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Philosophy and Fundamentals of Sharī’ah for Islamic Finance
SHA0011
Illustration of Qiyās
Original Case: Wine drinking
Allāh SWT says:
“O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone
alters [to other than Allāh SWT], and divining arrows are but defilement from
the work of Satan, so avoid it that you may be successful.”
(al-Ma’idah 5:90)
Original Ruling: Forbidden (ḥarām)
Effective Cause: The effective cause between liquor and its prohibition is
intoxication. It is proper and reasonable to hold that intoxication is the
effective cause as it serves the objective of Sharī’ah in safeguarding one’s
intellect.
New Case: Consumption of drug
Consumption of drug leads to the same result as the consumption of wine.
Therefore they share the same Sharī’ah rulings which are forbidden (ḥarām).
LEGAL EVIDENCES DISPUTED OVER BY JURISTS
The jurists disputed over the actual numbers of these sources. In brief, there are
seven legal evidences disputed over by the jurists:
1. Juristic Preference (Istiḥsān)
2. Unrestricted Interests (Maṣlaḥah Mursalah)
3. Customary Practice (‘Urf)
4. Presumption of Continuity (Istiṣḥāb)
5. Blocking the Means (Sadd al-Dharā’i‘)
6. The Fatwa of a Companion (Aqwāl al-Ṣaḥābi)
7. The Legislative Laws of The Previous Prophets AS (Shar’u Man Qablana)
1. Juristic Preference (Istiḥsān)
This source of law is largely attributed to the Ḥanafī madhhab. Istiḥsān,
literally, means to approve or to deem something good. Istiḥsān,
as a form of ijtihād, has received recognition in accommodating
Sharī’ah’s principles with the robust development and the ever
changing public needs.
Technically, istiḥsān refers to departure from an established precedent
to a different ruling for a stronger underlying reason. The aim of
Istiḥsān is to avoid rigidity and an absurd result due to literal application
of the existing law.
The jurists differ in their acceptance to this source of law. The following
are views of jurists on istiḥsān:
