Principles of Islamic Jurisprudence by MH kamali

But until then there is no need for him to prove his

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Unformatted text preview: nto vinegar. Varieties of Istishab From the viewpoint of the nature of the conditions that are presumed to continue, istishab is divided into four types an follows: 1) Presumption of original absence (istishab al-'adam al-asli), which means that a fact or rule of law which had not existed in the past is presumed to be non-existent until the contrary is proved. Thus a child and an uneducated person are presumed to remain so until there is a change in their status, for example by attaining majority, or obtaining educational qualifications respectively. Similarly if A, who is a trading partner to B, claims that he has made no profit, the presumption of absence will be in A's favour unless B can prove otherwise. Another area which is determined by the presumption of original absence is the original freedom from liability, or the presumption of innocence, which will be separately discussed later. [10. Shawkani, Irshad, p. 238; Badran, Usul, p. 219; Abu Zahrah, Usul, p. 236.] 2) Presumption of original presence (istishab al-wujud al-asli). This variety of istishab takes for granted the presence or existence of that which is indicated by the law or reason. For example, when A is known to be indebted to B, A is presumed such until it is proved that he has paid the debt or was acquitted of it. Provided that B's loan to A is proven in the first place as a fact, this is sufficient to give rise to the presumption of its continuity and B need not prove the continuity of the loan in question every day of the month. Similarly, under the presumption of original presence, the purchaser is presumed liable to pay the purchase price by virtue of the presence of the contract of sale until it is proved that he has paid it. By the same token, a husband is liable to pay his wife the dower (mahr) by virtue of the existence of a valid marriage contract. In all these instances, istishab presumes the presence of a liability or a right until an indication to the contrary is found. The ulema are in agreement on the validity of this type of istishab, which must prevail until the contrary is proved. Principles of Islamic Jurisprudence ~ Kamali 261 [11. Khallaf,`Ilm, p.92.] 3) Istishab al-hukm, or istishab which presumes the continuity of the general rules and principle, of the law. As earlier stated, istishab is not only concerned with presumption of facts but also with the established rules and principles of the law. Istishab thus takes for granted the continued validity of the provisions of the Shari'ah in regard to permissibility and prohibition (halal and haram). When there is a ruling in the law, whether prohibitory or permissive, it will be presumed to continue until the contrary is proved. But when there is no such ruling available, recourse will be had to the principle of ibahah, which is the general norm of Shari'ah law concerning a matter that is deemed beneficial and free of evil consequences. 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 the majority view, although some Mu'tazilah have held a variant opinion, which is that...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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