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In our previous articles, we explored the various sources of Islamic rulings. We have covered Quran, Sunnah, and Ijma as the primary sources, and examined Qiyas, Istihsan, and Amal Ahlul Madina as forms of Ijtihad. Building on this understanding, we now turn our attention to another important type of Ijtihaad: الاستصحاب (Istishaab - presumption of continuity).

Before we continue, here is a simple diagram to remind you of the different categories of ijtihad.

Defining الاستصحاب (Istishaab)

Linguistic Meaning (المعنى اللغوي)

The word Istishaab (الاستصحاب) is derived from the Arabic root "صحب" (sa-ha-ba), which refers to companionship, association, or accompaniment. Linguistically, Istishaab means the act of having a close relationship or companionship with someone. (Qamoos al-Muheet 1/91)

In the technical or Shari'i sense, Istishaab refers to:

  • Continuing to affirm what has been established
  • Continuing to negate what does not exist
  • Upholding the default position (or Asl position)

(This is stated by Ibn Qayyim in his book Alam al-Muwaqqieen (1/294))

In simpler terms, Istishaab is maintaining the status quo. It means to operate on the assumption that a situation that existed in the past continues to exist in the present until there is evidence to prove otherwise.

Example to Understand Istishaab:

To better understand this concept, consider this example: A man marries a woman who was not previously married. After marriage, he alleges that she was not a virgin before their marriage but has no evidence to support his claim. When this dispute is presented to a judge, how should it be resolved?

Applying Istishaab, the judge would reason as follows:

  • The default or original state (Asl) of an unmarried woman is virginity
  • This original state is presumed to continue unless there is evidence to the contrary
  • Since the husband provides no evidence to support his claim, the original state is maintained
  • The ruling would therefore reject the husband's unsubstantiated claim

This example shows how Istishaab works: we presume the continuation of a previously established state (virginity) until there is definitive evidence to prove otherwise.

Principles Derived from Istishaab

There are several important legal maxims and principles in Fiqh (Qawaid al fiqhiyyah) which are derived from or related to the concept of Istishaab:

1. "Certainty is not removed by doubt" (اليقين لا يزول بالشك)

This fundamental principle stipulates that what is established with certainty cannot be overturned by mere doubt or speculation.

Evidence: The hadith reported in Sahih al-Bukhari (137) where Abbad ibn Tamim narrated that his uncle asked Allah's Messenger (ﷺ) about a person who imagined to have passed wind during the prayer. The Prophet (ﷺ) replied:

"He should not leave his prayer unless he hears a sound or smells something."

This hadith establishes that the original state of wudu (ritual purity) remains in effect despite doubts, as certainty (having wudu) is not removed by uncertainty (suspicion of having passed wind).

Scholars note that this principle is applicable in virtually every chapter of Islamic Fiqh.

Practical Applications:

  1. Doubt During Prayer: A person performing prayer doubts whether they have completed three or four rak'ahs (units of prayer). Based on this principle, they should proceed with what they are certain of – that they have completed at least three rak'ahs. The fourth rak'ah is in doubt, so they should complete one more rak'ah and then perform two prostrations of forgetfulness (sujood al-sahw).
  2. Doubt About Impurity on Clothes After Leaving Home: If someone wears clean clothes in the morning and later doubts whether impurity touched them during the day, they should assume the clothes are still pure. Certainty about the initial purity outweighs any later doubt, so prayer in those clothes remains valid.
  3. Doubt About Wudu During Prayer: If someone is praying and suddenly doubts whether their wudu is still valid, without any clear evidence of it being broken (like hearing a sound or smelling something), they should continue their prayer. The certainty is that they had valid wudu when they started the prayer, and mere doubt does not invalidate this certainty.

2. "The default ruling for things is permissibility" (الأصل في الأشياء الإباحة)

This principle states that all things are originally permissible unless there is evidence to prove otherwise. It forms a foundational approach to worldly matters (mu'amalat).

Evidence from Quran: Allah says in the Quran:

"He it is who created for you all that is in the earth." (2:29)
"And has subjected to you all that is in the heavens and all that is in the earth; it is all as a favor and kindness from Him. Verily, in it are signs for a people who think deeply." (45:13)
"Say (O Muhammad (ﷺ)): 'Who has forbidden the adornment with clothes given by Allah, which He has produced for His slaves, and At-Taiyyibat [all kinds of Halal (lawful) things] of food?'" (7:32)

Evidence from Sunnah: The Prophet (ﷺ) said:

"The lawful is what Allah has made lawful in His Book, and the unlawful is what Allah made unlawful in His Book. And what He remained silent about, then this is the thing which Allah has pardoned you."

