15. ISTISHAB (PRESUMPTION OF CONTINUITY)
Literally, Istishab means ‘escorting’ or `companionship’. Technically, istishab denotes a rational proof which may be employed in the absence of other indications; 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. The technical meaning of istishab relates to its. literal meaning in the sense that the past `accompanies’ the present without any interruption or change.Istishab is validated by the Shafi’i school, the Hanbalis, the Zahiris and the Shi’ah Imamiyyah, but the Hanafis, the Malikis and the mutakallimun, including Abu al-Husayn al-Basri do not consider it a proof in its own right. The opponents of istishab are of the view that establishing the existence of a fact in the past is no proof of continued existence. The continued existence of the original state is still in need of proof in the same way as the claim which seeks to establish that the original condition has changed.
For the Shafi`is and the Hanbalis, istishab denotes ‘continuation of that which is proven and the negation of that which had not existed’. Istishab, in other words, presumes the continuation of both the positive and the negative until the contrary is established by evidence. In its positive sense, 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. 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.
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 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.
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 the doubt concerning a missing person is the possibility of his death, istishab will presume that he is still alive. But in the event of an unsubstantiated claim when, for example, A claims that B owes him a sum of money, the doubt here is concerned with the proof over the existence of a debt, which will be presumed unproven.
With regard to the determination of the rules of law that may be applicable to a particular issue, the presumption of istishab is also guided by the general norms of the Shari’ah. The legal norm concerning foods, drinks, and clothes, for example, is permissibility (ibahah). When a question arises as to the legality of a particular kind of beverage or food, and there is no other evidence to determine its value, recourse may be had to istishab, which will presume that it is permissible. But when the norm in regard to something is prohibition, such as cohabitation between members of the opposite sex, the presumption will be one of prohibition, unless there is evidence to prove its legality.
Istishab is supported by both shar`i and rational (`aqli) evidences. Reason tells us that in God’s order of creation and in popular custom, it is normal to expect that pledges, contracts and laws will probably continue to remain operative until the contrary is established by evidence. It is equally normal to expect that things which had not existed will probably remain so until the contrary is proved. When reasonable men (‘uqala’) and men who comply with the accepted norms of society (ahl al-`urf) have known of the existence or non-existence of something, as al-Amidi observes, from that point onwards they tend to formulate their judgement, on the basis of what they know, until they are assured by their own observation or evidence that there is a change. Reason also tells us not to accept claims, unsubstantiated by evidence, that suggest a change in a status quo which is otherwise expected to continue. Hence a mere claim that a just person ( `adil) has become a profligate (fasiq) will be of no account, and the person will be presumed to be ‘adil until the contrary is established. Similarly, when a student is admitted and registered for a degree course his status as a student remains unchanged until there is evidence to suggest that this is no longer the case. But until then there is no need for him to prove his status every week or every month.
To presume the continuity of something which might have been present or absent in the past, as al-Amidi points out, is equivalent to a zann which is valid evidence in juridical (shar’i) matters, and action upon it is justified. The rules of Shari’ah continue to remain valid until there is a change in the law or in the subject to which it is applied. The Law, for example, has forbidden the consumption of wine, a ruling which will remain in force until there is a state of emergency or the wine loses its intoxicating quality, such as by being changed into vinegar.
Varieties of Istishab
From the viewpoint of the nature of the conditions that are presumed to continue, istishab is divided into four types an follows:
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 non-existent until the contrary is proved. Thus a child and an uneducated person are presumed to remain so until there is a change in their status, for example by attaining majority, or obtaining educational qualifications respectively. Similarly 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. Another area which is determined by the presumption of original absence is the original freedom from liability, or the presumption of innocence, which will be separately discussed later.
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. 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. Similarly, under the presumption of original presence, the purchaser is presumed liable to pay the purchase price by virtue of the presence of the contract of sale until it is proved that he has paid it. By the same token, a husband is liable to pay his wife the dower (mahr) by virtue of the existence of a valid marriage contract. In all these instances, istishab presumes the presence of a liability or a right until an indication to the contrary is found. The ulema are in agreement on the validity of this type of istishab, which must prevail until the contrary is proved.
