The Seventh Source: The Principle of Istihsan (Discretion)

There are many sources which state that Malik used to employ istihsan. Al-Qarafi mentioned that sometimes he used to give fatwa on the basis of istihsan and he said about it, "Malik says it in a number of questions about artisans who work on objects giving an guarantee of their work and those who transport food and condiments giving a guarantee as opposed to others." (Tanqih, p. 23)

We read in the gloss of al-Banani that Ibn al-Qasim related from Malik that he said that istihsan was nine-tenths of knowledge. Malik used analogy but made it subject to general and partial benefit, so he only applied it when he was sure that there was no harm in its application; otherwise he left it. For Malik it was a basic rule that analogy is subject to benefit. That is why the underlying principle of Maliki fiqh is benefit, as we will explain.

Judgements based on istihsan or which make it the deciding factor when weighing up different proofs are numerous in the Maliki school, as ash-Shatibi says in al-Muwafaqat. One example of this is loans. A loan might be considered to be usury because a dirham is exchanged for a dirham for a period of time but it is permissible under the principle of istihsan because of the way people are helped by it. If loans had remained forbidden they might have suffered great hardship.

Another example is looking at the private parts of people in medical treatment. The general rule is that it is unlawful to look at private parts, but it is recommended to avert harm.

Another is sharecropping. The general principle obliges that it is forbidden since the recompense is unknown, but it is completely recommended.

Another is ignoring usury in smalls amount since it is insignificant and so it is permitted to have a small disparity in a long delay.

Another is what we mentioned before of the lack of making good character a precondition for witnessing when the qadi is in a place in which witnesses of good character are rare. The same applies to granting trusteeship to someone without good character in order to avert hardship as was made clear under analogy.

These secondary rulings and those like them make it clear that Malik used to employ istihsan. What is the reality of istihsan? What are the places in which it is permitted to use it and rely on it in the construction of judgements?

Two things are evident from examining the questions in which judgements are based on istihsan.

Ash-Shatibi says about istihsan: 'It entails giving priority to empowered deduction over analogy. Whoever uses istihsan does not refer to only his inclination and desire. He refers to what he knows of the intention of the Lawgiver in those kinds of theoretical matters, like the questions in which the people would give a certain judgement were it not that that matter would lead to the loss of benefit from a different aspect or would bring about evil in the same way... In some case, analogy without restriction would lead to distress and hardship in some cases, and so there is an exception for the place of distress." (al-Muwafaqat, pt. 4, p. 116)

An example of istihsan is when someone dies leaving a husband, and two siblings by the mother and two full siblings. The application of analogy to this question would demand that the husband inherits a half, the mother a sixth and the brothers have a third, and there is nothing for the full siblings although they are the children of the mother. So it is strange that they do not take anything while the maternal half-siblings alone receive a third. That is why 'Umar made them share in the third by the consideration that they are the sons of the mother. That is an excellent istihsan on his part. That establishes the sunna of istihsan to establish justice which averts distress.

Like the Malikis, the Hanafis say that istihsan is adopted when the analogy is offensive or when the analogy will lead to excess in judgement. When Abu Hanifa used analogy, his companions argued with him about the criteria, but when he said he used istihsan, no one added to it, as was stated by one his pupils, ash-Shaybani.

But is istihsan as used by the Malikis and Hanafis the same, or to be more precise, the manner of istihsan with the Malikis and Hanafis?

Before we mention what the Hanafis and Malikis said about istihsan, we will tell you what is evident to us about istihsan in the two schools. That which is clear to us is that istihsan in the Maliki fiqh is deals with excess in analogy by referring to three matters: 1) the prevailing custom, 2) the predominant benefit, and 3) avoidance of distress and hardship, and mindfulness of pressing necessities.

The Hanafi school used to avoid extreme analogy by observing another cause different from the evident cause in the analogy. So they consider istihsan when there is a conflict between two analogies, one with a hidden cause and strong effect, which is what is called istihsan, and the other with an apparent cause and weak effect.

Analogy is negated by necessity and custom, as the Malikis state: this is called istihsan. So the two schools agree that consideration of hardship and prevailing custom obliges istihsan rather than analogy. Their divergence lies in the back that Abu Hanifa considered adopting consensus, or the single tradition rather than analogy, as part of the secondary parts of istihsan while it is clear that the Malikis do not call that istihsan.

Similarly they diverge in that the Malikis adopt partial benefit instead of universal analogy, as when someone purchases goods provided that he has an option to return them and then he dies and his heirs disagree about carrying it through or cancelling it. Ashhab said, "Analogy would demand that it is invalidated, but we use istihsan since the buyer is not able to decide himself."

You see from this that analogy is not carried through because of a partial benefit, and that is not part of Hanafi thinking.

We already mentioned some reports from Malik about how he used istihsan and some of the rulings recorded in his fiqh whose basis was istihsan and what some Maliki scholars said about the method of istihsan in them.

