this article were wrote by Habibah, currently continue in Master Islamic Finance in UNISZA 2017.
ISTISHAB
AND THE RANDOM ISSUES
OF ISLAMIC FINANCE’S PRODUCT
Prepared by ;
Habibah
Solehah Binti Ramli
Universiti Sultan Zainal Abidin , UNISZA
2017
MMA16 SL1838
Submitted to ;
Dr Bunyamin Bello
Universiti Sultan Zainal Abidin , UNISZA
2017
1.1 PROBLEM STATEMENT
Islam is a complete and detailed religion from law side. Everything
has been arranged by Allah in the Qur'an and Prophet in the Sunnah. Quran and
Sunnah are the highest sources of Islamic law, because it is certain and there
is no doubt inside. From these two sources, so Islamic law explored and found
to regulate the lives of God's creatures in the world.
To find and establish Islamic law, scholars mobilize all the
ability of his reason, which is commonly referred to ijtihad. In doing ijtihad,
scholars formulate some methods. Qiyas method is considered the most powerful
and high quality. If the results of these methods agreed by all scholars, it is
called ijma'.Qiyas and ijma' are the argument that agreed by all Islamic
scholars.
There are several methods of ijtihad which not all scholars agree.
Among them are: Istihsan, Maslahahal-mursalah, Istishab, 'Urf, Syar'u man
qablana, etc. In this paper will be presented in one of the methods of ijtihad,
it is Istishab, either from understanding, kinds, or it’s proofing.
Islamic banking is banking based on Islamic Law (Sharia ). It
follows the shariah, called fiqh muamalat (Islamic rules on transactions). The
rules and practices of fiqh muamalat came from Al-Quran and As –Sunnah, and
other secondary sources of Islamic law. The foundation of Islamic economics,
the parents science of Islamic Banking are based on the concept of economic wellbeing,
universal brotherhood, justice, equitable distribution of income, and freedom
of the individual within the context of social welfare. Islam also encourages
truthfulness in business transactions and raises the status of a truthful
merchant.
Islamic finance is a term that reflect to financial business that
is not contradictory to Sharia principle. In Islamic law, one of important
principle is calles Istihab which means, the presumption of permissibility.
Hence this definite the original rulling for every matter is permissible unless
proven otherwise. The issue is when Islamic finance is coming after
non-compliant were practiced in this century. This means Islamic finance must
take on distinctive features with an innovative approach to remain true to Sharia
principle while being remain competitive against conventional finance at the
same time.
1.2 SCOPE
OF STUDY
The study will be focused mainly on the Istishab and their issue in
Islamic finance.
1.3 RESEARCH QUESTIONS
In
order to prepare this paper, a few questions need to be answered as follows :
1.
What
is the meaning of Istishab?
2.
What
kinds of Istishab?
3.
What
are the legal maxims that related to istishab and practising in Islamic Finance.?
1.4 OBJECTIVE OF STUDY
The
objectives of the study are as follows :
1.
To
understand the idea of Istishab and the opinion of scholars about Istishab
proofing.
2.
To
study kinds of Istishab.
3.
To identify the legal maxims that
related to istishab and practising in Islamic Finance.
2.
LITERATURE REVIEW
2.1 REVIEW ON ISTISHAB
What does the following text mean: If, for example, on account of
the long absence of someone, it is doubtful whether he is alive or dead, then
by Istishab, all rules must remain in force which would hold if one knew for
certain that he was still alive. Before the person is absent we know that
he/she was alive. If we don’t know whether they are still alive or not as of
now we look at what we already know: that he/she was alive the last time, so
this fact is not going to change until we have ample and adequate proofs that
he/she has passed on. (Dr B Philips)
Islamic economic system ‘exists’ in the sense of having its own
ethical values, a set of economic objectives, as well as policy instruments. In
other words, it can be seen as an “optimum regime” which optimally combines the
concerns of social justice with those of economic growth. And, as in any other
economic system, the problem is to maximize social welfare subject to well defined
constraints and ‘initial conditions’. The presumption is that such an ethically
motivated regime, on a priori grounds, has as high a probability of success as
any other economic system in solving man’s known economic problem, even at a
lower cost; and that it can stand its ground as it “opens up, interacts, and
competes with other (economic) systems.” (Sirageldin 1995).
