ISTISḤSĀN AND ISTIṢHĀB IN ISLAMIC LEGAL REASONING: Towards the Extension of Legal Finding in the Context of Indonesia

This article explores the debate among Muslim jurists on istiḥsān and istiṣhāb and the ability of both to solve Islamic legal cases in Indonesia. The research is done through normative legal approach by referring to various literatures in the elaboration of legal concepts. The concepts of law (istiḥsān and istiṣhāb) are discussed and become the central topic. At the end, those concepts are applied in the cases to draw normative conclusions. The result of this research shows that though istiḥsān and istiṣhāb are still debatable, both of the two have a strong influence and relevance to be applied. In the Indonesian context, istiḥsān and istiṣhāb reasoning, may be combined or separated, can be used to promulgate the obligatory registration of marriage, the application of health protocol of Covid-19 during prayer in the mosque in the time of pandemic, and possibility of using credit card and e-commerce for transaction, the acceptance of Pancasila as the basis of the Republic of Indonesia, the legitimacy of 1945 constitution, democracy, and current principles of modern jurisprudence (such as the principles of pre-assumption of innocent). That is due to the fact of their virtues for public life (maṣlaḥah muḥaqqaqah), and no exact prohibition is found in al-Qurʼan and Hadith (ibāḥah aṣliyyah). In short, by using istiḥsān and istiṣhāb, such mentioned recent cases may be solved and logics of legal reasoning can be extended.


Introduction
In the study of Islamic jurisprudence, interpretation of the legal texts and even changes of the legal conclusion may occur and sometimes are inevitably have to be done. This is because of the changing times, places and cases. 1 In general, al-Qur'an and al-Hadith as mainsources of Islamic law denote several legal methods, concluded by ʻulamāʼ, such as qiyās (analogy) and ijmāʻ (consensus), istiḥsān and istiṣhāb.
From generation to generation, the new problems of jurisprudence that arise have never been able to be solved by only referring to the text (naṣṣ). It demands the ʻulamāʼ to conduct ijtihād (legal finding) similar to Muʻādh ibn Jabal who carried out the ijtihād and was legitimized by the Messenger of Allah (RasūluʼLlāh), to which this concept was continued by the scholars from time to time. The effort of doing ijtihād, endorses Muslim scholars to have public academic debate of every creative legal concept, referring to the sacred texts. The debate pushes the creation and emergence of several schools of thought (madhāhib). Those madhāhib often have specific methods of reasoning, such as istiḥsān and istiṣhāb. Due to the dynamic of current problems in public as well as in private matters, the elaboration of the existing istiḥsān and istiṣhāb as key concepts of legal reasoning is necessary. Hence, the purpose of this article is to prove that as the key concepts, both of the two are logical receipts and can potentially combine the essence of reason and revelation. They are useful to solve Indonesian legal problems, such as the mandatory of written marriage, ecommerce, pandemic prevention of disease (covid-19), Pancasila as fundamental consensus of nation as well as the acceptance of 1945 constitution.
The research problems are: a. the debate on these concepts among Muslim jurists; b. the conventional and expanded application of istiḥsān and istiṣhāb as a tool of legal reasoning to solve contemporary legal cases, especially within the Indonesian context.
In the light of normative approach, the research will begin by debating the ontological and epistemological concept and arguments of istiḥsān and istiṣhāb among madhāhib as methods of legal reasoning: (for example), why Hanafite are in agreement to istiḥsān, whereas Shafiʻite are accusing that people in favour of istiḥsān are creating legal norms out of Al-Qur"an and Hadith. After the debate, the writing tries to show the practicality of istiḥsān and istiṣhāb in day-to-day life: some legal cases mentioned above will be solved by using both methods of legal reasoning. In turn, by doing

Al-Risalah
Vol. 20, No. 2, December 2020 165 so, the next step of elaboration will inform that those methods can be proven and derived as a mode of knowledge production and a legitimate framework of legal solution. Lastly, some fundamental remarks as conclusions of the research will be presented.

