Istishab Draft Assignment

ISTISHAB

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INTRODUCTION There are two main sources in Shariah law, which are, primary

sources and secondary sources. As we know, the source of law that we primarily depend are the Al-Qur’an and Al-Sunnah. Meanwhile, the secondary sources include Ijma’, Qiyas, Istihsan, Maslahah Mursalah, Urf, Istishab, and so forth. Some scholars accept the secondary sources as the source of Shariah while other scholars reject them because there are element of human reasoning behind it. In this group project, we will discuss more about Istishab. Istishab literary means companionship. In the terminology of Islamic jurisprudence, istishab means legal presumption or presumption of existence or non-existence of facts. It can be used in the absence of other evidences. Istishab presumes continuation of a fact until the contrary is proved. Because of its basis in probability, istishab is not a strong ground for presumption of the rules of the Shari’ah. Hence, when it comes in conflict with evidence the latter takes priority. In the terms of etymology, istishab can be defined as togetherness. The various Scholars have provide several different formulation in defining Istishab and below is the expression of scholars towards Istishab. i.

According to asy-syaukan : The existence of the law of a problem

ii.

in the past remain valid in present and in the future. According to ibnu qayy im al-jauziyyah : Establish whatever set out and negate what was previously nothing. Istishab is one of Shariah law’s source that is very interesting to discuss. The complexity in Istishab mechanism lead to several

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assumptions between scholars but it indeed acceptable to be a guidance as it has a divine element as well as it is a part of human reasoning (Ijtihad).

2.0 TYPES OF ISTISHAB

Istishab Al ‘Adam Al ‘Asli

Istishab Al-Wasf

TYPES OF ISTISHAB

Istishab al-Wujud al-Asli

Istishab Al-hukm

DIAGRAM 1

As shown at the Diagram 1 above, there are four type of istishab. The first type of istishab is istishab Al ‘Adam Al ‘Asli (presumption of original absence) which means that a fact or rule which had not existed in the past is presumed to be non-existent. This basically means that a person is free from the burden of law, unless there is a law burden on the person. For example a person is free from the obligation of Syawal fasting, because there are no arguments that require it. Another example, every person is presumed to be innocent (free from liability) until the contrary is established by evidence or proved. The second type of istishab is Istishab al-wujud al-asli that is closely related with presumption of original presence. This means that the 2

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presence of that which is indicated by law or reason is taken for granted. For example, if a marriage is contracted, it is valid until its annulment (by divorce for instance) is recognized. Another example is a husband is responsible to pay his wife such a dower or ‘mahr’ by virtue of existence of a valid marriage contract. Istishab al-hukm (continuity of rules and enactments) is the third type of istishab. It presumes the continuity of general rules and principle of law. For instance when there is a ruling in the law whether prohibitory or permissive, it will be presumed to continue. For example, blood and organ donation, the hukm of eating belacan (Shrimp paste), the establishment of Islamic Banking product, that is Sukuk and so on. The forth type of istishab is istishab al-wasf (continuity of attribute) which means to presume continuity of an attribute until the contrary is established. For example, a guarantor remains responsible for the debt of which he is guarantor until he or the debtor pays it or when the creditor acquits him from payment. Another example is when a person have an ablution to perform solah, the attributes of cleanliness is presumed to continue until it is vitiated. Istishab also based on the permanent nature of which is unknown. Similarly, pure water still considered clean and pure as long as there is no evidence that change the status.

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3.0 PILLARS OF ISTISHAB There are 4 pillars of istishab which is the condition are required to go into effect of past certainty, doubt in continuity, unity of the proposition concerning the thing known and the thing doubted and that the state of affairs assumed to be continued has a legal effect. The first pillar which is past continuity whereas defines as the person must have certainty about the past state of affairs. This does not necessarily mean that they must have actual, epistemological certainty. The past state of affairs must be confirmed either by direct certainty, or by some evidence that is assigned legal value in Islamic law. For example, if two just witnesses (whose testimony is accepted in Islamic law) bore witness that a piece of clothing was ritually clean, and then a third person doubts if the thing is still clean, they would still assume that it is clean.

