QUESTION 1Define istihsan based on analogy and istisan based on texts. Illustrate their differences. Istihsan literally means to deem something preferable. In its juristic sense, Istihsan is a method of exercising personal opinion (ra’y) in order to avoid any rigidity of unfairness that might result from literal application of law. In other word, Istihsan is abandonment of a qiyasbased opinion in favour of an opinion supported by stronger evidence, that is, the Qur’an, Sunnah , ijma’, custom, necessity, public interest, or better qiyas with an objective to do justice and fairness. Istihsan as a concept is close to Equity in Common Law. However equity in common law is based on natural law, whereas Istihsan is essentially based on divine law. Istihsan is not independent of Shariah, it is integral part of Shariah. Istihsan is an important branch of Ijtihad, and has played a prominent role in adaption of Islamic law to the changing needs of society. Example of istihsan are first the ruling of Saiyidina Umar in cases of theft during a widespread famine which is cutting of hands of thieves was suspended. Second, the ban imposed on sale of slave’s mother (ummahat al-aulad) and third the ban on marriage with kitabiyyahs in certain cases. Istihsan has been validated by Hanafi, Maliki and Hanbali jurists. Imam Syafi’i, Zahiri and Shi’i jurist have been rejected it as a matter of deduction but however, majority have accepted Istihsan. According to As-Sarakhsi (Hanafi jurist), that avoidance of hardship is the cardinal principle of religion which is stated in the Quran. For example, in Surah Al Baqarah verse 185, Allah stated that, “Allah intends every facility for you, and He does not want to put you in hardship” 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. Basically, there are two types of Istihsan which are analogical Istihsan and exceptional Istihsan. ISTIHSAN QIYASI (Analogical Istihsan) Analogical Istihsan is by choosing one qiyas over another. The former is called qiyas jali (obvious analogy) and the latter qiyas khafi (hidden analogy). The reason is because the hidden which is to facilitate the use of the property for charitable purposes. For example. to avoid hardship. The general rule is the object of contract must be clearly identified in detail. The jurists might have reached the decision as a result of personal ijtihad or that the exception may have already been authorised by either Quranic verses. Since usufruct is the essential purpose of ijarah. The parallel is drawn to the contract of lease (ijarah) since for both involve a transfer of usufruct (benefit). whether waqf (charitable endowment) of cultivated land may include all ancillary rights (right of water. Application of qiyas jali leads to inequitable results which is the waqf of cultivated land. Presumably because it is arrived through deeper reflection and analysis and not through superficial observation or similitudes. ISTIHSAN ISTITHNAI (Exceptional Istihsan) Istihsan Istithnai is making exception to the general rule of the existing law when Muslim jurists are convinced that justice and equity will be better served. without its ancillary rights.analogy is stronger than the obvious analogy. passage and flow etc) attached to the property? Analogy is made to Islamic law of contract including the contract of sale. exception to the general law of inheritance which is the rule that have been approved by Qur’an in Surah Al Baqarah verse 180. if he leaves any assets. the contract of ijarah is valid. public interest or necessity. consensus opinion. on the authority of a hadith even without a clear reference to the usufruct. waqf can be validly concluded even if it does not specify the attached rights to the property in detail. resort is made to qiyas khafi. Therefore. that he may make a bequest to parents and relatives” . “It is prescribed that when death approaches any of you. custom. would frustrate the basic purpose of waqf. Examples First. prophetic traditions. By analogy to ijarah. they are not to be assigned in waqf. In other words a contract is binding and irrevocable once the contracting parties left the meeting place. moveable goods are subject to destruction and loss. in the case of waqf of moveable goods or personal properties. garments. However. waqf is endowment of property on a permanent basis. This is because. based on Istihsan there are options for cancellation (khiyar al syart). The 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.” Third. The general rule is that the object or subject matter of the contract must be in existence at the time the contract is concluded. you may say: it is not binding and I have an option for three days. Fourth. exceptional Istihsan based on sunnah i.The general rule is that no bequest for an heir (la wasiyyata li warithin) and the exception is 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. so the valid subject matter must be immoveable property such as buildings. Second. boat etc. by definition.e. The general rule is a contract becomes binding once the offer and acceptance are completed. and the subject matter will be delivered at a later date or time. land or house. This is based on sunnah. One person cannot sell something that is not in his/her possession. exceptional Istihsan based on custom. sale and purchase of a house which is yet to be built and sale of manufactured items such as furniture. exceptional Istihsan based on Ijma’ regarding object or subject matter of a contract. agreement of contract. there is exception in certain contract such as in the contract for manufacture of goods (Bay’ al-Istisna’) and bay’ as-Salam. For example. For example. 