The Making of Islamic Economic Thought by Sami Al-Daghistani

Author:Sami Al-Daghistani [Al-Daghistani, Sami]
Language: eng
Format: epub
Publisher: Cambridge University Press
Published: 2022-01-05T18:30:00+00:00

3.3.2 Istiḥsān and Istiṣlāḥ

Maṣlaḥa is closely associated with istiḥsān and istiṣlāḥ, too. Istiḥsān was developed by the Hanafī maddhab, while the concept of istiṣlāḥ is a Mālikī one. Istiḥsān is an important branch of ijtihād and has played a prominent role in the adaptation of Islamic law to the changing needs of society using human knowledge and has developed the principle of istiṣlāḥ on that premise. Istiḥsān is antithetic to qiyās, and, therefore, much closer to ijtihād.96 Istiḥsān means to approve, or to deem something preferable. It is a derivation from the Arabic word ḥasana, which means good or beautiful, and in Islamic law it was inspired by the principle of fair conduct and conscience, diverging from the rule of positive law. Unlike the Western concept of equity, which relies on the philosophy of natural and common law,97 istiḥsān points to the ethical principles of Sharīʿa.98 As such, istiḥsān is flexible and utilized for various legal and economic mechanisms. Muslim jurists have historically disagreed on the validation of the term as a source of law.99 The use of istiḥsān avoids rigid judgments and unfairness that might result from an enforcement of the existing law. Istiḥsān can be used to create new rulings in various contexts. Since istiḥsān is, in the juristic sense, related to a method of exercising personal opinion, it is closely associated with raʾy.100 Istiṣlāḥ on the other hand is derived from the word maṣlaḥa, which can be translated as “common good.” Istiṣlāḥ is defined as distinguished from the principle of the maṣlaḥa and it permits more flexibility of analogy as compared to qiyās.101 Istiṣlāḥ can be derived and applied within the legal spectrum in order to protect the welfare (or well-being) of individuals and community by promoting what is beneficial and reducing harm, including advocating lawful economic trade agreements and avoiding investing in economic assets that would turn out to be harmful, such as alcohol or armaments. The maṣāliḥ can neither be calculated nor projected in advance because they are amenable to change according to time and circumstance.102

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