Istihsan is
one of the sources in Islamic law that is accepted by most of schools of law,
but is strongly opposed by al-Shafi'i (d.820). The concept of Istihsan
is formulated by the supporter of this concept in order to avoid the total
dependency on the explicit understanding of the texts or Zahir al-Nas
either from the Qur’an, Sunnah or Ijma‘ (Consensus). It is also
developed to avoid the excessive use of Qiyas (analogy) that can upset
the principle of Maslahah (public interest) in the application of a
particular law.
The word Istihsan from the language point of view is an
Arabic word derived from the word al-husn which means good which is the
opposite meaning of al-qubh which means bad. The word is used to express
of decorating or improving or considering something to be good (Al-Razi, Zayn al-Din Muhammad bin Abi Bakr bin ‘Abd
al-Qadir
1995). There is however a disagreement among the scholars as to its technical
definition which is due to their disagreement on the acceptance of Istihsan
itself as a source of law. For scholars who reject the validity of Istihsan,
consider it as free reasoning without the guidance from the texts which is
prohibited.