The concept and definition
Types of secondary sources of Islamic Law:
i. Istihsan (Juristic Preferences)
Istihsan means juristic "preference". Muslims scholars may use it to express their preference
for particular judgments in Islamic Law over other possibilities. It is one of the principles of
legal thought underlying personal interpretation or ijtihad.
Objective of Istihsan: To avoid rigidity and inflexibility from literal enforcement of certain
ruling or hukm.
Type of Istihsan:
1. Istihsan and necessity (darurah)
2. Istihsan and Ijma’
ii. Istishab (Presumption of Continuity Interest)
Istishab means presumption of existence or non-existence of facts. It can be used in the
absence of other proofs (dalil). Istishab relates to the sense that the past accompanies the
present without any interruption or change.
Applicability of Istishab:
Applies only when no other evidence is available.
a. It consist of a probability. Thus it is not a strong ground for the deduction of the rules
of Sharia.
b. Istishab ranks last in the order for ground of fatwa. In case of conflict with another
proof, the proof prevails.
c. Should there be a doubt over the non-existence of something, it will presumed to
exist.
d. However, if the doubt is in the proof of something, the presumption is that it is not
proven.
Types of Istishab:
a. Istishab al-‘Adam al-Asli (Presumption of original absence)
b. Istishab al-Wujud al-Asli (Presumption of original presence)
c. Istishab al-Hukm (Presumption of continuity the general rules and principles of the
law)
d. Istishab al-Wasf (Presumption of continuity of attributes)
iii. Maslahah Mursalah (Consideration of Public)
Maslahah ('public interest') is a concept in traditional Islamic Law, invoked to prohibit or
permit something on the basis of whether or not it serves the public's benefit or welfare. The
concept is related to that of Istislah. While the meaning of maslahah is 'public interest', the
meaning of istislah is 'to seek the best public interest'.
Types of Maslahah in general:
a. Dharuriyyat (Essential)
b. Hajiyyat (Complementary)
c. Tahsiniyyat (Embellishment)
Maslahah divided to:
a. Maslahah Mu’tabarah
b. Maslahah Mursalah
c. Maslahah Mulghah
iv. ‘Urf (Customary Practice)
‘Urf is a term referring to the custom or 'knowledge' of a given society, leading to change in
the fiqh. `Urf is a source of Shariah rulings where there are no explicit primary texts of the
Qur'an and Sunnah specifying the ruling. `Urf can also specify something generally
established in the Quran and sunnah.
Proof of ‘Urf
There are many proofs in Quran and Sunna which clarifies that ‘urf is a source of Islamic
Law:
1. In Quran, under surah al-Hajj (22:78) “….He has chosen you and has not place upon you
difficulty in the religion”.
2. Surah al-‘Araf (7:199) “Take what is given freely, enjoin what is good (‘urf), and turn
away from the ignorant”.
3. Hadis from Prophet Muhammad (pbuh) “What Muslim deems to be good is good in the
sight of God”.
‘Urf is divided into several categories and subcategories:
The first two categories are the general divisions which cover all other subcategories:
a. Approved or Valid Custom (al-‘urf al-sahih)– “One which is observed by the people
at large without there being any indication in the Shari’ah that it contravenes any of
its principles.”
b. Disapproved Custom (al-‘urf al-fasid) – “Also practiced by the people but there is
evidence to show that it is repugnant to the principles of Shari’ah.”
The approved custom category above is divided into two types:
a. Verbal (qawli) – “Consists of the general agreement of the people on the usage and
meaning of words deployed for purposes other than their literal meaning. As a
result…the customary meaning tends to become dominant…the original or literal
meaning is reduced to the status of an exception.”Examples of this are the
words salah, zakah, hajj, etc. They are understood based on their custom meanings
and not their literal meanings.
b. Actual (fi’li) – “Consists of commonly recurrent practices that are accepted by the
people.”
The two categories above are each subdivided into two types:
a. General ‘Urf (al-‘urf al-‘aam) – “One which is prevalent everywhere and on which
the people agree regardless of the passage of time.”
b. Special ‘Urf (al-‘urf al-khaas) – “It is prevalent in a particular locality, profession or
trade…it is not a requirement…that it be accepted by people everywhere.”
Mohammad Hashim Kamali lists four requirements for a valid form of ‘Urf from which
Islamic law may be derived:
1. Custom must be a common and recurrent occurrence. It must be dominant to the
point that it is upheld in most of the cases to which it applies, otherwise, it does not
hold any authority. Also, the practice of a few people in a large community is not
sufficient; rather, it must be a regular occurrence among the masses.
2. In contracts and commercial transactions, custom must still be in existence at the time
of the conclusion of the transaction.
3. Custom must not violate a clear stipulation of an agreement. Contractual agreements
take preference over custom. Latter will only be resorted to in absence of the former.
4. Custom must not go against the definitive principles (nass) of Islamic law. If it does
so, custom will be given no consideration. In case “the custom opposes only certain
aspects of the text, then custom is allowed to act as a limiting factor on the text.”[15]
v. Sadd al-Dharai’ (Blocking the Means to Evil)
Literally sadd means preventing or blocking. Dhara’i is the plural of dhari’ah signifies the
means which leading to certain end either beneficial or harmful. Technically, sadd al-dhara’i
means blocking the permissible acts which lead to an evil.
Proof of sadd al-dhara’I as a source of Islamic law:
1. Proof of sadd al-dhara’i is established by the Qur’an and Sunnah.
The Qur’an;
“And do not abuse those whom they call upon besides Allah, lest exceeding the limits
they should abuse Allah out of their ignorant.” (al-An’am: 108)
In this verse Allah prohibits the Muslims from cursing objects that worshipped by non-
Muslim, so to block the means to curse Allah.
The Sunnah;
The Messenger of Allah prohibits a creditor to accept a gift from debtor so as not to be a
mean of taking interest and taking gifts instead of interest.
Types of permissible acts which lead to an evil:
1. Permissible acts which are rarely leading to an evil. For example, cultivating grapes,
travelling by plane.
Muslim jurists agree that this type of permissible act is not to be blocked. Since the
benefit is prevalent.
2. Permissible acts which most likely leading to an evil. Selling of grapes to wine
maker, renting out a premise for the purpose of gambling or prostitution.
Muslim jurists are in agreement that, this type of permissible act is to be blocked.
3. Permissible acts which are taken as a mean not for the purpose of what has been
legalized.
