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Unformatted text preview: m him. The Hanafis and Malikis accept istishab al-wasf only as a means of defense, that is, to defend the continued existence of an attribute, but not as a means of proving new rights and new attributes. Istishab can therefore not be used as a means of acquiring new rights for the missing person, but can be used so as to protect all of his existing rights. To use a common expression, istishab can only be used as a shield, not as a sword. If, for example, the missing person had owned property at the time of his disappearance, he continues to be the owner. Similarly his marital rights are presumed to continue, just as he remains responsible to discharge his obligations until his death is established by evidence or by a judicial decree. But for as long as he remains a missing person, he will not be given a share in inheritance or bequest, although a share will be reserved for him until the facts of his life or death are established. If he is declared dead, the reserved share will be distributed among the other heirs on the assumption that he was dead at the time of the death of his relative. Upon declaration of his death his own estate will be distributed among his heirs as of the time the court declares him dead. This is the position under the Hanafi and Maliki schools, which maintain that although the mafqud is presumed to be alive, this is only a presumption, not a fact, and may therefore not be used as a basis for the creation of new rights. Zahrah, Usul, p. 237; Badran, Usul, p. 223; Coulson, Succession, p. 198ff.] [14. Shawkani, Irshad, p. 238; Abu The question may arise: why can his heirs not inherit from the mafqud? If nothing is certain, perhaps his heirs could be assigned their shares, or the shares may be reserved in their names until the facts are known. In response to this, the Hanafis invoke the principle of "original absence", which means here that a right to inheritance is originally absent and will be presumed so until there is positive proof that it has materialised. [15. Zuhayr, Usul, IV, 180.] The Shafi'is and the Hanbalis have, on the other hand, validated istishab in both its defensive (li-daf) and affirmative (li-kasb) capacities, that is, both as a shield and as a sword. Hence the mafqud is presumed to be alive in the same way as he was at the time of his disappearance right up to the time when he is declared dead. The mafqud is not only entitled to retain all his rights but can acquire new rights such as gifts, inheritance and bequests. [16. Shawkani, Irshad, p. 237.] It thus appears that the jurists are in disagreement, not necessarily on the principle, but on the detailed application of istishab. The Hanafis and Malikis who accept istishab on a restricted basis have argued that the existence of something in the past cannot prove that it continues to exist. They have further pointed out that an over-reliance in istishab is likely to open the door to uncertainty, even conflict, in the determination of ahkam. The main area of juristic disagreement in this connection is the identification of what exa...
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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