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Secondly, doubt in continuity where the person must be in doubt about the continuity of the state of affairs. Istishab is an apparent ruling, meaning that it is a ruling that only operates when a person is in doubt. Following the previous example, if the person knew that their clothes were ritually clean and knows that they are no longer ritually clean, then there is no space for this principle to operate. It is also necessary that the time of doubt be connected to the time of certainty; if one had certainty their clothes were ritually pure, and then knew they weren't, and then doubted if the clothes were still ritually impure, they could not use istishab of the original state of ritual purity. Thirdly, unity of the proposition concerning the thing known and the thing doubted which is the state of affairs that was known before must be the same state of affairs that is doubted know. For example, a person knows that the clothes owned by Zayd are ritually pure, and he doubts if the clothes owned by 'Amr are ritually pure. There is no place for istishab here, since the thing that was known and the thing that is doubted are separate. The proposition must be the same, such as the proposition "Zayd's clothes are ritually pure." That proposition must be known to be true previously, and that same proposition has to be doubted now, for istishab to be applied and for Zayd's clothes to be still ruled ritually pure. Lastly, that the state of affairs assumed to be continued has a legal effect which is define as istishab only applies in legal matters. If one knows, for example, that Zayd was wearing a green shirt today, and then one doubt if he is still wearing a green shirt, istishab would not apply, 5

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as there is no legal relevance to him wearing a green shirt. This is important, because most scholars of usul al-fiqh will argue that one cannot use istishab unless the state of affairs that one will assume is still continuing on the basis of istishab has direct legal value. For example, let us say that we have a large container of water in a house, large enough that it does not become impure by coming in contact with impurity which called as kurr. The house is locked and nobody else can come in. We then start to doubt if some of the water has evaporated, and whether or not that water is still of such a quantity that it does not become ritually impure by coming in contact with impurities. We go into the house and we realize we don't know where the water is. We search and we eventually find a container of water. Rationally, since we know that nobody else has come into the house and there's no possible way that somebody could have brought another container of water in, we would assume that this is the same water. By istishab, we would assume that it is still kurr, and so it would not become impure if it came in contact with something impure. However, the assumption that this is the same water is based on reason, and not based on any legal evidence. For us to do istishab of the previous water being kurr, we have to make this rational assumption. But because the thing that one is doing istishab with must have a direct legal effect, 'without recourse to a rational intermediary such as the one in the previous example. In other words, the legal effect of istishab has to be applied directly, without any kind of rational intermediary.

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4.0 PRINCIPLE OF ISTISHAB Presumption Of Continuity This is one of the fundamental principles of legal deduction, even if it does not have wide latitude like other principles. Ibn al-Qayyim defined it as being the continuation of what is established or the negation of what does not exist. For example, 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. Al-Qarafi defined it istishab means the belief that the past or present matter must be assumed to remain as it is in the present or future. This means that the past judgment and the knowledge of it make one assume that it will continue in the future, like the one for whom ownership is affirmed by something like purchase or inheritance. So ownership continues until there exists something to negate it. It is also like someone who is known to be alive at a specific time. It remains probable that he is still alive until evidence is established to the contrary and something establishes his death. So an absent person is judged to be alive until there is something to indicate he has died and then the qadi judges him to be dead. Al-Qarafi said that Istishab was considered a proof by Malik as well as the Shafi'i, al-Muzani. He mentioned that he differed from the Hanafis in that. Al-Qarafi mentioned that the Hanafis differ from the Malikis in that and some of them do not consider istishab to be a proof in its own right. 7

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However presumption of innocence is a firm principle which is relied on. It is like that when ownership is affirmed. It only ceases by an eliminating cause. All of this is involves the presumption of the continuation of the state. So most Hanafis who disagree with them say that continuation of the state is a defensive proof and not evidence of affirmation. Some scholar defines istishab into two categories which is presumption of innocence and the continuity of the attribute. Presumption of innocence is the continuance of inviolability until there is evidence which establishes a right, like the state of the one who denies a claim while continuity of the attribute is define as a judgement continues until its opposite is affirmed. In conclusion, is summary of the position is that Malik, , used istishab as a proof and al-Qarafi, Ibn al-Qayyim, and others postulated a difference between him and the Hanafis, but the one who studies the secondary rulings of the two schools will find that both of them do not differ much from one other in the nature of the proof of istishab and the amount in which it is used as evidence. You will see that they are unified in the principle of istishab regarding the life of someone who is missing and make it affirm what was affirmed first but it does not establish a new right. They differ from ash-Shafi’i in that.

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5.0 CLASSIFICATION OF ISTISHAB Scholars have differed about how to classify istishab. It has been mentioned that istishab can be classified into two that An Asl and An amarah. Below is the explanation on what is An Amarah and An Asl.

i.

An asl : An asl is a hukm zahiri that is not based on probability. An example would be the principle that everything is ritually pure until proven otherwise. Obviously, most things are not always ritually pure; the probability has nothing to do with it, but rather the rule is made in order to give ease to people in their daily religious lives.

ii.

