down in a clear Qur'anic text (al-Nur, 24:5). The permanent validity of the hukm in this case is
established by the legal text, which is in no need of any presumption. Istishab only applies when no
other evidence (dalil) is available, which is obviously not the case when there is a clear text that could
be invoked.
[5. Badran, Usul, p. 218.]
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 B
owes him a sum of money, the doubt here is concerned with the proof over the existence of a debt,
which will be presumed unproven.
[6. Shawkani, Irshad, p.237; Abu Zahrah, Usul, p. 235.]
With regard to the determination of the rules of law that may be applicable to a particular issue, the
presumption of istishab is also guided by the general norms of the Shari'ah. The legal norm concerning
foods, drinks, and clothes, for example, is permissibility (ibahah). When a question arises as to the
legality of a particular kind of beverage or food, and there is no other evidence to determine its value,
recourse may be had to istishab, which will presume that it is permissible. But when the norm in regard
to something is prohibition, such as cohabitation between members of the opposite sex, the presumption
will be one of prohibition, unless there is evidence to prove its legality.
Istishab is supported by both shar`i and rational (`aqli) evidences. Reason tells us that in God's order of
creation and in popular custom, it is normal to expect that pledges, contracts and laws will probably
continue to remain operative until the contrary is established by evidence. It is equally normal to expect
that things which had not existed will probably remain so until the contrary is proved. When reasonable
men ('uqala') and men who comply with the accepted norms of society (ahl al-`urf) have known of the
existence or non-existence of something, as al-Amidi observes, from that point onwards they tend to
formulate their judgement, on the basis of what they know, until they are assured by their own
observation or evidence that there is a change.
[7. Amidi, Ihkam, IV, 128; Badran, Usul, p.221.]
Reason also tells us not to
accept claims, unsubstantiated by evidence, that suggest a change in a status quo which is otherwise
expected to continue. Hence a mere claim that a just person ( `adil) has become a profligate (fasiq) will
be of no account, and the person will be presumed to be 'adil until the contrary is established. Similarly,
when a student is admitted and registered for a degree course his status as a student remains unchanged
Principles of Islamic Jurisprudence ~
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until there is evidence to suggest that this is no longer the case. But until then there is no need for him
to prove his status every week or every month.
[8. Cf. Abu Zahrah, Usul, p. 235.]
To presume the continuity of something which might have been present or absent in the past, as alAmidi
points out, is equivalent to a zann
which is valid evidence in juridical (shar'i)
matters, and action
upon
it is justified.
[9. Amidi, Ihkam, IV, 127.]
The rules of Shari'ah continue to remain valid until there is a
change in the law or in the subject to which it is applied. The Law, for example, has forbidden the
consumption of wine, a ruling which will remain in force until there is a state of emergency or the wine
loses its intoxicating quality, such as by being changed into vinegar.
Varieties of Istishab
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 granted
the 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.
Principles of Islamic Jurisprudence ~ Kamali 261
[11. Khallaf,`Ilm, p.92.]3) Istishab al-hukm, or 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 alBaqarah
(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 to
suggest that it is no longer prohibited.
4) Istishab al-wasf, or 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
Principles of Islamic Jurisprudence ~
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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.
Zahrah, Usul, p. 237; Badran, Usul, p. 223; Coulson, Succession, p. 198ff.]
[14. Shawkani, Irshad, p. 238; Abu
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.
[15. Zuhayr, Usul, IV, 180.]
The Shafi'is and the Hanbalis have, on the other hand, validated istishab in both its defensive (li-daf)
and affirmative (li-kasb) capacities, that is, both as a shield and as a sword. Hence the mafqud is
presumed to be alive in the same way as he was at the time of his disappearance right up to the time
when he is declared dead. The mafqud is not only entitled to retain all his rights but can acquire new
rights such as gifts, inheritance and bequests.
[16. Shawkani, Irshad, p. 237.]
It thus appears that the jurists are in disagreement, not necessarily on the principle, but on the detailed
application of istishab. The Hanafis and Malikis who accept istishab on a restricted basis have argued
that the existence of something in the past cannot prove that it continues to exist. They have further
pointed out that an over-reliance in istishab is likely to open the door to uncertainty, even conflict, in
the determination of ahkam. The main area of juristic disagreement in this connection is the
identification of what exactly the original state which is presumed to continue by means of istishab
might be. This is a question which permeates the application of istishab in its various capacities, which
is, perhaps, why the Hanbali scholar Ibn al-Qayyim is critical of over-reliance on istishab and of those
who have employed it more extensively than they should.
[17. Ibn al-Qayyim, I'lam, I, 294.]
The following
illustrations, which are given in the context of legal maxims that originate in istishab, also serve to
Principles of Islamic Jurisprudence ~
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show how the ulema have differed on the application of this doctrine to various issues. Some of the
well-known legal maxims which are founded in istishab may be outlined as follows:
1) Certainty may not be disproved by doubt (al-yaqin la yazul bi'l-shakk). For example, when someone
is known to be sane, he will be presumed such until it is established that he has become insane. The
presumption can only be set aside with certainty, not by a mere doubt. Similarly, when a person eats in
the early morning during Ramadan while in doubt as to the possibility that he might have eaten after
dawn, his fast remains intact and no belated performance (qada') is necessary by way of compensation.
To identify the two elements of the maxim under discussion, namely the certainty and doubt in this
example, night represents certainty whereas daybreak is the state of doubt, and the former prevails over
the latter. However, the same rule would lead us to a totally different result if it were applied to the
situation of a person who ends his fast late in the day in Ramadan while in doubt as to the occurrence of
sunset. In this case, his fast is vitiated and a belated performance would be required in compensation.
For the certainty which prevails here is the daytime which is presumed to continue, while the onset of
night is in doubt. To say that certainty prevails over doubt in this case means that the fast has been
terminated during the day, which is held to be the prevailing state of certainty.
[18. Badran, Usul, pp. 220-221.]
To illustrate some of the difficulties that are encountered in the implementation of the maxim under
discussion, we may give in example the case of a person who repudiates his wife by talaq but is in
doubt as to the precise terms of his pronouncement: whether it amounted to a single or a triple talaq.
According to the majority of jurists, only a single talaq takes place, which means that the husband is
still entitled to revocation (rij'ah) and may resume normal marital relations. Imam Malik has, on the
other hand, held that a triple talaq takes place, which would preclude the right to revocation. The
difference between the majority opinion and that of Imam Malik arises from the variant interpretations
that they give to the question of certainty and doubt. The majority view presumes the marriage to be the
state of certainty which would continue until its dissolution is established by evidence. The doubt in this
case a the pronouncement of talaq. The doubtful talaq, according to the majority, may not be allowed to
disprove a certain fact. The marriage is certain and the talaq a doubtful, hence the former is presumed
to continue.
Imam Malik, on the other hand, considers the occurrence of a divorce to be the certainty in this case.
What is in doubt is the husband's right to the revocation of the talaq. As for determining the precise
number of talaqs, which is crucial to the question of revocation, Imam Malik holds that the right to
revocation cannot be established by a mere doubt. Hence the husband has no right to revocation, which
means that the divorce is final.
