The Eighth Principle: The Principle
of Istishab
(Presumption of Continuity)
This is one of the fundamental principles of legal deduction, even if it
does not have a wide latitude like other principles. In
general, it is a negative, not a positive principle, i.e. certain judgements
arise from it, not by legal affirmation with confirmed evidence in which
judgements are established by the lack of the existence of contrary established
evidence which is different from the established state before.
Ibn al-Qayyim defined it as being the continuation of what is established or
the negation of what does not exist, i.e. 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 judgement and the knowledge of it makes 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: "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. Then he mentioned that the evidence that it is a proof is that
it it probable that an existing state will continue to exists until there is
something to negate it. Such probability is evidence in action: like testimony.
It is a binding proof for all. If it were ignored or not acted upon, rights
would be lost since there would be no means to establish them.
According to this, istishab was considered proof by Malik as long as
there was no evidence to contradict it. When a person is absent and it is not
known whether he is alive or dead, he is considered to be alive until the Qadi
judges that he is dead and he is deemed to be alive in the period between the
absence and being judged to be dead.
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. However
presumption of innocence is a firm principle which is relied on. It is like
that when ownership is affirmed. It only ceases by a
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.
That is why they permit a settlement after denial even though the claimant
takes a reimbursement when the right has not been established. If istishab
had been a proof which obliged rejection and affirmation, that settlement would
not have been permitted as long as there was no evidence. So the evidence of
the ownership of one against whom the claim is made would be affirmed by the
principle of the continuation of the state, but the Hanafis, who permit the
settlement, said that denial interferes with the principle of innocence. As
they both have a right, each of them makes a settlement for a right permissible
in respect of him.
They explain it as meaning a negative rather than affirmative presumption.
It denies the entitlement of something against him.
Some scholars divided istishab into two categories:
1. Presumption of innocence. It is the continuance of
inviolability until there is evidence which establishes a right, like the state
of the one who denies a claim. His state is that of presumption of innocence.
Ibn al-Qayyim mentions the dispute of the fuqaha' in it, saying that the
Hanafis apply it to denial rather than affirmation. Malik, ash-Shafi'i and Ibn
Hanbal accept it as absolute proof.
2. The continuity of the attribute. A judgement
continues until its opposite is affirmed. Ibn al-Qayyim said that it is a proof
about which the fuqaha' do not argue, but we disagree with Ibn
al-Qayyim. The Hanafis said that the continuity of the attribute is a negative
rather than affirmative proof of denial, i.e. that the attribute affirms the
continuity of the condition, but it does not affirm a new right by it.
The summary of the position is that Malik, may Allah be pleased with him,
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-ShafiÔi in that.
The summary of the position is that Malik, may Allah be pleased with him,
accepted istishab as a proof and although al-Qarafi, Ibn al-Qayyim, and
others postulated a difference between him and the Hanafis, a study of the
secondary rulings of the two schools shows 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-Shafi'i in that.