Unformatted text preview: ettlement is permissible in the interests of preventing hostility between the parties. 4) Permissibility is the original state of things (al-asl fi al-ashya' al-ibahah). We have already discussed the principle of ibahah, which is a branch of the doctrine of istishab. To recapitulate, all matters which the Shari'ah has not regulated to the contrary remain permissible. They will be presumed so unless the contrary is proved to be the case. The one exception to the application of ibahah is relationships between members of the opposite sex, where the basic norm is prohibition unless it is legalised by marriage. The Hanbalis have given ibahah greater prominence, in that they validate it as a basis of commitment (iltizam) unless there is a text to the contrary. Under the Hanbali doctrine, the norm in `ibadat is that they are void (batil) unless there is an explicit command to validate them. But the norm in regard to transactions and contracts is that they are valid unless there is a nass to the contrary. Qayyim, I`lam, I, 300.] To give an example, under the Hanbali doctrine of ibahah, prospective spouses are at liberty to enter stipulations in their marriage contract, including a condition that the husband must remain monogamous. The Hanbalis are alone in their ruling on this point, as the majority of jurists have considered such a condition to amount to a superimposition on the legality of polygamy in the Shari'ah. The provisions of the Shari'ah must, according to the majority, not be circumvented in this way. The Lawgiver has permitted polygamy and it is not for the individual to overrule it. The Hanbalis have argued, on the other hand, that the objectives of the Lawgiver in regard to marriage are satisfied by monogamy. As it is, polygamy is a permissibility, not a requirement, and there is no nass to indicate that the spouses could not stipulate against it. The stipulation is therefore valid and the spouses are committed to abide by it. [26. Zuhayr, Usul, IV, 180-l81.] Principles of Islamic Jurisprudence ~ Kamali 266 [27. Ibn al- Conclusion Istishab is not an independent proof or a method of juristic deduction in its own right, but mainly functions as a means of implementing an existing indication (dalil) whose validity and continued relevance are established by the rules of istishab. This might explain why the ulema have regarded istishab as the last ground of fatwa, one which does not command priority over other indications. The Malikis have relied very little on it as they are known for their extensive reliance on other proofs, both revealed and rational, in the development of the rules of Shari`ah; so much so that they have had little use for istishab. This is also true of the Hanafi school of law, which has only rarely invoked istishab as a ground for the determination of legal rules. Istishab is applicable either in the absence of other proofs or as a means of establishing the relevance of applying an existing proof. It is interesting to note in this connection the fact...
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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.
- Spring '13