Other scholars define this principle as public welfare as cited by
(Abdurrahman I. Doi 1984). This principle together with other principles
like istishab and istihsan go back in their origin to reason; to the study of
the reasons behind the rules, to the fulfillment of the interests of the people
in their social life and to abiding as closely as possible with absolute good
and the dictates of justice and equity (S. Mahmassani, 2000)
Islamic finance is a term that reflects financial business that is
not contradictory to Shar’ia principles. An important principle in Islamic law
is istishab, the ‘presumption of permissibility’. This dictates that the
original ruling for every matter is permissible unless proven otherwise.
However, there are core practices of conventional finance which are
non-compliant to essential Shar’ia requirements. This means Islamic finance
must take on distinctive features with an innovative approach which distinguish
it from conventional finance in order to remain true to Shar’ia principles
while being competitive against conventional finance at the same time. For
example, conventional finance, especially the banking industry, is based on
taking deposits and giving out loans while charging interest as a premium. This
is strictly against the Shar’ia since money in Islam is a medium of exchange
and cannot earn money by itself, and so in Islamic banking alternative
relationships must exist between the bank and customers which must be asset-backed,
such as trading, leasing and investment
activities.( Mohammed
Zeeshan Yousuf,2014)
The stance taken by the Shafi’i school on the waqf of movables is
based upon Imam Shafi’i ruling that the waqf of anything is valid from which
profit can be derived whilst its original endures. What is important here is
that the original capital of the waqf, corpus, should not diminish due to
consumption and should be renewable from time to time by its usufruct. But the
perpetuity of the waqf is not a condition sine qua non for the Shafi’is. Thus,
the difficult debate witnessed among the Hanafis, as described above, does not
exist among the Shafi’is.
It is said that the condition that the original capital should endure
is to guard against cash waqfs because it is not possible to benefit by them
consistently (Suhrawardy, 1911: 342). This negative view is also
supported by the Ghayat al-Bayan. But then Imam Shafi’i’s position regarding
custom must be remembered. Imam Shafi’i, like Abu Yusuf, ultimately approves of
the waqf of movables subject to custom. Moreover, on the issue of custom he is
almost as flexible as Muhammad al-Shaybani, for he has introduced the concept
of istishab. Istishab pertains to the existence of a thing established by
evidence. Even though later some doubt might arise as to its continuance in
existence, it is still considered to exist (Ibrahim, 1965: 69). Thus, a
practice once proved to be widespread may be presumed to be both ancient and
continuing. The relevance of istishab for cash waqfs is that their ancient existence
during Imam Zufar’s time and their widespread and definitive existence in
Ottoman lands between the fifteenth and twentieth centuries render them valid
for the Shafi’is even today. It is not therefore surprising that they are
presently considered to be valid in certain Shafi’i lands, as has been
indicated at the beginning of this chapter. Cash Waqf: The
Hanbali Position, Imam Ahmad ibn Hanbal has also accepted the Shafi’i condition
that the endowment of any moveable is valid providing that the corpus of the
waqf is not consumed and preserved. ( Murat Cizakca).
Decisions made by the SAC on disposal of the Shariah-compliant
originally then declared Shariah-compliant is a sensible decision. In fact, the
ownership of any declared Shariah-compliant securities are deemed as halal,
including any benefit received from the ownership like dividend payments to the
holders of securities. Hence, investors can hold on to that law as long as
there is no evidence to suggest otherwise. It is based on a juristic method of
istishab which refers to an act of maintaining an existing law as long as there
is no evidence to change it (Zaidan, 1979)
Shubuhat are matters that are neither distinguishable as being
halal nor haram, thus, not many people recognize them or know their ruling.
Scholars, however, can reach a rule regarding such matters by applying a
suitable text or qias (analogy) or istishab (accompanying). So if the scholar
were to come across such a matter in which it is not immediately obvious
whether it is halal or haram, then he would attempt to classify it as one of
the two with the appropriate evidence. If he is able to classify it under halal
then it is considered as such. Such matters may not be free of doubt even then
and if it is so then it is safer to leave it falling thus under the Prophet’s
words, "he who avoids doubtful deeds has achieved purity in his religion
and his reputation". As for those matters that a mujtahed is unable to
classify, should he rule it to be halal or haram or refrain from ruling
(al-twaquf) (Al Nawwawi: Vol. 11∕27, 16∕111).
