Introduction
The river follows its course, yet adapts to the landscape it encounters
In our previous article, we explored the concept of القياس (Qiyas - analogical reasoning) and the scholarly debate surrounding its validity as a source of Islamic fiqh. We examined how the majority of Muslim scholars, including those from the four major madhahib (schools), accept Qiyas as a legitimate tool for deriving ahkam (rulings), while the Zahiri school and scholars like Ibn Ḥazm reject it entirely.
Building on our understanding of usūl al-fiqh, we now turn our attention to another form of ijtihād that has generated significant scholarly debate: الاستحسان (Istihsan).
Defining الاستحسان (Istihsan)
Linguistic Meaning (المعنى اللغوي)
The linguistic meaning of Istihsan is straightforward: to approve something, to consider something good, or to deem something preferable.
Technical or Legal Definition (المعنى الاصطلاحي)
The technical or legal definition of Istihsan has been a source of significant disagreement among the ulama (scholars). This disagreement is not merely semantic; it is one of the topics where scholars have differed, with disagreement arising primarily from varying definitions of the concept.
Let's explore the various definitions that have been proposed:
Definition 1: The Unexplainable Insight
The first definition states that Istihsan is:
"An evidence or insight that arises within the heart of a Mujtahid but is challenging to articulate to others." (Al-Ihkaam by al-Aamidi 4/163, al-Itisaam of al-Shatibi 2/136)
According to this definition, a mujtahid might reach a conclusion or judgment based on an intuitive understanding that they cannot easily express or explain to others. When asked for evidence, they might simply say it is based on Istihsan without being able to articulate the specific reasoning process. Essentially, this view holds that a mujtahid feels a position is correct and issues a judgment, but when questioned about their proof, they are unable to provide a clear explanation.
Definition 2: Preference for Stronger Evidence
The second definition describes Istihsan as:
"A method whereby preference is given to the stronger of two pieces of evidence. It also includes switching from a clear analogy (Qiyas al-jali) to a more subtle analogy (Qiyas al-khafi)" (al-Mahsul of al-Razi 6/69, Al-Musawwadah fee Usool al-Fiqh p 404, Irshad al-Fuhool by Shawkani p 402)
This includes switching from Qiyas al-Jali (clear or apparent analogy) to Qiyas al-Khafi (subtle or hidden analogy) when the latter is deemed more appropriate for a particular case. In this understanding, Istihsan represents a methodological choice to prefer one type of evidence over another based on its relative strength in a particular context.
Definition 3: Contextual Replacement of Rulings
A third definition describes Istihsan as:
"The act of replacing one legal ruling with another that is deemed more applicable to the specific circumstances at hand. This prioritization of one ruling over another must be justified by reference to one of the authoritative sources of evidence: the Qur'an, the Sunnah, or Consensus (ijmaa). It is an extension of second definition." (Al-Uddah fee Usool al-Fiqh by Abu Yala 5/1607-1610, Qaidah fil Istihsaan by Ibn Taymiyyah p 58-59)
This approach acknowledges that while a general ruling might exist for a category of cases, particular circumstances might warrant a different ruling based on the Qur'an, Sunnah, or Ijmā'. In this approach, a scholar prefers one ruling over another, replacing the first ruling with the second because the previous ruling doesn't apply to that specific situation or circumstance, judging based on Quran, Sunnah, or Ijma.
Definition 4: Particularization of the Cause (Takhsis al-Illa)
The fourth definition is:
"Particularization of the cause (Takhsis al-Illa), which involves situations where a ruling does not apply despite the presence of the underlying cause, typically due to a hindrance or impediment." (Al-Mahsul of al-Razi 6/173, al-Bahr al-Muheet of al-Zarkashi 4/390)
Although we've explain this in detail in the article before that, here is a revision to understand this definition more clearly:
- What is 'illa? In fiqh, 'illa (cause or reason) is the specific attribute that triggers a ruling. It answers the question "why" a particular ruling exists. For instance, intoxication is the 'illa (cause) for the prohibition of wine - wine is forbidden because it intoxicates.
- What is Takhsis al-Illa? This means "making an exception to the cause" or "limiting when the cause applies." It recognizes that sometimes, even when the 'illa (cause) is present, the original ruling might not apply due to special circumstances.
- Simplified explanation: Normally, when a cause exists, its ruling automatically follows. But with Takhsis al-Illa, scholars recognize that in some specific situations, even though the cause is present, the ruling is suspended or modified due to exceptional circumstances.
