Pakistan Research Repository

JURISTIC PREFERENCE AS A SOURCE OF ISLAMIC LAW

Rahman, Saeed ur (1996) JURISTIC PREFERENCE AS A SOURCE OF ISLAMIC LAW. PhD thesis, Bahauddin Zakariya University, Multan.

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Abstract

Istihsan is an Arabic term for juristic "preference". Muslim scholars use it to express their preference for particular judgements in Islamic law over other possibilities. It is one of the principles of legal thought underlying personal interpretation or ijtihad. Istihsan literally means to deem something preferable. In its juristic sense, Istihsan is a method of exercising personal opinion in order to avoid any rigidity and unfairness that might result from literal application of law. Istihsan as a concept is close to Equity in Western law. However Equity in Western law is based on natural law, whereas Istihsan is essentially based on divine law. Istihsan is not independent of Shari`ah, it is integral part of Shari`ah. Istihsan is an important branch of Ijtihad, and has played a prominent role in adaptation of Islamic law to the changing needs of society, and as an antidote to literalism. Istihsan has been validated by Hanafi, Maliki and Hanbali jurists. Imam Shafi`i, Shi`i and Zahiri Ulama have rejected it as a method of deduction. However, in effect majority have accepted Istihsan. So long as Istihsan seeks solutions that are harmonious with the Shari`ah and its definitives, its validity is undeniable.

Item Type:Thesis (PhD)
Uncontrolled Keywords:istihsan, juristic preference, islamic law, itjihad
Subjects:Arts & Humanities (b)
ID Code:477
Deposited By:Mr. Muhammad Asif
Deposited On:02 Oct 2006
Last Modified:04 Oct 2007 21:01

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