istishab as a source of Islamic law in secondary sources

istishab

1. ISTISHAB Presumption of continuity

2. DISCUSSION Definition Types and position of istishab Legal maxim originating from istishab Istishab is the last ground of fatwa Example of case:Mafqud (missing people)- Doubt arises as to whether a man is still alive or not?

3. Definition Istishab is derived from the word suhbah . Literally means accompaniment and keeping close association or attachment. Technically means “maintenance of status quo until a proof is furnished in favour of its changes.” In other words, istishab is the presumption of the continuation of both the positive and the negative until the contrary is established by evidence. Al- Qarafi (Maliki jurist) defines it to mean: the belief that the past or present matter must be assumed to remain as it is in the present or future. It means that the past judgement and knowledge of it makes one assume that it will continue in the future. The ruling/state of things continues as it is without the existence of any proof to the contrary.

4. It concerns either with the presumption of facts or with the established rules and principle of law. If a specific rule was proved as positive in the past, it will continue to remain positive until an evidence which proves it as negative is furnished. A contract of sale or a contract of marriage once it is concluded, it is presumed to remain in force until there is a change. The change in the transfer of ownership (for contract of sale) and dissolution of marriage (for marriage) Other examples: The class schedule, The university policy and regulations and Government policy and regulations If a specific rule was proved as negative in the past, it will continue to remain negative until an evidence which proves as positive is furnished. ‘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 prevails under Istishab unless there is evidence to the contrary since Istishab maintains the natural state of things which in the case of the dog is the absence of training. case of debt. ( absence of payment )

5. Types of istishab ISTISHAB AL-HUKM The general principle with regard to things in their original state is permissible. This is the presumption of continuity of legal value of things that all things are permissible unless prohibited by Shari’ah . It is only applied to beneficial things. The basis of this principle is verses of the Qur’an. Blood transfusion Organ donation Courts procedures The establishment of Islamic Banking Product ‘Permissibility is the original state of things’ (al- asl -fi al- ashya ’ al- ibahah )

6. ISTISHAB AL-’ADAM AL-ASLI Originally not in existence Fact/rule which had not existed in the past It is presumed to be non-existent until the contrary is proved A child is presumed to remain a child until there is a change (attaining majority) An uneducated person is presumed to remain uneducated until he attains educational qualifications A trader is presumed to gain no profit unless proven otherwise (A who is a trading partner claims that he has no profit). The presumption of absence of profit will be in A’s favour unless B can prove otherwise. A suspected offender is presumed innocent until proven guilty.

7. ISTISHAB AL-WUJUD AL-ASLI The presumption of continuity of non existence in the state of affairs. The principle of free from obligation is of this kind. The jurists are in agreement that originally a man is free from liability, of rights and obligations. For example, if a man claims a right or debt due on another person, he is required to produce evidence for that. The proof of this principle is based on Sunnah. “Proof lies on the plaintiff and the oath is to be sworn by the defendant.” A husband is liable to pay his wife the dower ( mahr ) by virtue of the existence of a valid marriage contract. Istishab presumes the presence of liability or a right until an indication to the contrary is found. ‘Original freedom from liability’ (al- asl bara’ah al- dhimmah ) Freedom from liability until the contrary is proved.

8. ISTISHAB AL-WASF Continuity of attributes Such as presuming clean water (purity being an attribute) to remain so until the contrary is established to be the case – change of colour or taste The presumption of existence of what is indicated by Shari’ah . Example: • Once a contract of sale is concluded, it is presumed to remain in force until there is a change. Thus the ownership of the purchaser is presumed to continue until a transfer of ownership can be established by evidence. Since the contract is permanently valid under Shari’ah and does not admit any time limit, it is reasonable to presume its continuity until there is evidence to the contrary. The legality of intimate relationship between husband and wife based on valid marriage remains until there is evidence proving to their separation. Therefore the jurists assert that “certainty is not extinguished by doubt.” ‘Certainty may not be disproved by doubt’ (al- yaqin la yazul bil as- shak )

9. Legal maxim originating from istishab It is a fundamental principle that a thing shall remain as it was originally. "Things are assumed to be now as they have been" ( ibqa ’ ma kana ‘ala ma kana). For example, you assume that someone is still alive now unless you have heard definitively that he is dead (in inheritance cases, for example). This, the presumption of continuity, is also known by the term istishab . The general principle is that the original state of things is permissible. ‘The generality is continued until it is put to limitation’. The rule in the Quran that to the male a double share of the female in inheritance is general and would have remained so if it were not qualified by the hadith that ‘the killer does not inherit’ Freedom from liability is a fundamental principle. Certainty is not dispelled by doubt.

