USUL AL-FIQH II

DR WAN NORAINI MOHD SALIM

What is usul al-fiqh?
Definition?
The science of the sources and
methodology of the law
Objectives?
To regulate ijtihad and to guide the jurists
in his efforts at deducing the law from its
sources
SCOPE OF SHA 3411
SECONDARY SOURCES
Istihsan
Istislah (masalih al-mursalah)
Sadd al-dharai
Istishab
Urf
Fatwa al-sahabi
Syaruman Qablana
TURUQ ISTINBAT
LEARNING OUTCOME
Upon completion of this course,
students will be able to:
Describe various principles and contents
of Islamic jurisprudence
Identify issues and problems in
contemporary period and apply various
principles of Islamic jurisprudence
accordingly
 Analyse development and changes in the
laws and Shariah as well as matters that
have impact on the law
Provide solution, advice and opinion
pertaining to Islamic law effectively
Assessment
Test 1/Oral
Test/Presentation/Assignment 15%
Test 2 (Common Test) 15%
Class Participation 10%
Final Examination 60%
ISTIHSAN
Definition
Literal meaning
To approve
To deem something preferable
Juristic meaning
A method of exercising personal opinion
in order to avoid any rigidity and
unfairness that might result from literal
enforcement of the existing law
 Also referred to as juristic preference.
Juristic preference involves setting
aside an established analogy in favour
of an alternative ruling which serves
the ideals of justice and public interest
in a better way.
Jurists Definitions
Hanafis:
Istihsan is to depart from the existing
precedent, by taking a decision in a
certain case different from that on which
similar cases have been decided, for a
reason stronger than the one that is
obtained in those cases this is based
.

on al-kharkis definition
 Al-Sarakhsi adds:
The precedent which is set aside by
istihsan normally consists of an
established analogy which may be
abandoned in a favour of a superior
proof, that is the Quran, the Sunnah,
necessity (dorurah) or a stronger qiyas.
 Hanbali:
Istihsan is the abandonment of one legal
norm (hukm) for another which is
considered better on the basis of the
Quran, Sunnah, or consensus.
according to Ibnu Taymiyyah.
 Maliki:
Istihsan is to abandon exceptionally what
is required by the law because applying
the existing law would lead to a departure
from some of its own objectives Ibnu al-
Arabi.
Examples of Istihsan
i. The ruling of S.Umar in cases of theft
during a widespread famine cutting
of hands of thieves was suspended
ii. The ban imposed on sale of slaves
mother (ummahat al-aulad)
iii. The ban on marriage with kitabiyyahs
in certain cases
-on grounds of public interest, equity
and justice.
iv. 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
v. Permission to women to travel
without mahram under exceptional
situation.
vi. 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.
 vii. Another example of the case of
Istihsan are the cases of himariyya
and umariyyatan decided by Sayyidina
Umar.
 viii. Other examples where istihsan is
applicable:
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.
granting trusteeship to someone without
good character in order to avert hardship
as was made clear under analogy.
Importance of istihsan
Important branch of ijtihad
Provider for Islamic law with necessary
means to encourage flexibility and
growth
Can be used for a variety of purposes
Why Istihsan?
Enforcing the existing law may prove
to be detrimental in certain situations
and a departure from it may be the
only way of attaining a fair solution to a
particular problem.
Istihsan may offer a means of avoiding
hardship and a solution which is
harmonius with the higher objectives of
the Shariah.
 Istihsan is considered as being the
counterpart of equity in common law.
Istihsan is one of the methods/devices
(apart from maslahah and siyasah as-
Shariyyah) to incorporate social
changes into Islamic law, where the
strict requirements of Islamic law
would not allow it.
Istihsan & Equity
Similarities:
Inspired by the principle of fairness and
conscience
Both authorise departure from a rule of
positive law when its enforcement leads
to unfair results
Both assume that right and wrong are not
a matter of relative convenience for the
individual but derive from eternally valid
standard which is ultimately independent
of human cognisance and adherence
Differences
EQUITY
Reliance on the concept
of natural law
Right and wrong are
inherent in nature
Equity is a law of nature
superior to all other legal
rules, written or otherwise
Equity recognises natural
law apart from and
superior to positive law
ISTIHSAN
Reliance on divine law
Right and wrong are
determined by God
Istihsan does not give
rise for any other law to
be superior than the
divine revelation
Istihsan is an integral part
of the shariah
Juristic views
The Hanafi,Maliki and Hanbali jurists
have validated istihsan as subsidiary
source of law.
The Shafii, Zahiri and Shii jurist have
rejected it altogether.
Juristic views
Rejected Accepted