3.
RESEARCH METHODOLOGY
This project attempt to explain the concept of Istishab . Hence, the research
will normally involve library research
in order to obtain the necessary information and required data.
Apart from that, articles and reports from journals, magazines, and
form of mass media will also provide a source of information in the research..
The subject matter of the paper will involve an analysis in the research. Most
of the secondary data will be obtained through this method.
Research is done in many libraries including state library in
Terengganu and Unisza’s library as well.
4.
SCOPE OF RESEARCH
The study will be focused mainly on the Istishab and their issue in Islamic finance.
5.
FINDINGS
5.1 Overview of the meanings
and definition
1.
Definition
Istishab word
is etymologically derived from the word “istashhaba” in sighat istif ’ala (استفعال)
that means استمرارالصحبة whereas word الصحبة translated with friend or best friend and استمرار
translated always or continuous, so istishab etymologically means “always
accompany”.
Literally,
Istishab means 'escorting' or `companionship'. Technically, istishab denotes a
rational proof which may be employed in the absence of other indications;
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. The technical meaning of istishab
relates to itsliteral meaning in the sense that the past `accompanies' the
present without any interruption or change.
The meaning of
the terminology istishab (term), there are several different formulations of
scholars who provide istishab definition, but the difference was not until the
principle.
a.
Asy-Syaukani in Irsyad
Al-Fuhul define:
ان ما ثبت فى الزما ن الما ضى فالاصل بقاؤه فى الزما
ن المستقبال
“Everything that has been applied permanently in the past, the principle
still applies in the future.”
b.
Ibnu al-Qayyim
al-Jauziyah says:
استخدامة اثبت ماكان ثابتاونفي ماكان منفيا
“Establish whatever set out and negate what was previously nothing.”
c.
Ibn As-Subki in the book
Jam’u Al-Jawani volume II defines:
ثبوت امر فى الثانى لثبوته فى الاول لفقدان مايصلح
للتخيير
"A
validation of something in the second period because it has been applied in the
first period because there was no proper to change it."
d.
Muhammad ‘Ubaidillah
Al-As’adi formulated a definition:
إبقاء حكم ثبت بدليل في الماضي معتبر في الحال حتى
يوجد دليل غير دليل الأول يغير
“Confirm law laid down by an argument in the past considered this time
to obtain other arguments that change it.”
e.
Definition according to
Ibn al-Hummam from among scholars Hanafiyah:
بقاء دليل محقق لم يظن عدمه
“The fixed of certain thing that no strong suspicion yet about the
absence of it”.
2.
The Arguments of Istishab
Applications
Arguments of
Naqli:
1. Al-Quran
The verses
that used in istishab applications that is with regarding (istiqra) verses that
describe about Islamic laws and it was fixed as long as there is no argument
that change it.
As the
prohibition of alcohol defined by Quran that explain the prohibition of khamr,
if it has changed the nature to be vinegar so it is not prohibited because the
intoxicate nature has gone.
That case
located in Quran, surah al-Maidah verse 90:
يَا أَيُّهَا الَّذِينَ
آمَنُواْ إِنَّمَا الْخَمْرُ وَالْمَيْسِرُ وَالأَنصَابُ وَالأَزْلاَمُ رِجْسٌ مِّنْ
عَمَلِ الشَّيْطَانِ فَاجْتَنِبُوهُ لَعَلَّكُمْ تُفْلِحُونَ -٩٠-
“O ye who believe! Intoxicants and gambling, (dedication of) stones, and
(divination by) arrows, are an abomination of Satan's handwork: eschew such
(abomination), that ye may prosper.”
Another ayah
from Surah Al-Anam 6:145 – “ Say: I did not find the revelation I received anything
forbidden (to be eaten) to anyone wishes to eat, unless it is dead meet, blood
poured forth or the flash of swine.
In this
Quranic verse, it could be understood that everything is presumed to be
permissible unless prescribed otherwise. This gives support to the principle of
Istishab.
