الاستحسان الاصولی حقیقہ و حجیتہ ونماذج من تطبیقاتہ المعاصرۃ۔ The Juristic Discretion: Validity, Authenticity, and Examples of its Contemporary Applications

• Main Author: الدکتور عطاء الرحمن
• Format: Article
• Language: Arabic
• Published: SZIC University of Peshawar 2011-12-01
• Series: الإيضاح
• Online Access: http://al-idah.szic.pk/index.php/al-idah/article/view/472

According to Hanfites, a jurist has the right to reject an injunction corroborated by an analogical deduction if he finds it at variance with the revealed stipulation (al-nall), or if he view it against the recognized popular norms, or if its practical execution engnders difficulty, hardships and discomfort for people. Such a rejection is basically meant to provide the people with convenience. It is termed, in Hanafite juristic terminology, as Istihsan ( jursistic discretion) and regarded as a source of legal judgment. Imam Ahmad and Imam Malik, like Abu Hnifah, have accepted it in one from or another. However, Imam Shafi' is opposed to it and considers a fatwa (juristic verdict ) in the light of Istihsan as innovation , whereas Hanafites view it a kind of analogical deduction which is divided into two distinct categories: explicit analogical deduction and implicit analogical deduction. As for Istihsan, it is associated with implicit analogical deduction. Muslim scholars have suggested five categories of ISthisan : based on consensus, based on sunnah, based on necessity, based on cotom, and based on analogy. This article explores and discusses validity and authenticity of Istihsan as well as highlights relevant examples of its contemporary applications so as to validate the significance of Istihsan in jurisprudence.