Syafie Hanafi

Shiee Maliki

Zahiri Hanbali
The opposition
Imam Syafie:
Istihsan involves personal opinion,
discretion and the inclination of the
individual jurist, an exercise which is not
in harmony with the Quranic ayah which
reads:
Does man think that he will be left without
guidance? al-Qiyamah (75) : 36
If this is allowed then the result is self
indulgence and chaos in the community
 Istihsan amounts to a deviation from
the principles of the Shariah.
A form of pleasure-seeking.
Involve ijtihad which is not in
conformity with the Quran
It is humans duty to follow what
exactly mentioned in the Quran and
the Sunnah of Prophet Muhammad.
Supporter of Istihsan
As-Sarakhsi (Hanafi jurist):
- that avoidance of hardship is the
cardinal principle of religion which is
stated in the Quran.
E.g, Allah intends every facility for you,
and He does not want to put you in
hardship(al-Baqarah:185)
The hadith the best of your religion is
that which brings ease to the people.
 The supporter of istihsan also argue
that istihsan is a part of maslahah and
also based on the principle of
dharuriyyah.
Istihsan is to abandon exceptionally
the existing law, not absolute or total
abandonment
Textual proof (hujjiyyah)
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. al
Zumar (39) : 18
 And follow the best (ahsan) of what
has been sent down to you from your
Lord. al-Zumar : 55
 Another authority for the application of
istihsan:
Sayyidina Umars letter to Abu Musa al-
Asyari:
Research similar cases, and when you find
similarities that affect the ruling, apply the
method of qiyas. Using the results of qiyas,
select the ruling that adheres to the Islamic
principles and ensures that your conscience is
satisfied that justice has been served.
 According to the first part, `Umar
wanted qiyas applied as soon as the
similarities were found and the result
was deemed just. However, in the
second part he says that if this is not
possible, then a ruling that accords
with the basic principles of justice and
equity should be given.
 In other words, if the resulting qiyas is
not in keeping with the Shari`ahs
spirit, then the ruling of similarities
should be abandoned to give a ruling
according to the special evidence, that
is, justice and equity (istihsan)
Types of istihsan
ISTIHSAN ISTITHNAI
Making exception to the general rule of the
existing law when Muslim jurists are
convinced that justice and equity will be
better served.
The jurists might have reached the decision
as a result of personal ijtihad or that the
exception may have already been
authorised by any of the following: Quranic
verses, prophetic traditions, consensus
opinion, custom, public interest and
necessity
Examples of Istihsan Ithna-i
Authorised by:
Quran
Sunnah
Ijma
Necessity
Custom
Maslahah
IS IST based on Quran
General rule = No bequest for an heir
LA WASIYYATA LI WARITHIN
Exception - 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.
Wasiyyah wajibah (obligatory bequest)?
 Basis - al-Baqarah:180
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.
IS IST based on sunnah
General rule: A contract becomes
binding once the offer and acceptance
are completed.
A contract is binding and irrevocable once
the contracting parties left the meeting
place
 Exception: based on istihsan there are
options for cancellation (khiyar al
syart)
When a person buys an object on
condition that he may revoke the
contract within the next three days or
as stipulated in the contract.
 Basis - Hadis
When you agree on the terms of a
sale, you may say: it is not binding and
I have an option for three days.
.3 days
IS IST based on Ijma
General rule - The object or subject
matter of the contract must be in
existence at the time the contract is
concluded.
Do not sell something that is not in your
possession.
 Exception = in the contract for
manufacture of goods (Bay al-
Istisna) and bay as-Salam.
Basis - is 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
contract, and the subject matter will be
delivered at a later date or time.
 Examples:
Sale and purchase of a house which is
yet to be built.
Sale of manufactured items such as
furnitures/garments/food services/boat
etc
IS IST based on custom
The case of waqf of moveable goods
or personal properties.
General rule = by definition, waqf is
endowment of property on a
permanent basis, so the valid subject
matter must be immoveable property
such as buildings, land or house.
