Report 252

A Written Report on
ISTIHSAN, ISTISLAH,
and ISTISHAB
Submitted to:
LUQMAN L. BIN USMAN IMAM

Lecturer - IIS 251
Submitted and Presented by:
DOMADALUG, Moumina Sheryne L.
March 2016
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Written Report on Istihsan, Istislah, and Istishab
Presented by: Moumina Sheryne L. Domadalug
REPORT OUTLINE:
I. ISTIHSAN
A. Definition
1. Literal
2. Technical
3. Implications of the different definitions given
B. Basis
C. Examples
D. Types
1. Illustrations
E. Criticism & Justification

F. Modern Application
II. ISTISLAH
A. Definition
1. Literal
2. Technical
B. Basis
C. Types
D. When it may be resorted to
E. Conditions
E. Examples
F. The Process
1. Two (2) hypothetical cases
G. Criticism & Justification
II. ISTISHAB
A. Definition
1. Literal
2. Technical
3. Implications
B. Basis
C. Types & Illustrations
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ISTIHSAN
(Juristic Preference)
Definition
The word “Istihsan” is derived from the root word “Hasana” which means “being good
or beautiful”. In its literal sense, it means “to consider something good" or “to consider
something towards which one prefers, even if it is not approved by others."
Technically, it has many meanings. To Al-Badzawi, it is "moving away from the

implications of analogy to an analogy that is stronger than it." 1 To Al-Hawani, it is "the
giving up of analogy for a stronger evidence from the Book, the Sunnah, or ijma.”2 To Ibn Al-
Arabi, a Maliki jurist, it is "sacrificing some of the implications of an evidence by way of
exception insofar as the exception opposes some of these implications." 3
Implications of the given definitions:
From all the above-given definitions, Istihsan obviously means “the preference of qiyas
khafi over qiyas jali”. It also means following the requirements of a stronger general
principle that requires something different from strict analogy. It may also mean the
creation of an exception to a general principle due to a stronger evidence when the general
principle is based upon analogy.
ISTIHSAN ACCORDING TO THE

DIFFERENT SCHOOLS OF THOUGHT
The jurists are not in agreement on a precise definition of Istihsan.
To the HANAFIs, "Istihsan is a principle which authorizes departure from an

established precedent in favor of a diffrent ruling for a reason stronger than the one which
is obtained in the precedent." The Hanafis have, on the whole, adopted this definition by
Abul Hasan Al Kharkhi as they consider it comprehensive and accurate. Accordingly,
istihsan is a principle which authorizes departure from an established precedent in favor of
a different ruling for a reason stronger than the one which is obtained in that precedent. 4
To the HANBALIs, "Istihsan is the abandonment of one legal norm (hukm) for another
which is considered better on the basis of the Qur'an, Sunna, or concensus." This definition
by Ibn Taymiyya also seeks to relate istihsan closely to the Qur’an and the Sunna.5
The MALIKIs validated istihsan but lay great emphasis on the consideration of public
interest (istislah). This school of thought is not significantly concerned with istihsan. Similar
to istihsan, the MAlikis view istihsan as a broad doctrine which is less stringently confined
to the Qur’an and the Sunna than the Hanafis and the Hanbalis. 6 Further, Imam Malik has
been reported to have said that "istihsan is nine-tenth of human knowledge".
Contrary to the first three schools of thought, the SHAFI'Is raised serious objections to
Istihsan. They consider istihsan as a form of pleasure-seeking and arbitrary law-making in
1
Nyazee, Islamic Jurisprudence, 231
2
Ibid.
3
Ibid.
4
Alauya Sr., Fundamentals of Islamic Jurisprudence, 103
5
Ibid., 104
6
Ibid.
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religion.7
BASIS OF ISTIHSAN8
Certain verses in the Qur’an were invoked to justify istihsan. The Hanafi jurist Al-
Sarakhsi considers istihsan as a metho of seeking facility and ease in legal injunctions.
“avoidance of hardships”, he adds, is a cardinal principle of religion which is enunciated in
the Qur’an which says,
"ALLAH intends every facility for you, and He

does not want to put you in hardship."
(Surah Al-Baqarah; Verse 2)
Al-Sarakhsi substantiates this further by quoting this Hadith:
"The best of your religion is that which brings

