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Unformatted text preview: ing the Qur'an. [26. Abu Zahrah, Usul, p. 219.] 4) Among the rules of fiqh which have tended to 'change with the change of custom, there is one concerning the determination of the age by which a missing person (mafqud) is to be declared dead. According to the generally accepted view, the missing person must not be declared dead until he reaches the age at which his contemporaries would normally be expected to die. Consequently the jurists of the Hanafi-school have variously determined this age at seventy, ninety and one hundred, and Principles of Islamic Jurisprudence ~ Kamali 257 their respective rulings have taken into consideration the changes of experience and conditions that prevailed at the time the new rulings were formulated. [27. Sabuni, Madkhal, p.145.] 5) And lastly, in the area of transactions, the concept of al-ghabn al-fahish, that is, radical discrepancy between the market price of a commodity and the actual price charged to the customer, is determined with reference to `urf. To ascertain what margin of discrepancy in a particular transaction amounts to al-ghabn al-fahish is determined by reference to the practice among tradesmen and people who are engaged in similar transactions. Since these practices are liable to change, the changes are in turn reflected in the determination of what might amount to al-ghabn al-fahish. [27. Sabuni, Madkhal, p.145.] Principles of Islamic Jurisprudence ~ Kamali 258 Chapter Fifteen: Istishab (Presumption of Continuity) Literally, Istishab means 'escorting' or `companionship'. Technically, istishab denotes 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. The technical meaning of istishab relates to its literal meaning in the sense that the past `accompanies' the present without any interruption or change. Shawkani, Irshad, p. 237; Amidi, Ihkam, IV, 127; Ibn al-Qayyim, I'lam, I, 294.] Istishab is validated by the Shafi'i school, the Hanbalis, the Zahiris and the Shi'ah Imamiyyah, but the Hanafis, the Malikis and the mutakallimun, including Abu al-Husayn al-Basri do not consider it a proof in its own right. The opponents of istishab are of the view that establishing the existence of a fact in the past is no proof of as continued existence. The continued existence of the original state is still in need of proof in the same way as the claim which seeks to establish that the original condition has changed. Falsafah (Ziadeh's trans.) p.95.] [2. Shawkani, Irshad, p. 237; Abu Zahrah, Usul, p. 234; Mahmassani, For the Shafi`is and the Hanbalis, istishab denotes 'continuation of that which is proven and the negation of that which had not existed'. Istishab, in other words, presumes the continuation of both the positive and the negative until the contrary is established by evidence. In its positive sense,...
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