2. As-Sunnah
From Abu
Hurairah, the Prophet said:
إذا وجد أحدكم في
بطنه شيئًا فأشكل عليه أخرج منه شيءٌ أم لا فلا يخرجنّ من المسجد حتى يسمع صوتًا أو
يجد ريحًا (رواه مسلم)
“When one of you feel something in his stomach
then he doubted whether out something or not, so do not be left out the mosque
so that heard sound, or break wind.” (Narrated by Muslim)
This hadith
shows that a person with ablution is presumed to be in the state of ablution
until he is certain that the ablution has been invalidated. This supports the
principle of Istishab. One of the examples of Istishab is when a person is
known to be indebted to another, he presumed such until it is proven that he
settled the debt or was acquitted of it.
Arguments of
aqli:
Instinctively,
our mind can decide everything that allowed or not, existed and not by looking
at its origins as long as there is no argument that denying the contrary. So it
still like origin in law, as human was born into this world forever he is still
live as long as there is no clear evidence that he was dead.
3.
Istishab Proofing
Usul fiqh
experts have differed on opinion about Istishab proofing when there were no
arguments that explain it, such as:
1. According to the majority of Mutakallimin
(theologians)
Istishab
cannot be an argument, because a law which established in the past requires an
argument. Similarly to establish the same law nowadays and future, should be
based on the argument.
2. According to the majority of Hanafiyah’s
scholars, especially Muta’akhirin.
Istishab can
be an argument to establish pre-existing law and consider the law still applied
in the future, but it cannot establish the law that will be present.
3. The scholars of Malikiyyah, Syafi'iyah,
Hanabilah, Zahiriyyah and Syiah have a nation (opinion) that:
Istishab can
be an absolute argument to establish the laws that have existed as long as
there is no an argument that change it. Their reason is something that has been
established in the past, as long as there is no arguments that change it either
qath'i or zhanni, so the law that has specified still applied, because it
alleged no alteration yet.
Since istishab consists of a
probability, namely the presumed continuity of the status quo ante, it is not a
strong ground for the deduction of the rules of Shari'ah. Hence when istishab
comes into conflict with another proof, the latter takes priority. As it is,
istishab is the last ground of fatwa: when the jurist is asked about the ruling
of a particular case, he must first search for a solution in the Qur'an, the
Sunnah, consensus of opinion, and qiyas. If a solution is still wanting, he may
resort to istishab in either its positive or negative capacities. Should there
be doubt over the non-existence of something, it will be presumed to exist, but
if the doubt is in the proof of something, the presumption will be that it is
not proven. In the case of a missing person, for example, the nature of the
situation is such that no other proof of Shari'ah could be employed to
determine the question of his life or death. Since the main feature of the
doubt concerning a missing person is the possibility of his death, istishab will
presume that he is still alive. But in the event of an unsubstantiated claim
when, for example, A claims that Bowes him a sum of money, the doubt here is
concerned with the proof over the existence of a debt, which will be presumed
unproven.
5.2 KINDS
OF ISTISHAB
The scholars
of usul al-fiqh substantially agree
about the legal weight of four types of istishab:
1.
Presumption of the
original permissibility (istishab al-ibahah al-asliyyah) of things
for which the Shariah has not prescribed any specific ruling. The majority of
usul scholars agree that the original ruling. The majority of usul scholars
agree that the original ruling for every useful activity is that permissible.
Two kinds of evidence can override the original ruling:
a.
Specific Shariah evidence
that an act is prohibited
b.
Empirical evidence that
it poses serious harm to life, religion, intellect or property.
2.
Presumption of the
absence (istishab al-adam al-asli) of any
Shariah ruling. This principle is known through reason. On its basis, people
are taken to be free from any liability in the absence of positive evidence
establishing it. This type is under Maxims 11 : “ Freedom from liability is
pre-existing and therefore prevailing state”.
3.
Presumption of
comprehensiveness (istishab al-umum); this
presumes that a ruling is general as long as no other evidence limits its
scope. A related presumption is istishab al-nass; divine texts are presumed to
remain operative as long as there is no proof of their abrogation(naskh).
4.
Presumption of continuance
of an attribute (istishab al-wasf) until the
contrary is prove. For example, the continuance of ownership is presumed when a
cause of ownership- for example, a sale contract – has been established.
From the
viewpoint of the nature of the conditions that are presumed to continue,
istishab is divided into four types an follows:
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
non-existent until the contrary is proved. Thus a child and an uneducated
person are presumed to remain so until there is a change in their status, for
example by attaining majority, or obtaining educational qualifications respectively.
