The Taste of Fiqh: Ijtihad & Istihsan By Sh. Rif’at al-Tahtawi
Ijtihad, or diligent scholarly effort in Islamic jurisprudence, is founded on two main components: the scholar (mujtahid) who engages in it, and the subject matter being examined. This effort involves the mujtahid’s thorough endeavor to deduce rulings from the Shariah law, drawing upon evidence.
Key sources for ijtihad include the Quran, the Sunnah, consensus (ijma’), and analogy (qiyas). Additional principles such as istishab (the presumption of continuity in the absence of evidence) by Al-Shafi’i and Istihsan* juristic preference in the absence of direct evidence) by Abu Hanifa are also integral.
Istihsan, which translates to a preference for departing from established precedent, signifies a profound insight that arises within a knowledgeable mujtahid who has delved deeply into the intricacies of Islamic texts. It is an intuitive judgment, influenced by the scholar’s extensive learning and piety, which guides them in navigating complex legal issues. Abu Hanifa and his school are renowned for their application of analogy and istihsan, reflecting a depth of understanding beyond mere textual analysis.
Highlighting the value of intuition and piety in legal reasoning, the Sufis teach, “If a matter arises, weigh it against the law; if your soul does not find peace in it, then abstain from it.” This principle mirrors Abu Hanifa’s cautious stance, as he famously said, “Even if they placed a sword on my head to declare that nabidh is haram, I would not say it; and if they placed it on my head to drink it, I would not drink it.” This illustrates his piety and preference for abstention in the face of ambiguity.
Undoubtedly, the heart of a scholar who could accomplish this, is the heart of the scholar who is mindful of the states of his hearts; he with which the subtleties of rulings are made clear. How rare such a heart is among hearts, unlike the heart of the obsessive and the lax, which finds tranquility in everything and is of no worth.
The wisdom in istihsan is further exemplified by the incident involving Ibn Umar, who, when questioned about the permissibility of the blood of a mosquito, responded, “You ask about it while you have killed Hussein?” This remark underscores the importance of prioritizing significant moral and ethical considerations over minor legalistic queries, highlighting the depth and intuition necessary for sound Islamic legal judgment.
In sum, ijtihad and concepts like istihsan emphasize a sophisticated interplay between adherence to textual evidence, scholarly judgment, and piety in Islamic jurisprudence. It showcases the unique role of mujtahids, whose insights and thoughtful evaluation of evidence contribute to the nuanced application and understanding of Shariah law, underscoring the critical importance of the scholar’s intuition and moral compass in deriving and applying Islamic legal principles.
*Istihsan, which translates to “juridical preference” or “equity in Islamic law,” is a principle in Islamic jurisprudence allowing a jurist to depart from a precedent or adopt a ruling that would achieve a better outcome in specific cases. It’s particularly significant in the Hanafi school of thought, one of the four major Sunni legal schools.
In the Hanafi school, istihsan is used as a method to prevent hardship and avoid rigid application of the law that may lead to undesirable outcomes. It’s employed when strict adherence to analogy (qiyas) or the literal meaning of texts might lead to results that are considered unjust, harmful, or at odds with the objectives of the Sharia (Maqasid al-Sharia). This principle allows for flexibility and adaptability in the application of Islamic law, ensuring that rulings align with justice, public interest, and the welfare of the community.
An example of istihsan in the Hanafi school might involve the relaxation of certain commercial transactions’ strict rules to facilitate trade and economic activity, provided that the essence of the transaction does not contradict Islamic principles. For instance, although a strict analogy might suggest a certain financial transaction resembles riba (usury), which is prohibited, a Hanafi jurist might apply istihsan to permit the transaction if it serves the public interest and does not entail exploitation.
It’s important to note that istihsan is based on solid Islamic legal principles and is not merely subjective or arbitrary. It is grounded in the jurist’s deep understanding of the Sharia’s objectives, the Quran, the Sunnah (prophetic traditions), and the broader legal maxims of Islam.
The application of istihsan above is unique to the Hanafi, and to some degree the Hanabali schools, while the Malikis and Shafis offer unique critiques of it in this context.