12. ISTIHSAN OR EQUITY IN ISLAMIC LAW
The title I have chosen for this chapter draws an obvious parallel between equity and istihsan which should be explained, for although they bear a close similarity to one another, the two are not identical. ‘Equity’ is a Western legal concept which is grounded in the idea of fairness and conscience, and derives legitimacy from a belief in natural rights or justice beyond positive law. Istihsan in Islamic law, and equity in Western law, are both inspired by the principle of fairness and conscience, and both authorise departure from a rule of positive law when its enforcement leads to unfair results. The main difference between them is, however, to be sought in the overall reliance of equity on the concept of natural law, and of istihsan on the underlying values and principles of the Shari’ah. But this difference need not be overemphasized if one bears in mind the convergence of values between the Shari`ah and natural law. Notwithstanding their different approaches to the question of right and wrong, for example, the values upheld by natural law and the divine law of Islam are substantially concurrent. Briefly, both assume that right and wrong are not a matter of relative convenience for the individual, but derive from an eternally valid standard which is ultimately independent of human cognizance and adherence. But natural law differs with the divine law in its assumption that right and wrong are inherent in nature. From an Islamic perspective, right and wrong are determined, not by reference to the ‘nature of things’, but because God has determined them as such. The Shari’ah is an embodiment of the will of God, the Lord of the universe and the supreme arbiter of values. If equity is defined as a law of nature superior to all other legal rules, written or otherwise, then this is obviously not what is meant by istihsan. For istihsan does not recognise the superiority of any other law over the divine revelation, and the solutions which it offers are for the most part based on principles which are upheld in the divine law. Unlike equity, which is founded in the recognition of a superior law, istihsan does not seek to constitute an independent authority beyond the Shari’ah. Istihsan, in other words, is an integral part of the Shari’ah, and differs with equity in that the latter recognises a natural law apart from, and essentially superior to, positive law.
While discussing the general theory of istihsan, this chapter also draws attention to two main issues concerning this subject. One of these is whether or not istihsan is a form of analogical reasoning: is it to be regarded as a variety of qiyas or does it merit to stand as a principle of equity in its own right? The other issue to be raised is the controversy over the validity of istihsan, which started with al-Shafi’i’s unambiguous rejection of this principle. A glance at the existing literature shows how the ulema are preoccupied with the polemics over istihsan and have differed on almost every aspect of the subject. I shall therefore start with a general characterisation of istihsan, and then discuss the authority which is quoted in its support. This will be followed by a brief account of the related concepts, ra’y and qiyas. The discussion will end with an account of the controversy over istihsan and a conclusion where I have tried to see the issues in a fresh light with a view to developing a perspective on istihsan.
Istihsan is an important branch of ijtihad, and has played a prominent role in the adaptation of Islamic law to the changing needs of society. It has provided Islamic law with the necessary means with which to encourage flexibility and growth. Notwithstanding a measure of juristic technicality which seems to have been injected into an originally simple idea, istihsan remains basically flexible, and can be used for a variety of purposes, as will later be discussed. Yet because of its essential flexibility, the jurists have discouraged an over-reliance on istihsan lest it result in the suspension of the injunctions of the Shari’ah and become a means of circumventing its general principles. Istihsan has thus become the subject of much controversy among our jurists. Whereas the Hanafi, Maliki, and Hanbali jurists have validated istihsan as a subsidiary source of law, the Shafi’i, Zahiri and Shi’i ulema have rejected it altogether and refused to give it any credence in their formulation of the legal theory of usul al-fiqh.
Istihsan literally means `to approve, or to deem something preferable’. It is a derivation from hasuna, which means being good or beautiful. In its juristic sense, istihsan is a method of exercising personal opinion in order to avoid any rigidity and unfairness that might result from the literal enforcement of the existing law. ‘Juristic preference’ is a fitting description of istihsan, as it 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.
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. The jurist who resorts to istihsan may find the law to be either too general, or too specific and inflexible. In both cases, istihsan may offer a means of avoiding hardship and generating a solution which is harmonious with the higher objectives of the Shari’ah.
It has been suggested that the ruling of the second caliph, `Umar b. al-Khattab, not to enforce the had penalty of the amputation of the hand for theft during a widespread famine, and the ban which he imposed on the sale of slave-mothers (ummahat al-awlad), and marriage with kitabiyahs in certain cases were all instances of istihsan. For `Umar set aside the established law in these cases on grounds of public interest, equity and justice.