ease to the people."
(Ibn Hanbal)
Other Qur’anic basis of istihsan are:
“And give good tidings to those of my servants

who listen to the word and follow the best of it
(ahsanahu). Those are the ones God has guided
and endowed with understanding.”
(Surah al-Zumar: Verse 18)
“And follow the best (ahsan) of what has been

sent down to you from your Lord.” –
(Surah al-Zumar: Verse 55)
The following Hadiths are also said to justify istihsan, viz:
"Harm is neither inflicted nor tolerated in Islam."
(Ibn Majah)
"What the Muslims opine to be good is god in the

sight of Allah."***
This latter, though considered a Hadith, is said to be more likely a saying of the prominent
companion “Abd Allah ibn MAs’ud. Additionally, Umar Ibn Al-Khattab's (R.A.) letter to Abu
Musa al-Asy’ari is also said to be a good justification for istihsan wherein the second Caliph
wrote:
“Research similar cases, and when you find

similarities that affect the ruling, apply the
method of qiyas. Using the results of qiyas, select
7
Ibid., 113
8
Alauya Sr., Fundamentals of Islamic Jurisprudence, 101-102
-Page 5 of 16-
the ruling that adheres to the Islamic principles

and ensures that your conscience is satisfied that
justice has been served.”
Examples of Istihsan:
1. The ruling of Umar Ibn Al-Khattab (R.A.) in cases of theft during a widespread famine –
cutting of hands of thieves was suspended on grounds of public interest, equity and justice.
2. The judgment of Umar Ibn Al-Khattab (R.A.) in the case of Muhammad ibn Salamah:
Salamah’s neighbour asked for a permission if he could extend a water canal through
Salamah’s property, and he was granted the request on the ground that no harm was likely to
accrue to Salamah.
TYPES OF ISTIHSAN
A. ISTIHSAN ISTITHNA'I9
(MAKING AN EXCEPTION TO THE GENERAL RULE)
1. Istihsan through text (nass)

Example:
General Rule: “No bequest for an heir” – LA WASIYYATA LI WARITHIN
This is a general principle of the Shari’ah that a bequest is basically not valid. The
bequest made during the lifetime of the testator is thus amounting to interference in the
rights of the heirs after the testator’s death, which is unlawful.
XPN: - A will to a relative is allowed for fair distribution of wealth in the family especially in
cases where a relative is destitute and yet he is excluded from inheritance in the presence of
other heirs.
Basis: “It is prescribed for you, when death approaches any of you, if he leaves wealth,
that he makes a bequest to parents and next of kin, according to reasonable manners.”
(Surah al-Baqarah:180)
2. Istihsan on the basis of ijma

Example:
Gen.Rule: The object or subject matter of the contract must be in existence at the time the
contract is concluded.
Basis: “Do not sell something that is not in your possession.”
XPN: Contract for the Manufacture of Goods (Bay' al-Istisna')

Basis: An ijma’ that someone may place an order with a craftsman for certain goods to be
made at a price which is determined at the time of the perfection of contract, and the
subject matter will be delivered at a later date or time.
Hence, istihsan authorized by ijma validates this transaction although the object of the
contract is non-existent at the time the order is made.
3. Istihsan on the basis of what is good (ma'ruf) or custom ('urf)

Example:
9
-Page 6 of 16-
General Rule: Waqf of movable goods is not allowed.

By definition, waqf is endowment of property on a permanent basis, so the valid subject
matter must be immovable property such as buildings, land or house.
Basis: Movable goods are subject to destruction and loss, they are not to be assigned in
waqf.
XPN: Waqf of movable property is accepted by popular custom. Hanafis allowed the waqf of
movable goods such as books, tools and weapons on ground of its acceptance by popular
custom.
4. Istihsan on the basis of necessity (darurah)