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. “When you agree on the terms of a sale. The general rule. The exception is. stated that. . However Abu Yusuf and AsShaibani. There is also monetary waqf in Malaysia such as Yayasan Waqaf Malaysia. he must be adil person. exceptional Istihsan based on necessity. Elucidate with reference to Bukhary Mohd Noor Lwn. the general rule is the trustee is not responsible for loss or damage to such property unless it is due to his personal fault and negligence. If there is no adil witness then by Istihsan. The general rule requires that the qadi must be a mujtahid. Fifth. a qadhi can admit witnesses who are not totally reliable so that the rights of people could be protected. . Lastly. there is exception where non-mujtahid may be appointed as qadi where no mujtahid can be found for this post.The exception is that waqf of movable property is accepted by popular custom. Hanafis allowed the waqf of moveable goods such as books. In order for a witness to be admissible. Wakaf Skim Tunai Terengganu etc. Aisyah Ismail [2005] 1 MLRS 670. for example in the case of less qualified qadi. QUESTION 2 Istislah is a method by which law is made considering its usefulness in the public interest in the event when there is no clear provision in the Shari’ah’. have set aside the general rule by way of Istihsan. Another example is as to the qualification of witnesses. tools and weapons on ground of its acceptance by popular custom. In the case of responsibility of the trustee (amin). Saham Wakaf Johor. However. exceptional Istihsan based on public interest. 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. Istislah is also known as maslahah which literally means benefit or interest. the court found that although there was no word of matrimonial property in Islamic Law significantly. The Ulama’ of Usul are in agreement that Istislah is not a proof in respect of devotional matters (Ibadah) and in respect of specific Shariah injunctions like shares of inheritance. Aisyah Ismail [2005] 1 MLRS 670. Al Ghazali thinks Maslahah consists of considerations which secure a benefit or prevent harm. “We have not sent you but as a mercy for all creatures” Al Shatibi also quoted a number of hadith in support. which means custom was recognized and given legal recognition. Maslahah mursalah is synonymous with Istislah which is also called Maslahah Mutlaqah. Al Shatibi. one of Islamic legal scholar. In Islam when a custom or uruf recognized advantages and has been given legal recognition. but it turns into a rule or Islamic law made by the government based on maslahah that must be followed and enforced as al-A'dat Muhakkamah. such as. QUESTION 3 Classify maslahah mursala (public interest) with examples. in terms of customary law. its position is no longer as customary. “The Prophet (saw) only chose the easier of two alternatives so long as it did not amount to a sin” In the case of Bukhary Mohd Noor lwn. particularly in this country. The majority of Ulama’ maintain that Istislah is a proper ground for legislation. the companions decided to issue currency. but it is a Malay’s custom which have been accepted and beneficial to women. On the basis of maslahah. to establish prison and impose Kharaj (agricultural land tax). When qualified as Maslahah Mursalah it refers to unrestricted public interest that is interest that are not mentioned in the Quran and the . points out that this is the purpose of the Quranic verse in Surah Al – Anbiyaa’ verse 107. Maslahah literally means benefit or interest. Classification of Maslahah Basically. First is on the basis of the degree of importance. The Complementary (Al-Hajiyyah) This means maslahah is required as a convenience to the people and at the same time to avoid the inconvenience and difficulty. Maslahah Mursalah is something in which its acceptance or rejection is not clearly stated in textual sources of law. intellect. life. Maslahah mursalah is synonymous with Istislah which is also called Maslahah Mutlaqah. lineage. Second is on the basis of the availability of text that is evidences from the Qur’an or Sunnah. the flexibility is given to individuals who travel more than 90 marhalah where they are allowed to combine the solah in term of Jamak and Qasar. the absence of maslahah will not affect human’s life. However. and property. technology and industry. i. On the basis of the degree of importance. locations. For example. By virtue of the maqasid al Shariah and the link to Shariah principles and legal maxims. .Sunnah. If it is not. ii. culture. then human life would be biased and lead to regret in the end. Maslahah Mursalah takes place to suit the changing conditions of life. namely religion. The Essential (Al-Daruriyyah) Al-Daruriyyah of maslahah related to basic human needs in the world and the hereafter. maslahah can be classified into two categories. It refers to unrestricted public interest which are not mentioned in the Quran and Sunnah. It is used as a base for justification and initiation of commercial transactions to eliminate fraud and malpractice so we could preserve justice and harmony. For example. protecting five essential values. QUESTION 4 Salem has been having a medication called