[19. Ibn al-Qayyim, I'lam, I, 296; Abu Zahrah, Usul, p. 238.]
While the majority of jurists consider marriage to be the certain factor in this case, for Imam Malik it is
the actual pronouncement of talaq, regardless of the form it might have taken, which represents the
Principles of Islamic Jurisprudence ~
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state of certainty and the basis on which istishab must operate. While commenting on these differences,
both Ibn al-Qayyim and Abu Zahrah have considered the majority decision to be preferable. The
marriage in this case must therefore not be allowed to be disproved by a doubtful talaq.
I, 296; Abu Zahrah, Usul, p. 238.]
To give yet another example: when a man repudiates one of his two wives, but is not certain as to which
one, according to the Malikis the certain fact is that a talaq has been pronounced, while the uncertainty
in this case is the identity of the divorcee. Both are divorced, on grounds of istishab, which establishes
that certainty must prevail over doubt. For the majority of ulema, however, the certain fact is that the
man has two wives, in other words, the existence of a valid marriage in respect of both. The doubt
concerning the identity of the divorcee must not be allowed to disprove the state of certainty, namely
the marriage. Hence neither of the two are divorced.
[21. Abu Zahrah, Usul, p. 239.]
Once again the juristic
disagreement in this case arises from the differential perception of the ulema as to identifying the state
of certainty on which the rules of istishab must operate.
2) Presumption of generality until the general is subjected to limitation is another maxim that originates
in istishab. The general (`amm) must therefore remain 'amm in its application until it is qualified in
some way.
Just as a general text remains general until it is specified, so is the validity of that text, which is
presumed to continue until it is abrogated. This would mean that a legal text remains valid and must be
implemented as such unless it is abrogated or replaced by another text.
p. 90.]
Principles of Islamic Jurisprudence ~ Kamali 265
[20. Ibn al-Qayyim, I'lam,
[22. Khudari, Usul, p. 356; Mahmassani, Falsafah,
While discussing the maxim under discussion, al-Shawkani records the variant view which is held
by some ulema to the effect that the rule of law in these situations is established through the
interpretation of words and not by the application of istishab.
[23. Shawkani, Irshad, p. 238.]
To say that a text is
general or specified, or that a text remains valid and has not been abrogated, is thus determined on
grounds of interpretation of words and not by the application of istishab. For example, the Qur'anic rule
which assigns to the male a double share of the female in inheritance (al-Nisa, 4:11) is general and
would have remained so if it were not qualified by the Hadith that `the killer does not inherit'.
Sunan, II, 913, Hadith no. 2735; al-Darimi, Sunan (Kitab al-Fara'id), II, 384.]
Similarly, the ruling of the Sunnah concerning the direction of the qiblah remained in force until it was
abrogated by the Qur'anic injunction in Sura al-Baqarah (2:144), which changed the qiblah from
Jerusalem to the Ka'bah. This is all obvious so far, and perhaps al-Shawkani is right in saying that there
is no need for a recourse to istishab in these cases. What istishab might tell us in this context may be
that in the event where there is doubt as to whether the general in the law has been qualified by some
other enactment, or when there is doubt as to whether the law on a certain point has been abrogated or
not, istishab would presume the absence of specification and abrogation until the contrary is established
by evidence.
[24. Ibn Majah, 3) Presumption of original freedom from liability (bara'ah al dhimmah al-asliyyah), which means
freedom from obligations until the contrary is proved. No person may, therefore, be compelled to
perform any obligation unless the law requires so. For example, no-one is required to perform the hajj
pilgrimage more than once in his lifetime, or to perform a sixth salah in one day, because the Shari'ah
imposes no such liability. Similarly, no-one is liable to punishment until his guilt is established through
lawful evidence.
[25. Shawkani, Irshad, p. 238; Mahmassani, Falsafah, p. 90. The principle of original freedom from liability appears in al-Suyuti's al-
Ashbah wa al-Naza'ir and in the Majallah al-Ahkam al-`Adliyyah (Art. 8).]
However, the detailed implementation of this principle
too has given rise to disagreement between the Shafi'i and Hanafi jurists. To give an example, A claims
that B owes him fifty dollars and B denies it. The question may arise as to whether a settlement (sulh)
after denial is lawful in this case. The Hanafis have answered this in the affirmative, but the Shafi'is
have held that a settlement after denial is not permissible. The Shafi'is argue that since prior to the
settlement B denied the claim, the principle of original freedom from liability would thus apply to him,
which means that he would bear no liability at all. As such it would be unlawful for A to take anything
from B. The settlement is therefore null and void. The Hanafis have argued, on the other hand, that B's
non-liability after the claim is not inviolable. The claim, in other words, interferes with the operation of
the principle under discussion. B can no longer be definitely held to be free of liability; this being so, a
settlement is permissible in the interests of preventing hostility between the parties.
4) Permissibility is the original state of things (al-asl fi al-ashya' al-ibahah). We have already discussed
the principle of ibahah, which is a branch of the doctrine of istishab. To recapitulate, all matters which
the Shari'ah has not regulated to the contrary remain permissible. They will be presumed so unless the
contrary is proved to be the case. The one exception to the application of ibahah is relationships
between members of the opposite sex, where the basic norm is prohibition unless it is legalised by
marriage. The Hanbalis have given ibahah greater prominence, in that they validate it as a basis of
commitment (iltizam) unless there is a text to the contrary. Under the Hanbali doctrine, the norm in
`ibadat is that they are void (batil) unless there is an explicit command to validate them. But the norm
in regard to transactions and contracts is that they are valid unless there is a nass to the contrary.
Qayyim, I`lam, I, 300.]
To give an example, under the Hanbali doctrine of ibahah, prospective spouses are at
liberty to enter stipulations in their marriage contract, including a condition that the husband must
remain monogamous. The Hanbalis are alone in their ruling on this point, as the majority of jurists have
considered such a condition to amount to a superimposition on the legality of polygamy in the Shari'ah.
The provisions of the Shari'ah must, according to the majority, not be circumvented in this way. The
Lawgiver has permitted polygamy and it is not for the individual to overrule it. The Hanbalis have
argued, on the other hand, that the objectives of the Lawgiver in regard to marriage are satisfied by
monogamy. As it is, polygamy is a permissibility, not a requirement, and there is no nass to indicate
that the spouses could not stipulate against it. The stipulation is therefore valid and the spouses are
committed to abide by it.
[26. Zuhayr, Usul, IV, 180-l81.]
