- Known as Juristic preference
- Method of exercising personal opinion in order to avoid rigidity and unfairness which might result from the literal enforcement of the existing law
- Involves setting aside an established analogical reasoning in favor of an alternative ruling
- To serve the idea of justice and public interest in a better way.
- Legal principle which authorizes departure from an established precedent in favor of a different ruling for a reason stronger than the one which is obtained in that precedent.
- To act on the stronger of two indications.
- Hanafis’ Malikis’ and Hanbalis’
- Validate istihsan as a subsidiary source of law
- Shafiis’, Zahiris’ & Shi’tes
- Reject and refuse to give it any credibility in their formulation of Usul al Fiqh.
- Disputes concerning the departure from the rules of the text to other rules based on the practice of people.
- If the practice is the practice of the authoritative jurists such as the expert or influential leading jurists, it is acceptable and such measure can be referred to as Ijma’.(opponents)
- If it is the practice of common people, it can’t be accepted as a proff to depart from the original rule.(proponents)
- The choice of one or the other of these solutions is mainly determined by the jurist in the light of considerations of equity and fairness.