3) Istishab al-hukm, or istishab which presumes the continuity of the general rules and principle of the law. As earlier stated, istishab is not only concerned with presumption of facts but also with the established rules and principles 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). When there is a ruling in the law, whether prohibitory or permissive, it will be presumed to continue until the contrary is proved. But when there is no such ruling available, recourse will be had to the principle of ibahah, which is the general norm of Shari’ah law concerning a matter that is deemed beneficial and free of evil consequences. Hence when the law is silent on a matter and it is not repugnant to reason it will be presumed to be permissible. This is the majority view, although some Mu’tazilah have held a variant opinion, which is that the general norm in Shari’ah is prohibition unless there is an indication to the contrary. The principle of permissibility (ibahah) originates in the Qur’an, in particular those of its passages which subjugate the earth and its resources to the welfare of man. Thus we read in sura al-Baqarah (2:29): `It is He who has created for you all that is in the earth,’ and in sura al-Jathiyah, (45:13) that ‘God has subjugated to you all that is in the heavens and in the earth.’ These Qur’anic declarations take for granted that man should be able to utilise the resources of the world around him to his advantage, which is another way of saying that he is generally permitted to act in the direction of securing his benefits unless he has been expressly prohibited. Hence all objects, legal acts, contracts and exchange of goods and services which are beneficial to human beings are lawful on grounds of original ibahah. But when the legal norm in regard to something is prohibition, then istishab presumes its continuity until there is evidence to suggest that it is no longer prohibited.
4. Istishab al-wasf, or continuity of attributes, such as presuming clean water (purity being an attribute) to remain so until the contrary is established to be the case (for example, through a change in its colour or taste). Similarly, when a person makes an ablution to perform the salah, the attribute of ritual purity (taharah) is presumed to continue until it is vitiated. A mere doubt that it might have been vitiated is not sufficient to nullify taharah. By the same token, a guarantor (kafil – kafalah being a juridical attribute) remains responsible for the debt of which he is guarantor until he or the debtor pays it or when the creditor acquits him from payment.
The jurists are in agreement on the validity, in principle, of the first three types of istishab, although they have differed in their detailed implementation, as we shall presently discuss. As for the fourth type of istishab, which relates to the attributes, whether new or well-established, it is a subject on which the jurists have disagreed. The Shafi’i and the Hanbali schools have upheld it absolutely, whereas the Hanafi and Maliki schools accept it with reservations. The case of the missing person is discussed under this variety of istishab, as the question is mainly concerned with the continuity of his life-life being the attribute. Since the missing person (mafqud) was alive at the time when he disappeared, he is presumed to be alive unless there is proof that he has died. He is therefore entitled, under the Shafi’i and Hanbali doctrines, to inherit from a relative who dies while he is still a missing person. But no-one is entitled to inherit from him for the obvious reason that he is presumed alive. Yet under the Hanafi and Maliki law, the missing person neither inherits from others nor can others inherit from 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. 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.
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.
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 exactly 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. The following illustrations, which are given in the context of legal maxims that originate in istishab, also serve to 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.
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 is the pronunciation of talaq. The doubtful talaq, according to the majority, may not be allowed to disprove a certain fact. The marriage is certain and the talaq doubtful, hence the former is presumed to continue.
Imam Malik, on the other hand, considers the occurrence of a divorce to be the certainty in this case. What is in doubt is the husband’s right to the revocation of the talaq. As for determining the precise number of talaqs, which is crucial to the question of revocation, Imam Malik holds that the right to revocation cannot be established by mere doubt. Hence the husband has no right to revocation, which means that the divorce is final.
While the majority of jurists consider marriage to be the certain factor in this case, for Imam Malik it is the actual pronouncement of talaq, regardless of the form it might have taken, which represents the state of certainty and the basis on which istishab must operate. While commenting on these differences, both Ibn al-Qayyim and Abu Zahrah have considered the majority decision to be preferable. The marriage in this case must therefore not be allowed to be disproved by a doubtful talaq.
To give yet another example: when a man repudiates one of his two wives, but is not certain as to which one, according to the Malikis the certain fact is that a talaq has been pronounced, while the uncertainty in this case is the identity of the divorcee. Both are divorced, on grounds of istishab, which establishes that certainty must prevail over doubt. For the majority of ulema, however, the certain fact is that the man has two wives, in other words, the existence of a valid marriage in respect of both. The doubt concerning the identity of the divorcee must not be allowed to disprove the state of certainty, namely the marriage. Hence neither of the two are divorced. Once again the juristic disagreement in this case arises from the differential perception of the Ulema as to identifying the state of certainty on which the rules of istishab must operate.
2. Presumption of generality until the general is subjected to limitation is another maxim that originates in istishab. The general (`amm) must therefore remain ‘amm in its application until it is qualified in some way. Just as a general text remains general until it is specified, so is the validity of that text, which is presumed to continue until it is abrogated. This would mean that a legal text remains valid and must be implemented as such unless it is abrogated or replaced by another text. While discussing the maxim under discussion, al-Shawkani records the variant view which is held by some ulema to the effect that the rule of law in these situations is established through the interpretation of words and not by the application of istishab. To say that a text is general or specified, or that a text remains valid and has not been abrogated, is thus determined on grounds of interpretation of words and not by the application of istishab. For example, the Qur’anic rule which assigns to the male a double share of the female in inheritance (al-Nisa, 4:11) is general and would have remained so if it were not qualified by the Hadith that the killer does not inherit.