Principles of Islamic Jurisprudence ~ Kamali 266
[27. Ibn al-Conclusion
Istishab is not an independent proof or a method of juristic deduction in its own right, but mainly
functions as a means of implementing an existing indication (dalil) whose validity and continued
relevance are established by the rules of istishab. This might explain why the ulema have regarded
istishab as the last ground of fatwa, one which does not command priority over other indications. The
Malikis have relied very little on it as they are known for their extensive reliance on other proofs, both
revealed and rational, in the development of the rules of Shari`ah; so much so that they have had little
use for istishab. This is also true of the Hanafi school of law, which has only rarely invoked istishab as
a ground for the determination of legal rules. Istishab is applicable either in the absence of other proofs
or as a means of establishing the relevance of applying an existing proof. It is interesting to note in this
connection the fact that istishab is more extensively applied by those who are particularly strict in their
acceptance of other rational proofs. Thus we find that the opponents of qiyas, such as the Zahiris and
the Akhbari branch of the Shi'ah Imamiyyah, have relied on it most and have determined the ahkam on
its basis in almost all instances where the majority have applied qiyas. Similarly the Shafi`is who reject
istihsan have relied more frequently on istishab than the Hanafis and the Malikis. In almost all cases
where the Hanafis and Malikis have applied istihsan or custom ('urf), the Shafi'is have resorted to
istishab.
[28. Cf. Abu Zahrah, Usul, p. 241.]
Istishab is often described as a principle of evidence, as it is mainly concerned with the establishment or
rebuttal of facts, and as such it is of greater relevance to the rules of evidence. The application of
istishab to penalties and to criminal law in general is to some extent restricted by the fact that these
areas are mainly governed by the definitive rules of Shari'ah or statutory legislation. The jurists have on
the whole advised caution in the application of penalties on the basis of presumptive evidence only.
Having said this, however, the principle of the original absence of liability is undoubtedly an important
feature of istishab which is widely upheld not only in the field of criminal law but also in constitutional
law and civil litigations generally. This is perhaps equally true of the principle of ibahah, which is an
essential component of the principle of legality, also known as the principle of the rule of law. This
feature of istishab is once again in harmony with the modern concept of legality in that permissibility is
the norm in areas where the law imposes no prohibition.
I shall end this chapter by summarising a reformist opinion concerning istishab. In his booklet entitled
Tajdid Usul al-Fiqh al-Islami, Hasan Turabi highlights the significance of istishab and calls for a fresh
approach to be taken toward this doctrine. The author explains that istishab has the potential of
incorporating within its scope the concept of natural justice and the approved customs and mores of
society.
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According to Turabi, istishab derives its basic validity from the belief that Islam did not aim at
establishing a new life on earth in all of its dimensions and details, nor did it aim at nullifying and
replacing all the mores and customs of Arabian society. The Prophet did not take an attitude of
opposition to everything that he encountered, but accepted and allowed the bulk of the existing social
values and sought to reverse or replace only those which were oppressive and unacceptable. We also
find in the Qur'an references to amr bi al-'urf, or acting in accordance with the prevailing custom unless
it has been specifically nullified or amended by the Shari'ah of Islam.
Similarly when the Qur'an calls for the implementation of justice, beneficence (ihsan) and fairness in
the determination of disputes, it refers, among other things, to the basic principles of justice that are
upheld by humanity at large and the good conscience of decent individuals. Life on earth is thus a
cumulative construct of moral and religious teachings, aided and abetted by enlightened human nature
which seeks to rectify what it deems to be wrong, unjust and undesirable. The Shari'ah has also left
many things unregulated, and when this is the case human action may in regard to them be guided by
good conscience and the general teachings of divine revelation. This is the substance, as Turabi
explains, of the juridical doctrine of istishab. In its material part istishab declares permissibility to be
the basic norm in Shari'ah; that people are deemed to be free of liability unless the law has determined
otherwise; and that human beings may utilise everything in the earth for their benefit unless they are
forbidden by the law. It thus appears that istishab, as a proof of Shari'ah, merits greater prominence and
recognition than we find to be the case in the classical formulations of this doctrine.
[29. Turabi, Tajdid, pp. 27-28.]
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Chapter Sixteen: Sadd al-Dhara'i` (Blocking the Means)
Dhari'ah (pl. dhara'i') is a word synonymous with wasilah, which signifies the means to obtaining a
certain end, while sadd literally means `blocking'. Sadd al-dhara'i` thus implies blocking the means to
an expected end which is likely to materialise if the means towards it is not obstructed. Blocking the
means must necessarily be understood to imply blocking the means to evil, not to something good.
Although the literal meaning of sadd al-dhara'i` might suggest otherwise, in its juridical application,
the concept of sadd al-dhara'i' also extends to `opening the means to beneficence'. But as a doctrine of
jurisprudence, it is the former meaning, that is, blocking the means to evil, which characterises sadd aldhara'i`.
The latter meaning of this expression is not particularly highlighted in the classical expositions
of
this doctrine, presumably because opening the means to beneficence is the true purpose and function
of
the Shari'ah
as a whole and as such is not peculiar to
sadd al-dhara'i'.
When the means and the end are both directed toward beneficence and maslahah and are not explicitly
regulated by a clear injunction (nass), the matter is likely to fall within the ambit of qiyas, maslahah, or
istihsan, etc. Similarly, when both the means and the end are directed towards evil, the issue is likely to
be governed by the general rules of Shari'ah, and a recourse to sadd al-dhara'i' would seem out of
place. Based on this analysis, it would appear that as a principle of jurisprudence, sadd al-dhara'i'
applies when there is a discrepancy between the means and the end on the good-neutral-evil scale of
values. A typical case for the application of sadd al-dhara'i` would thus arise when a lawful means is
expected to lead to an unlawful result, or when a lawful means which normally leads to a lawful result
is used to procure an unlawful end.
Both the means and the end may be good or evil, physical or moral, and they may be visible or
otherwise, and the two need not necessarily be present simultaneously. For example, khalwah or illicit
privacy between members of the opposite sexes, is unlawful because it constitutes a means to zina
whether or not it actually leads to it. All sexual overtures which are expected to lead to zina are
similarly forbidden by virtue of the certainty or likelihood that the conduct in question would lead to
zina. Dhari'ah may also consist of the omission of a certain conduct such as trade and commercial
transactions during the of the Friday congregational prayer. The means which obstruct the said prayer,
in other words, must be blocked, that is, by abandoning trade at the specified time.
The whole concept of sadd al-dhara'i' is founded in the idea of preventing an evil before it actually
materialises. It is therefore not always necessary that the result should actually obtain. It is rather the
objective expectation that a means is likely to lead to an evil result which renders the means in question
unlawful even without the realisation of the expected result. This is the case in both the examples given
Principles of Islamic Jurisprudence ~
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above: khalwah is thus unlawful even without actually leading to zina, and trading during the time of
the Friday prayer is unlawful whether or not it actually hinders the latter. Furthermore, since sadd aldhara'i'
basically
contemplates preventing an evil before its occurrence, the question of intention to
procure
a particular result cannot be a reliable basis for assessing the means that leads to that result.
Abu
Zahrah has aptly observed that the nature and value of the means is determined by looking at the
purpose
that it pursues regardless as to whether the latter is intended or otherwise. When a particular act
is
deemed to lead to a certain result, whether good or evil, it is held to be the means toward that end.
