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DEFINITION• Literal meaning:– escorting or continuous companionship• Technical meaning:– a rational proof which may be employed in the absenceof other indications; specifically the facts or rules of lawand reason, whose existence and non-existence that hadbeen proven in the past are presumed to remain so forlack of evidence to establish any change.
• Literal + technical meanings = the past‘accompanies’ the present without anyinterruption or change• ﺍﺴﺘﺼﺤﺎﺏ-ﻴﺴﺘﺴﺼﺤﺏ-ﺴﺘﺼﺤﺏﺍ– The ruling/state of things continues as it iswithout the existence of any proof to thecontrary.
• Ibnu al-Qayyim defines Istishab as being thecontinuation of what is established or thenegation of what does not exist i.e it is thejudgement, (negative or positive) continuesuntil there is evidence of a change of state.• This continuance is not proved by positiveevidence but by the absence of theexistence of new evidence.
• Al-Qarafi (Maliki jurist) defines it to mean:– the belief that the past or present matter mustbe assumed to remain as it is in the present orfuture.• It means that the past judgement and knowledge ofit makes one assume that it will continue in thefuture.
• Example:– Doubt arises as to whether a man is still alive ornot?– Istishab: if he is known to have been alive andthere is no news of his death – he is presumedto still be alive until there is evidence showinghis death.
– If a man marries a woman knowing that she is avirgin and then a rumour says/or he suspectsthat she is not virgin after consummation –presumption is the woman was a virgin at thetime of marriage unless evidence is shown tothe contrary.
JURISTIC VIEWS• Shafi’i, Hanbali, Zahiri and Shi’ah Imamiyyahaccepted Istishab as a proof (they validatedit)– to defend and to confirm the original hukum
• Hanafi, Maliki jurists and the Mutakallimun(theologian - a person who is skilled in ‘ilmual-kalam) do not consider Istishab as a proofin its own right– Istishab is used to defend (as a shield) existingrule/status/law but not to establish (not assword) new hukum or right.
• Juristic differences in the case of missingperson:– Hanafis: a missing person is presumed alivebased on istishab. Thus, his estate cannot yet bedistributed and his marriage cannot bedissolved. However, eventhough he isconsidered to still be alive, he cannot inheritfrom any deceased relative who died before hismissing until his status is ascertained.
– Syafi’i and Hanbali jurists: hold same view withthe hanafis (to defend) except that a missingperson is also entitled to inherit the estate of arelative who died before him through faraid andwill.
• To the Shafi’e and Hanbali jurists, Istishabdenotes:– ‘continuation of that which is proven and thenegation of that which has not existed’• In other words Istishab presumescontinuation of both the positive and thenegative until the contrary is established byevidence
The positive example• A contract of sale or a contract of marriageonce it is concluded, it is presumed toremain in force until there is a change.– The change in the transfer of ownership (forcontract of sale) and dissolution of marriage (formarriage)
• Other examples:– The class schedule– The university policy and regulations– Government policy and regulations
The negative example• ‘A’ purchases a hunting dog from ‘B’ withthe proviso that it has been trained to hunt.But then, ‘A’ claims that the dog isuntrained.• ‘A’s claim prevails under Istishab unlessthere is evidence to the contrary sinceIstishab maintains the natural state of thingswhich in the case of the dog is the absenceof training.
Other example• ‘C’ borrowed some money from ‘D’. Aftersome time ‘D’ claimed that ‘C’ haven’t paidyet the money. ‘C’ denies and said that hehad paid ‘D’.• ‘D’s claim is upheld based on istishabbecause the original state in this case is thatthere is a debt. (absence of payment)
• Based on the definition of istishab accordingto the shafi’e and hanbali jurists that is‘continuation of that which is proven andthe negation of that which has not existed’,in the case of debt just now, the thing whichis proven is the debt and the negation of it isthe payment.
APPLICABILITY OF ISTISHAB• Istishab applies only when no otherevidence is available.• It consists of a probability. Thus it is not astrong ground for the deduction of the rulesof Shari’ah.• Istishab ranks last in the order for ground offatwa. In case of conflict with another proof,the proof prevails.
