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Unformatted text preview: ctly the original state which is presumed to continue by means of istishab might be. This is a question which permeates the application of istishab in its various capacities, which is, perhaps, why the Hanbali scholar Ibn al-Qayyim is critical of over-reliance on istishab and of those who have employed it more extensively than they should. [17. Ibn al-Qayyim, I'lam, I, 294.] The following illustrations, which are given in the context of legal maxims that originate in istishab, also serve to Principles of Islamic Jurisprudence ~ Kamali 263 show how the ulema have differed on the application of this doctrine to various issues. Some of the well-known legal maxims which are founded in istishab may be outlined as follows: 1) Certainty may not be disproved by doubt (al-yaqin la yazul bi'l-shakk). For example, when someone is known to be sane, he will be presumed such until it is established that he has become insane. The presumption can only be set aside with certainty, not by a mere doubt. Similarly, when a person eats in the early morning during Ramadan while in doubt as to the possibility that he might have eaten after dawn, his fast remains intact and no belated performance (qada') is necessary by way of compensation. To identify the two elements of the maxim under discussion, namely the certainty and doubt in this example, night represents certainty whereas daybreak is the state of doubt, and the former prevails over the latter. However, the same rule would lead us to a totally different result if it were applied to the situation of a person who ends his fast late in the day in Ramadan while in doubt as to the occurrence of sunset. In this case, his fast is vitiated and a belated performance would be required in compensation. For the certainty which prevails here is the daytime which is presumed to continue, while the onset of night is in doubt. To say that certainty prevails over doubt in this case means that the fast has been terminated during the day, which is held to be the prevailing state of certainty. [18. Badran, Usul, pp. 220-221.] To illustrate some of the difficulties that are encountered in the implementation of the maxim under discussion, we may give in example the case of a person who repudiates his wife by talaq but is in doubt as to the precise terms of his pronouncement: whether it amounted to a single or a triple talaq. According to the majority of jurists, only a single talaq takes place, which means that the husband is still entitled to revocation (rij'ah) and may resume normal marital relations. Imam Malik has, on the other hand, held that a triple talaq takes place, which would preclude the right to revocation. The difference between the majority opinion and that of Imam Malik arises from the variant interpretations that they give to the question of certainty and doubt. The majority view presumes the marriage to be the state of certainty which would continue until its dissolution is established by evidence. The doubt in this case a the pronouncement of talaq. The doubtful talaq, according to the majori...
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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