Let's understand Takhsis al-Illa with an example:
Cause: Exposing awrah → Ruling: Prohibition:
- General rule: Exposing one's awrah (private parts that must be covered) in public is prohibited
- Takhsis al-Illa: In medical treatment situations where exposing parts of the awrah becomes necessary for diagnosis or treatment, and no alternatives exist, the prohibition might be lifted because preserving health and treating illness takes precedence when medically required and no alternatives are available.
Hence, in this approach, the cause or 'illa is particularized based on the situation, creating exceptions where a ruling does not apply despite the presence of the underlying cause.
Analysis of the Definitions of Istihsan
The disagreement over the definition of Istihsan has led to varying attitudes toward its legitimacy as a source of ahkam (legal rulings). There is no agreement among scholars about what Istihsan actually is.
Analysis Of First Definition
The first definition states that Istihsan is:
"An evidence or insight that arises within the heart of a Mujtahid but is challenging to articulate to others." (Al-Ihkaam by al-Aamidi 4/163, al-Itisaam of al-Shatibi 2/136)
Imam al-Shafi'i's Position
Imam al-Shafi'i is perhaps the most prominent critic of Istihsan. He authored a book titled "Ibtal al-Istihsan" (Invalidation of Istihsan), part of his encyclopedia "Kitab al-Umm", where he refutes this concept. Scholars say that when he refuted Istihsaan, he meant above definition. He also refuted in his al-Risalah p 503.
Imam al-Shafi'i does not consider Istihsan at all, declaring it to be something which is Batil (false). In the opening pages of his book, Imam al-Shafi'i writes:
"It is not permissible for a person who is qualified to be a judge or a Mufti to judge or to pass ruling unless they are grounded in authoritative sources. These sources include the Quran, followed by the Sunnah, consensus (Ijmaa) among scholars, or legal reasoning (Qiyas) derived from these sources. And he should not judge or give a Iegal ruling based on Istihsaan since it is neither binding nor is it derived from these sources." (Ibtal al-Istihsaan of al-Shafi p.1)
Then in the following pages he provides number of evidences from Quran and Sunnah that this type of “Istihsaan” is invalid.
He states that it's not permissible for a judge to judge or mufti to pass a ruling unless they are grounded in authoritative sources, which include Quran, Sunnah, Ijma among scholars, or Qiyas derived from these sources. A judge or mufti should not provide legal rulings based on Istihsan since it's neither binding nor derived from these sources.
Ibn Hazm's Position
Ibn Hazm, the prominent Zahiri scholar who also rejected Qiyas, similarly dismissed Istihsan as a valid method of deriving rulings. Ibn Hazm doesn't recognize any form of Istihsan because he considers it a form of ra'i (personal opinion) or qiyas. Since he rejects qiyas, he likewise rejects Istihsan, considering it pure personal opinion (ra'y) without textual evidence to validate the concept. (Al-Ihkaam of Ibn Hazm 6/192)
Analysis Of Second/Third Definition
The second definition describes Istihsan as:
"A method whereby preference is given to the stronger of two pieces of evidence. It also includes switching from a clear analogy (Qiyas al-jali) to a more subtle analogy (Qiyas al-khafi)" (al-Mahsul of al-Razi 6/69, Al-Musawwadah fee Usool al-Fiqh p 404, Irshad al-Fuhool by Shawkani p 402)
The third definition describes Istihsan as:
"The act of replacing one legal ruling with another that is deemed more applicable to the specific circumstances at hand. This prioritization of one ruling over another must be justified by reference to one of the authoritative sources of evidence: the Qur'an, the Sunnah, or Consensus (ijmaa). It is an extension of second definition." (Al-Uddah fee Usool al-Fiqh by Abu Yala 5/1607-1610, Qaidah fil Istihsaan by Ibn Taymiyyah p 58-59)
The supporters of istihsaan say that "they don't consider first definition of Istihsaan". The critics of istihsaan did not object to the idea that a mujtahid could "switch from one type of evidence to another if it was deemed stronger." (Al-Irshad al-Fuhool of Shawkani p 402, al-Bahr al-Muheet 4/388)
Imam Ahmad ibn Hanbal's Position
Imam Ahmad ibn Hanbal said,
"I follow every related Hadith and I do not apply Qiyas to it."
Many scholars from the Hanbali Madhab (like Ibn Qudamah) interpreted this statement to mean that Imam Ahmad ibn Hanbal refuted the concept of Istihsan and did not acknowledge or consider it.
