2. DEFINITION
• Literal meaning:
– escorting or continuous companionship
• Technical meaning:
– a rational proof which may be employed in the absence
of other indications; specifically the facts or rules of law
and reason, whose existence and non-existence that had
been proven in the past are presumed to remain so for
lack of evidence to establish any change.
3. • Literal + technical meanings = the past
‘accompanies’ the present without any
interruption or change
• ﺍﺴﺘﺼﺤﺎﺏ-ﻴﺴﺘﺴﺼﺤﺏ-ﺴﺘﺼﺤﺏﺍ
– The ruling/state of things continues as it is
without the existence of any proof to the
contrary.
4. • Ibnu al-Qayyim defines Istishab as being the
continuation of what is established or the
negation of what does not exist i.e it is the
judgement, (negative or positive) continues
until there is evidence of a change of state.
• This continuance is not proved by positive
evidence but by the absence of the
existence of new evidence.
5. • Al-Qarafi (Maliki jurist) defines it to mean:
– the belief that the past or present matter must
be assumed to remain as it is in the present or
future.
• It means that the past judgement and knowledge of
it makes one assume that it will continue in the
future.
6. • Example:
– Doubt arises as to whether a man is still alive or
not?
– Istishab: if he is known to have been alive and
there is no news of his death – he is presumed
to still be alive until there is evidence showing
his death.
7. – If a man marries a woman knowing that she is a
virgin and then a rumour says/or he suspects
that she is not virgin after consummation –
presumption is the woman was a virgin at the
time of marriage unless evidence is shown to
the contrary.
8. JURISTIC VIEWS
• Shafi’i, Hanbali, Zahiri and Shi’ah Imamiyyah
accepted Istishab as a proof (they validated
it)
– to defend and to confirm the original hukum
9. • Hanafi, Maliki jurists and the Mutakallimun
(theologian - a person who is skilled in ‘ilmu
al-kalam) do not consider Istishab as a proof
in its own right
– Istishab is used to defend (as a shield) existing
rule/status/law but not to establish (not as
sword) new hukum or right.
10. • Juristic differences in the case of missing
person:
– Hanafis: a missing person is presumed alive
based on istishab. Thus, his estate cannot yet be
distributed and his marriage cannot be
dissolved. However, eventhough he is
considered to still be alive, he cannot inherit
from any deceased relative who died before his
missing until his status is ascertained.
11. – Syafi’i and Hanbali jurists: hold same view with
the hanafis (to defend) except that a missing
person is also entitled to inherit the estate of a
relative who died before him through faraid and
will.
12. • To the Shafi’e and Hanbali jurists, Istishab
denotes:
– ‘continuation of that which is proven and the
negation of that which has not existed’
• In other words Istishab presumes
continuation of both the positive and the
negative until the contrary is established by
evidence
13. The positive example
• A contract of sale or a contract of marriage
once it is concluded, it is presumed to
remain in force until there is a change.
– The change in the transfer of ownership (for
contract of sale) and dissolution of marriage (for
marriage)
14. • Other examples:
– The class schedule
– The university policy and regulations
– Government policy and regulations
15. The negative example
• ‘A’ purchases a hunting dog from ‘B’ with
the proviso that it has been trained to hunt.
But then, ‘A’ claims that the dog is
untrained.
• ‘A’s claim prevails under Istishab unless
there is evidence to the contrary since
Istishab maintains the natural state of things
which in the case of the dog is the absence
of training.
16. Other example
• ‘C’ borrowed some money from ‘D’. After
some time ‘D’ claimed that ‘C’ haven’t paid
yet the money. ‘C’ denies and said that he
had paid ‘D’.
• ‘D’s claim is upheld based on istishab
because the original state in this case is that
there is a debt. (absence of payment)
17. • Based on the definition of istishab according
to the shafi’e and hanbali jurists that is
‘continuation of that which is proven and
the negation of that which has not existed’,
in the case of debt just now, the thing which
is proven is the debt and the negation of it is
the payment.
