Can you explain Istislah and Istihsan in more detail?

Salaam alykum,

This is a very important question, as the two terms that you mentioned are jurisprudential tools that are used in Shariah.

These tools are controversial, in that jurists and scholars have debated what is the proper scope, use, and situations in which these tools can be utilized. Please keep this in mind when reading about these subjects, insha Allah.

Istislah or Masalih al-Mursalah is the tool that is directed towards maximizing benefit and minimizing harm. Thus, the need for this tool emerges when the jurist does not find an explicit ruling in the main sources (The Qur’an and Sunnah, nor can they utilize Qiyas or Ijma) which means that their ruling should be directed towards protecting the social welfare and to prevent further corruption. This last sentence is where the controversy emerges, because while no ruling can contradict the Shariah, what ruling will protect society and prevent corruption can be—unsurprisingly—a controversial issue.

The Maliki jurist Ash-Shatibi argued that there was a need for such a controversy because he argued that the purpose of Shariah was to promote the general welfare and to prevent corruption and hardship, where Ash-Shatibi cited 21:107 and 22:78 in The Qur’an as his principle justifications.

Now the concept of being directed towards the maslahah (benefit) is linked with the Maqasid (objectives) of Shariah, where Imam Al-Ghazali wrote:

“In a real sense maslahah consists of obtaining manfa’ah (benefit) and preventing madarrat (evil). However, we do not use that meaning… for the term maslahah, we mean, to protect the objectives of the Shariah (maslahah al-Shariah) which consist of five essential values, namely religion, life, intellect, lineage and property.”

Now, there are several subcatogories that define the various levels of where this tool can be used appropriately and at what level, but I don’t feel like that is particularly important, but if you are interested, please feel free to ask about it, insha Allah.

What is more important, in my opinion, is the shurut (conditions) of utilizing the concept of maslahah, which is rooted in the idea that the maslahah must be appropriate relative to the objectives of the jurist. Imam Al-Ghazali writes:

“Interpreting the maslahah as protecting the Maqasid al-Shariah, nobody would oppose obeying the maslahah unless they could produce positive evidence,” to which he adds, “We occasionally consider maslahah and rulings when indications interchangeably reflected one another.”

Therefore, there are five general conditions that are established in order to ensure that maslahah is not used at random or whim:

1) Maslahah cannot conflict with what is found in Texts (Qur’an and Sunnah) or ijma (consensus)

2) Maslahah must be directed towards what is genuine (haqiqiyyah) and as opposed to imaginary (wahmiyyah), for instance, you should record marriage certificates and other contracts in a registry department to prevent false testimony, thus stabilizing and affirming said contracts.

3) Maslahah must be general in nature so they can foster benefit and prevent harm.

Imam Malik adds two conditions:

4) They must be rational and acceptable

5) They must prevent or eradicate hardship, where Imam Malik cites 5:6 as his principle justification

Imam Al-Ghazali, adds that in order for maslahah to be valid it must be directed towards the essentials (daruriyyat)

Muhammad Abduh, who was the Grand Mufti of Egypt at the turn of the 20th century, argued that the use of maslahah should be understood as the contrast between the need for Islamic jurisprudence to maximize two principles: sadd al-zara’i (blocking the means) and al-masalih al-mursalah (public interest). Abduh’s formation of what defined the maslahah would therefore be far more specific and active then previous formations.

For example, if compulsion in religion is a concept that is forbidden in Islam, then that means that all processes, excuses, and devices that lead to compulsion are therefore forbidden as well. The inverse then, that all things that are good should be encouraged using all available processes, excuses, and devices. So while the maslahah is directed towards the interest of the people, sadd al-zara’i is to look at the outcomes of actions and their overall results, thus, identifying what prevents virtue and encourages vice, where the maslahah is directed towards bringing that change in effective methods.

Istihsan is more difficult to define because it was not defined, historically, because the principle practitioners of istihsan felt no need to define such a usage. Imam Abu Hanifa, whose Madhab (school of law) utilizes istihsan, did not formally define this, neither did his famous students Abu Yusuf or Shaybani. Their usage of such a tool was predicated in The Qur’an, specifically, in 2:185.

