Istihsan
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Istihsan (استحسان) is an Arabic term for juristic "preference". Muslim scholars may use it to express their preference for particular judgements in Islamic law over other possibilities. It is one of the principles of legal thought underlying personal interpretation or ijtihad.
Proponents of liberal movements within Islam have used istihsan and the similar idea of istislah (Arabic for "to deem proper") as ethical principles to favour feminist and reformist interpretations of the Qur'an and thus reform Islamic law.
Some see Istihsan as being equivalent to the concept of equity in English law, while others see it as being equivalent to the "reasoned distinction of precedent" in the law of the United States, in which case Istihsan may be referred to as the "reasoned distinction of qiyas (reasoning by analogy)". John Makdisi writes:[1]
"Equity finds the basis for its legal authority in a set of preconceived norms existing apart from the legal system", while "Istihsan finds its basis in a determination of the causes underlying existing legal rules and in reconciling apparent conflicts between rules based on this determination."
[edit] Notes
[edit] References
- Kamali, Mohammad Hashim. Principles of Islamic Jurisprudence. (2).
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