Fabuladrowse for last one year. On the basis of the availability of text. For example. Discredited Maslahah (Maslahah Mulghah) Maslahah Mulghah which has been nullified either explicitly or by indication in Shariah for example. He complained to the doctor and a pharmacist who had confirmed that Fabuladrowse has a component which causes slow memory loss. you’re a member of . i. iii. Now he has discovered that he is gradually losing his memory. Say. ii. Accredited Maslahah (Maslahah Mu’tabarah) Accredited Maslahah has been upheld in the Shariah such as protecting life by enacting the law of retaliation and defending the right ownership by penalizing the thief. Public Interest (Maslahah Mursalah) Maslahah Mursalah is that which has neither been upheld nor nullified by the Shariah such as provision in law in many Muslim countries for documentary evidence to prove marriage or ownership of property. equating the brothers and sisters in inheritance. tax exemption for the payment for zakat al-fitre or donation to a recognized charitable organization like an orphanage. Salem has brought the matter to the Fatwa Majlis.iii. The Embellishment (Al-Tahsiniyah) Maslahah Al-Tahsiniyah means interest whose realization leads to the enhancement to the life of the community. the importance of maslahah mursalah comes in. intellect. reason. Therefore in regard to this case. Therefore. Maslahah is applicable when there is a need to secure a benefit or to prevent a harm of the people in general context (kulliyyah). the first thing that need to be checked or confirmed is the legality of this medication. However. As a member of Majlis. for example. The available authorities with regards to the medication or drugs are not clearly applicable to this problem because it dealt with intoxicants since it involves the result in the loss of self-control. namely religion. Ijma’ and Qiyas for its acceptance or rejections. Besides that. and property. the applicability of maslahah is accepted if such an act is essential or significant in order to serve a useful purpose (maslahah). it still has general evidence as a support to achieve the objective of Shariah. Although there is no clear provision regarding the problem. What would be your opinion on the legality of this medication? Give reasons for your answer. life. Fabuladrowse has the component that can cause slow memory lost. there are no clear provision in Qur’an. which means if this continues. it does not cause intoxicating effect to the brain to the extent to cause the loss of self-control. Surah Al-Anbiyaa’ verse 107. Therefore it is a need to protect the people from facing the effect caused by this medication when they were distributed. However. Fabuladrowse will affect the public in the general context. This is because. lineage. Sunnah.the Majlis. In this case. life. the needs to protect the five essential values of Shari’ah. this means that maslahah is meant to secure benefits and prevent harm as well as to be in harmony with the overall objective of Shari’ah. It can be derived by using the principle of maslahah mursalah. Allah (swt) has stated in the Qur’an. Fabuladrowse contains a component that give the effect of slow memory loss. descendants and property. it will cause a person to lose his/her memory . “Allah never intends to impose hardship upon His servants” Since maslahah safeguards the purposes of Shari’ah (maqasid shari’ah) namely religion. Allah does not intend to have His servant to face difficulties. As stated in the Qur’an. In this case. “We have not sent you but a mercy for all creatures” and in Surah Al-Maidah verse 6. Surah Al Maidah verse 90 and 91 about the prohibition whereas intoxicants are but defilement from the work of Satan and Satan only wants to cause the mankind the animosity and hatred through them and to avert the Muslim from the remembrance of Allah and from. b) Maslahah must be general (kulliyah) that it is secures Maslahah for all. there must be alternative way or alternative medication to cure the particular disease faced by people like Salem. it will harm that person intellectually. is important for the purpose of preservation of health. and this will affect their life generally.wholly. The five essential values of Shariah are interconnected to each other. Just like when they are many types of painkillers. this may create a greater harm to the society because of the risk that everyone who takes this medication will lose his/her memory eventually. this will gradually affect his life.” For example. QUESTION 5 Discuss the conditions of applicability of the doctrine of maslahah. the risks of having people who takes this medication to lose their memory gradually are greater and will affect the society and their life. “The Prophet Muhammad (saw) did not choose but the easier of the two alternatives so long as it did not amount to a sin. it may be wrong to prevent the medication Fabuladrowse from being distributed to the patients in need as this may cause harm to the persons who need them for the purpose of their recovery. the following conditions have to meet: a) Maslahah must be genuine and not suspicious.” and “a specific harm is tolerated in order to prevent a more general one. lineage. According to the Islamic legal maxim.” As a conclusion. it is good for the people for not using Fabuladrowse so that it will prevent the society for future harm. prison was built to imprison the guilty people as the punishment for their