The
question of the intention of the perpetrator is, as such, not relevant to the objective determination of
the
value of the means. It is rather the expected result which determines the value of the means. If the
result
is expected to be good and praiseworthy, so will be the means towards it, and if it is expected to
be
blameworthy the same will apply to the means regardless of the intention of the perpetrator, or the
actual
realisation of the result itself. This is, for example, borne out by the Qur'anic text which forbids
the
Muslims from insulting idol worshippers, notwithstanding the inherent enormity of idolworshipping
or the actual intention behind it. The text thus proceeds: 'And insult not the associators lest
they
[in return] insult God out of spite and ignorance' (al-An'am; 6:108). The means to an evil is thus
obstructed
by putting a ban on insulting idol-worshippers, a conduct which might have been otherwise
permissible
and even praiseworthy, as it would mean denunciation of falsehood and firmness of faith on
the
part of the believer. Thus a means which is intrinsically praiseworthy leads to an evil result, and
acquires
the value of the latter. Furthermore, the prohibition in this example is founded on the
likelihood
that the associators would insult God as a result. It is, in other words, the expected result
which
is taken into account. Whether the latter actually materialises or not is beside the point: insulting
the
idols and their worshippers is thus forbidden regardless of the actual result that such conduct may
lead
to. Similarly, the question of intending whether or not to bring about a particular result is irrelevant
to
the prohibition under discussion. Insulting idol worshippers is thus forbidden even when a Muslim
does
not intend to bring about the expected result, that is, an insult to God; his intention may be good or
bad,
in either case, insulting the idols and their worshippers is forbidden as it is, on an objective basis,
most
likely to invoke the expected result.
[1. Cf. Abu Zahrah, Usul, p. 228.]
The doctrine of sadd al-dhara'i` contemplates the basic objectives of the Lawgiver. Hence the general
rule regarding the value of the means in relationship to the end is that the former acquires the value of
the latter. Al-Shatibi has aptly observed that the Lawgiver has legalised certain forms of conduct and
prohibited others in accordance with the benefit or harm that they lead to. When a particular act or form
of conduct brings about a result which is contrary to the objectives of the Lawgiver, then the latter
would be held to prevail over the former.
[2. Shatibi, Muwafaqat (Diraz edition), IV, 194.]
If the means, in other words,
violate the basic purpose of the Shari'ah, then they must be blocked. The laws of Shari'ah are for the
most part distinguishable in regard to their objectives (maqasid), and the means which procure or
obstruct those objectives. The means are generally viewed in the light of the ends they are expected to
obtain, and it is logically the latter which prevail over the former in that the means follow their ends,
not vice versa. Normally the means to wajib become wajib and the means to haram become haram.
Principles of Islamic Jurisprudence ~
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Means may at times lead to both a good and an evil in which case, if the evil (mafsadah) is either equal
to or greater than the benefit (maslahah), the former will prevail over the latter. This is according to the
general principle that 'preventing an evil takes priority over securing a benefit'.
IV, 195; Badran, Usul, p. 242.]
[3. Shatibi, Muwafaqat (Diraz edition),
Sadd al-dhara'i` thus becomes a principle of jurisprudence and a method of
deducing the juridical ruling (hukm shar`i) of a certain issue or type of conduct which may not leave
been regulated in the existing law but whose ruling can be deduced through the application of this
principle.
In addition to the Qur'anic ayah (al-An'am, 6:108) on the prohibition of insulting idols as referred to
above, the ulema have quoted in authority for sadd al-dhara'i` the Qur'anic passage in sura al-Baqarah
(2:104), as follows: 'O believers! Address not the Prophet by the word ra'ina, but address him
respectfully and listen to him.' The reason for this prohibition was that the word 'ra`ina', being a
homonym, had two meanings, one of which was 'please look at us or attend to us', while with a slight
twist the same word would mean 'our shepherd'. The Jews used to insult the Prophet with it, and in
order to block the means to such abuse, the Muslims were forbidden from using that form of address to
the Prophet despite their good intentions and the fact that the word under discussion was not inherently
abusive.
[4. Cf. Abu Zahrah, Usul, p.228; Isma'il, Adillah, p 197.]
Authority is also found for the principle of sadd al-dhara'i' in the Sunnah, especially the ruling in which
the Prophet forbade a creditor from taking a gift from his debtor lest it became a means to usury and the
gift a substitute to riba. The Prophet also forbade the killing of hypocrites (al-munafiqun) and people
who were known to have betrayed the Muslim community during battles. It was feared that killing such
people would become a means to evil, namely, of giving rise to a rumour that 'Muhammad kills his own
Companions'
[5. Shatibi, Muwafaqat, IV, 62; Shatibi, Fiqh, p. 187.]
which would, in turn, provide the enemy with an
excuse to undermine the unity of the Muslim community. Consequently the Prophet put a ban on killing
the munafiqun. On a similar note, the Prophet suspended enforcement of the hadd penalty for theft
during battles so as to avoid defection to enemy forces. It was for this reason, namely to block the
means to an evil, that the army commanders were ordered not to enforce tire prescribed penalties during
military engagements.
[6. Abu Zahrah, Usul, p. 229; Shalabi, Fiqh, p.187; Isma'il, Adillah, p. 200.]
The leading Companions are also known to have entitled to inheritance the divorced woman whom her
husband had irrevocably divorced during his death illness in order to exclude her from inheritance. This
was forbidden by the Companions so that a divorce of this kind would not become a means to abuse. It
is also reported that during the time of the caliph Umar b. al-Khattab, one of his officials, Hudhayfah,
married a Jewish women in al-Mada'in. The caliph wrote to him saying that he should divorce her.
Hudhayfah then asked the caliph if the marriage was unlawful. To this the Caliph replied that it was not,
but that his example might be followed by others who might be lured by the beauty of the women of ahl
al-dhimmah. The caliph thus forbade something which the Qur'an had declared lawful so as to block the
means to an evil as he perceived it at the time. It might be interesting to add here that Ibn Qayyim al-
Principles of Islamic Jurisprudence ~
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Jawziyyah records at least seventy-seven instances and rulings of the learned Companions and the
subsequent generations of ulema in which they resorted to sadd al-dhara'i `so as to block the means
that led to evil.
[7. Ibn Qayyim al-Jawziyyah, I`lam, III, 122ff; Shalabi, Fiqh, p.188.]
The ulema are, however, in disagreement over the validity of sadd al-dhara'i`. The Hanafi and Shafi'i
jurists do not recognise it as a principle of jurisprudence in its own right, on the grounds that the
necessary ruling regarding the means can be derived by recourse to other principles such as qiyas, and
the Hanafi doctrines of istihsan and 'urf. But the Maliki and Hanbali jurists have validated sadd aldhara'i`
as a proof of Shari'ah
in its own right. Despite the different approaches that the ulema have
taken
to this doctrine, the Maliki jurist al-Shatibi has reached the conclusion that the ulema of various
schools
are essentially in agreement over the conceptual validity of sadd
al-dhara'i`
but have differed in
its
detailed application. Their differences relate mainly to the grounds which may be held to constitute
the
means to something else, and also to the extent to which the concept of sadd
al-dhara'i`
can be
validly
applied.
[8. Shatibi, Muwafaqat, IV, 201.]
Abu Zahrah has reached essentially the same conclusion by
observing that the Shafi'i and Hanafi jurists are for the most part in agreement with their Maliki and
Hanbali counterparts, and that they differ only in regard to some issues.