Similarly, the ruling of the Sunnah concerning the direction of the qiblah remained in force until it was abrogated by the Qur’anic injunction in Sura al-Baqarah (2:144), which changed the qiblah from Jerusalem to the Ka’bah. This is all obvious so far, and perhaps al-Shawkani is right in saying that there is no need for a recourse to istishab in these cases. What istishab might tell us in this context may be that in the event where there is doubt as to whether the general in the law has been qualified by some other enactment, or when there is doubt as to whether the law on a certain point has been abrogated or not, istishab would presume the absence of specification and abrogation until the contrary is established by evidence.
3. Presumption of original freedom from liability (bara’ah al dhimmah al-asliyyah), which means freedom from obligations until the contrary is proved. No person may, therefore, be compelled to perform any obligation unless the law requires so. For example, no-one is required to perform the hajj pilgrimage more than once in his lifetime, or to perform a sixth salah in one day, because the Shari’ah imposes no such liability. Similarly, no-one is liable to punishment until his guilt is established through lawful evidence. However, the detailed implementation of this principle too has given rise to disagreement between the Shafi’i and Hanafi jurists. To give an example, A claims that B owes him fifty dollars and B denies it. The question may arise as to whether a settlement (sulh) after denial is lawful in this case. The Hanafis have answered this in the affirmative, but the Shafi’is have held that a settlement after denial is not permissible. The Shafi’is argue that since prior to the settlement B denied the claim, the principle of original freedom from liability would thus apply to him, which means that he would bear no liability at all. As such it would be unlawful for A to take anything from B. The settlement is therefore null and void. The Hanafis have argued, on the other hand, that B’s non-liability after the claim is not inviolable. The claim, in other words, interferes with the operation of the principle under discussion. B can no longer be definitely held to be free of liability; this being so, a settlement is permissible in the interest of preventing hostility between the parties.
4. Permissibility is the original state of things (al-asl fi al-ashya’ al-ibahah). We have already discussed the principle of ibahah, which is a branch of the doctrine of istishab. To recapitulate, all matters which the Shari’ah has not regulated to the contrary remain permissible. They will be presumed so unless the contrary is proved to be the case. The one exception to the application of ibahah is relationships between members of the opposite sex, where the basic norm is prohibition unless it is legalised by marriage. The Hanbalis have given ibahah greater prominence, in that they validate it as a basis of commitment (iltizam) unless there is a text to the contrary. Under the Hanbali doctrine, the norm in `ibadat is that they are void (batil) unless there is an explicit command to validate them. But the norm in regard to transactions and contracts is that they are valid unless there is a nass to the contrary. To give an example, under the Hanbali doctrine of ibahah, prospective spouses are at liberty to enter stipulations in their marriage contract, including a condition that the husband must remain monogamous. The Hanbalis are alone in their ruling on this point, as the majority of jurists have considered such a condition to amount to a superimposition on the legality of polygamy in the Shari’ah. The provisions of the Shari’ah must, according to the majority, not be circumvented in this way. The Lawgiver has permitted polygamy and it is not for the individual to overrule it. The Hanbalis have argued, on the other hand, that the objectives of the Lawgiver in regard to marriage are satisfied by monogamy. As it is, polygamy is a permissibility, not a requirement, and there is no nass to indicate that the spouses could not stipulate against it. The stipulation is therefore valid and the spouses are committed to abide by it.
Conclusion
Istishab is not an independent proof or a method of juristic deduction in its own right, but mainly functions as a means of implementing an existing indication (dalil) whose validity and continued relevance are established by the rules of istishab. This might explain why the ulema have regarded istishab as the last ground of fatwa, one which does not command priority over other indications. The Malikis have relied very little on it as they are known for their extensive reliance on other proofs, both revealed and rational, in the development of the rules of Shari`ah; so much so that they have had little use for istishab. This is also true of the Hanafi school of law, which has only rarely invoked istishab as a ground for the determination of legal rules. Istishab is applicable either in the absence of other proofs or as a means of establishing the relevance of applying an existing proof. It is interesting to note in this connection the fact 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.
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.
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. Life on earth is thus a cumulative construct of moral and religious teachings, aided and abetted by enlightened human nature which seeks to rectify what it deems to be wrong, unjust and undesirable. The Shari’ah has also left many things unregulated, and when this is the case human action may in regard to them be guided by good conscience and the general teachings of divine revelation. This is the substance, as Turabi explains, of the juridical doctrine of istishab. In its material part istishab declares permissibility to be the basic norm in Shari’ah; that people are deemed to be free of liability unless the law has determined otherwise; and that human beings may utilise everything in the earth for their benefit unless they are forbidden by the law. It thus appears that istishab, as a proof of Shari’ah, merits greater prominence and recognition than we find to be the case in the classical formulations of this doctrine.
by M. H. Kamali.
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