Definition: Searching Fundamental Meaning
Istiḥsān has the literal meaning of "to consider good" 2 , whereas according to the term, istiḥsān is the turning (moving) of a mujtahid from clear deductive analogy (qiyās jalī) to vague (qiyās khafī) or from general law (kullī) to the law of exclusion (istisnaʼī) because of the existence of the proposition that favor to move. 3 Imām Abū al-Ḥasan al-Karkhī added that istiḥsān is a legal determination of a mujtahid on an issue that is not in accordance with the existing legal provisions because there are stronger reasons for wanting to apply a law that is not in accordance with the original law. 4 Agreeing with him, Imām al-Bazdāwī, one of the Hanafite scholars, said: Istiḥsān is moving from the provision of qiyās to stronger qiyās or exclusion of qiyās based on a stronger proposition. 5 From the scholars of Malikite, Imām al-Shāṭibī provided the definition of istiḥsān as "practicing a special benefit when it is contrary to the general proposition. Indeed, istiḥsān is prioritizing the benefits of al-mursalah over qiyās '. 6 The Hanbalite interpreted istiḥsān as "turning away from a legal provision to other provisions that are stronger than the previous". 7 If there is a conflict between maṣlaḥah and qiyās, then maṣlaḥah is taken and practiced. It is also reinforced by Ibn Qudamah with his statement that istiḥsān is the transfer of law to a problem from which it has similarities, due to certain arguments (originating from the Qurʼan and Hadith). 8 Therefore istiḥsān is always related to one of two things, leaving the real qiyās and practicing vague qiyās or leaving general laws and practicing exceptions. If there is a problem that is not found by law that comes from the argument of the texts, both from the Qur"an and Hadith, there are two ways, namely first to solve a case by looking at it from the perspective of literalism and secondly looking at it from the perspective of a different perspective, by which another law is found. The latter is named by istiḥsān.
From these explanations it can be concluded that istiḥsān is sourced from qiyās and the purpose of the existence of istiḥsān is benefit for humanity and practicing an action in accordance with its conditions. Istiḥsān is done in the presence of an argument which is logically acceptable and can be justified.

Between Revelation and Reason: Debate on Istiḥsān
Istiḥsān is one of the debated legal methods. Many scholars use istiḥsān as an argument or method in solving new problems in Islamic law. 9 Some scholars argue that istiḥsān is a very wise method to avoid harm and bring benefit to humans. Istiḥsān enacts new laws that have values of urgency, making it more responsive and progressive.
Legal experts from the Hanafite, Malikite and some from the Hanbalite stated that istiḥsān is one of the methods used by scholars to perform ijtihād and that its legal results can be practiced. The Qur"anic verses that can strengthen their reasoning, among them are surah al-Zumar verse 18: "Those who hear the words then follow what is best among them. These are the people whom Allah has instructed and those who are resourceful".
According to the scholars who justify istiḥsān, particularly Imām Abū Ḥanīfah stated that this verse contains praise and adulation to servants of God who follow good things. The verse also contains the strengthening of istiḥsān as a legal validity (ḥujjah). 10 There is a related argument in surah al-Zumar verse 39: "Say: O my people, work according to your circumstances, in fact I will work (also), then one day you will know", Then strengthened again with al-Zumar verse 55: "And follow well what has been revealed to you from your Lord before the doom comes to you suddenly, while you are not aware of it". The Prophet also said:"Something that is considered good by Muslims, so it good in the sight of Allah." 11 (Narrated by Aḥmad ibn Ḥanbal) From some of the arguments above, the fiqh experts from the Hanafite and Malikite stated that istiḥsān is included as legitimate arguments (ḥujjah sharʻiyyah). They use it not to follow their passions but based on strong arguments. Doing istiḥsān is better than qiyās, because there is a stronger argument. In addition they also argue that istiḥsān is not only done when there are two arguments that are contradictory, but istiḥsān can also be done when there is an emergency situation. Imām Abū Ḥanīfah used istiḥsān which did not violate texts or qiyās. He chooses istiḥsān because it prioritizes the benefit of people.
The method used by Imām Abū Ḥanīfah in responding to the problems of the Iraqi people began with the use of texts from both Al-Qur"an and Hadith, then the statement of companion (qawl al-ṣaḥābah), and if it is still could not be solved then he would continue with qiyās. Finally, if it is not found, he uses the ratio by referring to the Qurʻan and Hadith. 12 On the other hand, there is a group that clearly rejects istiḥsān. Among them is Imām Shāfiʻī who bases his argument with Surah al-Qiyāmah verse 36: "Does man think that he will be left alone?".
In his book, al-Umm, Imām Shāfiʻī explains a lot about this verse. Lafaẓ ‫ى‬ ً ‫ُد‬ ‫س‬ shows the meaning of "in vain", so that the above verse has the meaning that humans living in the world will not be abandoned by God in vain. God will not leave the things of the world in vain without a strong legal basis and foundation. While according to him, istiḥsān He has confidence that the right to use istiḥsān is behavior that follows the subjective passions as if it has made a new sharia, whereas only Allah has the authority to make it. Even one of his students, al-Qāḍī al-Bayḍāwī in his book al-Wuṣūl ilā ʻIlm al-Uṣūl positioned istiḥsān in the chapter of the rejected propositions (al-adillah al-mardūdah). 14 Furthermore, Imām Shāfiʻī said that the Prophet Muhammad in giving guidance had never used lust and also did not use istiḥsān. Shafii"s schools prefer to use qiyās rather than istiḥsān when giving legal decisions on issues not found in the Qur"an or Hadith. They assume that istiḥsān has no clear boundaries and criteria as a standard for good and bad. 15 Imām Shāfiʻī worries about the chaos caused by istiḥsān. For example, if there is a judge who determines a problem that does not have a predetermined text using the istiḥsān method (his personal opinion), then there is a high probability that many people will oppose the legal provision using the istiḥsān as well.
Naṣr Ḥāmid Abū Zayd illustrates the Shāfiʻī"s thought on istiḥsān. The ʻulamāʼ such as Imām Mālik and Imām Abū Ḥanīfah used istiḥsān differently from Imām Shāfiʻī who disagreed with it. He reasoned that if the law was adopted using this method, there would be many differences in legal conclusions and opinions about the same legal problem. Every judge or muftī in a city will give multiple judgements in a case. 16  However, further study on Imām Shāfiʻī indicates that in many occasions he also use istiḥsān to set various laws. But he did not call it istiḥsān. For him all problems that are not contained in the Qurʼan and the Hadith can be resolved with qiyās. 17 While istiḥsān itself is part of the qiyās. Indirectly there are similarities between Shafiite and Hanafite. They agreed that istiḥsān could be accepted if it was not based on lust and had a strong argument which was used as a foothold in ijtihād. They only differ in naming the term.