[9. Abu Zahrah, Usul, pp.227-228.]
The
following classification of sadd al-dhara'i' may cast light on the consensus, as well as some of the areas
which the ulema are in disagreement, over the application of this doctrine. It is perhaps well to
remember at this point that notwithstanding the application of sadd al-dhara'i' in respect of opening the
means to beneficence (maslahah), it is usually the prevention of evil (mafsadah) that acquires greater
prominence in the discussion of this principle.
From the viewpoint of the degree of probability or otherwise that a means is expected to lead to an evil
end, the ulema of usul have divided the dhara'i` into four types.
1 ) Means which definitely lead to evil, such as digging a deep pit next to the entrance door to a public
place which is not lit at night, so that anyone who enters the door is very likely to fall into it. Based on
the near-certainty of the expected result of injuring others, the means which leads to that result are
equally forbidden. The ulema of all schools are, in principle, unanimous on the prohibition of this type
of dhari'ah and a consensus (ijma`) is said to have been reached on this point.
Usul, p. 243.]
[10. Abu Zahrah, Usul, p. 228; Badran,
Having said this, however, it should be added that the jurists have envisaged two possible
eventualities. Firstly, the dhari`ah may consist of an unlawful act of transgression in the first place, as
was the case in the foregoing example, in which case the perpetrator is held to be responsible for any
loss or damage that might be caused, as by digging a pit in a place where he has no right or authority to
do so. Secondly, the dhari'ah may consist of an act which is basically lawful, in which case the ulema
have disagreed over the question of responsibility. If, for example, someone digs a water well in his
own house but so close to the wall of his neighbour that the wall collapses as a result, the act here is
held to be basically lawful as it consists of the exercise of the right of ownership, which is said to be
irreconcilable with the idea of liability for damages. According to a variant view, however, the
Principles of Islamic Jurisprudence ~
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established by the legal text, which is in no need of any presumption. Istishab only applies when no
other evidence (dalil) is available, which is obviously not the case when there is a clear text that could
be invoked.
[5. Badran, Usul, p. 218.]
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 B
owes him a sum of money, the doubt here is concerned with the proof over the existence of a debt,
which will be presumed unproven.
[6. Shawkani, Irshad, p.237; Abu Zahrah, Usul, p. 235.]
With regard to the determination of the rules of law that may be applicable to a particular issue, the
presumption of istishab is also guided by the general norms of the Shari'ah. The legal norm concerning
foods, drinks, and clothes, for example, is permissibility (ibahah). When a question arises as to the
legality of a particular kind of beverage or food, and there is no other evidence to determine its value,
recourse may be had to istishab, which will presume that it is permissible. But when the norm in regard
to something is prohibition, such as cohabitation between members of the opposite sex, the presumption
will be one of prohibition, unless there is evidence to prove its legality.
Istishab is supported by both shar`i and rational (`aqli) evidences. Reason tells us that in God's order of
creation and in popular custom, it is normal to expect that pledges, contracts and laws will probably
continue to remain operative until the contrary is established by evidence. It is equally normal to expect
that things which had not existed will probably remain so until the contrary is proved. When reasonable
men ('uqala') and men who comply with the accepted norms of society (ahl al-`urf) have known of the
existence or non-existence of something, as al-Amidi observes, from that point onwards they tend to
formulate their judgement, on the basis of what they know, until they are assured by their own
observation or evidence that there is a change.
[7. Amidi, Ihkam, IV, 128; Badran, Usul, p.221.]
Reason also tells us not to
accept claims, unsubstantiated by evidence, that suggest a change in a status quo which is otherwise
expected to continue. Hence a mere claim that a just person ( `adil) has become a profligate (fasiq) will
be of no account, and the person will be presumed to be 'adil until the contrary is established. Similarly,
when a student is admitted and registered for a degree course his status as a student remains unchanged
Principles of Islamic Jurisprudence ~
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until there is evidence to suggest that this is no longer the case. But until then there is no need for him
to prove his status every week or every month.
[8. Cf. Abu Zahrah, Usul, p. 235.]
To presume the continuity of something which might have been present or absent in the past, as alAmidi
points out, is equivalent to a zann
which is valid evidence in juridical (shar'i)
matters, and action
upon
it is justified.
[9. Amidi, Ihkam, IV, 127.]
The rules of Shari'ah continue to remain valid until there is a
change in the law or in the subject to which it is applied. The Law, for example, has forbidden the
consumption of wine, a ruling which will remain in force until there is a state of emergency or the wine
loses its intoxicating quality, such as by being changed into vinegar.
Varieties of Istishab
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 granted
the 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.
Principles of Islamic Jurisprudence ~ Kamali 261
[11. Khallaf,`Ilm, p.92.]3) Istishab al-hukm, or 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 alBaqarah
(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 to
suggest that it is no longer prohibited.
4) Istishab al-wasf, or 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
Principles of Islamic Jurisprudence ~
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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.
Zahrah, Usul, p. 237; Badran, Usul, p. 223; Coulson, Succession, p. 198ff.]
[14. Shawkani, Irshad, p. 238; Abu
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.
[15. Zuhayr, Usul, IV, 180.]
The Shafi'is and the Hanbalis have, on the other hand, validated istishab in both its defensive (li-daf)
and affirmative (li-kasb) capacities, that is, both as a shield and as a sword. Hence the mafqud is
presumed to be alive in the same way as he was at the time of his disappearance right up to the time
when he is declared dead. The mafqud is not only entitled to retain all his rights but can acquire new
rights such as gifts, inheritance and bequests.
[16. Shawkani, Irshad, p. 237.]
It thus appears that the jurists are in disagreement, not necessarily on the principle, but on the detailed
application of istishab. The Hanafis and Malikis who accept istishab on a restricted basis have argued
that the existence of something in the past cannot prove that it continues to exist. They have further
pointed out that an over-reliance in istishab is likely to open the door to uncertainty, even conflict, in
the determination of ahkam. The main area of juristic disagreement in this connection is the
identification of what exactly the original state which is presumed to continue by means of istishab
might be. This is a question which permeates the application of istishab in its various capacities, which
is, perhaps, why the Hanbali scholar Ibn al-Qayyim is critical of over-reliance on istishab and of those
who have employed it more extensively than they should.
[17. Ibn al-Qayyim, I'lam, I, 294.]
The following
illustrations, which are given in the context of legal maxims that originate in istishab, also serve to
Principles of Islamic Jurisprudence ~
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show how the ulema have differed on the application of this doctrine to various issues. Some of the
well-known legal maxims which are founded in istishab may be outlined as follows:
1) Certainty may not be disproved by doubt (al-yaqin la yazul bi'l-shakk). For example, when someone
is known to be sane, he will be presumed such until it is established that he has become insane. The
presumption can only be set aside with certainty, not by a mere doubt. Similarly, when a person eats in
the early morning during Ramadan while in doubt as to the possibility that he might have eaten after
dawn, his fast remains intact and no belated performance (qada') is necessary by way of compensation.
