ISTISHAB

1.0

INTRODUCTION
There are two main sources in Shariah law, which are, primary

sources and secondary sources. As we know, the source of law that we

primarily depend are the Al-Quran and Al-Sunnah. Meanwhile, the
secondary sources include Ijma, Qiyas, Istihsan, Maslahah Mursalah, Urf,
Istishab, and so forth. Some scholars accept the secondary sources as the
source of Shariah while other scholars reject them because there are
element of human reasoning behind it. In this group project, we will
discuss more about Istishab.
Istishab literary means companionship. In the terminology of Islamic
jurisprudence, istishab means legal presumption or presumption of
existence or non-existence of facts. It can be used in the absence of other
evidences. Istishab presumes continuation of a fact until the contrary is
proved. Because of its basis in probability, istishab is not a strong ground
for presumption of the rules of the Shariah. Hence, when it comes in
conflict with evidence the latter takes priority.
In the terms of etymology, istishab can be defined as togetherness.
The various Scholars have provide several different formulation in defining
Istishab and below is the expression of scholars towards Istishab.
i.

According to asy-syaukan : The existence of the law of a problem

ii.

in the past remain valid in present and in the future.

According to ibnu qayy im al-jauziyyah : Establish whatever set
out and negate what was previously nothing.
Istishab is one of Shariah laws source that is very interesting to
discuss. The complexity in Istishab mechanism lead to several

ISTISHAB

assumptions between scholars but it indeed acceptable to be a

guidance as it has a divine element as well as it is a part of human
reasoning (Ijtihad).

2.0 TYPES OF ISTISHAB

Istishab Al Adam Al
Asli

Istishab Al-Wasf

TYPES OF
ISTISHAB

Istishab al-Wujud al-Asli

Istishab Al-hukm

DIAGRAM 1

As shown at the Diagram 1 above, there are four type of istishab.

The first type of istishab is istishab Al Adam Al Asli (presumption of
original absence) which means that a fact or rule which had not existed in
the past is presumed to be non-existent. This basically means that a
person is free from the burden of law, unless there is a law burden on the
person. For example a person is free from the obligation of Syawal fasting,
because there are no arguments that require it. Another example, every
person is presumed to be innocent (free from liability) until the contrary is
established by evidence or proved.
The second type of istishab is Istishab al-wujud al-asli that is closely
related with presumption of original presence. This means that the
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ISTISHAB

presence of that which is indicated by law or reason is taken for granted.

For example, if a marriage is contracted, it is valid until its annulment (by
divorce for instance) is recognized. Another example is a husband is
responsible to pay his wife such a dower or mahr by virtue of existence
of a valid marriage contract.
Istishab al-hukm (continuity of rules and enactments) is the third
type of istishab. It presumes the continuity of general rules and principle
of law. For instance when there is a ruling in the law whether prohibitory
or permissive, it will be presumed to continue. For example, blood and
organ donation, the hukm of eating belacan (Shrimp paste), the
establishment of Islamic Banking product, that is Sukuk and so on.
The forth type of istishab is istishab al-wasf (continuity of attribute)
which means to presume continuity of an attribute until the contrary is
established. For example, a guarantor 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. Another example is when a person have an
ablution to perform solah, the attributes of cleanliness is presumed to
continue until it is vitiated. Istishab also based on the permanent nature of
which is unknown. Similarly, pure water still considered clean and pure as
long as there is no evidence that change the status.

ISTISHAB

3.0 PILLARS OF ISTISHAB

There are 4 pillars of istishab which is the condition are required to
go into effect of past certainty, doubt in continuity, unity of the
proposition concerning the thing known and the thing doubted and that
the state of affairs assumed to be continued has a legal effect. The first
pillar which is past continuity whereas defines as the person must have
certainty about the past state of affairs. This does not necessarily mean
that they must have actual, epistemological certainty. The past state of
affairs must be confirmed either by direct certainty, or by some evidence
that is assigned legal value in Islamic law. For example, if two just
witnesses (whose testimony is accepted in Islamic law) bore witness that
a piece of clothing was ritually clean, and then a third person doubts if the
thing is still clean, they would still assume that it is clean.