10. Case of Missing Person ( Mafqud ) Doubt arises as to whether a man is still alive or not? Istishab : if he is known to have been alive and there is no news of his death – he is presumed to still be alive until there is evidence showing his death. A missing person will be deemed alive presuming the continuity of his life. Example: A person is missing ( eg ; the case of Sharlinie-2008) The doubt is in the proof of something that is the possibility of her death By istishab , the presumption will be that the death is not proven. Istishab will presume that she is still alive. However, if there is evidence showing to the contrary, the evidence prevails The killing of Nurin Jazimin (2007)

11. Without a trace: 5 cases of missing children in Malaysia Tin Song Sheng (disappeared in 1996) Siti Zulaiha (disappeared in 1998) Sharlinie Nashar (disappeared in 2008) Nisha Chandramohan (disappeared in 2010) Satishkumar Tamilvanan (disappeared in 2012)

12. People missing in the Disaster Landslide in Batang Kali in Hulu Selangor district, Selangor, 16 December 2022 Malaysia: Tsunami: 2004/12/26-6 people are missing Floods-2021-10 missing The disappearance of Malaysia Airlines Flight MH370 in 2014-239 people on board,  never to be seen again .

13. In the drama ‘ Menanti Februari (Waiting for February)’, the husband went missing at sea for six months. The wife marries another guy during that time. One day, the husband returned home, finding his wife is married to his best friend. What is the ruling of the marriage? Definition of  Mafqud   (Missing Person) The word al- mafqud originates from Arabic language from the root word  fa qa da  which means lost, missing and disappear. Imam al- Syafie defines it as: “ Whoever that is unheard from (does not send any word). ” . Imam al-Nawawi defines  mafqud as : “ Someone that is unheard from and his whereabouts are unknown during his travels, war or shipwreck and others. ” The contemporary scholars from mazhab Syafie states  mafqud   as: “ A person missing from his place of residence for a long time with no news and it is unknown whether he is alive or dead. ”

14. Regarding the issue of the drama ‘ Menanti Februari ’ (Waiting for February), if the husband went missing at sea (in Malaysia for example), then the duration for mafqud depends on the decision of the judge after consulting with Malaysian Maritime Enforcement Agency, the Prime Minister's Department who are responsible for carrying out maritime search and rescue duty at the Maritime Zone of Malaysia and in the deep seas. (muftiwp.gov.my., 2017) Hence our opinion are as follows: The marriage of the wife with her new husband is  invalid  for the duration of mafqud stated is 6 months without any scene showing that the wife receives a court decision regarding her marriage status with her missing husband. The first wife is  still considered as a legitimate wife of the missing husband  for the duration for mafqud has not ended. The child that the wife is pregnant with, as a result of her relationship with her second husband is considered as  a syubhah (doubtful) child conceived from syubhah (doubtful) intercourse  and is named as the child of his or her biological father (the second husband) and the child will inherite from the father. The scholars agree to the obligation of ‘iddah and the validity of lineage from an invalid marriage due to marrying another man’s wife, if there are syubhah (doubts) that nulls the fornication ruling, for they did not know the prohibition of the marriage. Hence, the marriage (invalid) is not considered as fornication, and the chid is considered as the child of the man that have intercourse with the mother. The wife is unable to ask for fasakh to the court, for fasakh can only be asked if the husband went missing for more than a year, while in the drama, the husband has been missing for just 6 months. Refer to Section 52 Order to Disperse Marriage or For Fasakh In Islamic Family Law (Federal Territories) Act 1984 Act 303.

15. Juristic View The majority of legal theorists in general hold that presumption of continuity of existing condition or state of affairs is a proof of Shari’ah that should be followed in fatwa and administration of justice, because presumption of status quo belongs to matter which is taken as a norm by the intellect and the social order proceeds according to it. However, they differ on the scope of the application of this principle. Shafi’e and Hanbali accepted Istishab as a proof (they validated it) to defend and to confirm the original hukum . Hold same view with the hanafis (to defend) except that a missing person is also entitled to inherit the estate of a relative who died before him through faraid and will. To the Shafi’e and Hanbali jurists, Istishab denotes: ‘continuation of that which is proven and the negation of that which has not existed’ In other words Istishab presumes continuation of both the positive and the negative until the contrary is established by evidence According to the Maliki, the Shafi’i and the Hanbali , istishab is a perfect proof , that is, on both sides negative and positive . It is a proof for denying something and for establishing a claim. The rights to which he is entitled to would remain as they are. So no one will inherit him, nor will his wife be divorced. Besides, he also will entitle to new rights . Thus if one of his relatives dies, he will inherit his relatives.

16. On the other hand, some Hanafi jurists hold that istishab is a proof restricted to negative side only . It is a proof for denying something but not for establish a claim. Hanafi and Maliki do not consider Istishab as a proof in its own right. Istishab is used to defend (as a shield) existing rule/status/law but not to establish (not as sword) new hukum or right. A missing person is presumed alive based on istishab . Thus, his estate cannot yet be distributed and his marriage cannot be dissolved. However, eventhough he is considered to still be alive, he cannot inherit from any deceased relative who died before his missing until his status is ascertained. Example, the rights already established for missing person will remain as they are, and they will not be extinguished, presuming his as alive, but the new rights will not be established in his favour , because the condition for establishment of these new rights is his being alive.

17. Conclusion Istishab is the last ground of fatwa. When the jurists is asked about the ruling of particular case, he must first search for a solution in the Qur’an, the Sunnah, ijma’, qiyas and maslahah . If a solution is still wanting, he may resort to istishab in either its positive or negative capacities. Istishab applies only when no other evidence is available. It consists of a probability. Thus it is not a strong ground for the deduction of the rules of Shari’ah . Istishab ranks last in the order for ground of fatwa. In case of conflict with another proof, the proof prevails.