However, other Hanbali scholars interpret this statement differently. One such scholar, Abul Qattab, explained that this statement indicates Ahmad ibn Hanbal would abandon the use of Qiyas (analogical reasoning) in favor of textual evidence, which is actually the true application of Istihsan. (Al-Uddah fee Usool al-Fiqh by Abu Yala 5/1605)
To better understand this, let's examine some examples:
Example 1: Fasting When Eating Forgetfully
There is an authentic hadith which is in Sahihain (Saheeh al-Bukhari 6669, Saheeh Muslim 1155) where the Prophet Muhammad ﷺ stated:
"If somebody eats something forgetfully while he is fasting, then he should complete his fast, for Allah has made him eat and drink."
Without this hadith, a strict application of Qiyas would suggest that the fast is broken by eating, regardless of whether it was done intentionally or forgetfully. This is because the purpose or essence ('illa) of fasting is abstention from food, drink, and sexual intercourse from dawn to sunset.
Imam Abu Hanifa acknowledged this point, saying that if this hadith didn't exist, he would have ruled that one must make up for such a fast. This statement is quoted in Usul al-Sarakhsi from the scholars of Hanafi fiqh.
"If this were not supported by a Hadith of the Prophet ﷺ, I would have ruled that one must make-up for such a fast.” (Usool as-Sarkhasi p 202)
This example shows how Istihsan (in the sense of preferring stronger evidence) leads to abandoning the conclusion that would be reached through Qiyas in favor of the explicit text.
Example 2: Manufacturing by Order
According to strict Qiyas, placing an order for something to be manufactured would be impermissible since the subject of the contract (the manufactured item) doesn't exist at the time of the contract. Manufacturing by placing an order is deemed impermissible due to the absence of subject matter of the contract.
However, based on Istihsan, this type of transaction is allowed. Muslims have engaged in this type of transaction, and there is an ijma (consensus) that it is allowed. So based on istihsan, this type of contract is allowed. In this istihsan, the preference is given to ijma over qiyas.
In this case, Istihsan means giving preference to Ijma over Qiyas, recognizing that the general principle must yield to the specific evidence of consensus.
Analysis Of Fourth Definition
The fourth definition is:
"Particularization of the cause (Takhsis al-Illa), which involves situations where a ruling does not apply despite the presence of the underlying cause, typically due to a hindrance or impediment." (Al-Mahsul of al-Razi 6/173, al-Bahr al-Muheet of al-Zarkashi 4/390)
The validity of this “Istihsaan” is disputed by scholars.
Ibn Taymiyyah wrote on Istihsan in his book "Qa'idah fil-Istihsan," where he quotes the position of Ahmad and others, discussing Istihsan in detail. According to Ibn Taymiyyah, the fourth definition (particularization of the cause) is the most accurate representation of Istihsan.
He also states that Ibn Hanbal denied the use of istihsaan whenever the “particularisation of the cause” took place without the existence of a decisive discrepancy. Ibn Taymiyyah supports same position of Imam Ahmad. (Qaidah fil Istihsaan p 80)
Ibn Taymiyyah notes that Abu Ya'la makes a distinction between istihsan (3th definition which is extension of 2nd definition) and 4th definition which is "particularization of the cause," (Takhees al-Illah) as he approves of the Istihsaan but not Takhsees al-Illah. (Qaidah fil Istihsaan p 64-65)
To better understand this, let's examine an example:
Example 1: Granting Trusteeship for Someone of Questionable Character
One example for the fourth definition of Istihsan is: "Granting trust to someone lacking good character in order to prevent hardship."
Generally, a trustee or guardian should be of good character, someone known for their amanah (trustworthiness) and integrity. However, in situations where no one of such character is available, but there is a need for someone to take over as trustee, Istihsan allows appointing someone who lacks these qualities to prevent hardship. Let's analyze this in simple terms:
- General rule: A trustee must have good character.
- Cause ('illa): Lack of good character → Ruling: Disqualification from being a trustee.
- Exceptional circumstance: No qualified person is available, and leaving the position vacant would cause significant hardship.
- Application of Istihsan: Despite the cause (lack of good character) being present, the ruling (disqualification) is suspended in this specific situation to prevent hardship.
This is particularization of the cause because we're saying: "Yes, the cause for disqualification exists, but in this specific circumstance, we won't apply the usual ruling."
Example 2: Leftover Water from Carnivorous Birds
Another example relates to the purity of water. Carnivore animals like lions and cheetahs, if they drink from water, make it unclean. The question arises: what is the ruling on the leftover water of carnivorous birds, like vultures and eagles?
Based on qiyas, whether it's a carnivore animal or carnivore bird, the water would be unclean, because they are similar wild animals. But based on istihsan, it's allowed for birds. The reasoning is that birds drink with their beaks, which are dry bones, making them different from carnivores with saliva. Therefore, the water is not considered najis (impure). Again, breaking this down:
- General rule: Water becomes impure when a carnivorous animal drinks from it.