Example:
General Rule: Witness must be adil (upright and irreproachable)
The law requires that the witness must be adil because his testimony will be the basis
of a judicial decision which must be founded on truth.
XPN: Witnesses who are not totally adil are allowed to testify under exceptional
circumstances.
If the qadhi (judge) is assigned in a place where ‘adl witnesses could not be found, then
by virtue of istihsan, it is in his duty to admit witnesses who are not totally reliable. Basis:
Protection of the rights of the people
Similarly, with regard to the judge, the general rule requires that he be a mujtahid, but a
non-mujtahid may be appointed as judge where no mujtahid can be found for this office.
B. ISTIHSAN QIYASI10
(departure from Qiyas Jalli to Qiyas Khafi)
Qiyas jalli is an obvious analogy which is easily intelligible to the mind. On the other
hand, qiyas khafi is a hidden analogy. It is not obvious to the naked eye but intelligible only
through reflection and deeper thought. Qiyas khafi is also called istihsan or qiyas mustahsan
(preferred qiyas) which is stronger and more effective in repelling difficulty than qiyas jalli,
because it is arrived at through deeper reflection and analysis and not merely through
superficial observation of similitudes.
When the jurist is confronted with problem for which no ruling applicable to it can be
found from the fundamental sources of Islamic Law, he may search for a precedent and out
of which try to find a solution by analogy. In his search for alternatives, he may find two
different solutions, one of which is based on qiyas jalli and the other on qiyas khafi. In case
of conflict between the two, the former must be rejected in favor of the latter because the
latter is considered to be more effective and therefore preferable to the former.
Example:
Rule: If beasts of prey had drunk from water, such water is no longer pure.
Issue: Whether or not this rule should be applied to domesticated animals.
Qiyas Jalli requires that this rule be applied to domesticated animal. But applying qiyas
khafi, beasts of prey have soiled/impure saliva whereas domesticated animals do not.
Ruling: The latter conclusion should prevail.
10
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Remarks on the
Two (2) Kinds of Istihsan
Al-Sarakhsi points out that:
If Istihsan is based UPON TEXT or UPON IJMA, the derived rule can serve as a further
basis for analogy.
If Istihsan is based in the other cases e.g. UPON NECESSITY or CONCEALED ANALOGY, it
is not possible to extend the new rule further.
CRITICISM
As earlier mentioned, Shafi’i School of Islamic Thought raised serious objections to

istihsan. Imam As-Shafi’i disagrees with the majority saying “He who practices preference
assumes unto himself the power of law-making”. He thought that using istihsan is equivalent
to making new rules of law (Bid’ah) which is not permissible.11 Simply put, “analogy is
being given up for the personal opinion of the jurists”12.
The following are the response by Islamic scholars who vigorously defended the
validity of istihsan, to wit:
Al-Sarakhsi says that this is totally unfounded for how can a jurist give up a hujjaj
(legally admissible authority) for something that has no authority? Analogy is given up by
the jurist only when he has stronger evidence to rely on and this stronger evidence is one
that is valid according to Shari'ah.13
The Hanafis have also asserted that istihsan is not an arbitrary exercise in personal
preferences. On the contrary, it is a form of qiyas (qiyas khafi) and as such, following the
methodology to which qiyas must conform and so it iis no less authoritative than qiyas.
Contrary to the allegations of the Shafi’i juists, istihsan is not an independent source of law.
It is rather a branch of qiyas which has a firm basis in Shari’ah.14
Al-Shatibi, a Maliki jurist, has sustained that Istihsan does not mean pursuit of one's
desires. On the contrary, a jurist who understands the intention of the Law Giver has
profound appreciation of istihsan. When the jurist discovers that a strict application of
analogy to a new case leads to a maslaha and possibly amounts to an evil (mafsada), then
he must set aside qiyas and resort to Istihsan.15
Juristic differences is no more

than a 'squabbling of words"
Al-amidi, a Shafi-i jurist, has stated that Imam Al-Shafi'i himself has resorted to istihsan
notwithstanding his explicit denunciation. Al-Shafi’i has been quoted to have used a
derivation of istihsan on several occasions including the ruling in which he said “I approve
(astahsinu) of Mut’a (gift of consolation) to be 30 dirhams.” Al-amidi concludes that actually
11
12
13
Ibid.
14
15
Ibid.
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“there is no agreement on the essence of istihsan between the two schools”16.
Shaykh Al-Khudari also writes: anyone who is knowledgeable on the works of the
jurists of jurisprudence would agree that Abu Hanifa and his disciples are not alone in their
resorting to istihsan.17
Finally, this view is further supported by Yusuf Musa who have tersely observed that
differences over istihsan is no more than squabbling over words. There is no denial that the
jurists of every major school have invariably resorted to istihsan in one form or another.18
Modern Application of Istihsan:
1. Methods of proof in the law of evidence extends to documentary evidence, photography,

sound recording, laboratory analysis, DNA test, etc. - due to changes in social situations
The standard form of evidence in Islamic law is oral testimony. Normally two
adil witnesses are required and four witnesses in certain cases.
According to Prof. Hashim Kamali, 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 in order to uphold that spirit.
2. Looking at the private parts of people in medical treatment.

