QUESTION 1

Define istihsan based on analogy and istisan based on texts. Illustrate their differences.
Istihsan literally means to deem something preferable. In its juristic sense, Istihsan is a
method of exercising personal opinion (ray) in order to avoid any rigidity of unfairness that
might result from literal application of law. In other word, Istihsan is abandonment of a qiyasbased opinion in favour of an opinion supported by stronger evidence, that is, the Quran,
Sunnah , ijma, custom, necessity, public interest, or better qiyas with an objective to do justice
and fairness. Istihsan as a concept is close to Equity in Common Law. However equity in
common law is based on natural law, whereas Istihsan is essentially based on divine law.
Istihsan is not independent of Shariah, it is integral part of Shariah. Istihsan is an
important branch of Ijtihad, and has played a prominent role in adaption of Islamic law to the
changing needs of society. Example of istihsan are first the ruling of Saiyidina Umar in cases of
theft during a widespread famine which is cutting of hands of thieves was suspended. Second,
the ban imposed on sale of slaves mother (ummahat al-aulad) and third the ban on marriage
with kitabiyyahs in certain cases. Istihsan has been validated by Hanafi, Maliki and Hanbali
jurists. Imam Syafii, Zahiri and Shii jurist have been rejected it as a matter of deduction but
however, majority have accepted Istihsan.
According to As-Sarakhsi (Hanafi jurist), that avoidance of hardship is the cardinal
principle of religion which is stated in the Quran. For example, in Surah Al Baqarah verse 185,
Allah stated that,
Allah intends every facility for you, and He does not want to put you in hardship
The supporter of Istihsan also argue that Istihsan is a part of maslahah and also based on the
principle of dharuriyyah. Istihsan is to abandon exceptionally the existing law, not absolute or
total abandonment.
Basically, there are two types of Istihsan which are analogical Istihsan and exceptional
Istihsan.
ISTIHSAN QIYASI (Analogical Istihsan)
Analogical Istihsan is by choosing one qiyas over another. The former is called qiyas jali
(obvious analogy) and the latter qiyas khafi (hidden analogy). The reason is because the hidden

analogy is stronger than the obvious analogy. Presumably because it is arrived through deeper
reflection and analysis and not through superficial observation or similitudes.
For example, whether waqf (charitable endowment) of cultivated land may include all
ancillary rights (right of water, passage and flow etc) attached to the property? Analogy is made
to Islamic law of contract including the contract of sale. The general rule is the object of contract
must be clearly identified in detail.
Application of qiyas jali leads to inequitable results which is the waqf of cultivated land,
without its ancillary rights, would frustrate the basic purpose of waqf, which is to facilitate the
use of the property for charitable purposes.
Therefore, to avoid hardship, resort is made to qiyas khafi. The parallel is drawn to the
contract of lease (ijarah) since for both involve a transfer of usufruct (benefit). Since usufruct is
the essential purpose of ijarah, the contract of ijarah is valid, on the authority of a hadith even
without a clear reference to the usufruct. By analogy to ijarah, waqf can be validly concluded
even if it does not specify the attached rights to the property in detail.
ISTIHSAN ISTITHNAI (Exceptional Istihsan)

Istihsan Istithnai is making exception to the general rule of the existing law when Muslim
jurists are convinced that justice and equity will be better served. The jurists might have reached
the decision as a result of personal ijtihad or that the exception may have already been authorised
by either Quranic verses, prophetic traditions, consensus opinion, custom, public interest or
necessity.
Examples
First, exception to the general law of inheritance which is the rule that have been
approved by Quran in Surah Al Baqarah verse 180,
It is prescribed that when death approaches any of you, if he leaves any assets, that he
may make a bequest to parents and relatives

The general rule is that no bequest for an heir (la wasiyyata li warithin) and the
exception is a will to a relative is allowed for fair distribution of wealth in the family especially
in cases where a relative is destitute and yet he is excluded from inheritance in the presence of
other heirs.
Second, exceptional Istihsan based on sunnah i.e. agreement of contract. The general rule
is a contract becomes binding once the offer and acceptance are completed. In other words a
contract is binding and irrevocable once the contracting parties left the meeting place. The
exception is, based on Istihsan there are options for cancellation (khiyar al syart). When a person
buys an object on condition that he may revoke the contract within the next three days or as
stipulated in the contract. This is based on sunnah, stated that,
When you agree on the terms of a sale, you may say: it is not binding and I have an
option for three days.
Third, exceptional Istihsan based on Ijma regarding object or subject matter of a
contract. The general rule is that the object or subject matter of the contract must be in existence
at the time the contract is concluded. One person cannot sell something that is not in his/her
possession.
However, there is exception in certain contract such as in the contract for manufacture of
goods (Bay al-Istisna) and bay as-Salam. The basis is an ijma that someone may place an
order with a craftsman for certain goods to be made at a price which is determined at the time of
the contract, and the subject matter will be delivered at a later date or time. For example, sale and
purchase of a house which is yet to be built and sale of manufactured items such as furniture,
garments, boat etc.
Fourth, exceptional Istihsan based on custom. For example, in the case of waqf of
moveable goods or personal properties. The general rule, by definition, waqf is endowment of
property on a permanent basis, so the valid subject matter must be immoveable property such as
buildings, land or house. This is because, moveable goods are subject to destruction and loss,
they are not to be assigned in waqf.