Similarly 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. Another area which is determined by the presumption of original
absence is the original freedom from liability, or the presumption of
innocence, which will be separately discussed later.[10. Shawkani, Irshad, p.
238; Badran, Usul, p. 219; Abu Zahrah, Usul, p. 236.]
2) Presumption
of original presence (istishab al-wujud al-asli).
This variety
of istishab takes for grantedthe 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. 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.
Similarly, under the presumption of original presence, the purchaser is
presumed liable to pay the purchase price by virtue of the presence of the
contract of sale until it is proved that he has paid it. By the same token, a
husband is liable to pay his wife the dower (mahr) by virtue of the existence
of a valid marriage contract. In all these instances, istishab presumes the
presence of a liability or a right until an indication to the contrary is
found. The ulema are in agreement on the validity of this type of istishab,
which must prevail until the contrary is proved.[11. Khallaf,`Ilm, p.92.]
3) Istishab al-hukm, (juristical)
Istishab which
presumes the continuity of the general rules and principle, of the law. As
earlier stated, istishab is not only concerned with presumption of facts but
also with the established rules and principles 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). When there is a ruling in
the law, whether prohibitory or permissive, it will be presumed to continue
until the contrary is proved. But when there is no such ruling available,
recourse will be had to the principle of ibahah, which is the general norm of
Shari'ah law concerning a matter that is deemed beneficial and free of evil
consequences. Hence when the law is silent on a matter and it is not repugnant
to reason it will be presumed to be permissible.
This is the
majority view, although some Mu'tazilah have held a variant opinion, which is
that the general norm in Shari'ah is prohibition unless there is an indication
to the contrary. The principle of permissibility (ibahah) originates in the
Qur'an, in particular those of its passages which subjugate the earth and its
resources to the welfare of man. Thus we read in sura al-Baqarah (2:29): `It is
He who has created for you all that is in the earth,' and in sura al-Jathiyah,
(45:13) that 'God has subjugated to you all that is in the heavens and in the
earth. These Qur'anic declarations take for granted that man should be able to
utilise the resources of the world around him to his advantage, which is
another way of saying that he is generally permitted to act in the direction of
securing his benefits unless he has been expressly prohibited.
Hence all objects, legal acts, contracts and
exchange of goods and services which are beneficial to human beings are lawful
on grounds of original ibahah.[12. Abu Zahrah, Usul, p. 236; Khallaf, 'Ilm, p.
92; Badran, Usul, p. 219; Khudari, Usul, pp. 354-55.] But when the legal norm
in regard to something is prohibition, then istishab presumes its continuity
until there is evidence tosuggest that it is no longer prohibited.
4) Istishab al-wasf (nature, characteristic)
Continuity of
attributes, such as presuming clean water (purity being an attribute) to remain
so until the contrary is established to be the case (for example, through a
change in its colour or taste). Similarly, when a person makes an ablution to
perform the salah, the attribute of ritual purity (taharah) is presumed to
continue until it is vitiated. A mere doubt that it might have been vitiated is
not sufficient to nullify taharah. By the same token, a guarantor (kafil -
kafalah being a juridical attribute) 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.[13. Ibn al-Qayyim, I'lam, I, 295; Badran, Usul, p. 219.]
The jurists
are in agreement on the validity, in principle, of the first three types of
istishab, although they have differed in their detailed implementation, as we
shall presently discuss. As for the fourth type of istishab, which relates to
the attributes, whether new or well-established, it is a subject on which the
jurists have disagreed. The Shafi'i and the Hanbali schools have upheld it
absolutely, whereas the Hanafi and Maliki schools accept it with reservations.
The case of the missing person is discussed under this variety of istishab, as
the question is mainly concerned with the continuity of his life-life being the
attribute. Since the missing person (mafqud) was alive at the time when he
disappeared, he is presumed to be alive unless there is proof that he has died.
He is therefore entitled, under the Shafi'i and Hanbali doctrines, to inherit
from a relative who dies while he is still a missing person. But no-one is
entitled to inherit from him for the obvious reason that he is presumed alive.
Yet under the Hanafi and Maliki law,the missing person neither inherits from
others nor can others inherit from him.