Hanafis came into conflict with Shafi’is over their use of this tool, where Imam Shafi’i specifically criticized this, as did the followers of his school. However, simply because there is conflict does not mean that there are different forms of Shariah, this disagreement is rooted in the tools one uses in order to affirm and adjudicate the Shariah properly.

Yet, without the foundational jurists of the Hanafi school giving us a definition it is upon the jurist Karkhi, whose comprehensive definition is widely sought, along with Sarakhsi, Bazdawi, Ibn Humam, and other Hanafi jurists, though, it must be noted that jurists from other schools also were open to the use of istihsan.

Istihsan is essentially a developed form of ra’y, or personal opinion, combined with Ijtihad. Therefore, istihsan is the preference of a jurist to prefer certain rulings or processes to fit the situation they faced the best. The central justifications for this are found in the Hadith, in which two famous stories of The Prophet underline the support for such a tool.

The first, which is also used to justify Ijtihad, is when The Prophet appointed Mu’adh ibn Jabal as judge to Yemen. It has been reported that on the eve of his departure, The Prophet asked ibn Jabal: “According to what shalt thou judge?” He replied: “According to the Book of God.” “And if thou findest naught therein?” “Then I will exert myself to form my own judgment…” And thereupon the Prophet said: “Praise be to God Who has guided the messenger of His Prophet to that which pleases His Prophet.”

Other variations of this Hadith exist, where The Prophet is reported to have mentioned “the Sunnah of the Messenger of God and in God’s Book,” but the establishment of one’s preference is found in this story, as well as another. This other story is when some Companions of The Prophet debated when the best time to pray Asr was as they traveled, to which The Prophet is reported to have said nothing, and his silence was understood as approval for either method.

However, the formal use of istihsan did not develop until later on, where Iyas ibn Muawiyah said:

“Use qiyas as a basis for judgment so far as it is beneficial to people, but when it leads to undesirable results then use juristic preference (fastahsinu).”

The reason I mentioned Iyas is to underline, as other scholars have, that istihsan was mentioned prior to Imam Abu Hanifa, but the definitional structure was not affirmed until later. Furthermore, the root of istihsan emerges from qiyas, in that when qiyas was used incorrectly, jurists utilized istihsan to push the more accurate opinions forward. However, while there is dispute between Ibn Hazm, and others over when istihsan first emerged, the reality is that the debate is over the scope of its use and whether it comes into conflict with other aspects of issues.

When you dive into the debate over istihsan, it is generally rooted in the term itself, as many jurists felt that it was the use of “arbitrary” whim, which seems quite unfair and that much of the disagreement seems to be rooted in misunderstanding of what is meant by those who utilize istihsan than in the actual concept itself.

In his work Tashil al-wusul ila Ilm al-Usul, Mahillawi writes:

“We act upon the wisdom of the proof of istihsan when it is stronger than qiyas. The Hanafi school’s definition of istihsan is one of the adillah (evidences) agreed upon as opposed to explicit analogy (qiyas jali).”

Therefore, according to the Hanafis, istihsan is not some usage of personal whim, but, the process of taking action according to the stronger evidence (dalil) according to the situation before them. This is affirmed in Fawatih al-Rahamut bi-Sharh Musallam al-Thubut, which states:

“To summarize, istihsan for us is nothing but a dalil opposing qiyas, therefore it is simply an opposition; we can say that istihsan is a kind of qiyas—or, better still, a way of revealing the wisdom that lies behind the qiyas: istihsan simply makes this wisdom obvious. Were it otherwise, there would be no need to call it istihsan, and we would have to make do with qiyas, or nass, or ijma.”

There is no universal definition for istihsan among Hanafi jurists, and there is many other dynamics at play, but, I hope that this was a good starting point, insha Allah, and if there are questions regarding these two controversial jurisprudential tools, please feel free to ask me, insha Allah.

I pray this reaches you and your families in the best of health and Iman, insha Allah.