The exception is that waqf of movable property is accepted by popular custom. Hanafis
allowed the waqf of moveable goods such as books, tools and weapons on ground of its
acceptance by popular custom. There is also monetary waqf in Malaysia such as Yayasan Waqaf
Malaysia, Saham Wakaf Johor, Wakaf Skim Tunai Terengganu etc.
Fifth, exceptional Istihsan based on necessity, for example in the case of less qualified
qadi. The general rule requires that the qadi must be a mujtahid. However, there is exception
where non-mujtahid may be appointed as qadi where no mujtahid can be found for this post.
Another example is as to the qualification of witnesses. In order for a witness to be
admissible, he must be adil person. If there is no adil witness then by Istihsan, a qadhi can admit
witnesses who are not totally reliable so that the rights of people could be protected.
Lastly, exceptional Istihsan based on public interest. In the case of responsibility of the
trustee (amin), the general rule is the trustee is not responsible for loss or damage to such
property unless it is due to his personal fault and negligence. However Abu Yusuf and AsShaibani, have set aside the general rule by way of Istihsan. They laid down that the trustee is to
be held responsible to the damage or loss of the property unless the loss is caused by a calamity
such as fire and flood which is totally beyond his control.

QUESTION 2
Istislah is a method by which law is made considering its usefulness in the public interest in
the event when there is no clear provision in the Shariah. Elucidate with reference to
Bukhary Mohd Noor Lwn. Aisyah Ismail [2005] 1 MLRS 670.

Istislah is also known as maslahah which literally means benefit or interest. Maslahah
mursalah is synonymous with Istislah which is also called Maslahah Mutlaqah. Al Ghazali
thinks Maslahah consists of considerations which secure a benefit or prevent harm.
On the basis of maslahah, the companions decided to issue currency, to establish prison
and impose Kharaj (agricultural land tax). The Ulama of Usul are in agreement that Istislah is
not a proof in respect of devotional matters (Ibadah) and in respect of specific Shariah
injunctions like shares of inheritance. The majority of Ulama maintain that Istislah is a proper
ground for legislation. Al Shatibi, one of Islamic legal scholar, points out that this is the purpose
of the Quranic verse in Surah Al Anbiyaa verse 107,
We have not sent you but as a mercy for all creatures
Al Shatibi also quoted a number of hadith in support, such as,
The Prophet (saw) only chose the easier of two alternatives so long as it did not amount to a
sin
In the case of Bukhary Mohd Noor lwn. Aisyah Ismail [2005] 1 MLRS 670, in terms of
customary law, the court found that although there was no word of matrimonial property in
Islamic Law significantly, but it is a Malays custom which have been accepted and beneficial to
women, particularly in this country. In Islam when a custom or uruf recognized advantages and
has been given legal recognition, its position is no longer as customary, but it turns into a rule or
Islamic law made by the government based on maslahah that must be followed and enforced as
al-A'dat Muhakkamah, which means custom was recognized and given legal recognition.

QUESTION 3
Classify maslahah mursala (public interest) with examples.

Maslahah literally means benefit or interest. When qualified as Maslahah Mursalah it

refers to unrestricted public interest that is interest that are not mentioned in the Quran and the

Sunnah. Maslahah mursalah is synonymous with Istislah which is also called Maslahah
Mutlaqah.
Maslahah Mursalah is something in which its acceptance or rejection is not clearly stated
in textual sources of law. It refers to unrestricted public interest which are not mentioned in the
Quran and Sunnah. By virtue of the maqasid al Shariah and the link to Shariah principles and
legal maxims, Maslahah Mursalah takes place to suit the changing conditions of life, culture,
locations, technology and industry. It is used as a base for justification and initiation of
commercial transactions to eliminate fraud and malpractice so we could preserve justice and
harmony.

Classification of Maslahah
Basically, maslahah can be classified into two categories. First is on the basis of the
degree of importance. Second is on the basis of the availability of text that is evidences from the
Quran or Sunnah.
On the basis of the degree of importance;
i.

The Essential (Al-Daruriyyah)

Al-Daruriyyah of maslahah related to basic human needs in the world and the hereafter. If it
is not, then human life would be biased and lead to regret in the end. For example, protecting
five essential values, namely religion, life, intellect, lineage, and property.

ii.