To identify the two elements of the maxim under discussion, namely the certainty and doubt in this
example, night represents certainty whereas daybreak is the state of doubt, and the former prevails over
the latter. However, the same rule would lead us to a totally different result if it were applied to the
situation of a person who ends his fast late in the day in Ramadan while in doubt as to the occurrence of
sunset. In this case, his fast is vitiated and a belated performance would be required in compensation.
For the certainty which prevails here is the daytime which is presumed to continue, while the onset of
night is in doubt. To say that certainty prevails over doubt in this case means that the fast has been
terminated during the day, which is held to be the prevailing state of certainty.
[18. Badran, Usul, pp. 220-221.]
To illustrate some of the difficulties that are encountered in the implementation of the maxim under
discussion, we may give in example the case of a person who repudiates his wife by talaq but is in
doubt as to the precise terms of his pronouncement: whether it amounted to a single or a triple talaq.
According to the majority of jurists, only a single talaq takes place, which means that the husband is
still entitled to revocation (rij'ah) and may resume normal marital relations. Imam Malik has, on the
other hand, held that a triple talaq takes place, which would preclude the right to revocation. The
difference between the majority opinion and that of Imam Malik arises from the variant interpretations
that they give to the question of certainty and doubt. The majority view presumes the marriage to be the
state of certainty which would continue until its dissolution is established by evidence. The doubt in this
case a the pronouncement of talaq. The doubtful talaq, according to the majority, may not be allowed to
disprove a certain fact. The marriage is certain and the talaq a doubtful, hence the former is presumed
to continue.
Imam Malik, on the other hand, considers the occurrence of a divorce to be the certainty in this case.
What is in doubt is the husband's right to the revocation of the talaq. As for determining the precise
number of talaqs, which is crucial to the question of revocation, Imam Malik holds that the right to
revocation cannot be established by a mere doubt. Hence the husband has no right to revocation, which
means that the divorce is final.
[19. Ibn al-Qayyim, I'lam, I, 296; Abu Zahrah, Usul, p. 238.]
While the majority of jurists consider marriage to be the certain factor in this case, for Imam Malik it is
the actual pronouncement of talaq, regardless of the form it might have taken, which represents the
Principles of Islamic Jurisprudence ~
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state of certainty and the basis on which istishab must operate. While commenting on these differences,
both Ibn al-Qayyim and Abu Zahrah have considered the majority decision to be preferable. The
marriage in this case must therefore not be allowed to be disproved by a doubtful talaq.
I, 296; Abu Zahrah, Usul, p. 238.]
To give yet another example: when a man repudiates one of his two wives, but is not certain as to which
one, according to the Malikis the certain fact is that a talaq has been pronounced, while the uncertainty
in this case is the identity of the divorcee. Both are divorced, on grounds of istishab, which establishes
that certainty must prevail over doubt. For the majority of ulema, however, the certain fact is that the
man has two wives, in other words, the existence of a valid marriage in respect of both. The doubt
concerning the identity of the divorcee must not be allowed to disprove the state of certainty, namely
the marriage. Hence neither of the two are divorced.
[21. Abu Zahrah, Usul, p. 239.]
Once again the juristic
disagreement in this case arises from the differential perception of the ulema as to identifying the state
of certainty on which the rules of istishab must operate.
2) Presumption of generality until the general is subjected to limitation is another maxim that originates
in istishab. The general (`amm) must therefore remain 'amm in its application until it is qualified in
some way.
Just as a general text remains general until it is specified, so is the validity of that text, which is
presumed to continue until it is abrogated. This would mean that a legal text remains valid and must be
implemented as such unless it is abrogated or replaced by another text.
p. 90.]
Principles of Islamic Jurisprudence ~ Kamali 265
[20. Ibn al-Qayyim, I'lam,
[22. Khudari, Usul, p. 356; Mahmassani, Falsafah,
While discussing the maxim under discussion, al-Shawkani records the variant view which is held
by some ulema to the effect that the rule of law in these situations is established through the
interpretation of words and not by the application of istishab.
[23. Shawkani, Irshad, p. 238.]
To say that a text is
general or specified, or that a text remains valid and has not been abrogated, is thus determined on
grounds of interpretation of words and not by the application of istishab. For example, the Qur'anic rule
which assigns to the male a double share of the female in inheritance (al-Nisa, 4:11) is general and
would have remained so if it were not qualified by the Hadith that `the killer does not inherit'.
Sunan, II, 913, Hadith no. 2735; al-Darimi, Sunan (Kitab al-Fara'id), II, 384.]
Similarly, the ruling of the Sunnah concerning the direction of the qiblah remained in force until it was
abrogated by the Qur'anic injunction in Sura al-Baqarah (2:144), which changed the qiblah from
Jerusalem to the Ka'bah. This is all obvious so far, and perhaps al-Shawkani is right in saying that there
is no need for a recourse to istishab in these cases. What istishab might tell us in this context may be
that in the event where there is doubt as to whether the general in the law has been qualified by some
other enactment, or when there is doubt as to whether the law on a certain point has been abrogated or
not, istishab would presume the absence of specification and abrogation until the contrary is established
by evidence.
[24. Ibn Majah, 3) Presumption of original freedom from liability (bara'ah al dhimmah al-asliyyah), which means
freedom from obligations until the contrary is proved. No person may, therefore, be compelled to
perform any obligation unless the law requires so. For example, no-one is required to perform the hajj
pilgrimage more than once in his lifetime, or to perform a sixth salah in one day, because the Shari'ah
imposes no such liability. Similarly, no-one is liable to punishment until his guilt is established through
lawful evidence.
[25. Shawkani, Irshad, p. 238; Mahmassani, Falsafah, p. 90. The principle of original freedom from liability appears in al-Suyuti's al-
Ashbah wa al-Naza'ir and in the Majallah al-Ahkam al-`Adliyyah (Art. 8).]
However, the detailed implementation of this principle
too has given rise to disagreement between the Shafi'i and Hanafi jurists. To give an example, A claims
that B owes him fifty dollars and B denies it. The question may arise as to whether a settlement (sulh)
after denial is lawful in this case. The Hanafis have answered this in the affirmative, but the Shafi'is
have held that a settlement after denial is not permissible. The Shafi'is argue that since prior to the
settlement B denied the claim, the principle of original freedom from liability would thus apply to him,
which means that he would bear no liability at all. As such it would be unlawful for A to take anything
from B. The settlement is therefore null and void. The Hanafis have argued, on the other hand, that B's
non-liability after the claim is not inviolable. The claim, in other words, interferes with the operation of
the principle under discussion. B can no longer be definitely held to be free of liability; this being so, a
settlement is permissible in the interests of preventing hostility between the parties.
4) Permissibility is the original state of things (al-asl fi al-ashya' al-ibahah). We have already discussed
the principle of ibahah, which is a branch of the doctrine of istishab. To recapitulate, all matters which
the Shari'ah has not regulated to the contrary remain permissible. They will be presumed so unless the
contrary is proved to be the case. The one exception to the application of ibahah is relationships
between members of the opposite sex, where the basic norm is prohibition unless it is legalised by
marriage. The Hanbalis have given ibahah greater prominence, in that they validate it as a basis of
commitment (iltizam) unless there is a text to the contrary. Under the Hanbali doctrine, the norm in
`ibadat is that they are void (batil) unless there is an explicit command to validate them. But the norm
in regard to transactions and contracts is that they are valid unless there is a nass to the contrary.