crime. Therefore. However. the purpose of the medication namely. There is one hadith cited by Saidatina Aishah. it is for the benefit of the public as a whole in order to combat crime and to educate and as a sort of rehabilitation process for the prisoners so that they learnt the lesson and be a better person in the future. However. in this case. if there is alternative way or medication to replace this medicine. To validate Maslahah. property and religion. If one is damaged intellectually. “Harm is to be eliminated to the extent that is possible. . Although the act of imprisonment is wrong generally. Fabuladrowse. This means. Therefore. To close the door of Maslahah would to tantamount to enforcing stagnation and unnecessary restriction on the capacity of the Shariah to accommodate social changes. they only need to be reminded that a careful observance of the conditions that are attached to Maslahah would ensure that only the genuine interests of people which are in full harmony with the letter and spirit of the Shariah would qualify. Allah swt has expressly decreed. but one which cannot be confined to Maslahah alone. As for the concern that the opponents of Maslahah have expressed that validating this doctrine would enable arbitrary and self-seeking interest to find their way into Islamic Law under the banner of Maslahah. Istihsab means presumption of existence or non-existence of facts. The changing conditions of life never cease to generate new interests. In Usul al Fiqh. QUESTION 6 What is istihsab? Mention three maxims developed from this doctrine. Istihsab literary means courtship or companionship. Arbitrariness and the pursuit of self-seeking interests have never been totally eliminated from any society.c) Maslahah must not be in conflict with clear text (nass). Istihsab has been validated by a majority member of scholars. It is a permanent threat which must be carefully checked and minimized to the extent that is possible. the Shariah would inevitably fall short of meeting the interests of the community. In its positive sense. It can be used in the absence of other proofs. If legislation were to be confined to the values which the Lawgiver. under any legal system. This concern is admittedly valid. Istihsab presumes continuation of a fact such as marriage or a transfer of ownership till the . (dalil). The Scholars of Usul are in general agreed on the first three types of Istihsab. person is presumed to be innocent until the contrary is proven by evidence. The difference is that the Hanbalis and the Shafi’is validate Istihsab in its defensive and affirmative capacities. Istihsab al-wujud al-asli (presumption of original presence). For example. This means that the presence of that which is indicated by law or reason is taken for granted. every ii. that is it defends the already existing rights and validate the acquisition of new rights. But what if one of his relatives die while he is missing and he is entitled to share of the deceased relative’s property? The Hanbalis and Shafi’is said that his share should be added to his own property because he is presumed to be alive and thus sustaining all his legal rights. the continuation of a fact would not be proved. he will be presumed as such (continuity or attribute) unless his death is proven by evidence. Therefore. (whether prohibitive or permissive).contrary is proved. There is more disagreement on the fourth. if a marriage is contracted. Istihsab also presumes continuation of negative. the four schools agreed that his money and property should be left intact and not distributed among his legal heirs. refuse this ruling. on the other hand. clean water is presumed to remain as such until a change (in odour or colour) is observed. Istihsab al-‘adam al ‘asli (presumption of original absence) which means that a fact or rule which had not existed in the past is presumed to be non-existent. . Istihsab al-wasf (continuity of attribute) means to presume continuity of an attribute until the contrary is established. Because of its basis in probability. Hence when it comes in conflict with another proof (dalil) the latter takes priority. Istihsab is not a strong ground for deduction of the rules of Shariah. it is valid until its annulment (by divorce for instance) is iii. for instance Ijarah or lease. For example. Istihsab is of four types: i. Meanwhile. For instance when there is a ruling in the law iv. For instance. it will be presumed to continue. For example. if the contract is of temporary nature. The ruled that the man’s share should be reserved (by the State for example) and not to be added to his property. assume a missing man. recognised. The Hanafis and Malikis. Istihsab al-hukm (continuity of rules and enactments) which resumes the continuity of general rules and principles of law. since he was alive before his missing. Hanafis and Malikis validate Istihsab only in its defensive capacity but not to be used as a basis for the creation of new rights. However. . a) Certainty cannot be disproved by doubt (al-yaqin la yuzal bil shakk) b) Presumption of original freedom from liability (bara’ah al dhimmah al-asliyyah) This is basically the presumption of innocence. for example. c) Permissibility is the original state of things (al-asl fi al-ashya’ al-ibahah) Something that is not forbidden by the Quran or Sunnah is presumed to be permissible (not obligatory).Some important legal maxims have been founded on Istihsab.