Istishab

Question 1

Literal meaning of Istishab

Answer 1

“companionship”

Question 2

Technical meaning of Istishab

Answer 2

• “Existence or nonexistence of facts or laws confirmed in the past”.
• These facts or laws will be presumed to remain the same unless there is evidence proving otherwise.

Question 3

Validity of Istishab

Answer 3

Hanafi and Maliki schools = does not accept Istishab
Shafi’i and Hanabali schools = accepts Istishab as valid source

Since istishab is based on probability that something exists
* Least important source of Islamic law
* Only applicable when no evidence is available
* To establish or rebut facts

Question 4

Types of Istishab

Answer 4

1. Istihab al-hukm
2. Istihab al-Adam al-asli
3. Istishab al-wujud al-asli
4. Istihab al-nasf

Question 5

Istishab al-hukm

Answer 5

1. Presumes legal rule or principle is applicable unless there is evidence otherwise
2. If there is no ruling about something and the thing is beneficial, it is the general principle that the thing in question is automatically permissible
3. Example - There is no legal rule that drinking Teh Tarik is prohibited. Therefore, it is presumed to be permissive and this presumption will continue until Teh Tarik is proven bad

Question 6

Istishab al-Adam al-asli

Answer 6

1. Presumes non-existent fact or law does not exist until there is evidence proving its existence
2. Presumption of innocence – Since a person is initially innocent and free from guilt, Istishab presumes a person is innocent until there is evidence proving his guilt
3. Presumption of death – Since a person is originally alive, Istishab presumes this person is alive unless there is evidence of his death
4. Sharlinie – Istishab presumes Sharlinie is alive because there is no evidence of her death, even though she was only seen alive many years ago
5. Nurin Jaslin – Istishab no longer applicable because her dead body was evidence of her death

Question 7

Istishab al-wujud al-asli

Answer 7

1. Presumes something continues to exist because it originally exists
2. This presumption continues until there evidence of its non-existence
3. Example - Since Abby is known to be indebted to Betty, Istishab presumes that he is still indebted to Betty unless Abby can prove she paid off the loan

Question 8

Istihab al-nasf

Answer 8

1. Presumption about attributes of something of something which will continue unless there is evidence that the attributes have changed
2. Example - Water used for ablution is presumed clear unless color and smell changed

Question 9

Legal maxims

Answer 9

1. “Original freedom from liability”
2. “Certainty may not be disproved by doubt”
3. “Permissibility is the original state of things”
4. “Presumption of generality until general is subjected to limitation”

Question 10

“Original freedom from liability”

Answer 10

1. A person is free from liability unless it is proven that she is liable
2. Similar to presumption of innocence in civil law jurisprudence in which person is presumed to be innocent until proven guilty

Question 11

“Certainty may not be disproved by doubt”

Answer 11

1. Cannot use mere doubt to disprove presumption
2. Presumption can only be disproved by certainty
3. Example - If a person is considered sane, this fact continues until the person is proven insane

Question 12

“Permissibility is the original state of things”

Answer 12

1. All things not regulated by the Shariah is presumed to be permissible
2. Exception - People of opposite genders is presumed to be prohibited from mingling unless they can prove they are married

Question 13

“Presumption of generality until general is subjected to limitation”

Answer 13

1. Legal rulings are presumed general until it is subjected to certain limitations such as specification or abrogation
2. Example - The rule in AQ about division of inheritance would have remain general if it has not been specified by the Hadith that a murderer is prohibited from receiving inheritance