Axiology of Istiḥsān: Conventional Types and Examples
The Hanafite scholars who mention istiḥsān as a method of legal conclusion are divide it into several types, namely:

a. Istiḥsān Qiyāsī
This group favours qiyās khafī rather than qiyās jalī based on an argument. 18 When a problem arises which then prompts two conflicting qiyās so that a mujtahid will be confronted with explicit argument (ilḥāq ẓāhir), which is usually used as the basis for determining the law with implicit argument (ilḥāq khafī) which is then seen as having stronger influence than ilḥāq ẓāhir. Thus, ilḥāq khafī is preferred because of its strong athar (influence). 19 For example, a woman who is about to give birth but there is only one male obstetrician. Sharia law in general says that all members of a woman's body are ʻawrat, so it is unlawful to be seen by an uknown and unrelated man. But in this condition, a doctor is allowed to do his job with the excuse of removing difficulties and giving aid to people.
Vol. 20, No. 2, December 2020 Al-Risalah 168 b. Istiḥsān whose driving factors are from outside qiyās khafī. 20 In other words, this form of istiḥsān is a contradiction between ʻillat qiyās and propositions other than qiyās. There are three propositions in this istiḥsān:

1) Istiḥsān by Sunnah
There is a Sunnah stipulation that requires leaving the qiyās of the case in question. As is the validity of someone"s fasting who eats during the day because of forgetfulness.

2) Istiḥsān by ijmāʻ
Abandoning the qiyās because of the ijmāʻ al-ʻulamāʼ (the consensus of the ulama) stipulates a different law from the qiyās, for example buying and selling with an order system, buying and selling online, and so forth.

3) Istiḥsān by emergency (ḍarūrah)
Istiḥsān is done because of a dangerous situation. For example a person eats pork because he does not find other food and if he does not eat then he will die.
The development of science and technology cannot be denied. Renewal of Islamic law needs to be done to answer new problems that have no legal provisions or replace existing laws that are not in accordance with the demand of current times. The flexibility of Islamic law is needed in accordance with the current condition of society, so that the role of Islamic law is to regulate people's lives and ensure their benefits can be realized properly. The condition of the community environment must be made as one of the considerations of Islamic law reform. By doing so, the law is effective and the purpose of benefit can be obtained.
As exemplified by corneal transplant from an old man to someone who suffers from blindness. For the sake of maintaining the 20 Ibid., p. 264. benefits of urgency (ḥājiyah), it is permissible to take part of the body of the deceased with greater kindness and benefit, namely to heal the blindness of a living person so that the person is able to carry out his daily life perfectly. 21

Istiṣhāb: Ontological and Epistemological Aspects
Al-Qur'an and Hadith as a source of Islamic law are not as comprehensive as the growing problems of the Ummah. Both of these literature are very limited in number, while the complexity of problems in daily life is unlimited. Therefore we need another source to solve the problems that arise. It is istiṣhāb.

