Istihsan from the perstective of philosophy of law

In Islamic jurisprudence, istihsan, which is accepted as one of the ferî evidences, represents a principle and understanding that the law needs in general. Therefore, istihsan is a necessary legal mechanism for all legal systems. The understanding of istihsan has maintained its existence in legal systems in different times and places with its flexibility. There are examples of this in Roman and Talmudic law. In the history of Islamic law, it is clearly seen that the periods in which the law developed were the periods in which istihsan was widely applied. The similar contribution of istihsan to the development of Islamic law is also seen in Roman law. The principle of objectivity and istihsan in Roman law have a similar legal logic and the flexibility they create within the legal system ensures that the law remains alive. The existence of such understandings and practices in other legal systems is the most important evidence that the law needs such practices. Although istihsan is accepted as an exception from the established general rule, it is also an ijtihad based on the general purposes of religion. The fact that istihsan is based on the general aims of religion and the universal rules reveals the direct relationship of istihsan with the maqāṣid. Accordingly, istihsan is an important legal practice that directly serves the purposeful characteristic of law. The non-application of istihsan in Islamic law prevents Islamic law from being active in life. Because, due to the limited nature of the nasses and the unlimited nature of the events, applications such as istihsan.