Istishab

CHAPTER I

INTRODUCTION

A.    BACKGROUND

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.

B.     THE FORMULATION PROBLEM

1.         What is Istishab?

2.         How the opinion of scholars about Istishab proofing?

3.         What kinds of Istishab?

C.    THE GOALS

1.         To explain the definition of Istishab.

2.         To identify the opinion of scholars about Istishab proofing.

3.         To explain kinds of Istishab.

CHAPTER II

DISCUSSION

A.    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”.

            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.

1.      The simplest formulation presented by Syekh Muhammad Ridha Mudzaffar from syiah group:

ابقاء ما كان

“Confirm everything that has been existed”

2.      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.”

3.      Ibnu al-Qayyim al-Jauziyah says:

استخدامة اثبت ماكان ثابتاونفي ماكان منفيا

“Establish whatever set out and negate what was previously nothing.”

4.      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."

5.      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.”

6.      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”.[1]

B.     The Arguments of Istishhab 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.”

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)

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.

C.    ISTISHAB PROOFING

Usul fiqh experts have differed on opinion about Istishab proofing when there were no arguments that explain it, such as:[2]

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.

D.    KINDS OF ISTISHAB

As for the forms of istishab according to Ibn Qayyim presented in three forms:[3]

1.      Istishab al-bara’ah al-ashliyah

Meaning etymologically al-bara’ah is “clean”, in this sense is clean or free from the burden of law. The correlation with the word al-ashliyyah etymologically which means: “according to its origin”, in this case the intention is the principle or basically, before there were things that sets the laws. This case 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. Similarly basically a person declared innocent until there is convincing evidence that he is guilty. This principle is popular nowadays with “presumption of innocence”. Istishab contains that principle unti lthere is argument which set it.

2.      Istishab of nature which set Islamic rules

This second form of istishab means confirm applying a nature that applies a law, either in order or prohibit, until that nature changes that lead to changes in law, or until setting the law in the next period which states the old law does not apply again. For example, the nature of alive that owned by lost person, it still considered alive until there is evidence that he was died. Similarly, pure water still considered clean and pure as long as there is no evidence that change the status.[4]

3.      Istishab of ijma’  law

This istishab implies to confirm law enforcement that has been established through ijma’ scholars, but in the next period scholars disagree about the law because the characteristic of the original law had been changed.

For example, someone who has marriage deed will forever bound together in the husband and wife to is no evidence that they were divorced.

E.     Rules of Fiqh that included in Istishab

Fiqh scholars established some rules based on Istishab, such as:

1- الأصل بقاء ماكان علي ما كان

It 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.[5]

2- الأصل في الأشياء الإباحة

It means that basically the things that are beneficial to human, the law is allows to utilized.[6] Through this rule, then whole of contract / transaction is valid, as long as there is no argument that shows the cancellation. As something that no arguments forbid it, then the law is allowed.

3- الأصل في الذمة البراءة من التكالف والحقوق

It means that basically a person is not burdened with responsibilities before there was an argument that established the responsibilities of someone.[7] Therefore, a defendant in any problems could not be convicted before the existence of strong and convincing evidence that he is guilty.

4- اليقين لا يزال بالشك

It means that a conviction cannot be canceled by questionable thing. Based on this rule, a person who was took ablution if he felt doubt whether it is canceled or not, then he held on his belief that he has not been canceled.[8]

CHAPTER III

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.

As for the forms of istishab according to Ibn Qayyim presented in three forms:

1.      Istishab al-bara’ah al-ashliyah

2.      Istishab of nature which set Islamic rules

3.      Istishab of ijma’  law

Fiqh scholars established some rules based on Istishab, such as:

1- الأصل بقاء ماكان علي ما كان

2- الأصل في الأشياء الإباحة

3- الأصل في الذمة البراءة من التكالف والحقوق

4- اليقين لا يزال بالشك

BIBLIOGRAPHY

Mujib, Abdul. 1984. Kaidah-Kaidah Ilmu Fiqh. Yogyakarta: Nur Cahaya

Syarifuddin, Amir. 2011. Ushul Fiqh Jilid 2. Jakarta: Kencana

Effendi,  Satria.  2005. Ushul Fiqh, Jakarta: Kencana

Umam, Chaerul. 2000. Ushul Fiqih 1. Bandung: Pustaka Setia

Totok, Jumantoro. 2005. Kamus Ilmu Ushul Fikih. Jakarta: Amzah

---

[1] Amir Syarifuddin, Ushul Fiqh 2, Vol. 6, (Jakarta: Kencana, 2011), 365-366

[2] Jumantoro Totok, Kamus Ilmu Ushul Fikih, (jakarta: Amzah,2005), 146

[3] Amir Syarifuddin, 370-371

[4] Satria Effendi, Ushul Fiqh, (Jakarta: Kencana, 2005), 161

[5] Abdul Mudjib, Kaidah-Kaidah Ilmu Fiqih, (Jakarta: Kalam Mulia, 2001), 21-22 

[6]Chaerul Umam, Ushul Fiqih 1, Cet. II, (Bandung: Pustaka Setia, 2000), 146

[7] Chaerul Umam, 146-147

[8] Abdul Mudjib, 21