Istihsan and Sharia Law

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Basically, the rulings that had been made by the Companions and Successors were often based on their own understanding for the spirit and Shariah purpose. So, the rulings that are made by the Companions and Successors are not in restricted manner and also not in giving the exact meaning of the rules because they are not literalist. Therefore, istihsan has been made as the antidote to literalism which gives a wide interpretation of the law in order to sustain equality and also righteousness which is considered as the fifth role of istihsan. For instance, oral evidence is the regular type of gaining the evidence and proof in Islamic law[1]. Normally, in oral evidence it needs two upright (‘adl) witnesses except if the law had stated otherwise for instance in proving zina (adultery), it needs to have four witnesses in order to prove adultery. Al-Quran had clearly stated regarding the matter of number of witnesses that are needed however as for the matter on how to gain the evidence it had been determined by using consensus that it should be made verbally. The Muslim jurists believe that the direct testimony of a witness in front of the judge without any intermediary is the best way of discovering the truth. However, the question that arises is that whether one should still insist on oral testimony at a time when there are other methods like photography, sound recording, laboratory analyses, etc. which provide equally in order to establish the truth. Thus, alternative ruling should be taken into account while departing from the established rule. By using istihsan it would validate these new techniques in order to uphold the spirit of establishing the truth rather than just using oral testimony to establish the truth[2]. By looking at the oral testimony example, it can be seen clearly that the Companions and Successors had given specific type of method in order to establish the truth which is oral testimony but by using istihsan the methods of proving the truth should be broaden by not only giving oral testimony but also other methods like photography and sound recording. Therefore, it show us that istihsan does have the role of as an antidote to literalism in which it had taken the broader way in order to bring justice and fairness. Another role of istihsan is that it is a principle which approves the parting from an established rule with another ruling which is stronger compared to the previous ruling. It can be seen clearly by looking at the definition that had been given by IbnTaymiyyah which is one of the Hanbali’s jurist. IbnTaymiyyah said that istihsan is the desertion of one authorized rule (hukm) with another rule which is more better or stronger on the basis of the Al-Quran ,Sunnah or consensus[3]. In addition, Abu Zahrah which is one of the Hanafi’sjurist had stated that the essence of istihsan is to formulate a decision which sets apart an established analogy where by doing such withdrawal to the ruling can maintain the greater meaning of the Shariah.

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