• Should there be a doubt over the non-existence of something, it will be presumedto exist.• However, if the doubt is in the proof ofsomething, the presumption is that it is notproven.
• Example:– A person is missing (eg; the case of Sharlinie)– The doubt is in the proof of something that isthe possibility of her death– By istishab, the presumption will be that thedeath is not proven. Istishab will presume thatshe is still alive.
• However, if there is evidence showing to thecontrary, the evidence prevails– The killing of Nurin Jazimin
• A kills B. However, there is no proof of thecommission of the crime.• By Istishab, the presumption is A isconsidered innocent until proven guilty. Thisis based on a legal maxim that :• ﺍﻠﺬﻤﺔﺑﺮﺍﺀﺓﻷﺼﻝﺍ• ‘Original freedom from liability’
TYPES OF ISTISHABISTISHAB AL-’ADAM AL-ASLI( ﺍﻷلصﻠیﺍلعدمﺍستﺼحاب )Presumption of original absenceISTISHAB AL-WUJUD AL-ASLI( ﺍﻷلصﻠیﺍلوجودﺍستﺼحاب )Presumption of original presence)ISTISHAB AL-HUKM( ﺍلحكمﺍستﺼحاب )Presumption of continuity of thegeneral rules and principles of the lawISTISHAB AL-WASF( ﺍلولصفﺍستﺼحاب )Presumption of continuity of attributes
• ISTISHAB AL-’ADAM AL-ASLI– Originally not in existence– Fact/rule which had not existed in the past– It is presumed to be non-existent until thecontrary is proved• A child is presumed to remain a child until there is a change(attaining majority)• An uneducated person is presumed to remain uneducated untilhe attains educational qualifications.
• A trader is presumed to gain no profit unless provenotherwise (A who is a trading partner claims that hehas no profit). The presumption of absence of profitwill be in A’s favour unless B can prove otherwise.• A is in a doubt whether he has taken ablution or not.The original state is that he has no ablution. Thepresumption is he has not yet taken ablution. He hasto take ablution before he can perform solat.• A suspected offender is presumed innocent untilproven guilty.
• A ate B’s food and he said B has given permission. Bdenies it. Presumption is in favour of B since originallythere is no permission.• Defect in things sold. The presumption is originallythere is no defect in the hands of the seller.
• ISTISHAB AL-WUJUD AL-ASLI– It takes for granted the presence or existence ofthat which is indicated by the law or reason.• Example: A is known to be indebted to B. Until A canprove that he has paid the debt to B or was acquittedof the debt, the presumption is that A remainsindebted to B as long as B’s loan to A is proven in thefirst place.
• A husband is liable to pay his wife the dower (mahr)by virtue of the existence of a valid marriagecontract.– Istishab presumes the presence of liability or a right until anindication to the contrary is found.
• ISTISHAB AL-HUKM– It is an istishab which presumes the continuity ofthe general rules and principles of the law.– Istishab takes for granted the continued validityof the provisions of Shariah in regards topermissibility and prohibition (halal and haram).– The permissive and prohibitory are presumed tocontinue until the contrary is proved.
• When there is a ruling in the law, whetherprohibitory or permissive, it will bepresumed to continue until the contrary isproved.• Examples:– Food and beverages– Pre-nuptial agreement. Is it allowed?– MLM?
– Other examples:• The law on passengers’ seatbelt (rear)• The law on speed limit• The law on wearing helmet within campus• Prohibition on smoking on campus
• But when there is no such ruling available,recourse will be had to the principle ofibahah.– Examples:• The hukm to eat ‘belacan’ (shrimp paste) or seafood• The hukm to eat sea creatures or• fast and frozen food manufactured by non-Muslims?
• Blood transfusion• Organ donation• Courts procedures• The establishment of Islamic Banking Product– Eg: Sukuk,
• Hence when the law is silent on a matter andit is not repugnant to reason it will bepresumed to be permissible• This is based on the principle that Allah hassubjugate the earth and its resources to thewelfare of man
• Therefore, all objects, legal acts, contractand exchange of goods and services whichare beneficial to human being are lawful onthe ground of permissibility or ibahah.• Everything that is bad and harmful isprohibited.