18. APPLICABILITY OF ISTISHAB
• Istishab applies only when no other
evidence is available.
• It consists of a probability. Thus it is not a
strong ground for the deduction of the rules
of Shari’ah.
• Istishab ranks last in the order for ground of
fatwa. In case of conflict with another proof,
the proof prevails.
19. • Should there be a doubt over the non-
existence of something, it will be presumed
to exist.
• However, if the doubt is in the proof of
something, the presumption is that it is not
proven.
20. • Example:
– A person is missing (eg; the case of Sharlinie)
– The doubt is in the proof of something that is
the possibility of her death
– By istishab, the presumption will be that the
death is not proven. Istishab will presume that
she is still alive.
21. • However, if there is evidence showing to the
contrary, the evidence prevails
– The killing of Nurin Jazimin
22. • A kills B. However, there is no proof of the
commission of the crime.
• By Istishab, the presumption is A is
considered innocent until proven guilty. This
is based on a legal maxim that :
• ﺍﻠﺬﻤﺔﺑﺮﺍﺀﺓﻷﺼﻝﺍ
• ‘Original freedom from liability’
23. TYPES OF ISTISHAB
ISTISHAB AL-’ADAM AL-ASLI
( ﺍﻷلصﻠیﺍلعدمﺍستﺼحاب )
Presumption of original absence
ISTISHAB AL-WUJUD AL-ASLI
( ﺍﻷلصﻠیﺍلوجودﺍستﺼحاب )
Presumption of original presence
)
ISTISHAB AL-HUKM
( ﺍلحكمﺍستﺼحاب )
Presumption of continuity of the
general rules and principles of the law
ISTISHAB AL-WASF
( ﺍلولصفﺍستﺼحاب )
Presumption of continuity of attributes
24. • 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 the
contrary 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 until
he attains educational qualifications.
25. • A trader is presumed to gain no profit unless proven
otherwise (A who is a trading partner claims that he
has no profit). The presumption of absence of profit
will 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. The
presumption is he has not yet taken ablution. He has
to take ablution before he can perform solat.
• A suspected offender is presumed innocent until
proven guilty.
26. • A ate B’s food and he said B has given permission. B
denies it. Presumption is in favour of B since originally
there is no permission.
• Defect in things sold. The presumption is originally
there is no defect in the hands of the seller.
27. • ISTISHAB AL-WUJUD AL-ASLI
– It takes for granted the presence or existence of
that which is indicated by the law or reason.
• Example: A is known to be indebted to B. Until A can
prove that he has paid the debt to B or was acquitted
of the debt, the presumption is that A remains
indebted to B as long as B’s loan to A is proven in the
first place.
28. • A husband is liable to pay his wife the dower (mahr)
by virtue of the existence of a valid marriage
contract.
– Istishab presumes the presence of liability or a right until an
indication to the contrary is found.
29. • ISTISHAB AL-HUKM
– It is an istishab which presumes the continuity of
the general rules and principles of the law.
– Istishab takes for granted the continued validity
of the provisions of Shariah in regards to
permissibility and prohibition (halal and haram).
– The permissive and prohibitory are presumed to
continue until the contrary is proved.
30. • When there is a ruling in the law, whether
prohibitory or permissive, it will be
presumed to continue until the contrary is
proved.
• Examples:
– Food and beverages
– Pre-nuptial agreement. Is it allowed?
– MLM?
31. – 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
32. • But when there is no such ruling available,
recourse will be had to the principle of
ibahah.
– 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?
33.
34. • Blood transfusion
• Organ donation
• Courts procedures
• The establishment of Islamic Banking Product
– Eg: Sukuk,
35. • Hence when the law is silent on a matter and
it is not repugnant to reason it will be
presumed to be permissible
• This is based on the principle that Allah has
subjugate the earth and its resources to the
welfare of man
36. • Therefore, all objects, legal acts, contract
and exchange of goods and services which
are beneficial to human being are lawful on
the ground of permissibility or ibahah.
• Everything that is bad and harmful is
prohibited.
37. • ISTISHAB AL-WASF
– Continuity of attributes
• Such as presuming clean water (purity being an
attribute) to remain so until the contrary is
established 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 continue
until it is vitiated.
– A mere doubt is not sufficient to nullify taharah.
38. • The legality of intimate relationship between
husband and wife based on valid marriage remains
until there is evidence proving to their separation.
• In case doubt arises as to whether the shirt or skirt
that you are wearing are still clean or are tainted with
dirts/animal waste etc.
39. Legal Maxims for Istishab
• Legal Maxims are theoretical abstractions,
usually in the form of short epithical
statements, that are expressive, often in a
few words, of the goals and objectives of
the Shariah.
– They are statement of principles that are derived
from the detailed reading of the rules of fiqh on
various themes.
40. • Maxims plays a prominent role in the judicial
interpretive process.
– Procedural law
– Criminal law
– Transaction law
– Family law
41. • ‘Permissibility is the original state of things’
(al- asl-fi al-ashya’ al-ibahah) –
• ﺍﻹﺒﺍﺤةﺍﻷﺷﯿﺍءﻔﻲﺍﻷﺼل
– All matters which the Shariah has not regulated
to the contrary remains permissible.
– Exception to the relationship between members
of opposite genders where the basic norm is
prohibition.
42. – Applied in the areas of transactions and
contracts.
• Eg: pre-nuptial agreement.
– The Prophet says:
• ﻋﻔﻮﻔﻬﻮﻋﻨﻪﺴﻜﺖﻮﻤﺎﺤﺮﺍﻢﻔﻬﻮﺤﺮﻢﻮﻤﺎﺤﻼﻞﻔﻬﻮﺍﻟﻟﻪﺍﺤﻞﻤﺎ
43. • ‘Original freedom from liability’ (al-asl
bara’ah al-dhimmah) – ﺍﻠﺬﻤةبﺮآءةﺍﻷﺼل
– Freedom from liability until the contrary is
proved.
• No one is liable to punishment until his guilt is
established through lawful evidence.
• A person is presumed innocent until proven
otherwise
44. • ‘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.
45. • Examples:
– When someone is known to be sane, he will be
presumed such until it is established that he has
become insane.
• The presumption can only be set aside with certainty
not by mere doubt.
46. – When a person eats in the early morning during
ramadhan while in doubt as to the possibility
that he might have eaten after dawn.
• His fast remains intact and no need for qada’
(replacement)
– In this case certainty refers to ‘night’ and doubt
refers to ‘daybreak’.
47. – However, if the doubt is as whether it is already
sunset or not, if he break his fast and later he
got to know that it is not yet sun set then his
fast is vitiated and a belated performance
(qada’) would be required in compensation.
– Certainty here is the daytime which is presumed
to continue while the onset of the night is in
doubt (that it is already sun set is doubtful)
48. – The case of a husband who pronounced talaq to
his wife but he is in doubt as to the precise
terms of his pronouncement whether it
amounted to a single or triple talaq.
• Majority jurists – only one talaq takes place
– Certainty is ‘marriage’ which would continue until its
dissolution is established by evidence.
– Doubt is ‘the pronouncement of talaq’
– The doubt cannot disprove the certainty
49. • Imam Malik – triple talaq takes place.
• The ‘certainty’ is divorce
• The doubt is ‘the right of the husband to the
revocation of the talaq’.
• The right to revocation cannot be established by a
mere doubt.
– Hence the husband has no right to revocation – the divorce
is final – triple talaq takes place.
50. – A man divorces one of his two wives – not
certain which one?
– According to Maliki jurists certainty is that a
talaq has been pronounced and the doubt is as
to the identity of the divorcee
– Based on istishab both is divorced – certainty
must prevail over doubt.
51. – According to majority – the certainty is
existence of valid marriage for both and the
doubt is identity of the divorcee.
– The doubt will not prevail over the certainty
– Neither of the two are divorced.