The general rule is that it is unlawful to look at private parts, but it is recommended
to avert harm.
16
Al-amidi, Ihkam, IV, 157 (as cited in Alauya Sr., Fundamentals of Islamic Jurisprudence)
17
18
Ali, Qur’an Commentary, p. 1653 (as cited in Alauya Sr., Fundamentals of Islamic Jurisprudence)
-Page 9 of 16-
ISTISLAH/ MASLAHAH MURSALAH

(Extended Analogy/ Considerations of Public Interest)
DEFINITION
Etymologically, the word "ISTISLAH" was taken from the root word "salaha" or "saluha"
which means "to be good, to repair or to improve". In its legal Sense, it means "seeking the
best solution for general interest".19
Istislah is synonymous with the word "MASLAHAH" which literally means "the
acquisition of manfa'ah (benefit)" or the "the repulsion of madarrah (injury, harm)".
Technically, it is "the preservation of the purpose of Islamic law in the settlement of legal
issues".20
When it is qualified as Maslahah al Mursalah, it refers to unrestricted public interest in

the sense that it is not regulated by the Lawgiver and no textual authority can be found
regarding its validity or invalidity. More technically, maslahah mursalah is defined as:
“consideration which is proper and harmonius (wasf

munasib mula’im) to the objectives of the Lawgiver; it
secures a benefit or prevents a harm; and the Shari’ah
provides no indiction as to its validity or otherwise.21
BASIS
-QUR'AN-
Istislah derives its validity from the norm that the basic objective of legislation (tashri’)
in Islam is to secure the welfare of the people by promoting benefits in their favor or by
preventing harm against them22. Al-Shatibi points out that this is the purport of the Qur’anic
verse:
"We have not sent you but a mercy

for all creatures."
(Surah al-Anbiya’: Verse 107)
In this same verse, the purpose of the prophethood of Muhammad (SAW) is described.
ALLAH (swt) describes His purpose in the revelation of religion in that it is not within His
intention to make religion as a means of imposing hardship as expressed in the following
Qur’anic verses:
"ALLAH has not imposed difficulties

on you in religion."
(Surah al-Anbiya’: Verse 78)
“ALLAH never intends to impose
19
20
Ibid.
21
Badran, Usul, 210; Al Sabuni, Al Madkhal, 131 (both cited in Alauya Sr., Fundamentals of Islamic Jurisprudence)
22
-Page 10 of 16-
hardship upon people.”
(Surah al-Maidah : Verse 6)
These are some of the Qur’anic verses which grasps the essence of maslaha.
-SUNNA-
A number of prophetic traditions have been quoted by jurists which authorizes acting
upon maslaha although they are not in the nature of a clear nass (textual basis) on the
subject, viz23:
“Harm is neither inflicted nor tolerated in Islam” -Ibn Majah
The substance of this hadith is upheld in a number of other ahadith and it is argued that
this hadith encompasses the essence of maslaha in all of its kinds. The other ahadith are:
“The Prophet did not choose but the easier of the two
alternatives so long as it did not amount to a sin. ” -Muslim
“The Muslims are bound by their stipulations

unless it be a condition which makes a haram as halal or a
halal as haram.” - Muslim
This hadith seems to be granting us Muslims the liberty to pursue our benefits to commit
ourselves to the effort provided that this does not amount to a violation of the explicit
commands and prohibitions of the Shari’ah. In another hadith, the prophet (SAW) is
reported to have said:
“ALLAH loves to see that His concessions (rukhas) are

observed in the same way that His strict laws (‘aza’im) are
obeyed.
This confirms the fact that no unnecessary restriction in the enforcement of the ahkam is
recommended, and that the Muslims should avail themselves of the flexibility and
concessions granted to them by ALLAH (swt) and to use them in pursuit of their masalih.
-LEGAL MAXIM-
"A specific harm is tolerated in order to prevent a more

general one."
( ‫)ﺍﻠﻌﺎﻡ ﺍﻟﺿﺮﺮ ﻠﺪﻔﻊ ﺍﻟﺨﺎﺺ ﺍﻠﺿﺮﺮ ﻴﺘﺤﻤﻞ‬
"Harm is eliminated to the extent that is possible."

