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.[5]

Analogy requires that the manufacturing contract with advance payment be prohibited on the
basis of analogy - however this is made permissible according to ijma.

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 subject to formal cleaning methods are
applied first.

In practice, istihsan is applied to the contract of salam. In principle, on the basis

of analogy (qiyas), the salam contract is not permissible since it involves the deferred
exchange of underlying goods which belong to the class of ribawi items (items in
which riba arises upon delay of exchange hand to hand). However, salam was made an
exception due to the need of people, at various times, to transact on the basis of paying
down the price (capital) immediately, whilst delaying receipt or taking delivery of the
underlying goods to a future date.

Example: Based on Nass

Bai Salam: It is a sale of what is not in existence. This falls under the category
of Bai al-Maadum, which is a form of Gharar that is prohibited in sale. But
salam has been allowed based on the Hadith of the Prophet that

Example: - Based on Ijma

Istisna: This is a sale on what is not in existence, it also falls under the
category of bai al-Maadum like in salam. It is considered allowed due to the
consensus of its permissibility since from the period of the Companions.

Example: - Based on Maslahah

Imposing a guarantee on losses and damages caused by a trustee (amin).

The general rule in these types of contracts is that they are based on trust;
hence they are not supposed to pay for losses or damages. As the
Companions observed that this causes a lot of damages they preferred a
guarantee to be imposed in such cases.

Example: - Based on Qiyas Khaf

 In the case of waqf, only clearly stated rights in the contract are considered
like in sale. Other silent rights are not included. In this case it is better to
perform a Qiyas on Ijarah, which allows the inclusion of unidentified rights
even if they are not clearly stated, like right to use water, passage and right
to flow water.

The judgement of Umar in the case of Muhammad ibn Salamah.

Salamahs neighbour asked for a permission if he could extend a water

canal through Salamahs property, and he was granted the request on
the ground that no harm was likely to accrue to Salamah

Permission to women to travel without mahram under

exceptional situation.
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

o the standard form of evidence in Islamic law is oral testimony.

Normally two adil witnesses are required and four witnesses in
certain cases.

Other examples where istihsan is applicable:

o 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.

o granting trusteeship to someone without good character in order to

avert hardship as was made clear under analogy.

1) To give an example of istihsan which consists of a departure from qiyas

jali to qiyas khaf, it may be
noted that under Hanafi law, the waqf (charitable endowment) of
cultivated land includes the transfer of
all the ancillary rights (the so-called 'easements') which are attached to
the property, such as the right of
water (haqq al-shurb), right of passage (haqq al-murur) and the right of
flow (haqq al-masil), even if
these are not explicitly mentioned in the instrument of waqf. This ruling is based on
qiyas khaf (or istihsan), as I shall presently explain. It is a rule of the Islamic law of
contract, including the contract of
sale, that the object of contract must be clearly identified in detail. What is not
specified in the contract,
in other words, is not included therein. Now if we draw a direct analogy (i.e. qiyas
jali) between sale
and waqf - as both involve the transfer of ownership - we must conclude that the
attached rights can
only be included in the waqf if they are explicitly identified. It is, however, argued
that such an analogy
would lead to inequitable results: the waqf of cultivated lands, without its ancillary
rights, would
frustrate the basic purpose of waqf, which is to facilitate the use of the property for
charitable purposes.
To avoid hardship, a recourse to an alternative analogy, namely, to qiyas khaf, is
therefore warranted.
The hidden analogy in this case is to draw a parallel, not with the contract of sale,
bur with the contract
of lease (ijarah). For both of these involve a transfer of usufruct (intifa'). Since
usufruct is the essential
purpose of ijarah, this contract is valid, on the authority of a Hadith, even without a
clear reference to
the usufruct. This alternative analogy with ijarah would enable us to say that waqf
can be validly
concluded even if it does not specify the attached rights to the property in
detail.
An example of the exceptional istihsan which is based in the nass of the
Qur'an is its ruling on
bequests to relatives: `It is prescribed that when death approaches any of
you, if he leaves any assets,
that he makes a bequest to parents and relatives' (al-Baqarah 2:180).
This Qur'anic provision represents an exception to a general principle of
the Shari'ah, namely that a
bequest is basically not valid: since bequest regulates the division of the
estate after the death of the
testator, the latter is not allowed to accelerate this process. A bequest
made during the lifetime of the
testator is thus tantamount to interference in the rights of the heirs after
the testator's death, which is
unlawful. However, the Qur'an permits bequest as an exception to the
general rule, that is by way of an
exceptional istihsan. It sets aside the general principle in favour of an
exception which contemplates a
fair distribution of wealth in the family, especially in cases where a relative
is destitute and yet is
excluded from inheritance in the presence of other heirs. [28. Cf. Sabuni, Madkhal, p.
123.]
2.2. Exceptional istihsan which is based on the Sunnah may be illustrated
with reference to the contract
of ijarah (lease or hire). According to a general rule of the Shari'ah law of
contract, an object which
does not exist at the time of contract may not be sold. However, ijarah
has been validated despite its
being the sale of the usufruct (i.e. in exchange for rent) which is usually
non-existent at the moment the
 contract is concluded. Analogy would thus invalidate ijarah, but istihsan
exceptionally validates it on
the authority of the Sunnah (and ijma'), proofs which are stronger than
analogy and which justify a
departure from it.[29. Cf. Musa, Madkhal, p.197; Khallaf, 'Ilm, p. 82. For ahadith which validate various
types of ijarah (land, labour, animals, etc.) see
Ibn Rushd, Bidayah, II, 220-221.]

