Principles of Islamic Jurisprudence by MH kamali

As it is istishab is the last ground of fatwa when

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Unformatted text preview: he doubt concerning a missing person is the possibility of his death, istishab will presume that he is still alive. But in the event of an unsubstantiated claim when, for example, A claims that B owes him a sum of money, the doubt here is concerned with the proof over the existence of a debt, which will be presumed unproven. [6. Shawkani, Irshad, p.237; Abu Zahrah, Usul, p. 235.] With regard to the determination of the rules of law that may be applicable to a particular issue, the presumption of istishab is also guided by the general norms of the Shari'ah. The legal norm concerning foods, drinks, and clothes, for example, is permissibility (ibahah). When a question arises as to the legality of a particular kind of beverage or food, and there is no other evidence to determine its value, recourse may be had to istishab, which will presume that it is permissible. But when the norm in regard to something is prohibition, such as cohabitation between members of the opposite sex, the presumption will be one of prohibition, unless there is evidence to prove its legality. Istishab is supported by both shar`i and rational (`aqli) evidences. Reason tells us that in God's order of creation and in popular custom, it is normal to expect that pledges, contracts and laws will probably continue to remain operative until the contrary is established by evidence. It is equally normal to expect that things which had not existed will probably remain so until the contrary is proved. When reasonable men ('uqala') and men who comply with the accepted norms of society (ahl al-`urf) have known of the existence or non-existence of something, as al-Amidi observes, from that point onwards they tend to formulate their judgement, on the basis of what they know, until they are assured by their own observation or evidence that there is a change. [7. Amidi, Ihkam, IV, 128; Badran, Usul, p.221.] Reason also tells us not to accept claims, unsubstantiated by evidence, that suggest a change in a status quo which is otherwise expected to continue. Hence a mere claim that a just person ( `adil) has become a profligate (fasiq) will be of no account, and the person will be presumed to be 'adil until the contrary is established. Similarly, when a student is admitted and registered for a degree course his status as a student remains unchanged Principles of Islamic Jurisprudence ~ Kamali 260 until there is evidence to suggest that this is no longer the case. But until then there is no need for him to prove his status every week or every month. [8. Cf. Abu Zahrah, Usul, p. 235.] To presume the continuity of something which might have been present or absent in the past, as alAmidi points out, is equivalent to a zann which is valid evidence in juridical (shar'i) matters, and action upon it is justified. [9. Amidi, Ihkam, IV, 127.] The rules of Shari'ah continue to remain valid until there is a change in the law or in the subject to which it is applied. The Law, for example, has forbidden the consumption of wine, a ruling which will remain in force until there is a state of emergency or the wine loses its intoxicating quality, such as by being changed i...
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