- Cause ('illa): Being a carnivorous animal → Ruling: Water becomes impure after contact.
- Application of strict Qiyas (analogy): Since birds like vultures are carnivorous, water they drink from should be impure.
- Application of Istihsan: Despite birds being carnivores (the cause is present), the ruling of impurity doesn't apply because birds drink with their beaks (dry bones) unlike mammals that use saliva-covered tongues.
This is particularization of the cause because we're saying: "Though the general cause (being carnivorous) exists in both cases, we distinguish how it applies based on the specific physical differences between mammals and birds." The cause is refined or limited in its application based on relevant distinctions.
Misapplication of Istihsan
Many scholars who accept Istihsan connect it to the prophetic principle: "La darara wa la dirar" (There is no causing of harm and no reciprocation of harm). Many scholars take istihsan with this qaidah (principle) or hadith.
The connection between this principle and Istihsan is particularly evident in the the fourth definition. When a general ruling would cause undue hardship in a specific situation, Istihsan may be invoked to provide an exception.
However, this application must be approached with care. Ahmad ibn Hanbal and other scholars denied the use of this type of istihsan without decisive discrepancy, something which is clear cut, such as a matter of life and death. Ibn Taymiyyah also supports this view, requiring clear-cut, explicit evidence where there's no confusion. Only in such situations is this type of istihsan appropriate, as it could otherwise be easily misused.
Example of Misapplication of Istihsan: The Case of Interest-Based Loans
A cautionary example of how Istihsan can be misused in contemporary times relates to interest-based loans. Some argue as follows: A person needs to take a loan from a bank, but interest-based loans are not allowed in Islam. However, some people, those dealing with Islamic banking, claim that in modern situations it's not possible to live without loans. They argue that though interest is haram (forbidden), based on istihsan it should be allowed because in this specific time and situation, one cannot survive without it.
Why This Reasoning Is Flawed
This reasoning is problematic for several reasons:
- It contradicts explicit texts prohibiting interest (riba)
- It exaggerates the necessity, as Islamic alternatives exist
- It fails to distinguish between genuine necessities and conveniences
Risk of Misuse
This kind of istihsan can be easily misused. Many scholars completely refute such applications, arguing that one cannot create these kinds of exceptions unless there is a very clear necessity, a matter of life and death.
Conclusion
As with many issues in usūl al-fiqh, the debate over Istihsan reveals the importance of proper understanding and clear definitions. The disagreement among scholars largely stems from different conceptions of what Istihsan actually means.
When defined as preferring stronger evidence over weaker evidence, Istihsan aligns with principles accepted by virtually all scholars. This second definition views Istihsan as a method whereby preference is given to the stronger of two pieces of evidence. When scholars have two pieces of evidence and prefer one over the other, this represents one meaning of Istihsan according to a group of scholars.
When understood as Takhsis al-Illa in genuine cases of necessity, it reflects the flexibility inherent in the Sharī'ah. However, when misunderstood as subjective preference without clear evidential basis (the first definition), it can lead to arbitrary rulings that undermine the integrity of religious guidance.
In the next article inshaAllah, we will go over what Istishaab means
🌟 Previous Articles in the Series:
1️⃣ History and Evolution Of Usual Al Fiqh (Part 1)
📝 Overview: An introduction to Usul Al Fiqh.
2️⃣ Ahlul-Hadith vs Ahlul-Rai (Part 2)
📝 Overview: A comparison of two major approaches to Islamic jurisprudence - Ahlul-Hadith and Ahlul-Rai.
📝 Overview: An introduction to Fiqh, its significance, and the relationship between Fiqh and Usul al-Fiqh.
📝 Overview: A dive into the various books and sources that form the foundation of Islamic law.
📝 Overview: This article explains the concept of Hukm (legal rulings) and its categories in Islamic law.
📝 Overview: A detailed explanation of Hukm al-Wadi, its definitions, and its significance in Usul Al Fiqh.
7️⃣ Sources of Al-Hukm: Quran, Sunnah, Ijmaa, and Ijtihaad (Part 7)
📝 Overview: Exploring the primary sources of Islamic law - Quran, Sunnah, Ijmaa, and Ijtihaad.
8️⃣ Understanding Ijtihaad (Part 1)
📝 Overview: Introduction to Ijtihaad, its process, and its role in deriving legal rulings.
9️⃣ What is Qiyas?
📝 Overview: A comprehensive look at Qiyas (analogical reasoning) and its importance in Usul al-Fiqh.
🔟 Analysis of Arguments For And Against Qiyas
📝 Overview: In this article, we review the arguments between the proponent and opponents of Qiyas.