Истихсан: Ислам құқығындағы ғұламалық дискрециясы

Islamic legal term for juristic discretion

(Arabic: اِسْتِحْسَان) is an Arabic term for juristic discretion. In its literal sense it means "to consider something good". 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 scholarly interpretation or ijtihad. A number of disputes existed amongst the classical jurists over this principle with the Hanafi school of jurisprudence and its jurists (fuqahah) adopting this as a secondary source. It is not the same thing as istislah, which plays a prominent part in other schools, including Maliki school, or istihlal, which is a derisive term for deeming something forbidden as permissible.

Al Shafi'i viewed the practice of juristic preference as a heretical usurping God's sole right as the legislator of Islamic law. It has been alleged that this criticism revolves more around the linguistic meaning of the term rather than its technical meaning, Malik ibn Anas is noted to have been asked about binding divorce. When he delivered his response, a disciple of his quickly reached for a tablet to make note of this ruling. Upon realizing what his disciple was doing, Malik asked him to stop, remarking that his opinion could change before nightfall. Sarakhsi points out that some jurists have criticised Istihsan on the grounds that the analogy is being given up for personal opinion, something prohibited in Islam. He refutes this understanding as incomprehensible, as no jurist would give up an authority for something that lacked evidence.