Upholding the Spirit
\r\nIstihsan literally means 'to approve, or to deem something preferable'. It is a derivation from hasuna, which means being good or beautiful. In its juristic sense, istihsan is a method of exercising personal opinion in order to avoid any rigidity and unfairness that might result from the literal enforcement of the existing law. 'Juristic preference' is a fitting description of istihsan, as it 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.
\r\nEvidence suggests that the Companions and Successors were not literalists who would seek a specific authority in the revealed sources for every legal opinion (fatwa) they issued. On the contrary, their rulings were often based on their understanding of the general spirit and purpose of the Shariah, and not necessarily on the narrow and literal meaning of its principles. Istihsan has been formulated in this spirit; it is the antidote to literalism and takes a broad view of the law which must serve, not frustrate, the ideals of fairness and justice.
\r\nTo give an example, oral testimony is the standard form of evidence in Islamic law on which a consensus (ijma) can be claimed to exist. This normally requires two upright (adl) witnesses unless the law provides otherwise (the proof of zina, for instance, requires four witnesses). The number of witnesses required in these cases is prescribed in the Quran, but the rule that testimony should be given orally is determined by consensus. Muslim jurists have insisted on oral testimony and have given it priority over other methods of proof, including confession and documentary evidence. In their view, the direct and personal testimony of a witness who speaks before the judge with no intermediary is the most reliable means of discovering the truth. The question arises, however, whether one should still insist on oral testimony at a time when other methods such as photography, sound recording, laboratory analyses, etc. offer at least equally, if not more, reliable methods of establishing facts. Here we have, I think, a case for a recourse to istihsan which would give preference to these new and often more reliable means of proof. It would mean departing from the established rules of evidence in favour of an alternative ruling which is justified in light of the new circumstances. 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 to uphold that spirit.
\r\nCompiled From:
\r\n \"Principles of Islamic Jurisprudence\" - Hashim Kamali