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-dhara’i’– Istishab– ‘Urf– Fatwa al-sahabi– Syar’uman 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-kharki’s 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 slave’s 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.

- Salamah’s neighbour asked for a permission if he could extend a water canal through Salamah’s 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 Shar’iah.

• 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-Shar’iyyah) 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 Shafi’i, Zahiri and Shi’i jurist have rejected it altogether.

Juristic views

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 Shari’ah.

• A form of pleasure-seeking. • Involve ijtihad which is not in

conformity with the Quran• It is human’s 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 Umar’s letter to Abu Musa al-

Asy’ari:– “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`ah’s 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 اسٺصناع

• 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-ta’ati

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 syar’ie 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 (children’s) 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 Shafi’e requires ijab and qabul in one sitting) as long as not contrary to syara’.

• Force entry into one’s premise to curb or solve a crime

• Wasiyyah wajibah• Vending machines