Moveable goods are subject to
destruction and loss, they are not to be
assigned in waqf.
 Exception - waqf of movable property
is accepted by popular custom.
Hanafis allowed the waqf of moveable
goods such as books, tools and
weapons on ground of its acceptance
by popular custom.
 Cash Waqaf (Waqaf tunai) Yayasan
Waqaf Malaysia, Saham Wakaf Johor,
Wakaf Skim Tunai Terengganu etc.
Bai al-taati
IS IST based on necessity
The case of less qualified qadi.
General rule requires that the qadi
must be a mujtahid
Exception - non-mujtahid may be
appointed as qadi where no mujtahid
can be found for this post.
 Another example is as to the
qualification of witnesses. In order for
a witness to be admissible, he must be
adil person. If there is no adil witness
then by istihsan, a qadhi can admit
witnesses who are not totally reliable
so that the rights of people could be
protected.
 What about female syarie judge?
 Another example is in the case of wells
in which dirt or carcasses of animals
have fallen. Following strict analogy
would mean the non-use of these
wells, and this would cause hardship
to the people. The principle of
necessity requires that use of these
wells be permitted. This is done after
observing formal cleaning methods.
 Other examples:
A deposit holder (trustee) is normally not
entitled to spend out of the property that
is entrusted to him without the permission
of the depositor or the judge. But he may
do so in situations of necessity if the
depositor is out of reach and it is also
difficult to obtain a judicial order for the
purpose.
 A legally competent heirs of the deceased
may spend, by way of Istihsan, on their
minor relatives who have no legal
executor (wasi) what is necessary out of
their own (childrens) property without any
authorisation.
 By the same token, when a mosque is
without a caretaker but it is recipient of
income from a charitable endowment
(waqf) the people of the locality may
spend out of this income to repair any
damages in the mosque or to build a
fence around it
IS IST based on public
interest
The case of responsibility of the
trustee (amin)
General rule - the trustee is not
responsible for loss or damage to such
property unless it is due to his
personal fault and negligence.
 Exception = Abu Yusuf and as-
Shaibani, have set aside the general
rule by way of istihsan.
They laid down that the trustee is to be
held responsible to the damage or loss
of the property unless the loss is
caused by a calamity such as fire and
flood which is totally beyond his
control.
ISTIHSAN QIYASI
It is a departure from one qiyas to
another
Qiyas is of two types : Jalli (obvious
analogy) and Khafi (hidden analogy)
Istihsan qiyasi is a departure from Qiyas
Jalli to Qiyas Khafi.
Why qiyas khafi?
It is stronger and more effective in
repelling hardship than qiyas jalli
Presumably because it is arrived
through deeper reflection and analysis
and not through superficial observation
or similitudes.
Example
Whether waqf (charitable endowment)
of cultivated land may include all
ancillary rights (right of water, passage
and flow etc) attached to the property?
Analogy is made to Islamic law of
contract including the contract of sale.
The general rule is the object of
contract must be clearly identified in
detail.
 What is not specified in the contract is
not included.
Analogy between sale and waqf (both
involve transfer of ownership) direct
analogy (Qiyas Jalli) : the attached
rights can only be included in waqf if
they are explicitly identified.
 Application of Qiyas Jalli leads to
inequitable results: the waqf of
cultivated land, 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, resort is made to
Qiyas Khafi
The parallel is drawn to the contract of
lease (ijarah) since for both involve a
transfer of usufruct (benefit).
Since usufruct is the essential purpose
of ijarah, the contract of ijarah is valid,
on the authority of a hadith, even
without a clear reference to the
usufruct.
 By analogy to ijarah, waqf can be
validly concluded even if it does not
specify the attached rights to the
property in detail.
Relevance of Istihsan to
contemporary law.
Sale and Purchase agreement
contract to buy a house that is yet to
be built
E-commerce transaction (Imam Shafie
requires ijab and qabul in one sitting)
as long as not contrary to syara.
Force entry into ones premise to curb
or solve a crime
 Wasiyyah wajibah
Vending machines