Principles of Islamic Jurisprudence by MH kamali

The opponents of istishab are of the view that

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Unformatted text preview: istishab requires, for example, that once a contract of sale (or of marriage for that matter), is concluded, it is presumed to remain in force until there is a change. Thus the ownership of the purchaser, and the marital status of the spouses, arc presumed to continue until a transfer of ownership, or dissolution of marriage, can be established by evidence. Since both of these contracts are permanently valid under the Shari'ah and do not admit of any time limits it is reasonable to presume their continuity until there is evidence to the contrary. A mere possibility that the property in question might have been sold, or that the marriage might have been dissolved, is not enough to rebut the presumption of istishab. I'lam, I, 294; Badran, Usul, p. 218; Abu Zahrah, Usul, p. 234.] However, if the law only validates a contract on a temporary basis, such as lease and hire (ijarah), then istishab cannot presume its continuity on a permanent basis. The contract will continue to operate within the specified period and terminate when the period expires. Istishab also presumes the continuation of the negative. For example, A purchases a hunting dog from B with the proviso that it has been trained to hunt, but then A claims that the dog is untrained. A's claim will be acceptable under istishab unless there is evidence to the contrary. For istishab maintains the natural state of things, which in the case of animals is the absence of training. [4. Badran, Usul, p. 218.] Presumption of continuity under istishab is different from the continued validity of a rule of law in a particular case. The false accuser, for example, may never be admitted as a witness, a rule which is laid Principles of Islamic Jurisprudence ~ Kamali 259 [3. Ibn al-Qayyim, [1. down in a clear Qur'anic text (al-Nur, 24:5). The permanent validity of the hukm in this case is established by the legal text, which is in no need of any presumption. Istishab only applies when no other evidence (dalil) is available, which is obviously not the case when there is a clear text that could be invoked. [5. Badran, Usul, p. 218.] Since istishab consists of a probability, namely the presumed continuity of the status quo ante, it is not a strong ground for the deduction of the rules of Shari'ah. Hence when istishab comes into conflict with another proof, the latter takes priority. As it is, istishab is the last ground of fatwa: when the jurist is asked about the ruling of a particular case, he must first search for a solution in the Qur'an, the Sunnah, consensus of opinion, and qiyas. If a solution is still wanting, he may resort to istishab in either its positive or negative capacities. Should there be doubt over the non-existence of something, it will be presumed to exist, but if the doubt is in the proof of something, the presumption will be that it is not proven. In the case of a missing person, for example, the nature of the situation is such that no other proof of Shari'ah could be employed to determine the question of his life or death. Since the main feature of t...
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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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