Lecture Notes 9_usul Fiqh
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GT20302 USUL FIQH/ISLAMIC JURISPRUDENCE Istishab (Presumption of Continuity) Copyright Reserved 2008@Mohd Zulkifli Muhammad
1
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 Copyright Reserved 2008@Mohd Zulkifli Muhammad
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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;
Copyright Reserved 2008@Mohd Zulkifli Muhammad
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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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
4
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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
5
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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
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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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
7
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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
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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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
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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).
Copyright Reserved 2008@Mohd Zulkifli Muhammad
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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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
11
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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
12
WALLAHU ’ALAM THANK YOU VERY MUCH FOR YOUR ATTENTION
Copyright Reserved 2008@Mohd Zulkifli Muhammad
13
1
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 Copyright Reserved 2008@Mohd Zulkifli Muhammad
2
Introduction • Literally, Istishab means 'escorting' or `companionship'. • Technically, istishab denotes a rational proof which may be employed in the absence of other indications;
Copyright Reserved 2008@Mohd Zulkifli Muhammad
3
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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
4
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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
5
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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
6
• 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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
7
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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
8
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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
9
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).
Copyright Reserved 2008@Mohd Zulkifli Muhammad
10
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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
11
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.
Copyright Reserved 2008@Mohd Zulkifli Muhammad
12
WALLAHU ’ALAM THANK YOU VERY MUCH FOR YOUR ATTENTION
Copyright Reserved 2008@Mohd Zulkifli Muhammad
13
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