' (

Arabic Arabic (, , or , ) is a Central Semitic languages, Central Semitic language of the Afroasiatic languages, Afroasiatic language family spoken primarily in the Arab world. The International Organization for Standardization (ISO) assigns lang ...

: ) is an Arabic term for juristic discretion. In its literal sense it means "to consider something good".

Muslim Muslims () are people who adhere to Islam, a Monotheism, monotheistic religion belonging to the Abrahamic religions, Abrahamic tradition. They consider the Quran, the foundational religious text of Islam, to be the verbatim word of the God ...

scholars may use it to express their preference for particular judgements in

Islamic law Sharia, Sharī'ah, Shari'a, or Shariah () is a body of religious law that forms a part of the Islamic tradition based on scriptures of Islam, particularly the Qur'an and hadith. In Islamic terminology ''sharīʿah'' refers to immutable, intan ...

over other possibilities. It is one of the principles of legal thought underlying scholarly interpretation or

ijtihad ''Ijtihad'' ( ; ' , ) is an Islamic legal term referring to independent reasoning by an expert in Islamic law, or the thorough exertion of a jurist's mental faculty in finding a solution to a legal question. It is contrasted with '' taqlid'' ( ...

. A number of disputes existed amongst the classical jurists over this principle with the

Hanafi The Hanafi school or Hanafism is the oldest and largest Madhhab, school of Islamic jurisprudence out of the four schools within Sunni Islam. It developed from the teachings of the Faqīh, jurist and theologian Abu Hanifa (), who systemised the ...

school of jurisprudence and its jurists (''fuqahah'') adopting this as a secondary source. It is not the same thing as istislah, which plays a prominent part in other schools, including

Maliki school The Maliki school or Malikism is one of the four major schools of Islamic jurisprudence within Sunni Islam. It was founded by Malik ibn Anas () in the 8th century. In contrast to the Ahl al-Hadith and Ahl al-Ra'y schools of thought, the Maliki s ...

, or istihlal, which is a derisive term for deeming something forbidden as permissible.

Etymology

' ( ) is an

word derived from the word ''al-husn'' () which means good which is the opposite meaning of ''al-qubh'' () which means bad. The word ' is used to express "decorating or improving or considering something good". It also applies to mean something towards which one is inclined or which one prefers, even if it is not approved by others. Technically it has been defined in several ways by '' Fuqaha'' (Islamic jurists): * Bazdawi defines it as moving away from the implications of an analogy to an analogy that is stronger than it.al-Bazdawi, Usul al-Bazdawi * Al-Halwani defines it as giving up an analogy for a stronger evidence from the

Quran The Quran, also Romanization, romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a Waḥy, revelation directly from God in Islam, God (''Allah, Allāh''). It is organized in 114 chapters (, ) which ...

Sunnah is the body of traditions and practices of the Islamic prophet Muhammad that constitute a model for Muslims to follow. The sunnah is what all the Muslims of Muhammad's time supposedly saw, followed, and passed on to the next generations. Diff ...

ijma Ijma (, ) is an Arabic term referring to the consensus or agreement of the Islamic community on a point of Islamic law. Sunni Muslims regard it as one of the secondary sources of Sharia law, after the Qur'an, and the Sunnah. Exactly what group s ...

. * The

Maliki The Maliki school or Malikism is one of the four major madhhab, schools of Islamic jurisprudence within Sunni Islam. It was founded by Malik ibn Anas () in the 8th century. In contrast to the Ahl al-Hadith and Ahl al-Ra'y schools of thought, the ...

jurist, Abu Bakr Ibn al-Arabi defines it as sacrificing some of the implications of an evidence by way of exception. * Al-Karkhi defines ''Istihsan'' as follows: "''Istihsan'' is when one takes a decision on a certain case different from that on which similar cases have been decided on the basis of its precedents, for a reason which is stronger than one found in similar cases and which requires departure from those cases."

Types of Istihsan

A number of categorisations have been employed by the jurists: * Istihsan through the text ('' Nass'') * Istihsan on the basis of consensus (''

Ijma Ijma (, ) is an Arabic term referring to the consensus or agreement of the Islamic community on a point of Islamic law. Sunni Muslims regard it as one of the secondary sources of Sharia law, after the Qur'an, and the Sunnah. Exactly what group s ...

'') * Istihsan on the basis of what is good (''

Ma'ruf Ma'ruf () is an Islamic term. "The term that best helps us to understand the nature of Qurʾān ethical prescriptions is maʿrūf, a word that appears repeatedly (in slightly varying forms) in the Qurʾān" and used 38 times in the Quran. The wor ...

'') * Istihsan on the basis of necessity (''Darurah'') * Istihsan on the basis of benefit (''

Maslaha ''Maslaha'' or ''maslahah'' (, ) is a concept in Sharia (Islamic divine law) regarded as a basis of law.I. Doi, Abdul Rahman. (1995). "Mașlahah". In John L. Esposito. ''The Oxford Encyclopedia of the Modern Islamic World''. Oxford: Oxford Univer ...

h'') * Istihsan on the basis of analogy (''

Qiyas Qiyas (, , ) is the process of deductive analogy in which the teachings of the hadith are compared and contrasted with those of the Quran in Islamic jurisprudence, in order to apply a known injunction ('' nass'') to a new circumstance and cre ...

'')

Examples of Istihsan

The following comprise classical examples for this principle: * Abu Hanifah stated that the one who eats out of forgetfulness whilst fasting should repeat the fast - however he moves away from this by the evidence of a narration that allows the fast to stand.Abd al-Aziz al-Bukhari, Kash al-Asrar, Vol 4,7 * Analogy requires that the manufacturing contract with advance payment be prohibited on the basis of analogy - however this is made permissible according to

. * Analogy requires that pure water be used for ablution so wells in which dirt or carcasses of animals have fallen would be prohibited for use according to strict analogy. Necessity exceptionalises this and permits the use of this water provided formal cleaning methods are applied first.

Criticisms

Al-Shafi'i Al-Shafi'i (; ;767–820 CE) was a Muslim scholar, jurist, muhaddith, traditionist, theologian, ascetic, and eponym of the Shafi'i school of Sunni Islamic jurisprudence. He is known to be the first to write a book upon the principles ...

viewed the practice of juristic preference as a heretical usurping

God In monotheistic belief systems, God is usually viewed as the supreme being, creator, and principal object of faith. In polytheistic belief systems, a god is "a spirit or being believed to have created, or for controlling some part of the un ...

's sole right as the legislator of

. It has been alleged that this criticism revolves more around the linguistic meaning of the term rather than its technical meaning, though modern scholarship regards Shafi'is comments as a direct criticism of the technical meaning.

Malik ibn Anas Malik ibn Anas (; –795) also known as Imam Malik was an Arab Islamic scholar and traditionalist who is the eponym of the Maliki school, one of the four schools of Islamic jurisprudence in Sunni Islam.Schacht, J., "Mālik b. Anas", in: ''E ...

is noted to have been asked about binding divorce. When he delivered his response, a disciple of his quickly reached for a tablet to make note of this ruling. Upon realizing what his disciple was doing, Malik asked him to stop, remarking that his opinion could change before nightfall. Sarakhsi points out that some jurists have criticised Istihsan on the grounds that the analogy is being given up for personal opinion, something prohibited in Islam. He refutes this understanding as incomprehensible, as no jurist would give up an authority for something that lacked evidence.al-Sarakhsi, Kitab al-Usul

Etymology

Types of Istihsan

Examples of Istihsan

Criticisms

References

Further reading