The Hanafi jurist al-Sarakhsi (d. 483/1090), considers istihsan to be a method of seeking facility and ease in legal injunctions. It involves a departure from qiyas in favour of a ruling which dispels hardship and brings about ease to the people. ‘Avoidance of hardship (raf’ al-haraj)’ al-Sarakhsi adds, `is a cardinal principle of religion which is enunciated in the Qur’an, where we read, in an address to the believers, that `God intends facility for you, and He does not want to put you in hardship’ (al-Baqarah 2:185). Al-Sarakhsi substantiates this further by quoting the Hadith that reads: `The best of your religion is that which brings ease to the people.’
Al-Khudari has rightly explained that in their search for solutions to problems, the Companions and Successors resorted in the first place to the Qur’an and the normative example of the Prophet. But when they found no answer in these sources, they exercised their personal opinion (ra’y) which they formulated in the light of the general principles and objectives of the Shari’ah. This is illustrated, for example, in the judgment of `Umar ibn al-Khattab in the case of Muhammad ibn Salamah. The caliph was approached by Ibn Salamah’s neighbour who asked for permission to extend a water canal through Ibn Salamah’s property, and he was grafted the request on the ground that no harm was likely to accrue to Ibn Salamah, whereas extending a water canal was to the manifest benefit of his neighbour.
It thus appears that istihsan is essentially a form of ra’y which gives preference to the best of the various solutions that may exist for a particular problem. In this sense, istihsan is an integral part of Islamic jurisprudence and indeed of many other areas of human knowledge. Hence it is not surprising to note Imam Malik’s observation that `istihsan represents nine-tenths of human knowledge’. While quoting this view, Abu Zahrah adds that when Malik made this remark, he was apparently including the broad concept of maslahah within the purview of istihsan. `For it is maslahah which accounts for the larger part of the nine-tenth.
Evidence suggests that the Companions and Successors were not literalists who would seek a specific authority in the revealed sources for every legal opinion (fatwa) they issued. On the contrary, their rulings were often based on their understanding of the general spirit and purpose of the Shari’ah, and not necessarily on the narrow and literal meaning of its principles. Istihsan has been formulated in this spirit; it is the antidote to literalism and takes a broad view of the law which must serve, not frustrate, the ideals of fairness and justice.
To give an example, oral testimony is the standard form of evidence in Islamic law on which a consensus (ijma’) can be claimed to exist. This normally requires two upright (`adl) witnesses unless the law provides otherwise (the proof of zina, for instance, requires four witnesses). The number of witnesses required in these cases is prescribed in the Qur’an, but the rule that testimony should be given orally is determined by consensus. Muslim jurists have insisted on oral testimony and have given it priority over other methods of proof, including confession and documentary evidence. In their view, the direct and personal testimony of a witness who speaks before the judge with no intermediary is the most reliable means of discovering the truth. The question arises, however, whether one should still insist on oral testimony at a time when other methods such as photography, sound recording, laboratory analyses, etc. offer at least equally, if not more, reliable methods of establishing facts. Here we have, I think, a case for a recourse to istihsan which would give preference to these new and often more reliable means of proof. It would mean departing from the established rules of evidence in favour of an alternative ruling which is justified in light of the new circumstances. 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 to uphold that spirit.
The jurists are not in agreement on a precise definition for istihsan. The Hanafis have, on the whole, adopted Abu’l-Hasan al-Karkhi’s (d. 340/947) definition, which they consider accurate and comprehensive. Istihsan is accordingly a principle which authorises departure from an established precedent in favour of a different ruling for a reason stronger than the one which is obtained in that precedent. While quoting this, al-Sarakhsi adds that the precedent which is set aside by istihsan normally consists of an established analogy which may be abandoned in favour of a superior proof, that is, the Qur’an, the Sunnah, necessity (darurah), or a stronger qiyas.
The Hanbali definition of istihsan also seeks to relate istihsan closely to the Qur’an and the Sunnah. Thus according to Ibn Taymiyyah, istihsan is the abandonment of one legal norm (hukm) for another which is considered better on the basis of the Qur’an, Sunnah, or consensus.
Notwithstanding the fact that the Maliki jurists lay greater emphasis on istislah (consideration of public interest) and are not significantly concerned with istihsan, they have in principle validated istihsan. But the Maliks view istihsan as a broad doctrine, somewhat similar to istislah, which is less stringent confined to the Qur’an and Sunnah than the Hanafis and Hanbalis have. Thus according to Ibn al-‘Arabi, ‘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.’ Ibn al-‘Arabi points out that the essence of istihsan is to act on ‘the stronger of two indications (dalilayn)’. Whereas the majority of ulema would hold to qiyas when it was attacked on grounds of rigidity, Malik and Abu Hanifah departed from qiyas, or specified the general in qiyas, on grounds of maslahah and other indications.
