عصری مسائلِ فقہ پراُصولِ استحسان کا اطلاق: تجزیاتی مطالعہ

Application of Istiḥsān on Contemporary Jurisprudential Issues: Analytical Study

Abstract

Islam is a cosmopolitan religion. It has provided and will remain providing the solutions of problems for all the ages and terrains of the world. Islamic law is sufficient enough to deal with the emerging scenario. There are two basic sources of Islamic law (Sharī‘ah), the Qur’ān and Ḥadīth. Whereas Ijmā‘ (scholarly consensus), Qiyās (analogical reasoning), Istiḥsān (juristic preference), Ijtihād (independent reasoning), Istiṣlāḥ (public interest) Istiṣḥāb (presumption of continuity), and ‘Urf (common sense) are secondary sources. The Islamic jurisprudence is not amerecollection of strict rules incapable of coping with the new queries in the changing circumstances.

The sources of Islamic jurisprudence fully capable to present solution of different human questions that appear due to change of time and place. Among other secondary sources of Islamic law, one important source is Istiḥsān. This source is used to resolve the issues based on human needs in cases when apparent analogy or common rules do not correspond with the universally accepted purposes of Sharī‘ah. In such cases, the apparent analogy is left to adopt a way that corresponds to the objectives of Sharī‘ah. This process is known as Istiḥsān (juristic preference). The new order is declared Ḥasan or Mustaḥsan which may increase the public welfare and remove the harm and which may become harmonious to the divine wisdom.

Istiḥsān has seven types namely as (1) Istiḥsānbi’l-Naṣṣ (2) Ististanbi’l-Ijmā‘ (3) Istiḥsānbi’l-Qiyās al-Khafiyyī (4) Istiḥsānbi’l-ḍarūrah (5) Istiḥsān bi’l-‘Urfwa ’l-‘Ādah (6) Istiḥsānbi’l-Maṣlaḥah (7) Istiḥsānbi’l-Yasīr.