( ‫)ﺍﻻﻤﻜﺎﻦ ﺒﻗﺪﺮ ﻴﺪﻔﻊ ﺍﻠﺿﺮﺮ‬
"A greater harm is eliminated by means of a lesser harm."

( ‫)ﺍﻷﺧﻑ ﺑﺎﻠﺿﺮﺮ ﺍﻷﺷﺪ ﺍﻠﺿﺮﺮ ﻴﺰﺍﻞ‬
"Necessity makes the unlawful lawful."

( ‫" )ﺍﻠﻤﺤﻇﻮﺮﺍﺖ ﺘﺑﻴﺢ ﺍﻠﺿﺮﻮﺮﻴﺎﺕ‬
23
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TYPES OF ISTISLAH24
1. The essentials (dharuriyyat)

- those on which the lives of the people depend and their neglect leads to total
disruption and chaos. It involves the five essential values or al dharuriyyat al khamsa
namely Religion, Life, Intellect, Lineage, and Property.
2. The complementary (hajiyyat)

- those which are supplementary to the five essential values such as the interest whose
neglect creates difficulty in the life of the community although not to its total destrcution.
Example: permission for the sick and traveler to break their fast or shorten their prayer.
3. The embellishments (tahsiniyyat)

- refers to those interests whose realization leads to improvement and the attainment
of that which is desirable. Example: Cleanliness of personal appearance; avoiding
extravagance; moderation in enforcement of penalties, etc.
WHEN ISTISLAH MAY BE RESORTED TO25

1. The useful purpose meets an absolute necessity e.g. preservation of life, protection of
property;
2. The useful purpose meets no absolute necessity but is merely expedient e.g. institution
of location, Ijarah;
3. The useful purpose serves as an end e.g. promotion of morals
CONDITIONS (SHURUT) OF MASLAHA MURSALAH
To validate reliance on maslaha mursalah, the following conditions must be fulfilled as they
are designed to ensure that it is not an instrument of arbitrary desire or individual bias in
legislation, viz:
1. The maslaha must be genuine (haqqiya);
2. It must be general (kulliyya); and
3. It not be violative of a principle or value which is laid down by the nass or ijma.
In his book Islamic Jurisprudence, Imran Khan Nyazee provided the following essential and
additional conditions, to wit:
Essential Conditions
1. The new principle should not conflict with a (nass) text or attempt to alter the
implication of a text;
2. It should not clash with the existing principles and propositions of Islamic Law (or what
Al-Ghazali calls the tasarrufat of the Shari’ah) ;
3. It should not be gharib (strange); and
Additional Conditions :
1. The case should lie in the area of necessities (darurat) i.e., It should be one of the five
top purposes of the Islamic law;
2. It should be definitive (qat'i) i.e., we should be certain about the resulting
consequences; and
3. It should be general (kulli) i.e., it should affect the entire Muslim ummah and be a
public interest.
24
Ibid., 123
25
Arabani Sr., Commentaries on the CMPL, 154
-Page 12 of 16-
EXAMPLES OF MASLAHAH MURSALAH

DURING THE TIME OF THE COMPANIONS (R.A.)
1) The compilation of the Qur'an after the death of the Prophet (S.A.W.). Basis:
preservation of the Deen;
2) The rule allowing the killing of all persons who participated in the murder of just one
(1) person. Basis: preservation of life;
3) When Abu Bakr (R.A.) was nearing death, he chose Umar Ibn Al-Khattab as his
successor;
4) When Uthman Ibn Affan (R.A.) added a first call to prayer at a place called Al-Zarwa
near the market during Friday;
5) The invalidation by Uthman Ibn Affan (R.A.) of talaq during death illness.
THE PROCESS OF MASALAH MURSALAH

