istihsan

Istihsan was developed by the Hanafi school, especially Abu Hanifa and his pupils. Where applying qiyas (strict analogy) to a new case would produce hardship or injustice, the jurist may prefer another rule supported by a text, by consensus, by necessity or by custom. A standard example is the validity of contracts for manufacture (istisna), which strict analogy would invalidate as a sale of non-existent goods.

Critics, notably al-Shafi'i, objected that it allowed jurists to make law by personal preference. The Malikis use a similar method, istislah (public interest). It is often compared with equity in English law, which developed to correct the rigidity of common law rules; the comparison is useful but loose.

Example

By istihsan, Hanafi jurists allowed a contract for goods to be made to order, though analogy with sale of non-existent things would forbid it.

See also

qiyas · ijtihad · fiqh · equity

Read more in the study notes

• Development of Muslim law and its schools (Family Law II - Mohammedan Law)
• Sources of Muslim law (Family Law II - Mohammedan Law)