Definition
Istiṣhāb in the literal Arabic translation means ‫طلب‬ ‫المصاحبة‬ , which is looking for friendship or ‫اعتبارالصحابة‬ (assuming friends), or ‫طلب‬ ‫الصحبة‬ (looking for friends). The intention of ‫الصحبة‬ is to compare things and bring them closer. 22 If we pay attention to the meaning of the language above, istiṣhāb can be interpreted as an effort to approach one legal event with another, so that both posses the same legal value.
In its terminology, istiṣhāb has a few different meaning according to a few dissenting scholars of uṣūl al-fiqh. Such as Al-Asnawī, who stated that istiṣhāb is the application of the law to a problem that exists in the future by referring to the previous applicable law, because there is nothing that causes changes (the legal problem). 23 While Al-Shawkānī argues that istiṣhāb is something permanent ( In the book of al-Ashbah wa al-Naẓāʼir, it is also explained that istiṣhāb is: establishing a clear law that is beyond doubt (will never loss). 28 Imām al-Ghazālī also gave an understanding of istiṣhāb, namely the determination of the law by holding on to the mind that had done the research and finding no argument that changed the initial law of a case. 29 From the description above, it can be concluded that istiṣhāb is to establish or confirm a law on the basis that the law had already existed beforehand, and eliminating a law if it did not exist before or there is no argument. In other words, istiṣhāb is not a matter of formulating new laws, but rather looking for current laws based on the old laws.

Model of Reasoning of Istiṣhāb: Fundamental Implication in Legal Ruling
Istiṣhāb is the determination of the law of a case, be it a legal case or a case of an object in the present or future based on what has been established or applied before. According to the explanation of the scholars in the hierarchy of ijtihād, istiṣhāb is the last grip or proposition of a mujtahid in establishing or confirming a law, when no proof is found in the Qurʼan, Sunnah, ijmāʻ or qiyās. This is reinforced by Al-Shawkānīʼs opinion who stated: "istiṣhāb is the last method used in devotion. If there is a fatwa (muftī) faced with a legal question, then he is obliged to look for the answers in the Qurʼan, then the Sunnah, then the ijmāʻ, then the qiyās. If he has not obtained (the law there), then he (may) set his law by appealing to the enforcement of the past law in the present (istiṣhāb al-ḥāl). If he doubts that the law will not apply the original principle, then the law still can be applied..." 30 Then, to find out whether istiṣhāb can be a ḥujjah for the process of determining the law, the ʻulamāʼ of uṣūl al-fiqh experts in this case are divided into three groups, namely: The first group that says istiṣhāb is the legitimate proposition (ḥujjah) in the determination or disclaimer of a law. Among the scholars included in this group are the number of scholars from the Malikite, Hanbalite, Majority of Shafiite scholars, and some Hanafite. The propositions that strengthen their opinions (include surah al-Anʻām verse 145): "Say: Have I do not received in the revelation revealed to me, something which is forbidden to those who want to eat it, except if the food is carcass, or blood is flowing or pork -because actually it is dirty -or animals slaughtered in a name other than Allah, whoever is in a state of compulsion, while he does not want it and does not (also) exceed the limits, then surely your Lord is Forgiving, the Most Merciful". The above proposition (according to them) explains the principle of origin, that everything is permissible until it comes to a proposition that shows its prohibition. This is indicated in the fragment of Surah al-Anʻām verse 145; "Say (O Muhammad) I did not find ..." where the meaning can be interpreted as if when there are no new provisions, the old provisions will apply. Then, the above opinion is not only strengthened by the argument of the Qur'an, but also reinforced by the words of the Prophet who said: "Verily, Satan goes to one of you (in his prayer) and then says: you have a heart, you have a body then (if so), do not leave your prayer until you hear the sound or smell (fart)." (narrated by Ahmad).
This hadith shows that the Prophet Muhammad taught us to be sure of our sacred condition, when we were about to pray, even though satan whispered doubts about the ablution. And the Prophet forbade us to leave the prayer, if we have not found concrete evidence of the abolition of ablution like the sound of a voice or the smell of farts from us. This is called the essence of istiṣhāb.
Out of the two arguments above, namely al-Qurʼan and Hadith, there are other arguments that support this opinion with ijmāʻ and rational theorem. Where, the scholars have consented on the basis of istiṣhāb on some fiqh issues that have been determined, that is if in someone there is doubt whether he has done the purification (by ablution/bathing), then the person is declared as unpure and cannot perform prayers. This is predictable, because it refers to the original law that is not purified. Conversely, if someone doubts whether the ablution that he did was annulled or not, then he can be still categorized as clean and holy (no ablution canceled). 31 Furthermore, the argument of 'aqlī or logic that confirms and reinforces this opinion (jum- hūr al-ʻulamāʼ) is the stipulation of a law in the previous period where there is no factor that requires the abolition of the law which makes the allegations of the law very strong (al-ẓann al-rājiḥ}). A strong allegation in Islamic law is a legal argument (ḥujjah), therefore istiṣhāb is ḥujjah. Vice versa, if a law is established in the past on the basis of belief, then the abolition of the law must also be based on faith, this is based on the legal maxim of al-yaqīn lā yuzāl bi al-shakk or a strong assumption is not erased by a weak allegation. 32 The second group states that istiṣhāb must not be used as an absolute ḥujjah (argument), both in establishing or denying the law. This opinion was widely followed by the majority of Hanafite scholars. 33 The propositions that reinforce their reasons are: 1) Using istiṣhāb is tantamount to doing something without any argument, and is considered vanity. Thus, istiṣhāb is something that is considered as vanity. 2) Istiṣhāb will cause an opposition because of the absence of proof. Everything without the argument is vanity. It means that when someone is allowed to set the law using the istiṣhāb method, then others can also set laws that are contrary to the istiṣhāb method as well.
The third group says that istiṣhāb is a ḥujjah that is used when disputing someone who views the occurrence of the law in the past (barāʼat al-dhimmah), and istiṣhāb is not a ḥujjah (argument) if it is used to establish a new law. This opinion came from the majority of recent

