This is the first work in the English language to deal specifically with the subjects of equity and fairness in Islamic law. Prof M H Kamali relates these concepts to the Islamic legal notion of istihsan, thus taking these concepts back to their origin in the Qur'an, the sayings of the Prophet Muhammad and the era of the Companions of the Prophet in the first two centuries of Islam. Equity and Fairness in Islam contains in-depth explorations of equity and its applications, and it also attempts to apply the concepts of equity and fairness to certain issues of contemporary concern and especially to commercial transactions. The issues raised here are related to Islamic banking, sale transactions, charitable endowments, pensions funds and other long-term saving accounts.
The concluding part of the book deals with the relationship between the concepts of equity and fairness, and the goals and objectives of Islamic law, and how these two concepts can work as an instruments for securing the objectives of Islamic law. Equity and Fairness in Islam can be read in conjunction with other M H Kamali's titles, especially Islamic Commercial Law.
About the Author
Dr Mohammad H. Kamali is Chairman of the International Institute of Advanced Islamic Studies, Kuala Lumpur, Malaysia. He was formerly Professor of Law at the International Islamic University Malaysia, where he taught Islamic law and jurisprudence for over twenty years.
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Being a derivation of the root word hasana, istihsan literally means considering something good, preferable and beautiful. The reference is to beauty in its common sense, that which appeals to the eye and attracts the heart. The word can be used in an objective sense, or purely subjectively when, for example, a person, whether layman or jurist, likes something and considers it beautiful even if other people might think otherwise. The word is also used in reference to things which might be visible and obvious as well as those that are intellectually perceived.
The juridical meaning of istihsan reflects its literal meaning in that the term refers to juristic preference, exercised by a qualified jurist and mujtahid, consisting of departure from an existing rule or principle of the law in a particular case, in favour of a different ruling that is considered preferable. The preference so exercised is prompted by the desire to search for a more equitable solution because of the rigidity and unfairness that is brought about by strict adherence to existing law, as explained earlier. Several definitions can be found for istihsan and they are not identical, each imparting some insight into the various approaches that the 'ulama' have taken to the doctrine. The Hanafi jurist Abu'l-Hasan al-Karkhi (d. 340 AH) defined istihsan as follows:
Istihsan is to depart from the existing precedent, by taking a decision in a certain case different from that on which similar cases have been decided, for a reason stronger than the one that is obtained in those cases.
According to this definition, istihsan effectively means detaching a case from those comparable to it. Hence it is the reverse of qiyas in that qiyas actually means attaching or joining a case to those that are similar to it. It thus appears that qiyas and istihsan take two different approaches and they are in a basic sense the opposite of one another.
Abu Bakr al-Jassas (d. 370 AH) defined istihsan as departure from a ruling of qiyas in favour of another ruling which is considered preferable.
Abu'l-Husayn al-Basri (d. 436 AH) defined istihsan as 'abandoning one facet of ijtihad for another, the latter being the stronger of the two and it consists of fresh evidence which is not found in the former.'
While quoting al-Karkhi's definition, al-Sarakhsi added: the precedent that is set aside by istihsan normally consists of an established analogy which may be abandoned in favour of a superior proof, namely the Qur'an, Sunnah, necessity (darurah) or a stronger qiyas. Al-Sarakhsi himself defined istihsan as 'abandonment of an opinion to which qiyas would lead in favour of a different opinion supported by stronger evidence and adapted to what is convenient to the people'. He explained this further by saying that istihsan is: (a) to seek ease and convenience in legal injunctions; (b) to adopt what is accommodating and lenient; and (c) to take to tolerance and seek that which brings comfort. Al-Sarakhsi then quoted the Qur'anic verse (al-Baqarah, 2:185) which declares ease and the removal of hardship to be the main intent and purpose of divine injunctions.
Table of Contents
Part One: The Methodology of Istihsan
Chapter One: Meaning and Definition
Chapter Two: Historical Perspective
Chapter Three: Istihsan, Maslahah and Custom
Chapter Four: Types of Istihsan
Chapter Five: Proof (hujjiyyah) of Istihsan
Chapter Six: The Argument Against Istihsan
Chapter Seven: Istihsan and Particularisation (takhsis)
Chapter Eight: A Review of the Methodology of Istihsan
Part Two: Contemporary Applications
Chapter Nine: The Issue of Qabd (taking possession)
Chapter Ten: Issues pertaining to Awqaf(charitable endowments)
Chapter Eleven: Issues in Islamic Banking
Chapter Twelve: The Issue of Unclaimed Assets