ISTISHAB

Secondly, doubt in continuity where the person must be in doubt

about the continuity of the state of affairs. Istishab is an apparent ruling,
meaning that it is a ruling that only operates when a person is in doubt.
Following the previous example, if the person knew that their clothes were
ritually clean and knows that they are no longer ritually clean, then there
is no space for this principle to operate. It is also necessary that the time
of doubt be connected to the time of certainty; if one had certainty their
clothes were ritually pure, and then knew they weren't, and then doubted
if the clothes were still ritually impure, they could not use istishab of the
original state of ritual purity.
Thirdly, unity of the proposition concerning the thing known
and the thing doubted which is the state of affairs that was known
before must be the same state of affairs that is doubted know. For
example, a person knows that the clothes owned by Zayd are ritually
pure, and he doubts if the clothes owned by 'Amr are ritually pure. There
is no place for istishab here, since the thing that was known and the thing
that is doubted are separate. The proposition must be the same, such as
the proposition "Zayd's clothes are ritually pure." That proposition must be
known to be true previously, and that same proposition has to be doubted
now, for istishab to be applied and for Zayd's clothes to be still ruled
ritually pure.
Lastly, that the state of affairs assumed to be continued has a
legal effect which is define as istishab only applies in legal matters. If
one knows, for example, that Zayd was wearing a green shirt today, and
then one doubt if he is still wearing a green shirt, istishab would not apply,
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ISTISHAB

as there is no legal relevance to him wearing a green shirt. This is

important, because most scholars of usul al-fiqh will argue that one
cannot use istishab unless the state of affairs that one will assume is still
continuing on the basis of istishab has direct legal value.
For example, let us say that we have a large container of water in a house,
large enough that it does not become impure by coming in contact with
impurity which called as kurr. The house is locked and nobody else can
come in. We then start to doubt if some of the water has evaporated, and
whether or not that water is still of such a quantity that it does not
become ritually impure by coming in contact with impurities. We go into
the house and we realize we don't know where the water is. We search
and we eventually find a container of water. Rationally, since we know
that nobody else has come into the house and there's no possible way
that somebody could have brought another container of water in, we
would assume that this is the same water. By istishab, we would assume
that it is still kurr, and so it would not become impure if it came in contact
with something impure. However, the assumption that this is the same
water is based on reason, and not based on any legal evidence. For us to
do istishab of the previous water being kurr, we have to make this rational
assumption. But because the thing that one is doing istishab with must
have a direct legal effect, 'without recourse to a rational intermediary
such as the one in the previous example. In other words, the legal effect
of istishab has to be applied directly, without any kind of rational
intermediary.

ISTISHAB

4.0 PRINCIPLE OF ISTISHAB

Presumption Of Continuity
This is one of the fundamental principles of legal deduction, even if
it does not have wide latitude like other principles. Ibn al-Qayyim defined
it as being the continuation of what is established or the negation of what
does not exist. For example, it is the judgement, negative or positive,
continues until there is evidence of a change of state. This continuance is
not proved by positive evidence, but by the absence of the existence of
new evidence.
Al-Qarafi defined it istishab means the belief that the past or
present matter must be assumed to remain as it is in the present or
future. This means that the past judgment and the knowledge of it make
one assume that it will continue in the future, like the one for whom
ownership is affirmed by something like purchase or inheritance. So
ownership continues until there exists something to negate it. It is also
like someone who is known to be alive at a specific time. It remains
probable that he is still alive until evidence is established to the contrary
and something establishes his death. So an absent person is judged to be
alive until there is something to indicate he has died and then the qadi
judges him to be dead.
Al-Qarafi said that Istishab was considered a proof by Malik as well
as the Shafi'i, al-Muzani. He mentioned that he differed from the Hanafis
in that. Al-Qarafi mentioned that the Hanafis differ from the Malikis in that
and some of them do not consider istishab to be a proof in its own right.
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ISTISHAB

However presumption of innocence is a firm principle which is relied on. It

is like that when ownership is affirmed. It only ceases by an eliminating
cause. All of this is involves the presumption of the continuation of the
state. So most Hanafis who disagree with them say that continuation of
the state is a defensive proof and not evidence of affirmation.
Some scholar defines istishab into two categories which is
presumption of innocence and the continuity of the attribute. Presumption
of innocence is the continuance of inviolability until there is evidence
which establishes a right, like the state of the one who denies a claim
while continuity of the attribute is define as a judgement continues until
its opposite is affirmed.
In conclusion, is summary of the position is that Malik, , used
istishab as a proof and al-Qarafi, Ibn al-Qayyim, and others postulated a
difference between him and the Hanafis, but the one who studies the
secondary rulings of the two schools will find that both of them do not
differ much from one other in the nature of the proof of istishab and the
amount in which it is used as evidence. You will see that they are unified
in the principle of istishab regarding the life of someone who is missing
and make it affirm what was affirmed first but it does not establish a new
right. They differ from ash-Shafii in that.

ISTISHAB

5.0 CLASSIFICATION OF ISTISHAB

Scholars have differed about how to classify istishab. It has been
mentioned that istishab can be classified into two that An Asl and An
amarah. Below is the explanation on what is An Amarah and An Asl.

i.

An asl : An asl is a hukm zahiri that is not based on probability. An

example would be the principle that everything is ritually pure until
proven otherwise. Obviously, most things are not always ritually
pure; the probability has nothing to do with it, but rather the rule is
made in order to give ease to people in their daily religious lives.

ii.