Al-Risalah
Vol. 20, No. 2, December 2020 171 three opinions, the first opinions have strong arguments and a very strong basis in making istiṣhāb as an argument (ḥujjah) in establishing or denying a law. Because, istiṣhāb is something that is understandable for human, which if no evidence or an evidence is found that changes the origin of the law into another law, then the first law applies. Therefore, fuqahāʼ agreed on the principles of jurisprudence ‫اليقين‬ ‫اليزال‬ ‫بالشك‬ (al-yaqīn lā yuzāl bi al-shakk) where these rules became the strong foundation of istiṣhāb.

Axiology of Istiṣhāb: Conventional Types and Examples
According to Abī Sahl al-Sarakhsī and Muhammad Abū Zahrah, istiṣhāb is divided into four types:

Istiṣhāb al-barāʼat al-aṣliyyah
That is istiṣhāb which is based on the law of origin of something that is mubāḥ (permitted). Legal provisions of mubāḥ as the law of origin are based on the verses of al-Qur'an surah al-Baqarah verse 29: "He is the God who made everything on the earth for you".
In this verse Ibn Jarīr al-Ṭabarī interpreted that everything created by Allah on this earth are for human to be used for their lives. 35 In addition, the scholars then formulated the principles of fiqh which read: ُ ُ ‫ل‬ ‫صْ‬ َ ‫األ‬ ُ ِ ‫َّة‬ ‫م‬ ِّ ‫الذ‬ ُ ‫َة‬ ‫اء‬ ‫َرَ‬ ‫ب‬ (everyone is basically free from dependence (obligation). An example for the implementation of that formulation is Toni's words that Rosi has a debt of one million rupiahs, but Rosi was evasive and did not admit that he had a debt. So in this issue, it was Rosi's acknowledgement that was considered true and valid, since Toni has no reasonable proof of the debt.

Istiṣhāb al-ibāhah al-aṣliyyah
These are istiṣhāb rules which are based on the original law. For example, the permissibility to eat giraffe meat because of the absence of the characteristics of the animals in the giraffe's uncleanness. The rules related to this type are: ‫األصل‬ ‫في‬ ‫األشياء‬ ‫اإلباحة‬ (the original law in all things is mubāḥ (permissability)).

Istiṣhāb al-ḥukmī
This is the determination of law which is based on existing law and applies until there is another argument that changes it. This rule reads: ‫األصل‬ ‫بقاء‬ ‫ما‬ ‫كان‬ ‫على‬ ‫ماكان‬ (basically, something that already has certain legal provisions will remain as it is). As in the case of a person who intends to fast and eats sahūr and he doubts whether it is dawn or not, so he can still fast because there is no evidence that dawn has come.

Istiṣhāb waṣf
This is the determination of the law based on the presumption of the nature of something that is known and believed. The rule is ‫اليقين‬ ‫ال‬ ‫يزال‬ ‫بالشك‬ (strong knowledge cannot be dispelled or defeated with doubt). For example the law of holy water will not change as long as there is nothing that makes it unclean, the status of a person's life is categorized lost until the body is found as evidence that he died.
In addition to the examples above, there are still many more examples of cases that can be solved using the istiṣhāb method, including: 1) The heir status of a missing person.
2) The marital status of a man and woman. Al-Risalah 172 4) Lawful for tambourines as long as it does not lead to evil. 5) It is permissible for a contract of buying and selling fruits that are still unripe. 37 Some of the examples above shows how influential istiṣhāb in solving problems that have just arisen in the midst of society, especially Islamic society. Rapid development of the times is a demanding requirement for Muslims to always be ready to face problems that are progressive in accordance with the development of everyday life. Awareness and thorough knowledge of emerging problems, especially social ones, is needed.