(Jami al-Tirmidhi no. 1726, authenticated by Al-Albani, Zubair Ali Zai and other scholars like Ibn al-Qayyim, Ibn Kathir, Ibn al-Arabi, etc have authenticated this based on supporting narrations.)

Imam al-Samaani said: "This Hadith is a great foundation (Asl Kabeer) of the principles and branches of the religion." He added: "It has been reported from some of them that they said: 'There is not a single hadith of the Messenger of Allah (ﷺ), that alone encompasses the principles and branches of the religion more than the hadith of Abu Tha'labah." ["Jami' al-'Uloom wa'l-Hikam" (2/70)]

Hanafi Position: Some of the Hanafis said: The original ruling is to refrain (from the action) until there is evidence that permits it, but the apparent position of the Hanafis is that the default ruling is permissibility. (Al-Ashbah wal-Naza'ir li Ibn Nujaim: 1/57).

Practical Application:

Novel Food Items: A Muslim travels to Australia and wishes to try kangaroo meat, which is not specifically mentioned in Islamic texts. Based on the principle that the default ruling for things is permissibility, especially regarding food, kangaroo meat would be considered halal unless evidence proves otherwise. Since no textual prohibition exists regarding kangaroo meat, it would be permissible to consume.

Note:

In a supporting narration for this principle from our Prophet (ﷺ) who said: "Whatever Allah has permitted in His Book is Halal, whatever He has forbidden is Haram, and whatever He was silent about is pardoned, so accept the pardon of Allah, for Allah was not forgetful. Then he recited this verse: 'and your Lord is never forgetful' [Maryam 19:64]."

This hadith has been reported in Sunan al-Daaraqutni (2/137) and al-Mustadrak al-Haakim (2/406 and 10/12). The chain of narration is munqati' (interrupted), as there is a clear gap between Raja' ibn Haywah and Abu'l-Darda'. However, there are supporting narrations, and according to a group of scholars, it is classified as Hasan (li gayrihi).

Al-Nawawi classified a similar hadith of Abu Tha'labah as hasan, as stated in al-Adhkaar (505). Ibn al-Qayyim in I'laam al-Muwaqqi'een (1/221) and Ibn Katheer in his Tafseer (1/405) considered it sahih. Al-Albani also deemed the hadith of Salman al-Farisi as Hasan, citing corroborating reports, as stated in Sahih al-Tirmidhi (1726).

There is also a report from Ibn 'Abbaas (may Allah be pleased with him) with a similar meaning that is authentic, though it is his words rather than the Prophet's. Ibn Katheer said in Irshaad al-Faqeeh (1/367) that its chain of narration is authentic. It was also classified as authentic by al-Albaani in Saheeh Abi Dawood and Mishkaat al-Masaabeeh (4074).

3. "The default for acts of worship is restriction" (الأصل في العبادات التوقيف)

Contrary to worldly affairs, acts of worship (ibadaat) are restricted to what has been established through revelation. Innovation in worship is considered bid'ah (blameworthy innovation).

Evidence from Quran: Allah says in the Quran:

"This day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as religion." (5:3)

Imam Malik said regarding this verse: "He who innovates an innovation in Islam and regards it as “something good”, has claimed that Muhammad ﷺ  has betrayed his trust to deliver the message as Allah says: {This day have I perfected for you your religion}. [Quran (5): 3] And whatsoever was not part of the religion then, is not part of the religion today." [al-I'tisaam of Al-Shatibi (1/17)]

Evidence from Sunnah: The Prophet (ﷺ) said:

“If anyone introduces into this affair of ours anything which does not belong to it, it is rejected.” (Saheeh Bukhari 2697, Saheeh Muslim 1718)

Practical Application:

This principle establishes that any newly invented form of worship that doesn't have a basis in the Quran or Sunnah is considered a bid'ah (innovation) and is rejected. For example, if someone were to invent a new type of prayer or add additional obligatory acts to established forms of worship without evidence from the Quran or Sunnah, such innovations would be rejected based on this principle.

4. "The default state of water is purity" (الأصل في الماء الطهارة)

Water is presumed to be pure unless there is evidence of impurity affecting its color, taste, or smell.

Evidence: The Prophet (ﷺ) said:

"Water is pure and nothing makes it impure." (Jami al-Tirmidhi 66)

Based on the fiqh of this hadith, scholars have mentioned that if the color, taste, or smell of the water does not change, it is considered pure.