The Hanafis
and Malikis accept istishab al-wasf only as a means of defense, that is, to
defend the continued existence of an attribute, but not as a means of proving
new rights and new attributes. Istishab can therefore not be used as a means of
acquiring new rights for the missing person, but can be used so as to protect
all of his existing rights. To use a common expression, istishab can only be
used as a shield, not as a sword.If, for example, the missing person had owned
property at the time of his disappearance, he continues to be the owner.
Similarly his
marital rights are presumed to continue, just as he remains responsible to
discharge his obligations until his death is established by evidence or by a
judicial decree. But for as long as he remains a missing person, he will not be
given a share in inheritance or bequest, although a share will be reserved for
him until the facts of his life or death are established. If he is declared
dead,the reserved share will be distributed among the other heirs on the
assumption that he was dead at the time of the death of his relative. Upon
declaration of his death his own estate will be distributed among his heirs as
of the time the court declares him dead. This is the position under the Hanafi
and Maliki schools, which maintain that although the mafqud is presumed to be
alive, this is only a presumption, not a fact, and may therefore not be used as
a basis for the creation of new rights.[14. Shawkani, Irshad, p. 238; Abu
Zahrah, Usul, p. 237; Badran, Usul, p. 223; Coulson, Succession, p. 198ff.]
The question
may arise: why can his heirs not inherit from the mafqud? If nothing is
certain, perhaps his heirs could be assigned their shares, or the shares may be
reserved in their names until the facts are known. In response to this, the
Hanafis invoke the principle of "original absence", which means here
that a right to inheritance is originally absent and will be presumed so until
there is positive proof that it has materialised.
5.3 THE
APPLICATION OF ISLAMIC LEGAL MAXIMS TO ISLAMIC FINANCE
Fiqh scholars
established some rules based on Istishab, such as:
1.
الأصل البراءة الذمة
- Freedom from liability is the fundamental
principle
The origin of
this maxim goes to the Quranic verse declaring the original permissibility of
all things:
Say, "I do not find within that which was revealed to me
[anything] forbidden to one who would eat it unless it be a dead animal or
blood spilled out or the flesh of swine (
surah al-anam:145)
In this
Quranic verse it is understood that everything is presumed to be permissible
unless otherwise prescribed in the Shariah. Similarly a person is deemed to be
free from any liability unless there is evidence to show otherwise as the
origin of man is free from any liability.
Thus in case
of loss in business for example, a partner cannot allege wilful neglect and
require the latter to indemnify him for the loss, unless he proves the
contrary. Failing this proof the partner will not be personally made liable to
the loss nor to indemnify the other partner. Any doubt affecting his position
of freedom from liability will be untenable. No arbitrary judgement of the
contender would be acceptable.
It means that
basically a person is not burdened with responsibilities before there was an
argument that established the responsibilities of someone. Therefore, a
defendant in any problems could not be convicted before the existence of strong
and convincing evidence that he is guilty.
Application of
the Maxim in Islamic Finance :
1.
A dispute arises between
the lessor and lessee on the amount of the rental fee after the asset has been
fully utilized. If neither side has evidence, the Shariah initially accepts the
lessee’s claim along with his oath. That is because both parties positions
coincide on the lessor must provide evidence to establish it because the
starting rule is that the lessee is free from liability for anything above the
agreed amount.
2.
A lessor is not allowed
to ask the lessee to pay the maintenance of the leased property, or insurance
for it, or similar expenses because such expenses are incurred for the benefit
of the property owner. Since the lessee is not the owner. He is free of
liability for such expenses.
3.
An accountholder claims
that he made a deposit into his account using a cash deposit machine that
malfunctioned, taking the money without issuing a receipt. The bank denies the
claim. The burden of proof is on the depositor since any deposit creates a
liability on the bank (wadiah yad amanah), and the original ruling is that the
bank is free of liability.
4.
One party gives an amount
of money to another , and then they dispute over whether it was giving as a
loan or as a deposit for safekeeping (wadiah yad amanah), and neither has
evidence to establish his claim. In this case, it will be considered wadiah
because the loan carries the liability of
repaying it in any event whereas the wadiah results in liability only in case of
negligence or misconduct. Considering it wadiah is consistent with the original
state of freedom from liability.
5.
If a merchant claims he
sold goods to a certain person and the person denies the sale, the burden of
proof is on the merchant because he is seeking to establish a liability on the
party while the original state is freedom from liability.
2.
