AFS2023
USUL FIQH/ISLAMIC
JURISPRUDENCE
Istishab (Presumption of
Continuity)
4/13/2015
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Zulkifli Muhammad
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Contents
1) Introduction
2) Varieties of Istishab
a) Presumption of original absence
(istishab al-'adam al-asli)
b) Presumption of original presence
(istishab al-wujud al-asli)
c) Istishab al-hukm
d) Istishab al-wasf, or continuity of
attributes
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Introduction
• Literally, Istishab means 'escorting' or
`companionship'.
• Technically, istishab denotes a rational
proof which may be employed in the
absence of other indications;
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Introduction
• Specifically, those facts, or rules of law and
reason, whose existence or non-existence
had been proven in the past, and which are
presumed to remain so for lack of evidence
to establish any change.
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Introduction
• The technical meaning of istishab relates to
its literal meaning in the sense that the past
`accompanies' the present without any
interruption or change.
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Varieties of Istishab
1) Presumption of original absence
(istishab al-'adam al-asli), which means
that a fact or rule of law which had not
existed in the past is presumed to be nonexistent until the contrary is proved.
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• Example: if A, who is a trading partner to B,
claims that he has made no profit, the
presumption of absence will be in A's
favour unless B can prove otherwise.
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Varieties of Istishab
2) Presumption of original presence
(istishab al-wujud al-asli). This variety of
istishab takes for granted the presence or
existence of that which is indicated by the
law or reason. For example, when A is
known to be indebted to B, A is presumed
such until it is proved that he has paid the
debt or was acquitted of it.
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Varieties of Istishab
• Provided that B's loan to A is proven in the
first place as a fact, this is sufficient to give
rise to the presumption of its continuity and
B need not prove the continuity of the loan
in question every day of the month.
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Varieties of Istishab
3) Istishab al-hukm, or istishab which
presumes the continuity of the general rules
and principle, of the law. Istishab thus takes
for granted the continued validity of the
provisions of the Shari'ah in regard to
permissibility and prohibition (halal and
haram).
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Varieties of Istishab
• When there is a ruling in the law, whether
prohibitory or permissive, it will be
presumed to continue until the contrary is
proved.
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Varieties of Istishab
4) Istishab al-wasf, or continuity of
attributes, for example a guarantor (kafil kafalah being a juridical attribute) remains
responsible for the debt of whichhe is
guarantor until he or the debtor pays it or
when the creditor acquits him from
payment.
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WALLAHU ’ALAM
THANK YOU
VERY MUCH FOR
YOUR ATTENTION
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