Expanding Legal Reasoning: New Cases and Current Indonesian Context
In the book Bidāyat al-Mujtahid, Ibn Rushd gave motivation to Muslims to always implement ijtihād by saying that the Qur"an as God"s revelation (kalām Allāh) and Sunnah as the explanation is very limited to be a source of Islamic law, because the problems of the people are always developing and there is no limit. 38 So that new ideas and varied methods of extracting the law are needed to overcome emerging problems. Actualization of the law must always be done and professionalism in ijtihād continues to be developed so that the dynamics of the law are able to become a foothold in overcoming proportional problems.
Istiṣhāb is one of the breakthroughs" of ulama' who are expected to be able to give a different view in responding to existing problems, especially concerning the field of social interaction (muʻāmalah), since in this field, benefit is the main consideration. 39  ʻulamāʼ in muʻāmalah affairs have the initial rule that everything is basically a mubāḥ ‫األصل(‬ ‫في‬ ‫األشياء‬ ‫اإلباحة‬ ). Unlike the field of worship that is taʻabbudī and emphasizes the text. They are based on the principle that worship is basically ḥaram ( ‫األصل‬ ‫في‬ ‫العبادة‬ ‫التحريم‬ ).
The influence of the istiṣhāb method in the positivization of Islamic law is very visible in several cases of state legislation. Both in the field of al-aḥwāl al-shakhṣiyyah (marriage and family), criminal law and civil law.
In the field of marriage law, for example is Law Number 1 of 1974, precisely in article 2 paragraph 1 and 2 which reads:

1) Marriage is legal, if it is done according
to the law of each religion and that belief. 2) Each marriage is recorded according to the applicable laws and regulations.
This law, which was promulgated by the president on January 2, 1974, shows the success of the ijtihād of the ʻulamāʼ. Islamic marriage law is a legal law in the Indonesian state based on the Pancasila and the 1945 Constitution. 40 The ʻulamāʼ applied the istiḥsān and istiṣhāb methods in compiling these laws. Especially in paragraph 2 "Every marriage is recorded according to the applicable laws and regulations". In the Islamic rule, marriage does not require a marriage book/marriage certificate. However, the Indonesian contemporary ʻulamāʼ considered good (istiḥsān) the existence of marriage records in order to minimize the existence of behaviors that are not in accordance with religious norms, such as contract marriages, sirrī (unregistered) marriages and so forth.
The initial legal determination (male and female are free, in the sense that there is no marriage bond) is still valid until there is evidence of a marriage certificate stating that the two of them were married. This is where