الأصل بقاء ماكان
علي ما كان – The basic rule is that a thing remains in
its original
This maxim means that a thing is presumed to
remain in its original state unless there is proof to the contrary. Every
shariah ruling established in the past remains unaltered to the present in the
absence of other Sahria evidence that supersedes the past ruling. On the basis,
the permissibility of an action will remain as it was until there is evidence to
the contrary. Likewise, obligatory worship will remain as it is long as no
evidence supersedes the obligatory ruling. In the terminology of usul fiqh,
this is known as istishab.
In another
means, that basically all of existing laws considered that is valid until found
the argument that shows the law does not apply anymore. For example, a wife who
left by her husband and doesn’t know the location of the husband, she
prohibited to marry with another person, because she still tied with her
husband.
Application of the Maxim in Islamic Finance :
1.
When a customer applies
for financing, the bank does a credit check to determine whether or not he will
be able to afford the monthly payments. It will only accept the financing
request when it is satisfied regarding the customer’s financial ability. If the
customer later delays payment and claims it is because he is facing financial
difficulties due to change in his circumstances, he must supply proof for his
claim because the presumption is that things remain as they were.
2.
If an Islamic bank states
that the depositor has withdrawn his deposit but the depositor denies it, the
burden of proof is on the bank since the original legal position is that the
depositor had deposited the money.
3.
If a person who is
covered by a takaful life insurance policy goes missing, his relatives cannot
claim the benefits of the policy until his death becomes established. That is
because what is known for certain is that he was alive; therefore, he is
presumed to be still alive until there is evidence to the contrary.
4.
If two parties agree that
a sale occurred, and the buyer claims that he paid the price of the asset to
the seller while the seller denies it, the seller’s claim is accepted on the
basis that a buyer is liable to pay a seller, so the buyer in this case is
liable to pay, and the legal duty is the basis of the presumption of fact until
evidence is provided to the contrary. In contrast, if they dispute the delivery
of the asset purchased, the accepted claim is the buyer’s because the sale make
the seller liable for its delivery, and this is presumed to remain in effect
barring contrary evidence.
3.
الأصل في الصفات العارضة العدم - The presumption is
that development of legal significance is only of recent occurrence
This maxim is another corollary of the leading
maxim “Certainty is not overcome by doubt”. It focuses on the time of any given
event and is particularly relevant to disputes among transacting parties. In
principle, if a dispute occurs regarding the time that an event occurred, and
if the time can be identified, the decision will be based on that time.
However, if the time of an event is in doubt, the decision will the based on
the nearest time to the present because it is more certain unless the contrary
us proven.
The general meaning of the maxim is that if a
dispute between two parties occurs regarding the time of an event, and no proof
is provided, judgment should be made on the basis of the nearest time to the
present. That is because both parties agree that the event had occurred by the
later of the two times whereas only one of them claims that it happened before
that. The occurrence of the event by the most recent time is thus a matter of
agreement and certainty while its occurrence before that is in doubt. Hence,
consideration is given to what is certain.
Application of
the Maxim in Islamic Finance :
1.
In the case of sukuk mudharabah, if a dispute occurs between the obligor
(mudarib) and the sukuk holders (rabb al-mal) as to whether any profit was
realized from the project, the world of the mudarib will be taken, and the sukuk
holders need to provide evidence to prove that profit has been earned.
2.
Regarding entitlement to
takaful benefits, the fact that deceased has more than one wife is a claim
which should be proved. That is because marriage is a transitory attribute.
3.
A dispute occurs between
a buyer and a seller in a sale contract as to whether or not the option of
cancellation (khiyar al-shart) was stipulated and agreed to in the contract. In
this case, the presumed position is the non-existence of the stipulated option on
the ground that it is not an intrinsic part of the contract.
4.
A bank sells a car and
hands it over to the buyer. A week later the buyer claims that the car had a
defect while the seller denies it. In this case, jurist will consider the claim
of the seller supported by his oath on the basis that absence of defect is the
original condition of the car while the defectiveness is not. Hence the buyer’s
claim is not accepted in the absence of evidence to override the original rule.
4. الأصل اٍضافة
الحادث اٍلى أقرب وقته – The presumption is that a development of legal significance is only of
recent occurrence.