2.3. To illustrate exceptional istihsan which is authorised by ijma`, we may

refer to istihsan`, or the
contract for manufacture of goods. Recourse to this form of istihsan is
made when someone places an
order with a craftsman for certain goods to be made at a price which is
determined at the time of the
contract. Istihsan validates this transaction despite the fact that the object
of the contract is non-existent
at the time the order is placed. This form of istihsan closely resembles the
one which is authorised by
custom,
2.4. An example of exceptional istihsan which is based on necessity
(darurah) is the method adopted
for the purification of polluted wells. If a well, or a pond for that matter, is
contaminated by impure
substances, its water may not be used for ablution. It will be noted,
however, that the water in the well
cannot be purified by removing that part which is impure-and it cannot be
poured out either, for it is in
continuous contact with the water which flows into the well. The solution
has been found through
istihsan, which provides that contaminated wells can be purified by
removing a certain number, say a
hundred, buckets of water from the well (the exact number is determined
with reference to the type and
intensity of pollution). Istihsan in this case is validated by reason of
necessity and prevention of
hardship to the people.[32. See Abu Zahrah, Usul, pp. 211-12.]
2.5. To illustrate exceptional istihsan which is authorised by custom, we
may refer to the waqf of
moveable goods. Since waqf, by definition, is the endowment of property
on a permanent basis, and
moveable goods are subject to destruction and loss, they are therefore not
to be assigned in waqf. This
general rule has, however, been set aside by the Hanafi jurists, who have
validated the waqf of
moveable such as books, tools and weapons on grounds of its acceptance
by popular custom.[34. Cf. Sabuni,
Madkhal, p.124.] Similarly, a strict analogy would require that the object of sale
be accurately defined and
 quantified. However, popular custom has departed from this rule in the
case of entry to public baths
where the users are charged a fixed price without any agreement on the
amount of water they use or the
duration of their stay.[35. Shatibi, I'tisam, II, 318.] Another example is bay' al-ta ati,
or sale by way of `give and
take', where the general rule that offer and acceptance must be verbally
expressed is not applied owing
to customary practice.
2.6. And finally, to illustrate istihsan which is founded on considerations of
public interest (maslahah),
we may refer to the responsibility of a trustee (amin) for the loss of goods
which he receives in his
custody. The general rule here is that the trustee is not responsible for loss
or damage to such property
unless it can be attributed to his personal fault or negligence (taqsir).
Hence a tailor, a shoemaker or a
craftsman is not accountable for the loss of goods in his custody should
they be stolen, or destroyed by
fire. But the jurists, including Abu Yusuf and al-Shaybani, have set aside
the general rule in this case
and have held, by way of istihsan, the trustee to be responsible for such
losses, unless the loss in
question is caused by a calamity, such as fire or flood, which is totally beyond his
control. This istihsan has been justified on grounds of public interest so that trustees
and tradesmen may exercise greater care
in safeguarding people's property. [36. Sabuni, Madkhal, p. 125.]

examples of maslaha mursalah

the third Caliph, `Uthman, distributed the authenticated Qur'an and destroyed
all the variant versions of the text. He also validated the right to inheritance of a
woman whose husband
had divorced her in order to be disinherited. The fourth Caliph, `Ali, is also on record
as having held
craftsmen and traders responsible for the loss of goods that were placed in then
custody. this he
considered to be for the maslahah of the people so that traders should take greater
care in safeguarding
 people's property.[16. Shatibi, I'tisam, II, 292, 302; Ibn al-Qayyim, I`lam, I, 182; Abu Zahrah, Usul, p. 223.]

