Istihsan Case Study

5.0 Relevance of Istihsan to contemporary law in Malaysia
In Malaysia Islamic Law, we can achieve a desired result of justice through the application of the doctrine of Istihsan. Istihsan acts as the bedrock of the lawgiver's intention of promoting human interest according to the Quran. The underlying purpose is to attain equity and justice in the interests of society. In a promise that lacks of consideration, the doctrine of Istihsan would permit departure from the general rule and bind the promisor to his representation. It is through Istihsan that the spirit of equity and justice which runs through the core of Shariah is sought to be translated into practice.
In most legal system, the court of law is given the task to interpret the law when there is a dispute as to its meaning arisen or even when in the case there is now statutory provisions of the law. Although the general perception that Islamic law is destined to be eternally fixed in its provisions because its religious and doctrinaire character, close examination shows that its detailed provisions have constantly been subjected to interpretations.
Shariah court judgments did not explicitly
Islamic Shariah does recognize the principle of contract sanctity of which no third party is allowed to claim. However, the Malay custom of Harta Sepencarian allows spouse, upon divorce or death of either party, to claim property acquired during their marriage, although they are not directly involved in the acquisition of the property as a co-purchaser or co-sharer etc. Section 2 (1) of the Negeri Sembilan Islamic Family Law Enactment 2003, defines Harta Sepencarian as a property acquired by husband and wife either directly or indirectly during the marriage period in accordance with the conditions specified by