ISTISHAB

Presumption of continuity
 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.
 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.
 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.
 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.
 JURISTIC VIEWS
Shafii, Hanbali, Zahiri and Shiah
Imamiyyah accepted Istishab as a
proof (they validated it)
to defend and to confirm the original
hukum
 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.
 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.
 Syafii 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.
 To the Shafie 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
 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)
 Other examples:
The class schedule
The university policy and regulations
Government policy and regulations
 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.
As 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.
 Other example
C borrowed some money from D.
After some time D claimed that C
havent paid yet the money. C
denies and said that he had paid D.
Ds claim is upheld based on istishab
because the original state in this
case is that there is a debt. (absence
of payment)
 Based on the definition of istishab
according to the shafie 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.
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 Shariah.
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 killing of Nurin Jazimin
 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 :

Original freedom from liability
 TYPES OF ISTISHAB
ISTISHAB AL-ADAM AL-ASLI
( )
Presumption of original absence

ISTISHAB AL-WUJUD AL-ASLI

( )
Presumption of original presence

ISTISHAB AL-HUKM
)()
Presumption of continuity of the
general rules and principles of
the law
ISTISHAB AL-WASF
()
Presumption of continuity of
attributes
 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.
 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 As 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.
 A ate Bs 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.
 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 Bs 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.
Istishab presumes the presence of liability or a
right until an indication to the contrary is found.
 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
Pre-nuptial agreement. Is it allowed?
MLM?
 Blood transfusion
Organ donation
Courts procedures
The establishment of Islamic Banking
Product
Eg: Sukuk,
 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.
 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.
 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.
 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.
 Maxims plays a prominent role in the
judicial interpretive process.
Procedural law
Criminal law
Transaction law
Family law
 Permissibility 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.
 Applied in the areas of transactions and
contracts.
Eg: pre-nuptial agreement.
The Prophet says:

 Original freedom from liability (al-
asl baraah 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
 Certainty may not be disproved by
doubt ( ) - (al-yaqin
la yazul bil as-shak)
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)
 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
 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.
 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.
 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.
 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.
 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
 "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.
 "Certainty is not removed by doubt"
(al-yaqin la yurfau bi-l-shakk).
Points coming under this category include:
assuming you have only done three rakas 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.
 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)
 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.
 Al-dharurah tubiihul-almahzurat-
necessity makes the unlawful lawful
Al-dharurah tuqaddiru biqadriha-
necessity is measured in accordance
with its true proportions.
 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:
 (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.
 (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.
 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).
 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).
 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.
 (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.
Modern examples of istishab
 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.
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