Practical Application:

Natural Water with Leaves or Algae: A hiker finds water in a forest that contains leaves but has no noticeable change in color, smell, or taste. Based on the principle that the default state of water is purity, and since the presence of leaves has not changed the essential properties of the water, it remains pure and can be used for wudu or ghusl.

5. "The default state of clothing is purity" (الأصل في الثوب الطهارة)

Clothing is presumed to be pure unless there is evidence to the contrary.

Practical Application:

Doubt About Ritual Purity of Clothing: Mariam is getting ready for school, wearing clean clothes that she is certain are free from impurities. On her way, something spills nearby, and she is uncertain whether any impurity has touched her clothes. Based on the principle that the default state of clothing is purity, and that certainty is not removed by doubt, she may pray in these clothes without washing them first.

However, if she becomes certain that impurity has touched her clothes but is uncertain about the specific location, she must wash the entire garment or change clothes, as the certainty of impurity now overrides the previous state.

6. "The default state of things is purity" (الأصل في الأشياء الطهارة)

Things in general are considered pure unless proven otherwise through textual evidence.

Practical Application:

Food Touched by Insects: During a picnic, bees are observed landing on the edges of food plates. Based on the principle that the default state of things is purity, the mere landing of bees on food does not render it impure. The food remains permissible to eat, though personal preference may lead someone to avoid it.

7. "The default state is freedom from liability" (براءة الذمة الأصلية)

This principle stipulates that a person is considered free from obligations or liabilities until evidence proves otherwise. This is similar to the legal concept of "innocent until proven guilty."

Evidence: The Prophet (ﷺ) said:

"If people were given in accordance with their claims, men would claim the wealth and lives of other people. Rather, the burden of proof is on the accuser and an oath is a duty upon the defendant." (Authentic Hadith: Sunan al-Kubra of al-Bayhaqi 21201)

Practical Applications:

  1. Dispute Over a Trained Hunting Dog: Ali purchases a hunting dog from Zaid with the condition that the dog is trained for hunting. Upon taking the dog home, Ali discovers that the dog is untrained. A dispute arises between the two parties. The judge must examine whether the dog is truly untrained. If Zaid cannot provide evidence that the dog is trained, the ruling will be based on Istishaab – the original or default state of dogs is that they are untrained unless proven otherwise. The case would likely be decided in favor of Ali.
  2. Dispute Over Virginity After Marriage: A man marries a woman who was not previously married. After marriage, he alleges that she was not a virgin before their marriage but has no evidence to support his claim. Since he provides no evidence, the ruling returns to the default position. The default state of an unmarried woman is presumed to be virginity until proven otherwise. The man's claim would be rejected without evidence.
  3. Debt Claims Without Documentation: If Sarah claims that Aisha owes her money from a previous transaction but has no documentation or proof to support her assertion, the burden of proof is on Sarah as the claimant. Without such proof, Aisha is presumed to be free from liability, as the default state is freedom from obligation.

The Status of Istishaab as a Source in Fiqh

Scholarly Consensus on Istishaab

The overwhelming majority of scholars, including those from the Shafi'i, Maliki, Hanbali, and Zahiri schools, as well as scholars of Hadith (Ashab al-Hadith) and a segment of Hanafi scholars, consider Istishaab to be a valid and conclusive proof without any restrictions or reservations.

The Hanafi Position

While many Hanafi scholars accept Istishaab, some take a slightly nuanced approach. They contend that istishab serves as evidence solely in negating claims. It is utilized to reject assertions rather than to affirm them. (Irshad al-Fuhool of Shawkani 2/250)

For example, if a person disappears without trace:

Majority View: Based on Istishaab, the person is presumed to be alive until death is proven. Therefore, their property remains theirs, and they retain all rights, including new inheritance they might be entitled to during their absence.

Some Hanafi Scholars' View: The person's existing property and rights remain intact (applying Istishaab to maintain what exists). However, they do not automatically acquire new entitlements like inheritance distributed after their disappearance (rejecting the use of Istishaab to establish new rights).

Conclusion

Istishaab establishes that what exists continues to exist and what does not exist continues to be non-existent until proven otherwise. As we've seen through various examples, this principle touches virtually every aspect of Islamic law, from worship to transactions and personal issues.

In our next article, we will explore another important principle in usūl al-fiqh: Sadd ad-Dharai, inshaAllah.