Following strict analogy would mean the non-use of these wells. This would cause the hardship for the people. The principle of necessity regards that use of these words be permitted after observing formal cleaning methods.
Types of Istihsan
Istihsan-e- Zarurat. (Istihsan by Precedent)
Istihsan al Qiyas (Istihsan by analogy)
Istihsan by removing Hardship.
Istihsan by Custom.
Istihsan-e- Zarurat. (Istihsan by Precedent)
In this type jurists prefer the practice of precedent set by pervious scholars over strict legal case.
E.g. there are two Hadiths regarding to correct way of prayer. One Hadith indicate a specific way while another suggest s slightly different way. Here is scholars will use Istihsan by precedent and give preference to the practice that has been establish by the community or by the previous generation of scholars.
Istihsan A Qiyas. (Istihsan by analogy)
This type involves drawing an analogy between two situations. One Situation which is not explicitly addressed in primary sources. With other situation for which there is guidance in primary sources. Jurists will give preference to that situation which is reasonable and just.
Situation 01 Alcohol Situation 02 Cocaine.
Istihsan by removing Hardship
This type aims to alleviate unnecessary hardship that might arise from strict application of law. Scholars use Istihsan to provide relief in cases where adhering to legal rulings might be overly burdensome.
E.g. A person who hardly can stand, he can offer pray while sitting.
Istihsan by custom
Customary Practices of a specific community or region are considered, when interpreting and applying Islamic.
E.g. Using Istihsan by custom might validate these culturally specific marriage customs as long as they don’t contradict Islamic principles.
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