ISTISHAB

Group’s member: Amir Emme Nurrahim B. Abdul Rahim Noor Amira Binti Ramli Noor Effa Rizan Binti Rusdi

Group : D2BM2493A

Istishab (Presumption of continuity)

ISB 533

MEANINGISTISHA

B

Escorting, companionship,

friends , together , friendship or keep

abreast claim.

A rational proof which may be employed in the absence of other indications; specifically, those facts

or rules of law and reason, whose existence or non existence had

been proven in the past, and which are presumed to remain so for

lack of evidence to establish any change.

LITERALLY TECHNICAL

LY

The past ‘accompanies’ the

present without any interruption or

change.

MEANING

TECHNICALLY

A decision made by the mujtahid scholars who have studied something from the Quran and the Sunnah after they did

not find a single evidence that could change the rules. In such circumstances , scholars maintain that a ruling based on the existing laws as no evidence can change the law.

SHAFI’IS &

HANBALIS

“Continuation of that which is proven and the negation of that which had not existed.”

“Presumes the continuation of both the positive and the negative until the contrary is established by evidence.”

Types of Istishab

Types of

Istishab

1. Istishab Al-Adam Al-

Asli

2. Istishab Al-Wujud

Al-Asli

3. Istishab Al-Hukm

4. Istishab al-Wasf

1. Istishab Al-Adam Al- Asli

It is originally not in existence which means fact or rule which had not existed in the past. It is presume that to be non-existent until it is proved.

For example:

An uneducated person is presumed to remain uneducated person until he attains educational qualification.

A ate B’s food and he said B has given permission. B denies it. Presumption is in favour of B since orginally there is no permission. Defect in things sold, presumption is originally there is no defect in the hand of seller.

2. Istishab Al-Wujud Al-Asli

It is takes for granted the presence or existence of that which is indicated by the law or reason.

For example:A is know 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 Bas long as B’s loan to A is proven in the first place.

A husband is liable to pay his wife the dower (mahr) by virtue of the existence of a valid marriage contract.

3. Istishab Al-Hukm

It is which presumes the continuity of the general rules and the principles of the law.

It is takes for granted the continued validity of the provisions of Shariah in regards to permissibility (Halal) and Prohibition (Haram).

When there is a ruling in the law, whether permissive or prohibitory, it will presumed to continue until the contrary is proved.

For example: The law on passengers’ seatbelt (rear), The law on speed limit, the law on wearing helmet within campus and prohibition on smoking in campus.

But when there is no such ruling available, recourse will be had to the principle of it Ibahah.

For example: The hukm to eat ‘belacan’(shrimp paste) or seafood, fast and frozen food manufactured by non-muslims, Blood tranfusion and Organ donation.

Hence when the law is silent on a matter and it is not repugnant to reason it will be presumed to be permissible based on principle of Ibahah.

Continue…

Principle of Ibahah originates in the Qur’an which subjugate the earth and its resource to the welfare of man.

Sura Al-Baqarah (2:29): “ It is He who has created for you all that is in the earth” Sura Al-Jathiyah (45:13): “God has subjugated to you all that is in the heavens and in the

earth.” These Qur’anic declaration that man should be able to utilise the

resources of the world around him and his advantages which he is permitted to securing his benefit unless he is expressly prohibited.

Therefore, all objects, legal acts, contract and exchange of good and services which are beneficial to human being are lawful on the ground of permissibility or Ibahah.

Everythings that is bad and harmful is prohibited.

4. Istishab al-Wasf

It is continuity of attributes.For examples:

Presuming clean water (purity being attribute) to remain until the contrary is established to be the case for example, change of color or taste.

When a person have ablution to perform solah, the attribute of cleanliness (taharah) is presumed to continue until it is vitiated. A mere doubt that it might have been vitiated is not sufficient to nullify taharah.

ARGUMENT OF SCHOLARS

Difference opinion (dispute) can be divided into 3 scholars.