An amarah : An immarah is a hukm zahiri that operates on the

basis of probability. The legal value of a reliable person's report is
considered an immarah, since it operates under the assumption that
reliable people normally give reliable reports.
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ISTISHAB

6.0 THE DIFFERENCE OF JURIST VIEWS AND SAMPLE CASE OF

ISTISHAB
There are two kind of juristic view towards Istishab. First view is
accepted
Istishab
as a proof,
and and
thisone
view
is supported
by individuals
Imam Shafii
Mr. Aiman
is a successful
entrepreneur
of the
most influential
in
Malaysia.
He is Zahiri
a founder
of luxurious
clothing retail company,
named the
Hi-Fashion.
Imam
Hanbali,
and
Shiah Imamiyyah,
meanwhile,
second He
view
about USD5Istishab
billion in as
earning
a year.in
Heits
alsoown
owned
4 starThis
hotelsmean,
around Istishab
the world is
do gains
not consider
a proof
right.
located at Seoul, Tokyo, Ho Chi Minh, New York, and London. Recently, he head established

solely used to defend existing rule, status and law but not to establish
a co-operative partnership with Dato Seri Vida to launch a new cosmetic product. He also

new hukm or right. The second view is supported by Imam Hanafi, Imam
owned 10 percent of shares in Petronas, the oil and gas leading company in Malaysia. He

Maliki and the Mutakallimun, who is skilled in Ilmu al-kalam.

already married with a Korean woman, named Park Min Young and have two kids. One day,

To illustrate the difference juristic views towards Istishab, we provide

Mr Aiman need to attend a business trip to Shanghai, China and the flight, that is, MH370 that

a case as a sample for a better understanding:

he took is being missing from the radar and cannot be traced. There are so many speculation
arises. The Malaysian believed that the flight is being hijacked by the terrorist and some of
them believed that the flight faced some technical problem and falling into the sea. There is
no one can confirm what happened exactly to that MH370. Two years have passed and there
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is no latest news about that incident. In this case, we can assume Mr. Aiman is a missing
person.

ISTISHAB

According to Hanafi Scholar, a missing person, that is, Mr. Aiman is

presumed alive based on Istishab. Thus, his properties and wealth cannot
yet be distributed and the relationship between him and his wife cannot
be dissolved. However, eventhough he is assumed to still be live, he
absolutely cannot inherent from any deceased relatives who died before
his missing until his status whether he still or not is confirmed.
Imam Shafii and Hanbali jurists shared a same view with the Hanafi
Scholar, except, that a missing person is also have a right to the inherit
the property of a relative who died before his missing through faraid and
will.

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ISTISHAB

To sum up, for the Shafii and Hanbali jurists, Istishab denotes a
continuation of that which is proven and the negation of that which has
not existed.

CONCLUSION
In a nutshell, Shariah refers to a set of rules and regulations that
governing the lives of muslim. Shariah isnt only symbolized worship,
morals and conduct, but, it embraces the political, social and economic as
well. Shariah is surely perfect as it comes from a various sources that
have elements of divine in nature that is primary and secondary sources
including Istishab. Istishab mainly concerned with the establishment or
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ISTISHAB

objection of fact and evidence. Although there are scholars who refuse to
accept Istishab as a sources of Shariah, its still relevance and believable
as it contains element of divine and Ijtihad. This kind of Shariah source is
applicable either in the absence f other proofs or as a means establishing
the relevance of the existing proof. It also mainly concerned with the
establishment or rebuttal of fact and evidence.

References
Ahmad, A. U. (2010). Theory and practice of modern in Islamic. Florida: Brown
Walker Press.
Azkiah, H. (2016, Jun 13). Retrieved from Academia Web site:
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http://www.academia.edu/11733442/Istishab
Hashim Kamali. (2004). Principles of islamic jurisprudence. Retrieved November
15, 2016, from
https://thequranblog.files.wordpress.com/2010/04/istishab.pdf
Mukhlis, H. (2014, Jun). Retrieved from SlideShare Web site:
http://www.slideshare.net/HabibJoelAlMukhlis/istishab-34370091
Syariffudin, A. (2011, March 22). Ushul Fiqh Jilid 2. Jakarta: Kencana. Retrieved
from
http://arizaekky.blogspot.my/2013/03/istishab.html
The Shipedia. (2012, February 18). Retrieved November 14, 2016, from A Shiah
Islamic : http://www.theshiapedia.com/index.php?title=Istishab
The System Of Ijtihad. (2016). Retrieved November 14, 2016, from Al Islam :
https://www.al-islam.org/introduction-islamic-shariah-sayyid-muhammadrizvi/system-ijtihad
Zahrah, M. A. (n.d.). The Fundamental Principles of Imam Malik's Fiqh. Retrieved
November 14, 2016, from International Islamic University Malaysia:
http://www.iium.edu.my/deed/lawbase/maliki_fiqh/index.html

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