Qayyim, I`lam, I, 300.]
To give an example, under the Hanbali doctrine of ibahah, prospective spouses are at
liberty to enter stipulations in their marriage contract, including a condition that the husband must
remain monogamous. The Hanbalis are alone in their ruling on this point, as the majority of jurists have
considered such a condition to amount to a superimposition on the legality of polygamy in the Shari'ah.
The provisions of the Shari'ah must, according to the majority, not be circumvented in this way. The
Lawgiver has permitted polygamy and it is not for the individual to overrule it. The Hanbalis have
argued, on the other hand, that the objectives of the Lawgiver in regard to marriage are satisfied by
monogamy. As it is, polygamy is a permissibility, not a requirement, and there is no nass to indicate
that the spouses could not stipulate against it. The stipulation is therefore valid and the spouses are
committed to abide by it.
[26. Zuhayr, Usul, IV, 180-l81.]
Principles of Islamic Jurisprudence ~ Kamali 266
[27. Ibn al-Conclusion
Istishab is not an independent proof or a method of juristic deduction in its own right, but mainly
functions as a means of implementing an existing indication (dalil) whose validity and continued
relevance are established by the rules of istishab. This might explain why the ulema have regarded
istishab as the last ground of fatwa, one which does not command priority over other indications. The
Malikis have relied very little on it as they are known for their extensive reliance on other proofs, both
revealed and rational, in the development of the rules of Shari`ah; so much so that they have had little
use for istishab. This is also true of the Hanafi school of law, which has only rarely invoked istishab as
a ground for the determination of legal rules. Istishab is applicable either in the absence of other proofs
or as a means of establishing the relevance of applying an existing proof. It is interesting to note in this
connection the fact that istishab is more extensively applied by those who are particularly strict in their
acceptance of other rational proofs. Thus we find that the opponents of qiyas, such as the Zahiris and
the Akhbari branch of the Shi'ah Imamiyyah, have relied on it most and have determined the ahkam on
its basis in almost all instances where the majority have applied qiyas. Similarly the Shafi`is who reject
istihsan have relied more frequently on istishab than the Hanafis and the Malikis. In almost all cases
where the Hanafis and Malikis have applied istihsan or custom ('urf), the Shafi'is have resorted to
istishab.
[28. Cf. Abu Zahrah, Usul, p. 241.]
Istishab is often described as a principle of evidence, as it is mainly concerned with the establishment or
rebuttal of facts, and as such it is of greater relevance to the rules of evidence. The application of
istishab to penalties and to criminal law in general is to some extent restricted by the fact that these
areas are mainly governed by the definitive rules of Shari'ah or statutory legislation. The jurists have on
the whole advised caution in the application of penalties on the basis of presumptive evidence only.
Having said this, however, the principle of the original absence of liability is undoubtedly an important
feature of istishab which is widely upheld not only in the field of criminal law but also in constitutional
law and civil litigations generally. This is perhaps equally true of the principle of ibahah, which is an
essential component of the principle of legality, also known as the principle of the rule of law. This
feature of istishab is once again in harmony with the modern concept of legality in that permissibility is
the norm in areas where the law imposes no prohibition.
I shall end this chapter by summarising a reformist opinion concerning istishab. In his booklet entitled
Tajdid Usul al-Fiqh al-Islami, Hasan Turabi highlights the significance of istishab and calls for a fresh
approach to be taken toward this doctrine. The author explains that istishab has the potential of
incorporating within its scope the concept of natural justice and the approved customs and mores of
society.
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According to Turabi, istishab derives its basic validity from the belief that Islam did not aim at
establishing a new life on earth in all of its dimensions and details, nor did it aim at nullifying and
replacing all the mores and customs of Arabian society. The Prophet did not take an attitude of
opposition to everything that he encountered, but accepted and allowed the bulk of the existing social
values and sought to reverse or replace only those which were oppressive and unacceptable. We also
find in the Qur'an references to amr bi al-'urf, or acting in accordance with the prevailing custom unless
it has been specifically nullified or amended by the Shari'ah of Islam.
Similarly when the Qur'an calls for the implementation of justice, beneficence (ihsan) and fairness in
the determination of disputes, it refers, among other things, to the basic principles of justice that are
upheld by humanity at large and the good conscience of decent individuals. Life on earth is thus a
cumulative construct of moral and religious teachings, aided and abetted by enlightened human nature
which seeks to rectify what it deems to be wrong, unjust and undesirable. The Shari'ah has also left
many things unregulated, and when this is the case human action may in regard to them be guided by
good conscience and the general teachings of divine revelation. This is the substance, as Turabi
explains, of the juridical doctrine of istishab. In its material part istishab declares permissibility to be
the basic norm in Shari'ah; that people are deemed to be free of liability unless the law has determined
otherwise; and that human beings may utilise everything in the earth for their benefit unless they are
forbidden by the law. It thus appears that istishab, as a proof of Shari'ah, merits greater prominence and
recognition than we find to be the case in the classical formulations of this doctrine.
[29. Turabi, Tajdid, pp. 27-28.]
Principles of Islamic Jurisprudence ~
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Chapter Sixteen: Sadd al-Dhara'i` (Blocking the Means)
Dhari'ah (pl. dhara'i') is a word synonymous with wasilah, which signifies the means to obtaining a
certain end, while sadd literally means `blocking'. Sadd al-dhara'i` thus implies blocking the means to
an expected end which is likely to materialise if the means towards it is not obstructed. Blocking the
means must necessarily be understood to imply blocking the means to evil, not to something good.
Although the literal meaning of sadd al-dhara'i` might suggest otherwise, in its juridical application,
the concept of sadd al-dhara'i' also extends to `opening the means to beneficence'. But as a doctrine of
jurisprudence, it is the former meaning, that is, blocking the means to evil, which characterises sadd aldhara'i`.
The latter meaning of this expression is not particularly highlighted in the classical expositions
of
this doctrine, presumably because opening the means to beneficence is the true purpose and function
of
the Shari'ah
as a whole and as such is not peculiar to
sadd al-dhara'i'.
When the means and the end are both directed toward beneficence and maslahah and are not explicitly
regulated by a clear injunction (nass), the matter is likely to fall within the ambit of qiyas, maslahah, or
istihsan, etc. Similarly, when both the means and the end are directed towards evil, the issue is likely to
be governed by the general rules of Shari'ah, and a recourse to sadd al-dhara'i' would seem out of
place. Based on this analysis, it would appear that as a principle of jurisprudence, sadd al-dhara'i'
applies when there is a discrepancy between the means and the end on the good-neutral-evil scale of
values. A typical case for the application of sadd al-dhara'i` would thus arise when a lawful means is
expected to lead to an unlawful result, or when a lawful means which normally leads to a lawful result
is used to procure an unlawful end.