• ISTISHAB AL-WASF– Continuity of attributes• Such as presuming clean water (purity being anattribute) to remain so until the contrary isestablished to be the case – change of colour or taste• When a person have an ablution to perform solah,the attributes of cleanliness is presumed to continueuntil it is vitiated.– A mere doubt is not sufficient to nullify taharah.
• The legality of intimate relationship betweenhusband and wife based on valid marriage remainsuntil there is evidence proving to their separation.• In case doubt arises as to whether the shirt or skirtthat you are wearing are still clean or are tainted withdirts/animal waste etc.
Legal Maxims for Istishab• Legal Maxims are theoretical abstractions,usually in the form of short epithicalstatements, that are expressive, often in afew words, of the goals and objectives ofthe Shariah.– They are statement of principles that are derivedfrom the detailed reading of the rules of fiqh onvarious themes.
• Maxims plays a prominent role in the judicialinterpretive process.– Procedural law– Criminal law– Transaction law– Family law
• ‘Permissibility is the original state of things’(al- asl-fi al-ashya’ al-ibahah) –• ﺍﻹﺒﺍﺤةﺍﻷﺷﯿﺍءﻔﻲﺍﻷﺼل– All matters which the Shariah has not regulatedto the contrary remains permissible.– Exception to the relationship between membersof opposite genders where the basic norm isprohibition.
– Applied in the areas of transactions andcontracts.• Eg: pre-nuptial agreement.– The Prophet says:• ﻋﻔﻮﻔﻬﻮﻋﻨﻪﺴﻜﺖﻮﻤﺎﺤﺮﺍﻢﻔﻬﻮﺤﺮﻢﻮﻤﺎﺤﻼﻞﻔﻬﻮﺍﻟﻟﻪﺍﺤﻞﻤﺎ
• ‘Original freedom from liability’ (al-aslbara’ah al-dhimmah) – ﺍﻠﺬﻤةبﺮآءةﺍﻷﺼل– Freedom from liability until the contrary isproved.• No one is liable to punishment until his guilt isestablished through lawful evidence.• A person is presumed innocent until provenotherwise
• ‘Certainty may not be disproved by doubt’( بﺎﻟششكﯿﺯولﻻﺍﻟﯿقﯿشن ) - (al-yaqin la yazul bil as-shak)– The presumption cannot be set aside by doubt,but by certainty.
• Examples:– When someone is known to be sane, he will bepresumed such until it is established that he hasbecome insane.• The presumption can only be set aside with certaintynot by mere doubt.
– When a person eats in the early morning duringramadhan while in doubt as to the possibilitythat he might have eaten after dawn.• His fast remains intact and no need for qada’(replacement)– In this case certainty refers to ‘night’ and doubtrefers to ‘daybreak’.
– However, if the doubt is as whether it is alreadysunset or not, if he break his fast and later hegot to know that it is not yet sun set then hisfast is vitiated and a belated performance(qada’) would be required in compensation.– Certainty here is the daytime which is presumedto continue while the onset of the night is indoubt (that it is already sun set is doubtful)
– The case of a husband who pronounced talaq tohis wife but he is in doubt as to the preciseterms of his pronouncement whether itamounted to a single or triple talaq.• Majority jurists – only one talaq takes place– Certainty is ‘marriage’ which would continue until itsdissolution is established by evidence.– Doubt is ‘the pronouncement of talaq’– The doubt cannot disprove the certainty
• Imam Malik – triple talaq takes place.• The ‘certainty’ is divorce• The doubt is ‘the right of the husband to therevocation of the talaq’.• The right to revocation cannot be established by amere doubt.– Hence the husband has no right to revocation – the divorceis final – triple talaq takes place.
– A man divorces one of his two wives – notcertain which one?– According to Maliki jurists certainty is that atalaq has been pronounced and the doubt is asto the identity of the divorcee– Based on istishab both is divorced – certaintymust prevail over doubt.
