Principles of Islamic Jurisprudence by MH kamali

Istishab thus takes for granted the continued

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Unformatted text preview: the general norm in Shari'ah is prohibition unless there is an indication to the contrary. The principle of permissibility (ibahah) originates in the Qur'an, in particular those of its passages which subjugate the earth and its resources to the welfare of man. Thus we read in sura alBaqarah (2:29): `It is He who has created for you all that is in the earth,' and in sura al-Jathiyah, (45:13) that 'God has subjugated to you all that is in the heavens and in the earth.' These Qur'anic declarations take for granted that man should be able to utilise the resources of the world around him to his advantage, which is another way of saying that he is generally permitted to act in the direction of securing his benefits unless he has been expressly prohibited. Hence all objects, legal acts, contracts and exchange of goods and services which are beneficial to human beings are lawful on grounds of original ibahah. [12. Abu Zahrah, Usul, p. 236; Khallaf, 'Ilm, p. 92; Badran, Usul, p. 219; Khudari, Usul, pp. 354-55.] But when the legal norm in regard to something is prohibition, then istishab presumes its continuity until there is evidence to suggest that it is no longer prohibited. 4) Istishab al-wasf, or continuity of attributes, such as presuming clean water (purity being an attribute) to remain so until the contrary is established to be the case (for example, through a change in its colour or taste). Similarly, when a person makes an ablution to perform the salah, the attribute of ritual purity (taharah) is presumed to continue until it is vitiated. A mere doubt that it might have been vitiated is not sufficient to nullify taharah. By the same token, a guarantor (kafil - kafalah being a juridical attribute) remains responsible for the debt of which he is guarantor until he or the debtor pays it or when the creditor acquits him from payment. [13. Ibn al-Qayyim, I'lam, I, 295; Badran, Usul, p. 219.] The jurists are in agreement on the validity, in principle, of the first three types of istishab, although they have differed in their detailed implementation, as we shall presently discuss. As for the fourth type of istishab, which relates to the attributes, whether new or well-established, it is a subject on which the jurists have disagreed. The Shafi'i and the Hanbali schools have upheld it absolutely, whereas the Hanafi and Maliki schools accept it with reservations. The case of the missing person is discussed under this variety of istishab, as the question is mainly concerned with the continuity of his life-life being the attribute. Since the missing person (mafqud) was alive at the time when he disappeared, he is presumed to be alive unless there is proof that he has died. He is therefore entitled, under the Shafi'i and Hanbali doctrines, to inherit from a relative who dies while he is still a missing person. But no-one is entitled to Principles of Islamic Jurisprudence ~ Kamali 262 inherit from him for the obvious reason that he is presumed alive. Yet under the Hanafi and Maliki law, the missing person neither inherits from others nor can others inherit fro...
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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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