Example:
An attempt to give the son and daughter
equal share in inheritance on the
assumption that this will secure a public
interest.
Since theres a clear nass in the Quran
which assigns to the son double the
portion of the daughter, the maslahah in
this case is clearly nullified.
Examples of maslahah mursalah introduced by
companions:
Introduction and the use of currency
Establishment of prison
Imposition of tax (kharaj) on agricultural
lands in the conquered territories despite
absence of textual authority.
The collection and compilation of al-Quran in a
single volume
The introduction of land tax
The right to inheritance of a woman whose
husband had divorced her during death
sickness
War on those who refused to pay zakat
 Nomination of Umar to replace Abu Bakar as
caliph
The ruling of Umar that his officials must be
accountable for the wealth they had
accumulated in abuse of public office and
expropriation of such wealth
Establishment of an organised military force
department or defence ministry (Diwan al-
Jund) and Diwan al-Ata (sort like ministry of
finance) but to distribute money to the public
established by Sayyidina Umar
Administration of justice

Maslahah in modern time

Examples:
The law on road safety
The law on wearing helmet
The requirement on identification
card
The HIV test before marriage
Needle and Syringe Exchange
Programme
Pre marital course
 Marriage certificate
wearing bangle/bracelet/neclace
for male pilgrims
Separate coach/section for women
in public transport
Example: An attempt to give the son and daughter
equalshare in inheritance on the assumption that thiswill
secure a public interest. Since theres a clear nass in the
Quran whichassigns to the son double the portion of
thedaughter, the maslahah in this case is clearlynullified.
Right to divorce Some said it should also be given to the
wifebecause of maslahah Is there a maslahah? Maslahah
mulghah.

Examples of istishab
Example:
Doubt arises as to whether a man
is still alive or not?
Istishab: if he is known to have
been alive and there is no news of
his death he is presumed to still
 be alive until there is evidence
showing his death.
If a man marries a woman knowing
that she is a virgin and then a
rumour says/or he suspects that
she is not virgin after
consummation presumption is
the woman was a virgin at the
time of marriage unless evidence
is shown to the contrary.
A contract of sale or a contract of
marriage once it is concluded, it is
presumed to remain in force until
there is a change.
The change in the transfer of
ownership (for contract of sale)
and dissolution of marriage (for
marriage)
A trader is presumed to gain no
profit unless proven otherwise
(A who is a trading partner
claims that he has no profit).
 The presumption of absence of
profit will be in As favour
unless B can prove otherwise.
A is in a doubt whether he has
taken ablution or not. The
original state is that he has no
ablution. The presumption is
he has not yet taken ablution.
He has to take ablution before
he can perform solat.
A suspected offender is
presumed innocent until
proven guilty.
A ate Bs food and he said B
has given permission. B denies
it. Presumption is in favour of
B since originally there is no
permission.
Defect in things sold. The
presumption is originally there
is no defect in the hands of the
seller.
 Examples of qiyas
Examples
from
the
Sunnah
In
a
hadith
in
Abu
Dawud,
the
Prophet
(SAW)
mentioned
that
wudhu
is
not
upon
one
who
falls
asleep
whilst
standing,
sitting,
or
in
state
of
ruku
or
sajdah,
but
for
the
one
who
slept
whilst
lying
down,
as
his
limbs
will
relax
and
allow
a
greater
chance
for
breaking
wind.
Here,
because
he
makes
the
relaxing
of
the
limbs
as
the
illah
(cause)
for
wudhu
breaking,
the
hukm
can
now
been
transferred
to
someone
leaning
against
something
or
reclining.
Therefore,
if
somebody
were
to
sleep
whilst
leaning
or
reclining

the
secondary
rulings
dictate
that
his
wudhu
will
now
break,
as
his
limbs
would
have
relaxed
in
the
same
as
if
he
were
to
lie
down.