An amarah : An immarah is a hukm zahiri that operates on the basis of probability. The legal value of a reliable person's report is considered an immarah, since it operates under the assumption that reliable people normally give reliable reports. 9

ISTISHAB

6.0 THE DIFFERENCE OF JURIST VIEWS AND SAMPLE CASE OF ISTISHAB There are two kind of juristic view towards Istishab. First view is accepted Istishab as a proof, and and thisone view is supported by individuals Imam Shafi’i Mr. Aiman is a successful entrepreneur of the most influential in Malaysia. He is Zahiri a founder of luxurious clothing retail company, named the “Hi-Fashion”. Imam Hanbali, and Shi’ah Imamiyyah, meanwhile, second He view about USD5Istishab billion in as earning a year.in Heits alsoown owned 4 starThis hotelsmean, around Istishab the world is do gains not consider a proof right. located at Seoul, Tokyo, Ho Chi Minh, New York, and London. Recently, he head established

solely used to defend existing rule, status and law but not to establish a co-operative partnership with Dato’ Seri Vida to launch a new cosmetic product. He also

new hukm or right. The second view is supported by Imam Hanafi, Imam owned 10 percent of shares in Petronas, the oil and gas leading company in Malaysia. He

Maliki and the Mutakallimun, who is skilled in ‘Ilmu al-kalam.

already married with a Korean woman, named Park Min Young and have two kids. One day,

To illustrate the difference juristic views towards Istishab, we provide

Mr Aiman need to attend a business trip to Shanghai, China and the flight, that is, MH370 that

a case as a sample for a better understanding:

he took is being missing from the radar and cannot be traced. There are so many speculation arises. The Malaysian believed that the flight is being hijacked by the terrorist and some of them believed that the flight faced some technical problem and falling into the sea. There is no one can confirm what happened exactly to that MH370. Two years have passed and there 10 is no latest news about that incident. In this case, we can assume Mr. Aiman is a missing person.

ISTISHAB

According to Hanafi Scholar, a missing person, that is, Mr. Aiman is presumed alive based on Istishab. Thus, his properties and wealth cannot yet be distributed and the relationship between him and his wife cannot be dissolved. However, eventhough he is assumed to still be live, he absolutely cannot inherent from any deceased relatives who died before his missing until his status whether he still or not is confirmed. Imam Shafi’i and Hanbali jurists shared a same view with the Hanafi Scholar, except, that a missing person is also have a right to the inherit the property of a relative who died before his missing through faraid and will.

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To sum up, for the Shafi’i and Hanbali jurists, Istishab denotes a continuation of that which is proven and the negation of that which has not existed.

CONCLUSION In a nutshell, Shariah refers to a set of rules and regulations that governing the lives of muslim. Shariah isn’t only symbolized worship, morals and conduct, but, it embraces the political, social and economic as well. Shariah is surely perfect as it comes from a various sources that have elements of divine in nature that is primary and secondary sources including Istishab. Istishab mainly concerned with the establishment or 12

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objection of fact and evidence. Although there are scholars who refuse to accept Istishab as a sources of Shariah, it’s still relevance and believable as it contains element of divine and Ijtihad. This kind of Shariah source is applicable either in the absence f other proofs or as a means establishing the relevance of the existing proof. It also mainly concerned with the establishment or rebuttal of fact and evidence.

References Ahmad, A. U. (2010). Theory and practice of modern in Islamic. Florida: Brown Walker Press. Azkiah, H. (2016, Jun 13). Retrieved from Academia Web site: 13

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http://www.academia.edu/11733442/Istishab Hashim Kamali. (2004). Principles of islamic jurisprudence. Retrieved November 15, 2016, from https://thequranblog.files.wordpress.com/2010/04/istishab.pdf Mukhlis, H. (2014, Jun). Retrieved from SlideShare Web site: http://www.slideshare.net/HabibJoelAlMukhlis/istishab-34370091 Syariffudin, A. (2011, March 22). Ushul Fiqh Jilid 2. Jakarta: Kencana. Retrieved from http://arizaekky.blogspot.my/2013/03/istishab.html The Shipedia. (2012, February 18). Retrieved November 14, 2016, from A Shiah Islamic : http://www.theshiapedia.com/index.php?title=Istishab The System Of Ijtihad. (2016). Retrieved November 14, 2016, from Al Islam : https://www.al-islam.org/introduction-islamic-shariah-sayyid-muhammadrizvi/system-ijtihad Zahrah, M. A. (n.d.). The Fundamental Principles of Imam Malik's Fiqh. Retrieved November 14, 2016, from International Islamic University Malaysia: http://www.iium.edu.my/deed/lawbase/maliki_fiqh/index.html

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