Principles of equity in Islamic Jurisprudence
‘Equity’ is considered a Western legal concept that bases on the idea of fairness and conscience, and develops its legitimacy from the belief in natural rights and justice beyond the purview of positive law. In Islamic jurisprudence, this notion is resembled to ‘Istihsan’. Both equity and Istihsan,...
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| Main Authors: | , , |
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| Format: | Book Chapter |
| Language: | English |
| Published: |
Thomson Reuters Asia Sdn. Bhd.
2022
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| Online Access: | http://irep.iium.edu.my/103935/2/103935_Principles%20of%20Equity%20in%20Islamic%20Jurisprudence.pdf http://irep.iium.edu.my/103935/ http://www.sweetandmaxwellasia.com.my/BookStore/showProduct.asp?countrycode=MLY&bookstore=1&id=2951&ptab=1&&g=e12l2&ec=QSNBGDKTJJVZSVHOCFIZCQJNVZGOSGXENQRSKMPTOBJOJVSHUCN |
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| Institution: | Universiti Islam Antarabangsa Malaysia |
| Language: | English |
| Summary: | ‘Equity’ is considered a Western legal concept that bases on the idea of fairness and conscience, and develops its legitimacy from the belief in natural rights and justice beyond the purview of positive law. In Islamic jurisprudence, this notion is resembled to ‘Istihsan’. Both equity and Istihsan, are basically based on the principles of fairness and conscience. Both are applied in circumstances where the enforcement of the favorable laws results in unfair consequences. However, the material distinction between the two is the equity relies on natural laws while Istihsan is based on the values and principles of Shari`ah that are divine in nature. Albeit both concepts have different approaches concerning a question of right and wrong, the values advocated by natural law and the principles of Shari`ah are significantly concurrent. In short, both adopt a view that right and wrong are a matter of relative convenience for the individual but originate from an eternally good standard that is ultimately independent of human cognizance and observance. With regard to right and wrong, natural law presumes that they are inherent in nature, while in the Islamic perspective, they are determined by God as such. Equity is defined as a law of nature superior to all other legal rules, written or otherwise. At the same time, Istihsan does not recognise the superiority of any other law over the divine revelation, and the solutions provided by it are, for the most part, based on principles that are upheld in the divine law. Istihsan is one of the valuable subsidiary sources of Shari`ah. Hanafi jurists actually advocated this doctrine in order to mitigate the rigidity of law on some occasions. Human society is subject to change. Conditions also change over time. In this scenario, people have to encounter new problems, and novel needs appear. Enforcement of law strictly without having considered the context, society would face detriment. One has to find solutions to the issues subject to equity, wisdom, and necessity on such occasions. This is a clear departure from established law, but it is based on necessity. Hence, Istihsan plays a crucial role in developing Islamic law through the methodologies of Islamic jurisprudence. The sources of Islamic law are divided into two. One is Dalil Qat’i, and the other is Dalil Zanni. The first one is sources agreed upon by the scholars. The second one is several scholars are not agreed upon it. Dalil Qat’i includes Quran, Sunnah, Ijma, and Qiyas, whereas Dalil Zanni includes such as Urf, Masalih Mursalah, Istishab, Istihsan, etc. In this chapter, the concept of Istihsan is well discussed from various dimensions in the following discourse. |
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