In
another
hadith
in
Tirmidhi,
the
Prophet
(SAW)
mentioned
that
a
woman
who
is
in
a
state
of
istihaada
(surplus
bleeding),
she
may
perform
wudhu
and
pray
salaah

even
if
the
bleeding
is
falling
on
the
mat,
as
it
is
the
blood
of
a
vein
which
has
burst.
Here,
the
Prophet
(SAW)
has
made
the
continuous
flowing
of
blood,
due
to
a
burst
vein
as
an
illah
for
allowing
one
to
perform
salaah,
and
its
hukm
will
be
transferred
to
similar
situations,
such
as
hijama
(cupping).
This
is
because,
in
both
cases,
the
person
would
have
become
classed
as
a
madhoor

someone
who
is
unable
to
remain
in
the
state
of
purity
long
enough
to
perform
salaah.

Examples
from
Ijma
The
ulama
have
held
a
consensus
(ijma)
that
immaturity
is
an
illah
for
a
father
to
have
authority
over
his
sons
rights
i.e.
such
as
to
marry
him
off
(known
as
wilayatul
ijbaar).
Therefore,
the
ruling
will
also
be
transferred
and
established
if
the
illah
(of
immaturity)
is
also
found
for
an
immature
girl
-
and
the
same
rights
will
be
given
to
her
father.
However,
when
the
son
reaches
puberty,
this
is
the
illah
for
the
father
to
not
have
any
rights
over
his
son.
Similarly,
the
rule
will
also
be
transferred
to
a
mature
girl
when
she
reaches
puberty.
In
another
example,
the
flowing
of
blood
is
the
illah
(cause)
for
wudhu
to
break
for
a
mustahaada
woman,
and
this
ruling
will
be
transferred
over
to
cases
which
also
involve
the
flowing
of
blood,
such
as
a
nose
bleed.
Of
course,
if
they
both
qualify
as
a
madhoor,
due
to
excessive
bleeding

they
may
perform
wudhu
and
pray
salaah.

Examples
from
Ijtihad/Istinbat/Ray
There
are
certain
occasions
when
one
can
come
across
a
situation,
and
deduce
the
illah
for
its
rulings
through
logic
and
analysis,
and
not
through
the
shariah.
For
example,
if
we
were
to
see
a
man
giving
a
poor
person
one
dirham,
his
predominant
thought
will
be
that
the
illah
for
this
is
so
that
the
neediness
of
the
poor
person
can
be
removed,
and
so
that
the
man
can
also
receive
a
reward
from
Allah.
If
we
were
to
now
come
across
another
situation,
which
is
similar
to
the
previous
situation
in
trait,
and
our
logic
seems
to
connect
the
need
and
illah
for
both
situations
as
being
the
same

it
is
possible
for
the
hukm
to
also
be
transferred
from
the
first
situation
onto
the
second
situation.
Ghalib
adh--dhann
(predominance
of
thought)
establishes
rules
in
the
absence
for
a
ruling
that
is
higher
than
it.
For
example,
when
a
musaafr
thinks
that
there
is
water
nearby,
he
is
required
to
search
for
it,
and
he
is
not
allowed
to
do
tayammum.
The
hukm
(ruling)
of
this
category
of
qiyas
is,
that
if
through
other
analysis
one
is
able
to
find
out
that
the
initial
illah
that
he
ascertained
is
not
as
he
thought
(i.e.
the
poor
person
was
not
actually
poor,
or
he
remembered
the
bearings
of
his
location),
then
this
form
of
qiyas
will
be
invalid.
Classical Examples of Qiyas

1. The Quran forbids selling or buying of goods after the last call for Friday prayers until the end of the
prayer as stated in Surah al-Jumuah 62:9.

By analogy, this prohibition is extended to all kinds of transactions and activities such as agricultures,
administrations and others.
Contd

2. The Prophet SAW said in a Hadith that, The killer shall not inherit (from the victim). By analogy, this
ruling is extended to bequests (wasiyyah), which would implicate that the killer cannot benefit from the
will of his victim.

3.According to a Hadith, it is forbidden for a man to make an offer of betrothal to a woman who is already
engaged to another man unless the latter discontinues the relationship or has totally abandoned his offer.
The illah is to avoid conflict and hostility among people. By analogy, the same rule is extended to all other
transactions in which the same illah is found to be operative.

A simple example of qiyas is the ruling of all intoxicants being haraam. In the Holy
Quran, Allah Taala orders us to refrain from khamar (wine, alcoholic drinks). So it would
clearly appear that the reason for the prohibition is because of the intoxicating effect.
Therefore, although not particularly mentioned in the Quraan and Hadith, all other
things which have an intoxicating effect (such as drugs etc.) will be deemed haraam as
well due to the verse which prohibits khamar.