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Philosophy and Fundamentals of Sharī’ah for Islamic Finance
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Diagram 12 : Jurists's Opinion on Istiḥsān
Classification of Istiḥsān
Istiḥsān can be classified based on its basis into six categories
i. Istiḥsān on the basis of text
ii. Istiḥsān on the basis of ijmā’
iii. Istiḥsān on the basis of necessity
iv. Istiḥsān on the basis of custom
v. Istiḥsān on the basis of public interest
vi. Istiḥsān on the basis of subtle analogy
Example of istiḥsān:
Contract of Muzāra‘ah (agriculture)
According to the established principle in Ḥanafī Madhhab, the contract
of Muzāra‘ah is terminated with the death of both contracting parties:
the owner of the land and the farmer or any one of them.
But the Ḥanafī jurists made an exception in case of the death of the
owner of the land and the crops have not ripen. This is for the protection
of the interest of the farmer.
2. Unrestricted Interests (Maṣlaḥah Mursalah)
Maṣlaḥah Mursalah is maṣlaḥah that is neither acknowledged nor is
rejected by Sharī’ah. In other words, maṣlaḥah in line with the objective
of Sharī’ah but has not been explicitly regulated by the texts.
The jurists differ in their opinions in accepting Maṣlaḥah Mursalah as an
independent source. They are three main opinions:
