2. Introduction
Literal escorting / companionship
Technical
Rules of law whose existence or non- existence had been
proven in the past are presumed to remain so because lack of
evidence to establish any change.
Combination
Technical meaning of istishab relates to its literal meaning in
the sense that the past accompanies the present without any
interruption or change.
Al-Qarafi (Maliki jurist)– 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 judgment and knowledge of it makes one assume that it will
continue in the future.
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 negative example
‘A’ purchases a hunting dog from ‘B’ with the proviso that it has been trained
to hunt, but ‘A’ later claims that the dog is untrained. ‘A’s claim succeeds
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.
‘C’ borrowed some money from ‘D’. After some time, ‘D’ claimed that ‘C’ has
not 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)
Nelfi Amiera Mizan
Multimedia University
3. Validity of Istishab
Shafi’i, Hanbali, Zahiri and Shi’ah Imamiyyah
accepted Istishab as a proof (they validated it) as to defend and to
confirm the original hukum
Hanafi, Maliki jurists and the Mutakallimun
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.
Extistance of something in the past cannot prove that it continues to
exist.
Shafi’e and Hanbali –
Istishab deotes a ‘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
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, even though he is considered to still be alive, he cannot inherit
from any deceased relative who died before his missing until his status is
ascertained.
Syafi’i and Hanbali –presumed alive except that a missing person is also
entitled to inherit the estate of a relative who died before him through
faraid and will.
Nelfi Amiera Mizan
Multimedia University
4. Types of Istishab
There are 4 types of Istishab namely:
• ISTISHAB AL ADAM AL-ASLI – (presumption of original absent)
Originally not in existence – Fact/rule which had not existed in the
past 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)
Example: An uneducated person is presumed to remain uneducated
until he attains educational qualifications.
Example: 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.
Example: Defect in things sold. The presumption is originally there is
no defect in the hands of the seller.
• ISTISHAB AL-WUJUD AL-ASLI – (presumption of original present)
The presence of that which is indicated by law or reason is taken for
granted.
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.
Example: 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.
ISTISHAB AL-HUKM – (continuity of rules and enactment)
It is an istishab which presumes the continuity of the general rules
and principles of the law. The permissive and prohibitory are
presumed to continue until the contrary is proved.
Nelfi Amiera Mizan
Multimedia University
5. Examples: The law on passengers’ seatbelt (rear), the law on speed
limit, The law on wearing helmet within campus, Prohibition on
smoking on campus.
ISTISHAB AL-WASF – (Continuity of attributes)
To presume continuity of attributes until contrary is established.
Example: 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
Example: When a person has 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.
Example: The legality of intimate relationship between husband and
wife based on valid marriage remains until there is evidence proving
to their separation.
Example: 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.
Nelfi Amiera Mizan
Multimedia University
6. Application of Istishab through Legal Maxims
Legal Maxims are theoretical abstractions, usually in the form of short
ethical 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.
• ‘Permissibility is the original state of things’.
- 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.
Original freedom from liability’
- Freedom from liability until the contrary is proved.
- No one is liable to punishment until his guilt is established through
lawful evidence.
- Example: A person is presumed innocent until proven otherwise
‘Certainty may not be disproved by doubt’
- The presumption cannot be set aside by doubt, but by certainty.
- 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.
- Example: 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’. 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.
Nelfi Amiera Mizan
Multimedia University
7. - Example: When a person has 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.
‘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.
- 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’
"Certainty is not removed by doubt
- Example: 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.
•
Nelfi Amiera Mizan
Multimedia University