AS ILLUSTRATED IN SAMPLE CASES26
 Identifying Maslahah that is gharib (strange).
 Identifying Maslahah that is mulgha (rejected).
ILLUSTRATION:
A. Identifying Maslahah that is gharib (strange).
Case #1: (HYPOTHETICAL) In case of a fort under siege and the enemy is attacking
this fort and is using Muslim captives as shields in the hope that the Muslims in the
fort will not fire at them, should the Muslims fire at the enemy even if the Muslims
being used as human shields are killed?
Answer: YES. However, it violates all three essential conditions for a maslahah mursalah, to
wit:
1. The new principle should not conflict with a text - it conflicts with the text that no
one is to be killed intentionally;
2. It is gharib (strange) as it violates the general propositions of law which prescribes
that only those persons who have committed an offense can be killed; and
3. It attempts to alter the meaning of the implications of the text by permitting the
killing of Muslims even though under necessity.
This is therefore, a gharib (strange) ruling. However, Al-Ghazali points to the additional
conditions, viz:
1. The case should lie in the area of necessities (darurat);
2. It should be definitive (qat'i);
3. It should be general (kulli).
CONCLUSION: A case may still be a sound maslahah although it is gharib.

Basis: Principle of Necessity (Darurat) i.e. preservation of the Deen.
B. Identifying Maslahah that is mulgha (rejected).

Case #2: (HYPOTHETICAL) In case of a number of people in a boat who are cast out at
sea and are about to die from hunger. They cast a lots to choose one of their
companions to be killed and his flesh will be eaten so that others can be saved.
Issue: Are they allowed to kill one of them for food even with the consent of that person?
ANSWER: NO. Using the same additional conditions posited by Al-Ghazali, ruling otherwise
is not only gharib but also violates all three additional conditions, viz:
26
Nyazee, Islamic Jurisprudence, 243-244
-Page 13 of 16-
1. NO NECESSITY (daruri) - Although it is obligatory on the people in the boat to save their
lives even if they have to consume haram, they cannot kill someone else to do so. The
reason is that killing another person without legal justification is prohibited. Saving
themselves by killing one whose life the shari'ah protects IS NOT A PURPOSE defended by
shari'ah;
2. NOT DEFINITIVE (qat'i) - there is no certainty that they will be saved even if they
consume the flesh of the person they kill. It is possible that they will stay at sea and will not
be saved;
3. NOT GENERAL IN APPLICATION (kulli) - the issue concerns only a few individuals in the
boat, not the entire umma. Hence, there is no public interest.
CONCLUSION: This is a case of a maslahah that must be rejected.
CRITICISM & JUSTIFICATION27
1. The main objection against the use of maslaha mursalah in particular and the concept of
maslaha in general is that it is based in hikma (wisdom) rather than on the 'illah. This
argument is based on the use of of strict analogy qiyas as the SOLE RATIONAL SECONDARY
SOURCE for the derivation of rules.
Justification: The principle of maslahah is MORE FLEXIBLE than qiyas and is BASED ON AN
INTERPLAY OF GENERAL PRINCIPLES AND MAQASID AS-SHARI’AH - not solely on hikma
(wisdom) but on the hikma underlying the various rules.
2. Maslahah may be used by ignorant people.
Justification: The legal system must ensure that its professionals observe the proper
methodology that meets the conditions imposed. Further, the principle is to be used mostly
by judges of the Higher Courts of the country and by the lawyers who assist these Courts. It
is not up to every person to employ legal reasoning.
27
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ISTISHAB
(Presumption of Continuity)
DEFINITION
In its literal sense, the word “istishab” means "companionship", "association",

"escorting". Technically, authors provide definitions with similar meanings but worded
differently. One is that it is "the presumption of continuance of an earlier rule or its continued
absence."28 Another is that it "denotes the facts, rules of law, and reason whose existence or
non-existence had been proven in the past and are presumed to remain so for lack of evidence
to establish the contrary."29 Yet another author provides that "it is a method of deduction
based on the presumption that a state of things, which is not proved to have ceased, still
continues; or that a rule is adopted because of its coherent and permanent observance and
use."30
Implications
From the above definitions, the following can be deduced:
1) Istishab means the maintenance of status quo with respect to the rule.
Accordingly, istishab is not a strong ground for the deduction of the rules of
shari’ah. Hence, when istishab comes nto conflict with another proof, the latter
takes priority. As it is, istishab is the last ground of fatwa.
2) The previous rule is accepted, unless a new rule is found against it. Istishab
only applies when no other evidence is available.
3) Istishab is a very relevant as a rule of evidence.
PRINCIPLES FORMING AS BASIS OF ISTISHAB31