Al-Risalah
Vol. 20, No. 2, December 2020 173 the role of istiṣhāb takes place in compiling the article.
Marriage registration required by the state is not without purpose, instead there are many benefits to be achieved by state law with a marriage certificate. Among them is as evidence of guarantees from the government to those who carry out marriages, especially for the wife to avoid the behavior of the husband who is less responsible and for the benefit of their children. Thus, all their rights are fulfilled, since there are many negative implications that are feared will arise in the future if marriage records are not carried out, especially for women when she cannot inherit her husbandʼs wealth if there is no official record stating that the two of them are married.
Marriage is the first step in establishing social relations. Therefore, it is necessary to have formal legality as proof and footing given by the government on a marriage bond so that no party is harmed in the future. Formally a marriage cannot be proven without written evidence. Abandonment of a wife and child is an example of a case which would be sufficient to be a solid foundation for building the concepts of rules in marriage. 41 The rule of ‫األصل‬ ‫براءة‬ ‫الذمة‬ (basically every human being is free from dependents /obligation) seems also to be one of the inspirations in criminal law in Indonesia. 42 This is proven by the existence of the presumption of innocence in the Criminal Code article 1 paragraph 1 which reads: can be sanctioned are only actions that have been regulated and formulated by the law before the action is carried out. Second, if there is a person suspected of committing an act of violation of criminal law, they should not be sentenced to a sentence as long as there is no concrete evidence incriminating and declaring that he is guilty. These two points have something in common in the principle of legality of Islamic criminal law: the existence of strong legal evidence.
.43 In other words, there are no penalties for people who have sense (adults) before the provisions of the applicable legislation. This principle is also in accordance with the formulation of Paul Johan Anselm von Feuerbach written in Latin, namely nullum delictum noela poena sine praevia lege poenal. 44 Thus, it can be concluded that all muʻāmalah (social) activities carried out by Muslims are allowed as long as there are no legal rules that prohibit and do not contain elements that are detrimental to other parties. Among muʻāmalah that is prohibited is: 1) Buying and selling goods that are addictive such as marijuana 2) Conducting transactions that contain elements of fraud or harm to other parties, such as the existence of elements of tyranny, fraud, usury, bribes, gambling and inappropriate contracts. 45 The popular mode of muʻāmalah done by modern society today is e-commerce. That is one use of the internet which in this case relates to activities in the economic field. More clearly, e-commerce is a trading activity in the form of goods or services carried out with 43 ʻAbd al-Qādir ʻAwdah, al- Tashrīʻ  internet access or other digital technologies.46 Digital trading activities (online) are developed in the current era because they are considered to have great prospects for the future. Ecommerce is considered to be an effective way of trading because it covers a very broad and unlimited market.
This trading system emerged along with time, especially the rapid development of science and technology. The sophistication of technology is very helpful towards activities that were originally difficult to be easy. Technology can alleviate geographical challenges, making everything to be more accessible and eliminating any impediment of distance. The world is easier to reach with these technological capabilities and innovation.
The current legislation has been implemented by the government to protect online businesses. The Ministry of Communication and Information who is responsible for this case has officially issued Law No. 11 of 2008 concerning Information and Electronic Transactions (ITE) and Government Regulation (PP) No. 82 of 2012 concerning the Implementation of Electronic Transactions and Systems. 47 The purpose of these regulations is to protect business parties, especially consumers who are vulnerable to fraud. This legal guarantee does not necessarily make e-commerce run smoothly without obstacles. There are several problems that still becomes a polemic and rise from the online trading system. One of them is e-commerce status in a review of Islamic law. When viewed in terms of Islamic law, this online trading system has no legal clarity either from the Al-Qur'an or the Sunnah because it is a contemporary problem that only arises before the 4.0 (the basic principle in muʻāmalah is permissible (mubāḥ), unless there is an argument that shows its prohibition.
Therefore, e-commerce is still permitted since there is no prohibition on the system. Besides, e-commerce when viewed in terms of understanding and layout, these purchases have many similarities with buying and selling agreements. 48 Among the similarities is the similarity of the seller, buyer, medium of exchange or money (although suspended) and the goods being traded (both limited to description or characteristics). 49 In addition, bayʻ al-salam and e-commerce have a fundamental difference, namely bayʻ al-salam carried out conventionally face-to-face while e-commerce uses a digital or online system. But this difference is not really a problem. The most important thing is the absence of elements that harm the consumer such as fraud, gambling and other elements. So that this muʻāmalah law is still permitted by equating the bayʻ al-salam law in accordance with the rules: ‫ماقرب‬ ‫الشيء‬ ‫يعطي‬ ‫حكمه‬ (Something approaching him was punished with the same law (istiṣhāb model).
Likewise, the application of the democratic system in Indonesia. Various pros and cons emerge on the existence and relevance of the government system. Many consider that democracy is the result of Western thoughts that are not in accordance with the teachings of Islam, so it must be replaced with a system that is in accordance with the teachings of Islam remembering Islam is the religion that dominates in Indonesia.
However, the actual democracy in Indonesia is not a system adopted from the West, but democracy that is implemented as a family 48 ‫ُن‬ ‫ي‬ (And (for) those who accept (obey) the call of their Lord and establish prayer, while their business (is decided) with the deliberation between them; and they spend part of the fortune that we give them).
Indeed, during the reign of the Prophet and his companions there was no such thing as democracy, but when seen from the similarity of the contents of the verse and the principles of democracy that exist in Indonesia, it is very clear that the Islamic order affected the course of democracy in Indonesia. So that democracy can still be implemented and must always be maintained.
One of the national issues which is also widely discussed in the Islamic world is about Pancasila. Many questions that arise from Islamic thinkers are about the relevance of the values of Pancasila with the goals of life of Muslims. So that not a few people or groups who try to weaken and even depose the position of the Pancasila as one of the pillars of the Indonesia. They consider that Pancasila is no longer able to unite and regulate Muslim life in accordance with the teachings of the Qurʼan and Sunnah.
But in fact the values contained in Pancasila really reflects the characteristics of Indonesian Muslims. For example, in the first point, Pancasila has the intention of preserving the religion (ḥifẓ al-dīn), which is to guarantee the freedom of its citizens to embrace a religion they believe in and is not allowed to discriminate against people of different faiths. Even the first precepts that read the Almighty God is very much in accordance with the content of the Qurʼan in surah al-Ikhlāṣ which explains about monotheism which is believed by Muslims that there is only one God in the universe.
Then the second point of fair and civilized humanity means that every Indonesian citizen has freedom of human rights, so that the purpose of protecting the soul (ḥifẓ al-nafs) can be carried out property. Mutual respect and good deeds regardless of ethnicity, race and religion is one way for human relations to work in accordance with the guidance of religion and the state.
Furthermore, the third principle of the unity of Indonesia is that they want all citizens to unite and create a comfortable, safe and prosperous life. So that future life can go well and children and grandchildren can feel a better life (ḥifẓ al-nasl). The fourth precepts aims at deliberation as a middle way to solve any problems that arise. Then it takes a healthy mind to make wise and fair decisions. This is the relevance of the value of Pancasila with the preservation of the function of reason (ḥifẓ al-ʻaql). While the latter is the culmination of the four precepts, which is to realize the four precepts so that social justice for all Indonesian people can be created. This is in accordance with maqāṣid al-sharīʻah, namely guaranteeing the assets (ḥifẓ al-māl) of each individual so that social inequality does not occur which makes people dissatisfied with the government.
These are the five precepts that serve as guidelines for the lives of Indonesian citizens who are very much in accordance with maqāṣid al-sharīʻah. Both between Pancasila and maqāṣid al-sharīʻah want benefit for every individual living in Indonesia, both benefit protecting the religion (ḥifẓ al-dīn), protecting the soul (ḥifẓ al-nafs), protecting the offspring (ḥifẓ al-nasl), protecting the reason (ḥifẓ al-ʻaql) and protecting the property (ḥifẓ al-māl). 51 51 Umi Kulsum, "Konstelasi Islam Wasathiyah Dan Pancasila Serta Urgensinya Dalam Bernegara Therefore Pancasila is one of the foundations of the Indonesian state that must remain upright so that the goals of the benefit of life can be realized. The istiḥsān method acknowledges the way to the goodness as the best way. A Fair e-commerce system and Pancasila as a state foundation lead to such practicality and goodness. Hence they are permissible and legally binding. Whereas istiṣhāb postulate concludes that what is not regarded as ḥaram, remains permissible. No single Qur"anic verse regards an individual as well as social contract as ḥaram. Even it is suggested for the sake of prosperity. E-commerce is done through individual or collective contract and Pancasila is created through social deliberation. Therefore, both are permitted, suggested and are legally binding.
Istiḥsān and istiṣhāb are also applied by ʻulamāʼ of the MUI (Indonesian Ulama Council) in responding and dealing with the corona virus problem . 52 Covid-19 disease is a disease caused by a group of viruses that can be transmitted to animals or humans. This disease causes infections in the respiratory tract from the flu, cough to Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS). 53 One of these viruses can be transmitted by interacting directly with people exposed to covid-19. 54 Therefore, the government made efforts to implement social distancing and lock down to prevent the virus from spreading.
With the automatic social restrictions and lockdown of religious activities in the form of congregation which must be temporarily prohibited; including prayers. Friday prayers are not performed in congregation at the mosque. This is done for the good of the people, so that the virus can be suppressed and for the sake of the public health. Maintaining public health is good (istiḥsān), applying method to suggest and promote social involvement and to combat the spreading of Covid-19 is not prohibited. It definitely remains to be permitted (istiṣhāb).

