JURISTIC PREFERENCE (ISTIHSAN) AND EQUITY: A COMPARATIVE JURISTIC ANALYSIS

Abstract

Istihsan, translated as juristic preference or equity, plays a significant role in Islamic jurisprudence, particularly within the Hanafi school of thought. It enables jurists to depart from rigid analogy (Qiyas) to ensure justice and promote public welfare. Similarly, equity in Western legal traditions allows courts to exercise discretion to prevent injustice resulting from strict legal rules. Both Istihsan and equity serve as corrective mechanisms, aiming to ensure fairness and adaptability. This paper provides a comparative analysis of Istihsan and equity, exploring their conceptual underpinnings, historical evolution, and application in legal systems, scholarly debates, and the challenges they face in maintaining the balance between flexibility and legal certainty.