The Complementary (Al-Hajiyyah)

This means maslahah is required as a convenience to the people and at the same time to
avoid the inconvenience and difficulty. However, the absence of maslahah will not affect
humans life. For example, the flexibility is given to individuals who travel more than 90
marhalah where they are allowed to combine the solah in term of Jamak and Qasar.

iii.

The Embellishment (Al-Tahsiniyah)

Maslahah Al-Tahsiniyah means interest whose realization leads to the enhancement to the life
of the community. For example, tax exemption for the payment for zakat al-fitre or donation
to a recognized charitable organization like an orphanage.

On the basis of the availability of text;

i.

Accredited Maslahah (Maslahah Mutabarah)

Accredited Maslahah has been upheld in the Shariah such as protecting life by enacting the
law of retaliation and defending the right ownership by penalizing the thief.

ii.

Public Interest (Maslahah Mursalah)

Maslahah Mursalah is that which has neither been upheld nor nullified by the Shariah such
as provision in law in many Muslim countries for documentary evidence to prove marriage or
ownership of property.
iii.

Discredited Maslahah (Maslahah Mulghah)

Maslahah Mulghah which has been nullified either explicitly or by indication in Shariah for
example, equating the brothers and sisters in inheritance.

QUESTION 4
Salem has been having a medication called Fabuladrowse for last one year. Now he has
discovered that he is gradually losing his memory. He complained to the doctor and a
pharmacist who had confirmed that Fabuladrowse has a component which causes slow
memory loss. Salem has brought the matter to the Fatwa Majlis. Say, youre a member of

the Majlis. What would be your opinion on the legality of this medication? Give reasons for
your answer.

As a member of Majlis, the first thing that need to be checked or confirmed is the legality
of this medication. It can be derived by using the principle of maslahah mursalah. This is
because, there are no clear provision in Quran, Sunnah, Ijma and Qiyas for its acceptance or
rejections. However, it still has general evidence as a support to achieve the objective of Shariah.
The available authorities with regards to the medication or drugs are not clearly applicable to this
problem because it dealt with intoxicants since it involves the result in the loss of self-control.
Allah (swt) has stated in the Quran, Surah Al Maidah verse 90 and 91 about the prohibition
whereas intoxicants are but defilement from the work of Satan and Satan only wants to cause the
mankind the animosity and hatred through them and to avert the Muslim from the remembrance
of Allah and from. In this case, Fabuladrowse contains a component that give the effect of slow
memory loss. However, it does not cause intoxicating effect to the brain to the extent to cause the
loss of self-control.
Therefore, the importance of maslahah mursalah comes in. Although there is no clear
provision regarding the problem, Allah does not intend to have His servant to face difficulties. As
stated in the Quran, Surah Al-Anbiyaa verse 107,
We have not sent you but a mercy for all creatures
and in Surah Al-Maidah verse 6,
Allah never intends to impose hardship upon His servants
Since maslahah safeguards the purposes of Shariah (maqasid shariah) namely religion, life,
reason, descendants and property, this means that maslahah is meant to secure benefits and
prevent harm as well as to be in harmony with the overall objective of Shariah.
Maslahah is applicable when there is a need to secure a benefit or to prevent a harm of
the people in general context (kulliyyah). In this case, Fabuladrowse will affect the public in the
general context. Therefore it is a need to protect the people from facing the effect caused by this
medication when they were distributed. Besides that, the applicability of maslahah is accepted if
such an act is essential or significant in order to serve a useful purpose (maslahah), for example,
the needs to protect the five essential values of Shariah, namely religion, life, intellect, lineage,
and property. Therefore in regard to this case, Fabuladrowse has the component that can cause
slow memory lost, which means if this continues, it will cause a person to lose his/her memory

wholly. This means, it will harm that person intellectually. The five essential values of Shariah
are interconnected to each other. If one is damaged intellectually, this will gradually affect his
life, lineage, property and religion.
According to the Islamic legal maxim, Harm is to be eliminated to the extent that is
possible, and a specific harm is tolerated in order to prevent a more general one. For example,
prison was built to imprison the guilty people as the punishment for their crime. Although the act
of imprisonment is wrong generally, it is for the benefit of the public as a whole in order to
combat crime and to educate and as a sort of rehabilitation process for the prisoners so that they
learnt the lesson and be a better person in the future. Therefore, in this case, it may be wrong to
prevent the medication Fabuladrowse from being distributed to the patients in need as this may
cause harm to the persons who need them for the purpose of their recovery. However, this may
create a greater harm to the society because of the risk that everyone who takes this medication
will lose his/her memory eventually, and this will affect their life generally. Just like when they
are many types of painkillers, there must be alternative way or alternative medication to cure the
particular disease faced by people like Salem. There is one hadith cited by Saidatina Aishah,
The Prophet Muhammad (saw) did not choose but the easier of the two alternatives so
long as it did not amount to a sin.
As a conclusion, the purpose of the medication namely, Fabuladrowse, is important for
the purpose of preservation of health. However, the risks of having people who takes this
medication to lose their memory gradually are greater and will affect the society and their life.
Therefore, if there is alternative way or medication to replace this medicine, it is good for the
people for not using Fabuladrowse so that it will prevent the society for future harm.
QUESTION 5
Discuss the conditions of applicability of the doctrine of maslahah.

