ISTISHAB

(PRESUMPTION OF
CONTINUITY)
 Literal : companionship
 Technical : facts or rules of law and reasons, whose
existence or non- existence had been proven in the
past are presumed to remain so for lack of evidence to
establish any change.
 Literal + technical meanings = the past ‘accompanies’
the present without any interruption or change •
 The ruling/state of things continues as it is without the
.existence of any proof to the contrary
 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.
 • 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.
 Eg : 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 will be acceptable under Istishab unless there is evidence to
the contrary. For Istishab maintains the natural state of things,
which in the case of animals is the absence of training.
 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.
 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.
Shafies & Hanbalis validated Istishab.
Hanafis & Malikis rejected the idea as an
existence of s’thing in the past cannot prove that
it continues to exist.
 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.
 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.
 • 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.
 However, if there is evidence showing to the contrary, the evidence
prevails – The missing and killing of Nurin Jazmin
 1. Istishab Al Hukm: which presumes the continuity of the
general rules & principles of the law.
 2. Istishab Al ‘Adam Al Asli : The presumption of original
absence which means that a fact or rule of law which has not
existed in the past is presumed to be non-existent until the
contrary is proved.
 3. Istishab Al Wujud Al Asli: The presumption of original
presence.
 4. Istishab Al Wasf: Continuity of attributes such as the
presumption that a missing person is still alive.
 1. 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.
 • 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
 • But when there is no such ruling available, recourse will be
had to the principle of ibahah (permissibility) Examples: •
Blood transfusion • Organ donation • Courts procedures • The
establishment of Islamic Banking Products
 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
 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.
 2. 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 •
 Eg: 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.
 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/prayer.
 A suspected offender is presumed innocent until proven guilty.
 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.
 3. 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. Until it is
proved that he has paid the loan.
 •
 A purchaser is liable to pay the purchase price
by virtue of the presence of the contract of sale
until it is proved he has paid it.
 A husband is liable to pay his wife the dowry
(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.
 4. 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 prayer,
the attributes of cleanliness is presumed to continue
until it is vitiated. – A mere doubt is not sufficient to
nullify taharah (purity)
 Legal Maxims are theoretical abstractions,
usually in the form of short epithetic
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.
 Certainty may not be disproved by doubt.
 Presumption of generality until the general is
subjected to limitation.
 Presumption of original freedom from liability.
 Permissibility is the original state of things.
 1. Original freedom from liability’ (al-asl
bara’ah al-dhimmah).
 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
 When a person is charged with any offence he is
considered innocent until proven guilty by the
court.
 2. 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.
 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. – 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)
 3. 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’
 [Link] is the original state of
things’ (al- asl-fi al-ashya’ al-ibahah)
 –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 unless it is legalised by
marriage.
 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.