1. The opinion of the majority of Malikis,Shafi`i

s,Hanbalis school and

small part of Hanafis. They

say istishab as an argument ,

either deny or sanctions.

2. The opinion of some of the

latter Hanafis. These scholars claim that istishab as an argument to deny only but not on sanctions.

3. The opinion of the majority of

the Hanafi jurists and some of the

scholars of al-kalam. They

claim that istishab not be

considered as an argument at

all


IN THE CASE OF MISSING PERSON (mafqud)

THE QUESTION???

mainly concern with the continuity of his life

-life being the attribute


FIRST SCHOLAR ARGUMENT

A mafqud is unknown whether he is living or dead.A mafqud was alive at the time when he disappeared, he is presumed to be alive unless there is proof that he has died. He is entitled to inherit from a relative who dies, entitled to the will and the right to property that was endowed to him while he is still a mafqud.

In addition, the property in his possession is retained and can not be taken by the heirs to inherit

In the case of mafqud


Surah Al-An’am: 145


Stand their argument by:Nature of human

to punish something based

on the past as long as there are

no signs that indicate changed or been altered

Argument based on ijma’ (consensus of

scholars)

Hadith by Abu Sa'id al-Khudri,

narrated by Muslim


2nd SCHOLAR ARGUMENT

Most contemporary scholars of the

Hanafis determined

istishab as an argument for rejection, not the nature of

the designation of

a new law

Istishab is an argument to defend the rights of the existing and not be an

argument to admit that the new rights, which

rejected due to laws arising from the stipulation to the contrary with an existing

resolution .


2nd SCHOLAR ARGUEMENT

In the case of mafqud

Mafqud is unknown whether he is living or dead.A mafqud was alive at the time when he disappeared, he is presumed to be alive unless there is proof that he has died.

Retained the rights that existed before he disappeared

He will not be given a share in inheritance or bequest, although a share will be reserved for him until the facts of his life or death are established.


Common sense does not indicate the convicted rule is remains. Similarly, Islamic evidences such as the Quran , Hadith , consensus and al - qiyas not show retention of law after convict.

2nd SCHOLAR ARGUMENT

Reasons for their argument are:

Evidence only shows the conviction of the law at first upon only

and are not necessarily the first conviction at

the time of the law can be convict at second

time.

A law is necessary to the proposition from the start , as well as the law to be sustained also must have proposition. But, is not sufficient evidence to show that the law still can be use forever.


3rd SCHOLAR ARGUEMENT

They comprise the majority of the Hanafi jurists and some of the scholars of al- kalam

According to most scholars mutakallimin , they deny al - istishab as absolute argument .

This is because , they argue that there is a specific law in the past are not necessarily the existence of the eternal law in the future

Thus is a set of enduring punishment baseless and without any evidence


In addition , they argued that in Islamic jurisprudence , the alleged evidence is preferred to the denial of the alleged.

Thus, if istishab an argument of course the alleged denial preferred by istishab al - baraah al - asliyyah .

It shows that al - istishab not be practiced

Purification , halal and haram is Islamic law

Therefore, it is not convict except by a sign erected from the law.

Arguments are agreed upon by scholars of Islamic law is limited to the Quran , hadith , ijma’ , and qiyas .

Meanwhile, al- istishab not fall into that category .

Therefore, should not argue with about Islamic law.

3rd SCHOLAR ARGUEMENT

The reasons of their argument:



Opinion of scholars from among al –

Shafi’is, Hanbalis and Zahiris that

istishab is ultimately an argument for

fixing the existing law until there is

evidence to change it.

Thus, istishab an argument for getting new

rights , that it becomes an

argument for maintaining the

rights of the already existing

1. Certainty may not be disproved by doubt (al-yaqin la yazul bi’l-

shakk).

