Unformatted text preview: that istishab is more extensively applied by those who are particularly strict in their acceptance of other rational proofs. Thus we find that the opponents of qiyas, such as the Zahiris and the Akhbari branch of the Shi'ah Imamiyyah, have relied on it most and have determined the ahkam on its basis in almost all instances where the majority have applied qiyas. Similarly the Shafi`is who reject istihsan have relied more frequently on istishab than the Hanafis and the Malikis. In almost all cases where the Hanafis and Malikis have applied istihsan or custom ('urf), the Shafi'is have resorted to istishab. [28. Cf. Abu Zahrah, Usul, p. 241.] Istishab is often described as a principle of evidence, as it is mainly concerned with the establishment or rebuttal of facts, and as such it is of greater relevance to the rules of evidence. The application of istishab to penalties and to criminal law in general is to some extent restricted by the fact that these areas are mainly governed by the definitive rules of Shari'ah or statutory legislation. The jurists have on the whole advised caution in the application of penalties on the basis of presumptive evidence only. Having said this, however, the principle of the original absence of liability is undoubtedly an important feature of istishab which is widely upheld not only in the field of criminal law but also in constitutional law and civil litigations generally. This is perhaps equally true of the principle of ibahah, which is an essential component of the principle of legality, also known as the principle of the rule of law. This feature of istishab is once again in harmony with the modern concept of legality in that permissibility is the norm in areas where the law imposes no prohibition. I shall end this chapter by summarising a reformist opinion concerning istishab. In his booklet entitled Tajdid Usul al-Fiqh al-Islami, Hasan Turabi highlights the significance of istishab and calls for a fresh approach to be taken toward this doctrine. The author explains that istishab has the potential of incorporating within its scope the concept of natural justice and the approved customs and mores of society. Principles of Islamic Jurisprudence ~ Kamali 267 According to Turabi, istishab derives its basic validity from the belief that Islam did not aim at establishing a new life on earth in all of its dimensions and details, nor did it aim at nullifying and replacing all the mores and customs of Arabian society. The Prophet did not take an attitude of opposition to everything that he encountered, but accepted and allowed the bulk of the existing social values and sought to reverse or replace only those which were oppressive and unacceptable. We also find in the Qur'an references to amr bi al-'urf, or acting in accordance with the prevailing custom unless it has been specifically nullified or amended by the Shari'ah of Islam. Similarly when the Qur'an calls for the implementation of justice, beneficence (ihsan) and fairness in the determination of disputes, it refers, among other things, to the basic principles of justice that are upheld by humanity at large and the good conscience of decent individuals....
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- Spring '13