Now we want to define its extent in that school and the disagreement of the scholars about it. We will first mention their definitions of it and the scope they allow it will become clear.

Ibn al-'Arabi defined it in Ahkam al-Qur'an: "Istihsan according to us and the Hanafis is the use of the stronger of two pieces of evidence." This definition brings the two schools closer in the reality of istihsan. We made it clear that they diverge in its use, even if they stated that istihsan was one of the principles of deduction. Their disagreement is on some of the principles. The Hanafis refer to accepting the hadith to an analogy whose cause is maintained as istihsan and they refer to the acceptance of consensus over analogy as istihsan. The Malikis do not proceed in that way or, to be precise, they do not call that istihsan.

Ibn al-'Arabi mentioned in another definition, "Istihsan is to prefer to leave what the proof entails by relaxation because of something which contradicts some of its requirements." He divided it into four categories: leaving the proof in favour of custom and leaving it in favour of consensus; leaving it in favour of a benefit; leaving it in favour of making things easy; and removing hardship and preferring expansion.

However, Ibn al-Anbari does not think that istihsan in the Maliki school is that general. He thinks that abandoning analogy in favour of consensus or custom is to prefer taking one piece of evidence over another. As for istihsan, it is only preventing the extremes of analogy: when implementing the analogy would result in injustice, or in something which is not recommended in itself, or to constriction and distress. Then analogy is abandoned in a specific case, not in all cases. That is an amendment of the definition of Ibn al-'Arabi. It is the use of a partial benefit instead of a universal analogy. So it puts the empowered deduction before analogy.

All the definitions arrive at the same end, which is that the faqih who is a mujtahid must note that when continuing with the cause would result in injustice, entail an injury, or repel a benefit, or actual distress exists, then it is necessary to abandon analogy and to adopt these matters which agree with spirit and heart of the deen and its texts. In the Qur'an, "He has not placed any constraint on you in the deen." (22:78) The Prophet said, "No harm and no causing injury." The deen brings people's welfare in this world and the Next and so using istihsan and abandoning analogy in these cases is the heart of Islam and the core of its fiqh.

We concluded in this that the scope of the direction in istihsan among the Malikis is to prefer partial benefit over analogy and that by that istihsan is close to masalih mursala. But ash-Shatibi says, "If it is said this is part of masalih mursala and not part of istihsan, we would reply, 'Yes, however they conceive of istihsan as an exception to the rules which is not the case in masalih mursala.'" (al-I'tisam, pt. 2, p. 234.)

The meaning of this is that istihsan is a partial exception instead of a universal proof which differs in some parts. As for masalih mursala, it is used when there is no evidence except it. It is used in two cases:

First Case: When there is no analogy in the subject which can be applied to a text. In this case, Malik considered this to be a separate principle We will clarify that later.

Second Case: When there is analogy and carrying that analogy through would cause hardship or constriction, or loss of benefit: then there is relaxation in abandoning analogy for this use and by that harm is avoided. When this is used instead of analogy is called istihsan.

Malik used analogy, but he made it subject to universal and partial welfare, and so he only applied it when it is was confirmed that there was no harm in its application. Otherwise he left it. The basis with him was that analogy is subject to welfare. That is the logic of Maliki fiqh regarding benefit.

Ash-Shafi'i, Malik's pupil, fumigated against his shaykh for this and said that istihsan amounted to abandoning the evidence for benefit which was tantamount to adopting the principle of benefit alone without attempting to rely on the texts. He criticised that and said that it was wrong and wrote a chapter on that in al-Umm called, "The Chapter of the Invalidation of Istihsan."

The basis of the disagreement in this topic is that ash-Shafi'i limits himself to the text in every question in which he gives fatwa. If there is no clear text, then the text is brought to bear. That is by analogy and so there is nothing other than the text with ash-Shafi'i in every question in which he gives fatwa. Malik, however, viewed the Shari'a in a comprehensive way and found that in its heart and goals it was directed to the best interests of people and the avoidance of harm. If a confirmed benefit has no harm connected to anyone, that is the confirmed goal. If there is confirmed harm, then there is confirmed prohibition. This comprehensive view is referred to often in a group of texts like the words of the Almighty, "He has not placed any constraint on you in the deen." (22:78) and like the words of the Almighty, "Allah desires ease for you; He does not desire difficulty for you." (2:185) The Messenger, peace and blessings be upon him, said, "No harm and no causing injury." A critical examination of any legal judgement will reveal that the benefit and averting of harm are both observed in it and are intended by it.

Since that is the case, then every matter which contains benefit or averting of harm is desired by the Lawgiver whether there is a text on it or not because the it is in the general text, even if the particular text does not exist.

When Malik gave fatwas based on al-masalih al-mursala or according to empowered deduction, he adopted the general firm root of investigation and scrutiny. According to Malik, istihsan is only one of the branches of empowered deduction as we noted. We will explain the general root and the aspects of its use when we speak about al-masalih al-mursala, Allah willing. He is the One who is asked for help.