There are certain differences in the terms of these definitions which will hopefully become clearer as our discussion proceeds. But it appears that departure from an existing precedent on grounds of more compelling reasons is a feature of istihsan which is common to all the foregoing definitions. According to Abu Zahrah, the Hanafis have adopted al-Karkhi’s definition, as it embraces the essence of istihsan in all of its various forms. The essence of istihsan, Abu Zahrah adds, is to formulate a decision which sets aside an established analogy for a reason that justifies such a departure and seeks to uphold a higher value of the Shari’ah. The departure to an alternative ruling in istihsan may be from an apparent analogy (qiyas jali) to a hidden analogy (qiyas khafi), or to a ruling which is given in the nass (i.e. the Quran or the Sunnah),consensus, custom, or public interest.
There is no direct authority for istihsan either in the Qur’an or in the Sunnah, but the jurists have quoted both in their arguments for it. The opponents of istihsan have, on the other hand, argued that istihsan amounts to a deviation from the principles of the Shari’ah. It is an idle exercise in human preferences which only detracts from our duty to rely exclusively on divine revelation. Both sides have quoted the Qur’an and the Sunnah in support of their arguments. They were able to do so partly because the Qur’anic ayat which they have quoted are on the whole open to various interpretations.
The Hanafi jurists have mainly quoted two Quranic ayahs, both of which employ a derivation of the root word hasuna, and enjoin the believers to follow the best of what they hear and receive. They are as follows:
1. 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);
2. And follow the best [ahsan] of what has been sent down to you from your Lord (al-Zumar, 39:55) Qawl (lit.`word’ or `speech’) in the first ayah could either mean the word of God, or any other speech. If it means the former, which is more likely, then the question arises as to whether one should distinguish between the words of God which are ahsan (the best) as opposed to those which are merely hasan (good). Some commentators have suggested that the reference here is to a higher course of conduct. The Qur’an, in other words, distinguishes a superior course of conduct from that which may be considered as ordinary. Punishing the wrong-doer, for example, is the normal course enjoined by the Shari’ah, but forgiveness may at times be preferable (ahsan) and would thus represent the higher course of conduct. The basic concept of istihsan, in other words, can be seen in the Qur’an, although not in its technical form which the ulema of jurisprudence have developed.
The following two ahadith have also been quoted in support of istihsan:
1. `What the Muslims deem to be good is good in the sight of God’
2. ‘No harm shall be inflicted or reciprocated in Islam.’
The critics of istihsan have argued, however, that none of the foregoing provide a definite authority in support of this doctrine. Regarding the first of the two ayahs, for example, Amidi points out that it merely praises those who follow the best of what they hear. There is no indication in this ayah to render adherence to the `best speech’ an obligation. Nor does the second ayah bind one to a search for the best in the revelation: if there is an injunction in the revealed sources, it would bind the individual regardless of whether it is the best of the revelation or otherwise. As for the Tradition, what the Muslims deem good is good in the sight of God’, both al-Ghazali and al-Amidi have observed that, if anything, this would provide the authority for consensus (ijma’). There is nothing in this Tradition to suggest, and indeed it would be arbitrary to say, that what a Muslim individual deems good is also good in the sight of God.
The critics of istihsan have further suggested that this doctrine was initially introduced by Hanafi jurists in response to certain urgent situations. The Hanafis then tried to justify themselves by quoting the Qur’an and the Hadith ex-post facto. The Qur’anic foundation of istihsan, in other words, is weak, and no explicit authority for it can be found in the Sunnah either.
The historical origins of istihsan are somewhat uncertain too. While Goldziher has suggested that Abu Hanifah was the first to introduce and use the term in its juristic sense, Joseph Schacht has attributed the origin of istihsan to Abu Hanifah’s disciple, Abu Yusuf. Fazlur Rahman has confirmed the former view, which he thinks is substantiated by the fact that al-Shaybani, another disciple of Abu Hanifah, in a number of cases attributed istihsan to Abu Hanifah himself.
by M. H. Kamali.
Comments
John Doe
23/3/2019Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.
John Doe
23/3/2019Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.
John Doe
23/3/2019Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.