1. Certainty may not be disproved by doubt (Al yaqin la yazul bi'l shakk). For
example, when a person is known to be sane, he will be presumed as such until it is
established that he has became insane. This presumption can only be set aside by
certainty, not by a mere doubt. Certainty always prevails over doubt.
2. Presumption of generality continues until it is subjected to limitation. For

example, the Qur’anic rule which assigns to the male double the share of the female in
inheritance (An-Nisa’; 4:11) is general and would have remained so if it were not
qualified by the Hadith which says “a killer does not inherit”.
3. Freedom from obligations until the contrary is proved (Bara'a al thimma

asliyyah). Means freedom from obligations until the contrary is proven. Otherwise put,
no person shall be compelled to perform an obligation unless the law so requires. For
example, no person is obliged to perform hajj pilgrimage more than once in his lifetime
nor to perform a sixth salah in the same day because the shari’ah does not require such
a liability.
4. Permissibility is the original state of things (Al Asl fi al ashya’ al ibaha). i.e. the
presumption is that all things are beneficial unless prohibited by the Shari'ah. The one
exception to the application of ibaha is the relationship between members of opposite
sex where the basic norm is prohibition unless legalized by marriage.
28
29
30
Arabani Sr., Commentaries on the CMPL, 157
31
Alauya Sr., Fundamentals of Islamic Jurisprudence, 146-147; Nyazee, Islamic Jurisprudence, 237-238
-Page 15 of 16-
According to the Hanbali doctrine, the norm in ibadat is that they are void (batil)
unless there is an explicit command to validate them. However, the norm regarding
transactions and contracts is that they are valid unless there is a nass (text) to the
contrary.
TYPES OF ISTISHAB; ILLUSTRATION32
1. Presumption of original absence or istishab al'adam al asli - means that a fact or rule
a rule of law which had not existed in the past is presumed to be non-existent until the
contrary is proven.
Example:
If A who is a managing partner of B claims that he has made no profit, the presumption
of absence will be in A's favor unless B can prove otherwise.
2. Presumption of original presence or istishab al wujud al asli - This kind of istishab

takes for granted the presence or existence of that which is indicated by law or by reason. It
presumes the existence of liability or a right until proven to the contrary.
Example:
(1) The husband is liable to pay his wife the dower by virtue of the existence of a valid
contract of marriage UNLESS the contrary is proven
(2) Obligation of the purchaser to pay by virtue of an existing contract of sale UNLESS it
is proved that he has paid it.
3. Presumption of law or istishab al hukm - Presumes the continuity of the general rule
and the principles of law. The provisions of Shari’ah regarding permissibility and
prohibition of certain acts or omission are presumed to be continued unless the contrary is
proved.
This principle originates from the Qur’anic verse which says:
“It is He Who hath created for you all things

that are on earth.”
(Surah Al-Baqarah; Verse 29)
In this verse, everything i created for us and so permissible unless specifically prohibited.
The Qur’an further states:
“And He has subjected to you, as from Him,

all that is on heavens and on earth.”
(Surah Al-Jathiyah; Verse 13)
Again, this verse is another attestation that men are generally permitted to act in the
direction of securing their benefits unless they are expressly prohibited. Hence, all objects,
legal acts, contracts, and exchange of goods and services which are beneficial to human
beings are lawful grounds on the ground of ibaha.
4. Presumption of continuity of attributes or istishab al wasf.

