Istihsan (juristic preference)

Istihsan ("finding good", juristic preference) is a term of legal theory whose definition and authority are both disputed; al-Shawkani gives it a section under "inference" in Irshad al-Fuhul. ¹

It has been defined as an argument that arises in the jurist's mind but which he finds hard to put into words; as departing from one analogy to a stronger one; as departing from what a proof requires to custom for people's benefit; and as restricting an analogy by something stronger. ¹

Al-Shawkani reports that it is attributed to Abu Hanifa, while Abu Hanifa's followers denied what was reported of him; Imam al-Haramayn attributed it to Malik, while al-Qurtubi denied it was known in his school; and Ibn al-Hajib says the Hanafis and Hanbalis held it and others rejected it. ¹ The majority rejected it, so that al-Shafi'i is quoted as saying "whoever practises istihsan has legislated", and in the Risala that istihsan is self-indulgence. ¹ Al-Baji says the istihsan of Malik's followers is acting on the stronger of two proofs, as in exempting the araya sale from the ban on selling fresh dates for dry, and Ibn al-Sam'ani says that, defined as departing from one proof to a stronger one, no one rejects it. ²

Al-Shawkani quotes a group of careful scholars that no disputed istihsan really exists, since some of its definitions are accepted by all, such as moving to a stronger analogy, while others waver between the accepted and the rejected; he concludes that treating istihsan as a separate topic is pointless: if it returns to the proofs already discussed it is repetition, and if it lies outside them it is not part of the law. ^{1 2}

In the fragment al-Jami' min al-Isal published with al-Muhalla, Ibn Hazm devotes a chapter to refuting istihsan, which he regards as following desire: those who hold it, he argues, admit that analogy is true and then abandon it for istihsan, its opposite, and no one's preference has more claim to be followed than another's; those of the past who reasoned their way to it are, he says, rewarded and excused. ³ This is the Zahiri position as Ibn Hazm presents it.