Istihsan (P/B)

This book offers a detailed presentation of the theory of Muslim law (usul al-figh). Often regarded as the most sophisticated of the traditional Islamic disciplines, Muslim jurisprudence is concerned with the way in which the rituals and laws of religion are derived from the Qur’an and the Sunna – the precedent of the Prophet. Revelation, which is given to man to restore unity and help him achieve a just and devout order in society as well as in the soul, must be interpreted so as to render it practicable in every culture, while not betraying its spirit and immutable provisions. To achieve this, additional sources of legal authority are recognized, including consensus (ijma), analogical deduction (qiyas), public interest (maslaha) and local customary precedent (urf). In employing these, the jurist guards the five principles which it is the purpose of Islamic law to uphold, namely, the right to life, sound mind, property, lineage and religion.

This book addresses the views of the Sunni scholars regarding the importance of genealogical relationship (nasab) in Islamic family law and examines the role of legitimacy on the basis of the legal maxim “al-walad li al-firash”, evidence (al-bayyinah), and doubtful intercourse (wat’ shubhah). It also elucidates the views of the Sunni schools of law on how to establish illegitimacy. For the Sunni jurists, there are several situations that determine the illegitimacy of the child.  A child is considered illegitimate if its birth is the outcome of adultery (zina) or the result of legitimate union but accompanied with imprecation (li‘an). Other circumstances include the birth of the child taking place in less than six lunar months, the father of the child being categorized as one who is incapable of begetting, or the birth as a result of marital relationship considered unlawful because of consanguinity. The book also deals comprehensively with the moral, religious, legal and other aspects of the illegitimate child and the foundling in the works of the Sunni jurists. The status and rights of the illegitimate child and the foundling in the Islamic family law of Malaysia and Brunei are also discussed by referring to some provisions from Federal Territory Act 1984 (Act 303) and Brunei law.