2. Generality until the general is subjected into the limitation.

3. Original freedom from liability (bara’ah al-dhimmah al-asliyyah).

4. Permissibility is the original state (al-asl fi al-ashya’ al-ibahah).

LEGAL MAXIMS FOUNDED IN ISTISHAB

Legal Maxim

Legal Maxi

m

1. Certainty may not be disproved

by doubt (Al- Yaqin La Yazul

Bi’l- Shakk)

2. Presumption of generality until the general is

subjected into the limitation.

3. Presumption of original freedom

from lialibility ( Bara’ah Al-Dhimmah Al-

Asliyyah)

4. Permissibility is the original state of things (Al-Asl fi

Al-Ashya’ Al- Ibahah)

. 1. Certainty may not be disproved by doubt (Al-

Yaqin La Yazul Bi’l- Shakk)

For example: a sane person remains sane until there is evidence that he has become insane.

The presumption can only be set aside by a CERTAINTY not by DOUBT.

Similar example: the month of Ramadhan in case of fasting.

a. Case : Eats in the early morning.b. Certainty : Nightc. Doubt : Daybreak, The possibility that he might have

eat after dawn (Subh)d. Problem : The fast remain intact or not / need to Qada’?e. Solution

i. CERTAINTy : Night.ii.DOUBT: Daybreak.

f. Istishab : Certainty overcomes doubt. The fast remain I intact and there is no need to Qada’.

Similar example: Ramadhan in case of end of fast.

Main discussion: Talaq. Page 304. Paragraph 3.

A man divorce one of his two wives but not certain which one

Maliki:

a. CERTAINTY : talaq has been pronounced.

b. DOUBT : which one?

c. istishab : both are divorced.

Majority:

a. CERTAINTY :existence of valid marriage in respect of both.

b. DOUBT : identity of the divorcee.

c. istishab : neither of the two are divorced.

2. PRESUMPTION OF GENERALITY UNTIL THE

GENERAL IS SUBJECTED INTO THE LIMITATION.

Al-Shawkani ; The rule of law in these situations is

established through the interpretation of words and

not by the applications of Istishab.

For example:

1. The Qur’anic rule which assigns to the male a

double share of the female in inheritance. (al-

Nisa,4:11). Is general

Hadith : ‘the killer does not inherit’.

2. Change of qiblah from Jurussalem to

Kaa’bah.

3.PRESUMPTION OF ORIGINAL

FREEDOM FROM LIABILITY

(BARA’AH AL-DHIMMAH AL-

ASLIYYAH).

FREEDOM FROM ANY OBLIGATIONS UNTIL THE

CONTRARY IS PROVED.

1. A person will not be punished until there is an

evidence for his guilty.

Case : A claims that B owes him Rm 50 and B

denies it.

Shafie : B bear no liability for the

settlement. Due to presumption of

original freedom from liability.

Hanafi : B is not free from liability.

4.PERMISSIBILITY IS THE

ORIGINAL STATE OF THINGS

(AL-ASL FI AL-ASHYA’ AL-

IBAHAH).

A. Ibahah (permissible) a branch of the doctrine of Istishab.

B. All matters are PERMISSIBLE unless there is a contrary that has been regulated by the Shari’ah.

C. There is only one exception to the application of Ibahah is the relationship between members of the opposite sex, where the basic norm is prohibition unless it is legalized by marriage.

BASED ON IMAM HANBALI’S DOCTRINE:

I. The norm in Ibadat is that they are void (batil) unless there is

an explicit command to validate them.

II. But in transactions and contracts is that they are valid unless

there is a nass to the contrary.

Example, Under the Hanbali doctrine of ibahah,

I. prospective spouses are free to stipulate their marriages

contract, including a condition that the husband must remain

monogamous.

But based on majority views,

II. the Lawgiver has permitted polygamy and it is not for the

individual to overrule it.

The Hanbali’s argued by saying that,

a. polygamy is PERMISSIBILITY, not a requirement;

b. there is no nass to indicate the spouses could not stipulate

against it.

Thus, the STIPULATION THEREFORE IS VALID and the

spouses are committed to abide by it.

THANK YOU

THE END

Education

ISTISHAB