Conclusion
From the research and understanding of some previous points, it is evident that since the time of the Prophet Muhammad there have been sources of thought on the methods of istinbāṭ of law which were only composed by the scholars long after the Prophet's passing. They were the ulamas', especially the experts of uṣūl al-fiqh who compiled the rules related to istiḥsān and istiṣhāb as model of legal reasoning associated in ʻilm al-uṣūl by referring and considering Quranic texts and the ways that had been done by the Prophet Muhammad.
From the formative years of istiḥsān and istiṣhāb, there were intensive debates of their ontology, epistemology, axiology, acceptance and refusal as methods of legal reasoning. Hanafite and Mailikite tended to be in favor of istiḥsān, whereas Shafiite refused it. However, the need to solve the actual problems, encouraged people to make use of istiḥsān and istiṣhāb, creating very little room to reject these methods.
In the Indonesian context, because of public virtues (istiḥsān) and no exact texts of prohibition of Qur"an and Hadith (istiṣhāb ibāḥah aṣliyyah) Pancasila as state basis, the 1945 constitution, democracy, the principles of pre-assumption of innocent, written document of marriage, the practice of digital transaction are well-accepted and in confirmation to Islamic law. Thus, istiḥsān and istiṣhāb as methods of legal thinking pave the wider extending ways and opportunities for legal discovery. Further research on istiḥsān and istiṣhāb could be done in order to enlarge the flexibility of Islamic law in critical and analytical perspectives.