Example:
32
-Page 16 of 16-
(1) Presuming clean water to remain so until the contrary is established

(2) When a person performs ablution by using water, the attribute of cleanliness
(tahara) of that water is presumed to continue until it is vitiated. A mere doubt is not
sufficient to nullify tahara.
Jurists’ view on the types of istishab
The jurists agreed, in principle, on the validity of the aforementioned three (3) kinds of
istishab although they have differed in their detailed implementation. For the fourth kind,
istishab al wasf, the jurists have disagreed. The Hanbali and Shafi’i schools have upheld it
absolutely whereas the Hanafi and the Maliki schools accept it with reservations.
To illustrate, we take the example of a missing person. In this case, the question is
mainly concerned with the continuity of his life which is an attribute. Considering that the
missing person was alive at the time he disappeared, he is presumed to be alive unless ther
is evidence for his death.
Under the Shafi’i and Hanbali doctrines, he is therefore entitled to inherit from a
relative who dies and he is a legal heir while he is still a missing person. However, no one of
his heirs may inherit from him for the obvious reason that he is presumed alive.
Under the Hanafi and Maliki doctrines, he can neither inherit nor can his heirs inherit
from him. These schools accept istishab only as a defense i.e. To prove the continued
existence of an attribute but not as a means to establish new rights and attributes. Simply
put, istishab for the Hanafi and Maliki cannot be used as a means of acquiring new rights for
the missing person, but it can be used to protect all of his existing rights. In familiar
expression, istishab can only be used as a shiled, not as a sword. 33
33
Kamali, Jurisprudence, 383 (as cited in Alauya Sr., Fundamentals of Islamic Jurisprudence)

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A Written Report on

LUQMAN L. BIN USMAN IMAM

Submitted and Presented by:

DOMADALUG, Moumina Sheryne L.

E. Criticism & Justification

G. Criticism & Justification

Technically, it has many meanings. To Al-Badzawi, it is "moving away from the

Implications of the given definitions:

ISTIHSAN ACCORDING TO THE

The jurists are not in agreement on a precise definition of Istihsan.

To the HANAFIs, "Istihsan is a principle which authorizes departure from an

"ALLAH intends every facility for you, and He

(Surah Al-Baqarah; Verse 2)

Al-Sarakhsi substantiates this further by quoting this Hadith:

"The best of your religion is that which brings

“And give good tidings to those of my servants

(Surah al-Zumar: Verse 18)

“And follow the best (ahsan) of what has been

(Surah al-Zumar: Verse 55)

The following Hadiths are also said to justify istihsan, viz:

"Harm is neither inflicted nor tolerated in Islam."

"What the Muslims opine to be good is god in the

“Research similar cases, and when you find

the ruling that adheres to the Islamic principles

1. Istihsan through text (nass)

2. Istihsan on the basis of ijma

XPN: Contract for the Manufacture of Goods (Bay' al-Istisna')

3. Istihsan on the basis of what is good (ma'ruf) or custom ('urf)

General Rule: Waqf of movable goods is not allowed.

4. Istihsan on the basis of necessity (darurah)

Ruling: The latter conclusion should prevail.

Al-Sarakhsi points out that:

As earlier mentioned, Shafi’i School of Islamic Thought raised serious objections to

Juristic differences is no more

“there is no agreement on the essence of istihsan between the two schools”16.

Modern Application of Istihsan:

1. Methods of proof in the law of evidence extends to documentary evidence, photography,

2. Looking at the private parts of people in medical treatment.

ISTISLAH/ MASLAHAH MURSALAH

When it is qualified as Maslahah al Mursalah, it refers to unrestricted public interest in

“consideration which is proper and harmonius (wasf

"We have not sent you but a mercy

(Surah al-Anbiya’: Verse 107)

"ALLAH has not imposed difficulties

(Surah al-Anbiya’: Verse 78)

“ALLAH never intends to impose

hardship upon people.”

(Surah al-Maidah : Verse 6)

“Harm is neither inflicted nor tolerated in Islam” -Ibn Majah

“The Muslims are bound by their stipulations

“ALLAH loves to see that His concessions (rukhas) are

"A specific harm is tolerated in order to prevent a more

"Harm is eliminated to the extent that is possible."

"A greater harm is eliminated by means of a lesser harm."

"Necessity makes the unlawful lawful."

1. The essentials (dharuriyyat)

2. The complementary (hajiyyat)

3. The embellishments (tahsiniyyat)

WHEN ISTISLAH MAY BE RESORTED TO25

CONDITIONS (SHURUT) OF MASLAHA MURSALAH

EXAMPLES OF MASLAHAH MURSALAH

THE PROCESS OF MASALAH MURSALAH

CONCLUSION: A case may still be a sound maslahah although it is gharib.

B. Identifying Maslahah that is mulgha (rejected).