– According to majority – the certainty isexistence of valid marriage for both and thedoubt is identity of the divorcee.– The doubt will not prevail over the certainty– Neither of the two are divorced.
Other legal maxims• ‘The generality is continued until it is put tolimitation’.– A general text remains general until it isspecified or abrogated.– Some jurists claim that the rule of law in thissituation is to be established through theinterpretation of words and not by theapplication of istishab.
• Example:– The rule in the Quran that to the male a doubleshare of the female in inheritance is general andwould have remained so if it were not qualifiedby the hadith that ‘the killer does not inherit’
• "Things are assumed to be now as they havebeen" (ibqa’ ma kana ‘ala ma kana).• For example, you assume that someone isstill alive now unless you have hearddefinitively that he is dead (in inheritancecases, for example). This, the presumptionof continuity, is also known by the termistishab.
• "Certainty is not removed by doubt" (al-yaqinla yurfa‘u bi-l-shakk).– Points coming under this category include: assuming youhave only done three rak‘as if you are not sure whetheryou have done three or four; and– having a claimant produce two witnesses for his claimand, if not, letting the defendant make an oath thatwhat is being claimed from him is his own and not theclaimants.
• Al-Umur bi maqasidiha- all matters of ‘ibadahand ‘adah rely their validity and effect ontheir intention.• Al-Darar yuzal- the damage is neither inflictednor tolerated.• Al-Masyaqqah Tajlib al-Taysir- hardship causesthe giving of facility. (hardship begetsfacility)
• Al-Dharar yuzal walaakin la bi-al-dharar.• “Harm must be eliminated but not by meansof another harm”• Al-dharar la yuzal bil dharar- harm is noteliminated by another harm• Yuzal al-dharar al-asyadd bi al-dharar al-akhaf– a greater harm is eliminated by means of alesser harm.
• Al-dharurah tubiihul-almahzurat- necessitymakes the unlawful lawful• Al-dharurah tuqaddiru biqadriha- necessity ismeasured in accordance with its trueproportions.
• There are certain other general principles ofwhich one needs to be aware. We havealready mentioned preferring the preventionof harm to the gain of benefit, and also thelesser of two evils. Other legal maximsinclude:
• (i) "Harm is to be removed" (al-darar yuzalu), inaccordance with the hadith "There should be noharm nor reciprocating harm".• Examples include: returning what has been takenunjustly along with liability for any loss or damage;and preventing someone from doing what willcause harm to his neighbour.
• (ii) "Difficulty allows ease" (al-mashaqqatajlibu l-taysir). Allah says: "He has not putany constraint on you as far as the din isconcerned" (Q.22:78).• For example, if using water causes or is likelyto cause harm, you do tayammum instead ofwudu’.
• Likewise, a sick person doesnt have to fast.Allah says: "And whoever among you is ill, oron a journey, [should fast] a [similar]number of other days. Allah wishes ease foryou and does not wish difficulty for you"(Q.2:185).
• Some people use the above-mentioned ayatabout no constraint in the din to allowthemselves to do what they want, but that isnot the correct tafsir of it in this context.Rather, what is meant here are thoseinstances where there is serious rather thanslight difficulty (since there may of course bedifferent degrees of difficulty).
• Slight difficulty, for example, would begetting up in the morning and having to usevery cold water to do wudu’ with: it mightcause you discomfort, but it doesnt harmyou. It becomes serious, though, if usingwater either causes illness, or increases it, orprevents one from being cured.
• (v) Some mention a fifth rule, which is that "Thingsare [judged] according to the intentions behindthem", which is based on the hadith "Actions are byintentions [or "are according to intention"], andevery man gets what he intends." Thus, forexample, the actions of wudu’ alone are not validunless they are accompanied by the intention ofdoing wudu’.
Conclusion• Istishab is applicable either in the absence ofother proofs or as a means of establishingthe relevance of the existing proof.• Istishab is a principle of evidence as it ismainly concerned with the establishment orrebuttal of fact and evidence.