Understanding Usul Al-Fiqh by Abu Tariq Hilal - Abu Ismael al-Beirawi

Istihsan literally means to approve or to do something preferable. It is a derivation of Hasuna, which means being good or beautiful. As a juristic term, Istihsan is defined as shifting from one Qiyas to another Qiyas due to a reason or suspending a Qiyas for a reason. A Mujtahid may take into consideration any of these options.

A. Istihsan by Qiyas- switching from a ruling of Qiyas to another ruling by Qiyas due to a stronger reason.

Example:

Imagine that Ahmad and Muhammad equally own a car. They sell their car to a friend, Ali for $1000. Ali pays Muhammad $400 as a first payment. However, before Muhammad could pay Ahmad his share, the money gets stolen. The ruling from Qiyas in this situation is that both Ahmad and Muhammad have to equally share the loss since they are partners.

The ruling from Istihsan by Qiyas is that Muhammad should incur the loss and not Ahmad. The reason is that Muhammad has the option initially to tell Ali to pay Ahmad by himself. Thus, there is an assumption that Muhammad used this privilege of collecting Ahmad‟s share of the payment even though he had the option not to.

B. Istihsan by necessity - shifting to another Qiyas due to necessity.

Example:

There is a service offered by a business such as a dry cleaning store, which is a public service, and another service offered by an employee who is hired exclusively by someone for a private service such as a computer operator. Both parties are not liable for any unintentional damages, and this is a ruling from Qiyas. The ruling from Istihsan due to necessity is that the dry cleaning store should be liable since it is a public service but not the computer operator since he is a private employee. The necessity is that if the business is not liable then the employee hired for the public service may overload himself by taking up other jobs and may not be able to handle the responsibility.

C. Istihsan by Sunnah - Cancelling the Qiyas due to a contradiction caused by the Hadith.

Example:

The Prophet (saw) said who has Khuzaima as his witness it is enough for him, meaning that the testimony of that person (Khuzaima) equals the testimony of two people. While the ruling from Qiyas is to have two witnesses, the Qiyas is cancelled because this was a special situation for Khuzaima by the Prophet (saw).

D. Istihsan by Ijma as-Sahabah - Cancelling a ruling from Qiyas due to a contradiction caused by the Ijma‟ as-Sahabah.

Example:

Paying a company to manufacture items such as chairs. The ruling from Qiyas is that it is not allowed because the items under discussion (e.g. chairs) are not present at the time of the contract. But the ruling from Qiyas is cancelled due to the Ijma‟ as-Sahabah.

The first two types of Istihsan have no valid Daleel for their application. Technically, the third and fourth are not Istihsan; rather, they are ruling based on a Daleel from Sunnah and Ijma‟ as-Sahabah.

The proponents of Istihsan use the following Ayah to validate Istihsan:

“... And give glad tidings to those of My servants who listen to the word and follow the best of it. Those are the ones that Allah has guided and endowed with understanding.” (TMQ Az-Zumar: 18)

“And follow the best of what has been sent down to you from your Lord.” (TMQ Az-Zumar: 55)

These Ayahs do not authorise the use of Istihsan. Rather, the Ayah instructs us to follow the best statements, which were revealed, Qur‟an. This is because the second part of the Ayah describes those who do as the ones that Allah (swt) has guided.

Imam Shafi‟i used to say “Those who practice Istihsan are the Shar‟i (legislator), and if Istihsan is allowed in this Deen then it should be allowed for any intellectual person to initiate laws for himself.” (Al-Risala)