To validate Maslahah, the following conditions have to meet:

a) Maslahah must be genuine and not suspicious.
b) Maslahah must be general (kulliyah) that it is secures Maslahah for all.

c) Maslahah must not be in conflict with clear text (nass).

The changing conditions of life never cease to generate new interests. If legislation were
to be confined to the values which the Lawgiver, Allah swt has expressly decreed, the Shariah
would inevitably fall short of meeting the interests of the community. To close the door of
Maslahah would to tantamount to enforcing stagnation and unnecessary restriction on the
capacity of the Shariah to accommodate social changes.
As for the concern that the opponents of Maslahah have expressed that validating this
doctrine would enable arbitrary and self-seeking interest to find their way into Islamic Law under
the banner of Maslahah, they only need to be reminded that a careful observance of the
conditions that are attached to Maslahah would ensure that only the genuine interests of people
which are in full harmony with the letter and spirit of the Shariah would qualify. This concern is
admittedly valid, but one which cannot be confined to Maslahah alone. Arbitrariness and the
pursuit of self-seeking interests have never been totally eliminated from any society, under any
legal system. It is a permanent threat which must be carefully checked and minimized to the
extent that is possible.

QUESTION 6
What is istihsab? Mention three maxims developed from this doctrine.
Istihsab literary means courtship or companionship. In Usul al Fiqh, Istihsab means
presumption of existence or non-existence of facts. It can be used in the absence of other proofs.
(dalil).
Istihsab has been validated by a majority member of scholars. In its positive sense,
Istihsab presumes continuation of a fact such as marriage or a transfer of ownership till the

contrary is proved. However, the continuation of a fact would not be proved, if the contract is of
temporary nature, for instance Ijarah or lease. Istihsab also presumes continuation of negative.
Because of its basis in probability, Istihsab is not a strong ground for deduction of the
rules of Shariah. Hence when it comes in conflict with another proof (dalil) the latter takes
priority. Istihsab is of four types:
i.
Istihsab al-adam al asli (presumption of original absence) which means that a fact or
rule which had not existed in the past is presumed to be non-existent. For instance, every
ii.

person is presumed to be innocent until the contrary is proven by evidence.

Istihsab al-wujud al-asli (presumption of original presence). This means that the
presence of that which is indicated by law or reason is taken for granted. For example, if
a marriage is contracted, it is valid until its annulment (by divorce for instance) is

iii.

recognised.
Istihsab al-hukm (continuity of rules and enactments) which resumes the continuity of
general rules and principles of law. For instance when there is a ruling in the law

iv.

(whether prohibitive or permissive), it will be presumed to continue.

Istihsab al-wasf (continuity of attribute) means to presume continuity of an attribute until
the contrary is established. For example, clean water is presumed to remain as such until
a change (in odour or colour) is observed.
The Scholars of Usul are in general agreed on the first three types of Istihsab. There is

more disagreement on the fourth. For example, assume a missing man, since he was alive before
his missing, he will be presumed as such (continuity or attribute) unless his death is proven by
evidence.
Therefore, the four schools agreed that his money and property should be left intact and
not distributed among his legal heirs. But what if one of his relatives die while he is missing and
he is entitled to share of the deceased relatives property? The Hanbalis and Shafiis said that his
share should be added to his own property because he is presumed to be alive and thus sustaining
all his legal rights. The Hanafis and Malikis, on the other hand, refuse this ruling. The ruled that
the mans share should be reserved (by the State for example) and not to be added to his
property. The difference is that the Hanbalis and the Shafiis validate Istihsab in its defensive and
affirmative capacities, that is it defends the already existing rights and validate the acquisition of
new rights. Meanwhile, Hanafis and Malikis validate Istihsab only in its defensive capacity but
not to be used as a basis for the creation of new rights.

Some important legal maxims have been founded on Istihsab, for example;
a) Certainty cannot be disproved by doubt (al-yaqin la yuzal bil shakk)
b) Presumption of original freedom from liability (baraah al dhimmah al-asliyyah)
This is basically the presumption of innocence.
c) Permissibility is the original state of things (al-asl fi al-ashya al-ibahah)
Something that is not forbidden by the Quran or Sunnah is presumed to be permissible
(not obligatory).