52. Other legal maxims
• ‘The generality is continued until it is put to
limitation’.
– A general text remains general until it is
specified or abrogated.
– Some jurists claim that the rule of law in this
situation is to be established through the
interpretation of words and not by the
application of istishab.
53. • Example:
– The rule in the Quran that to the male a double
share of the female in inheritance is general and
would have remained so if it were not qualified
by the hadith that ‘the killer does not inherit’
54. • "Things are assumed to be now as they have
been" (ibqa’ ma kana ‘ala ma kana).
• For example, you assume that someone is
still alive now unless you have heard
definitively that he is dead (in inheritance
cases, for example). This, the presumption
of continuity, is also known by the term
istishab.
55. • "Certainty is not removed by doubt" (al-yaqin
la yurfa‘u bi-l-shakk).
– Points coming under this category include: assuming you
have only done three rak‘as if you are not sure whether
you have done three or four; and
– having a claimant produce two witnesses for his claim
and, if not, letting the defendant make an oath that
what is being claimed from him is his own and not the
claimant's.
56. • Al-Umur bi maqasidiha- all matters of ‘ibadah
and ‘adah rely their validity and effect on
their intention.
• Al-Darar yuzal- the damage is neither inflicted
nor tolerated.
• Al-Masyaqqah Tajlib al-Taysir- hardship causes
the giving of facility. (hardship begets
facility)
57. • Al-Dharar yuzal walaakin la bi-al-dharar.
• “Harm must be eliminated but not by means
of another harm”
• Al-dharar la yuzal bil dharar- harm is not
eliminated by another harm
• Yuzal al-dharar al-asyadd bi al-dharar al-akhaf
– a greater harm is eliminated by means of a
lesser harm.
58. • Al-dharurah tubiihul-almahzurat- necessity
makes the unlawful lawful
• Al-dharurah tuqaddiru biqadriha- necessity is
measured in accordance with its true
proportions.
59. • There are certain other general principles of
which one needs to be aware. We have
already mentioned preferring the prevention
of harm to the gain of benefit, and also the
lesser of two evils. Other legal maxims
include:
60. • (i) "Harm is to be removed" (al-darar yuzalu), in
accordance with the hadith "There should be no
harm nor reciprocating harm".
• Examples include: returning what has been taken
unjustly along with liability for any loss or damage;
and preventing someone from doing what will
cause harm to his neighbour.
61. • (ii) "Difficulty allows ease" (al-mashaqqa
tajlibu l-taysir). Allah says: "He has not put
any constraint on you as far as the din is
concerned" (Q.22:78).
• For example, if using water causes or is likely
to cause harm, you do tayammum instead of
wudu’.
62. • Likewise, a sick person doesn't have to fast.
Allah says: "And whoever among you is ill, or
on a journey, [should fast] a [similar]
number of other days. Allah wishes ease for
you and does not wish difficulty for you"
(Q.2:185).
63. • Some people use the above-mentioned ayat
about no constraint in the din to allow
themselves to do what they want, but that is
not the correct tafsir of it in this context.
Rather, what is meant here are those
instances where there is serious rather than
slight difficulty (since there may of course be
different degrees of difficulty).
64. • Slight difficulty, for example, would be
getting up in the morning and having to use
very cold water to do wudu’ with: it might
cause you discomfort, but it doesn't harm
you. It becomes serious, though, if using
water either causes illness, or increases it, or
prevents one from being cured.
65. • (v) Some mention a fifth rule, which is that "Things
are [judged] according to the intentions behind
them", which is based on the hadith "Actions are by
intentions [or "are according to intention"], and
every man gets what he intends." Thus, for
example, the actions of wudu’ alone are not valid
unless they are accompanied by the intention of
doing wudu’.
67. Conclusion
• Istishab is applicable either in the absence of
other proofs or as a means of establishing
the relevance of the existing proof.
• Istishab is a principle of evidence as it is
mainly concerned with the establishment or
rebuttal of fact and evidence.
