By Sidra Naeem

Istihsan,Musliha Mursilah And Equity

Definition

LITERAL MEANING OF EQUITY To approve To deem something preferable

JURISTIC MEANING A method of exercising personal opinion in order

to avoid any rigidity and unfairness that might result from literal enforcement of the existing law

Istihsan may offer a means of avoiding hardship and a solution which is harmonius with the higher objectives of the Shar’iah.

Istihsan is considered as being the counterpart of equity in common law.

Authority of istihsan

In Quran :من اليكم انزل ما احسن واتبعوا

ربكم “And follow the best (ahsan) of what

has been sent down to you from your Lord.”

(–al-Zumar : 55)In Sunnah “the best of your religion is that which

being ease to people”

Examples of Istihsan

i. The ban imposed on sale of slave’s mother (ummahat al-aulad)

ii. The ban on marriage with kitabiyyahs in certain cases

iii. The judgement of ‘Umar in the case of Muhammad ibn Salamah.

iv. Salamah’s neighbour asked for a permission if he could extend a water canal through Salamah’s property, and he was granted the request on the ground that no harm was likely to accrue to Salamah

on grounds of public interest, equity and justice.

Musliha Murslaha

Maslahah literaly means “benefit or interest”.

▪ According to imam Ghazli▪ Maslahah consists of considerations which secure

a benefit or prevent harm but are in the meantime, harmonious with the objectives of the Shari’ah ( ريعةKد الشKمقاص ) - Protecting 5 ‘essential values: religion, life, intellect, lineage and property’

The concept of maslahah has a very close relationship with maqasid al-shari’ah as MS are defined briefly as obtaining maslahah (benefit) and preventing mafsadah (evil)

Authority of Musliha Mursilah Surah al-Maidah : 6

“God never intends to impose hardship upon people.”

(… ما يريد الله ليجعل عليكم من (…حرج Hadith: “ La dharar wa la dhirar fil Islam”

“harm is neither inflicted nor tolerated in Islam”The hadith encompasses the essence of maslahah in

all varietiesLegal maxiam related to M.M Harm is eliminated to the extent that is possible

الضرر يدفع بقدر االمكان ) )▪ Neccessity makes the unlawful lawful

الضروريات تبيح المحظورات ) )

Examples of Musliha Mursilah The collection and compilation of al-

Quran in a single volume The ruling of Umar that his officials

must be accountable for the wealth they had accumulated in abuse of public office and expropriation of such wealth

The right to inheritance of a woman whose husband had divorced her during death sickness

Equity

Meaning of equity is “the quality of being fair and impartial”

it is derived from the Latin term” Aequitas” (equality) which is means to reaches near as possible to natural or ideal justice

When law becomes static and un-responsive to social necessities, then legal fiction, equity and amending legislation help it to advance. Besides, equity corrects the law by applying, in circumstances where the ordinary rules would lead to unwarranted hardship, considerations of what is fair and just.

With that, equity broadly means fairness or natural justice and comes in whenever law causes hardship and injustice. It assists the law where it is defective and weak and defends it from evasions and technicalities.

Istihsan & Equity

Similarities: Inspired by the principle of fairness and

conscience Both authorise departure from a rule of

positive law when its enforcement leads to unfair results

Both assume that right and wrong are not a matter of relative convenience for the individual but derive from eternally valid standard which is ultimately independent of human cognisance and adherence

Differences

EQUITY

Reliance on the concept of natural law

Right and wrong are inherent in nature

Equity is a law of nature superior to all other legal rules, written or otherwise

Equity recognises natural law apart from and superior to positive law

ISTIHSAN

Reliance on divine law Right and wrong are

determined by God Istihsan does not give

rise for any other law to be superior than the divine revelation

Istihsan is an integral part of the shariah