This maxim is another corollary of the leading maxim “Certainty is not
overcome by doubt”. It focuses on the time of any given event and is particularly
relevant to disputes among transacting parties. In principle, if a dispute
occurs regarding the time that an event occurred, and if the time can be
identified, the decision should be based on that time. However, if the time of
an event is in doubt, the decision will then be based on the nearest time to
the present because it is more certain unless the contrary is proven.
The explanation of the maxim is hadith is derived from the verb
hadatha/yahduthu: ‘to occur, come to pass’. Hadith means ‘incident, occurrence,
event, episode, accident, mishap’. The general meaning of the maxim is that if
a dispute between two parties occurs regarding the time of an event, and no
proof is provided, judgement should be
made on the basis of the nearest time to the present. That is because both
parties agree that the event had occurred by the later of the two times whereas
only one of them claims that it happened before that. The occurrence of the
event by the most recent time is thus a matter of agreement and certainty while
its occurrence before that is in doubt. Hence, consideration is given to what
is certain.
Application of the Maxim
in Islamic Finance :
1.
A buyer purchases an
asset from a seller with the option (khiyar) to return it for a refund within a
certain period. After the option period, the buyer comes to the seller to
revoke the contract and return the asset, but the seller rejects his right to
do so, saying, “you are revoking the contract after the option period has
expired so your revocation is unacceptable.” The buyer argues that he already
cancelled the contract during the option period.
In this dispute, the
accepted claim is the seller’s on the basis that the revocation is fixed to the
nearest point in time to the dispute , which is after the option period has
expired.
2.
A sale contract has been
concluded, and the subject matter of the sale contract is delivered to the
buyer. After a few days, the buyer informs the seller that the asset is
defective, and a dispute arises between them. They both agree about the
existence of the defect; they disagree as to when it occurred. The seller
argues that the defect was caused by the buyer after he received it while the
buyer claims the asset was already defective at the time of delivery. In this
dispute, the Shariah consider the claim of the seller in the basis that his
claim occurred at a time nearer to the time of the dispute. Hence, the buyer
has no right to cancel the contract unless he can prove the defect was present
at the time of delivery.
3.
A muwakkil (principal) appoints a wakil (agent) to sell an asset on his behalf, which
he does. However, the principle then claims that he had terminated the agency
before the sale, but the agent claims he was only informed of the termination
after the sale. In this case, the agent’s claim is to be accepted because the
time that he claims the agency was terminated occurred closer to the time of
the dispute that the time claimed by the principle.
4.
One party appoints
another as an agent to buy 1000 computer monitors at the wholesale market price
and sell them at a 10% mark-up. In the meantime, the market price of the
commodity rises dramatically. The agent claims the purchase took place after
the market price changed and provides dates purchase receipts. The principle
suspects that the purchase took place before the market price changed and the
seller has colluded with the agent to provide false document. Unless the
principle can provide proof for his suspicions, the agent’s claim must be
accepted, based on this maxim. If the time of an event is in doubt, the
decision will be based on the nearest time to the present because it is more
certain, and the nearest time to the present in this case is the time the agent
claims that the purchased occurred.
5.
CONCLUSION
Istishab
etymologically means “always accompany”. Whereas in terminology, Istishab means
“everything that has been applied permanently in the past, the principle still
applies in the future.” There are two arguments that underlie Istishab, Naqli
arguments (Quran and Sunnah) and Aqli arguments.
Usul fiqh experts have differed on
opinion about Istishab proofing when there were no arguments that explain it,
such as:
1. According to the majority of Mutakallimin
(theologians) : disagree
2. According to the majority of Hanafiyah’s
scholars, especially Muta’akhirin: agree in establishing of pre-existing law
and consider the law still applied in the future.
3. According to the scholars of Malikiyyah,
Syafi'iyah, Hanabilah, Zahiriyyah and Syiah: absolutely agree in establishing
the laws that have existed as long as there is no argument that change it.
Fiqh scholars established some rules based on Istishab, such as:
1.
الأصل البراءة الذمة - Freedom from liability is the
fundamental principle
2.
الأصل بقاء ماكان علي ما كان – The basic rule is that a thing remains in its original
3.
الأصل في الصفات العارضة العدم - The presumption is that development of legal significance is only of
recent occurrence
4.
الأصل اٍضافة الحادث اٍلى أقرب وقته – The presumption is that
a development of legal significance is only of recent occurrence.
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