Both the means and the end may be good or evil, physical or moral, and they may be visible or
otherwise, and the two need not necessarily be present simultaneously. For example, khalwah or illicit
privacy between members of the opposite sexes, is unlawful because it constitutes a means to zina
whether or not it actually leads to it. All sexual overtures which are expected to lead to zina are
similarly forbidden by virtue of the certainty or likelihood that the conduct in question would lead to
zina. Dhari'ah may also consist of the omission of a certain conduct such as trade and commercial
transactions during the of the Friday congregational prayer. The means which obstruct the said prayer,
in other words, must be blocked, that is, by abandoning trade at the specified time.
The whole concept of sadd al-dhara'i' is founded in the idea of preventing an evil before it actually
materialises. It is therefore not always necessary that the result should actually obtain. It is rather the
objective expectation that a means is likely to lead to an evil result which renders the means in question
unlawful even without the realisation of the expected result. This is the case in both the examples given
Principles of Islamic Jurisprudence ~
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above: khalwah is thus unlawful even without actually leading to zina, and trading during the time of
the Friday prayer is unlawful whether or not it actually hinders the latter. Furthermore, since sadd aldhara'i'
basically
contemplates preventing an evil before its occurrence, the question of intention to
procure
a particular result cannot be a reliable basis for assessing the means that leads to that result.
Abu
Zahrah has aptly observed that the nature and value of the means is determined by looking at the
purpose
that it pursues regardless as to whether the latter is intended or otherwise. When a particular act
is
deemed to lead to a certain result, whether good or evil, it is held to be the means toward that end.
The
question of the intention of the perpetrator is, as such, not relevant to the objective determination of
the
value of the means. It is rather the expected result which determines the value of the means. If the
result
is expected to be good and praiseworthy, so will be the means towards it, and if it is expected to
be
blameworthy the same will apply to the means regardless of the intention of the perpetrator, or the
actual
realisation of the result itself. This is, for example, borne out by the Qur'anic text which forbids
the
Muslims from insulting idol worshippers, notwithstanding the inherent enormity of idolworshipping
or the actual intention behind it. The text thus proceeds: 'And insult not the associators lest
they
[in return] insult God out of spite and ignorance' (al-An'am; 6:108). The means to an evil is thus
obstructed
by putting a ban on insulting idol-worshippers, a conduct which might have been otherwise
permissible
and even praiseworthy, as it would mean denunciation of falsehood and firmness of faith on
the
part of the believer. Thus a means which is intrinsically praiseworthy leads to an evil result, and
acquires
the value of the latter. Furthermore, the prohibition in this example is founded on the
likelihood
that the associators would insult God as a result. It is, in other words, the expected result
which
is taken into account. Whether the latter actually materialises or not is beside the point: insulting
the
idols and their worshippers is thus forbidden regardless of the actual result that such conduct may
lead
to. Similarly, the question of intending whether or not to bring about a particular result is irrelevant
to
the prohibition under discussion. Insulting idol worshippers is thus forbidden even when a Muslim
does
not intend to bring about the expected result, that is, an insult to God; his intention may be good or
bad,
in either case, insulting the idols and their worshippers is forbidden as it is, on an objective basis,
most
likely to invoke the expected result.
[1. Cf. Abu Zahrah, Usul, p. 228.]
The doctrine of sadd al-dhara'i` contemplates the basic objectives of the Lawgiver. Hence the general
rule regarding the value of the means in relationship to the end is that the former acquires the value of
the latter. Al-Shatibi has aptly observed that the Lawgiver has legalised certain forms of conduct and
prohibited others in accordance with the benefit or harm that they lead to. When a particular act or form
of conduct brings about a result which is contrary to the objectives of the Lawgiver, then the latter
would be held to prevail over the former.
[2. Shatibi, Muwafaqat (Diraz edition), IV, 194.]
If the means, in other words,
violate the basic purpose of the Shari'ah, then they must be blocked. The laws of Shari'ah are for the
most part distinguishable in regard to their objectives (maqasid), and the means which procure or
obstruct those objectives. The means are generally viewed in the light of the ends they are expected to
obtain, and it is logically the latter which prevail over the former in that the means follow their ends,
not vice versa. Normally the means to wajib become wajib and the means to haram become haram.
Principles of Islamic Jurisprudence ~
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Means may at times lead to both a good and an evil in which case, if the evil (mafsadah) is either equal
to or greater than the benefit (maslahah), the former will prevail over the latter. This is according to the
general principle that 'preventing an evil takes priority over securing a benefit'.
IV, 195; Badran, Usul, p. 242.]
[3. Shatibi, Muwafaqat (Diraz edition),
Sadd al-dhara'i` thus becomes a principle of jurisprudence and a method of
deducing the juridical ruling (hukm shar`i) of a certain issue or type of conduct which may not leave
been regulated in the existing law but whose ruling can be deduced through the application of this
principle.
In addition to the Qur'anic ayah (al-An'am, 6:108) on the prohibition of insulting idols as referred to
above, the ulema have quoted in authority for sadd al-dhara'i` the Qur'anic passage in sura al-Baqarah
(2:104), as follows: 'O believers! Address not the Prophet by the word ra'ina, but address him
respectfully and listen to him.' The reason for this prohibition was that the word 'ra`ina', being a
homonym, had two meanings, one of which was 'please look at us or attend to us', while with a slight
twist the same word would mean 'our shepherd'. The Jews used to insult the Prophet with it, and in
order to block the means to such abuse, the Muslims were forbidden from using that form of address to
the Prophet despite their good intentions and the fact that the word under discussion was not inherently
abusive.
[4. Cf. Abu Zahrah, Usul, p.228; Isma'il, Adillah, p 197.]
Authority is also found for the principle of sadd al-dhara'i' in the Sunnah, especially the ruling in which
the Prophet forbade a creditor from taking a gift from his debtor lest it became a means to usury and the
gift a substitute to riba. The Prophet also forbade the killing of hypocrites (al-munafiqun) and people
who were known to have betrayed the Muslim community during battles. It was feared that killing such
people would become a means to evil, namely, of giving rise to a rumour that 'Muhammad kills his own
Companions'
[5. Shatibi, Muwafaqat, IV, 62; Shatibi, Fiqh, p. 187.]
which would, in turn, provide the enemy with an
excuse to undermine the unity of the Muslim community. Consequently the Prophet put a ban on killing
the munafiqun. On a similar note, the Prophet suspended enforcement of the hadd penalty for theft
during battles so as to avoid defection to enemy forces. It was for this reason, namely to block the
means to an evil, that the army commanders were ordered not to enforce tire prescribed penalties during
military engagements.
[6. Abu Zahrah, Usul, p. 229; Shalabi, Fiqh, p.187; Isma'il, Adillah, p. 200.]
The leading Companions are also known to have entitled to inheritance the divorced woman whom her
husband had irrevocably divorced during his death illness in order to exclude her from inheritance. This
was forbidden by the Companions so that a divorce of this kind would not become a means to abuse. It
is also reported that during the time of the caliph Umar b. al-Khattab, one of his officials, Hudhayfah,
married a Jewish women in al-Mada'in. The caliph wrote to him saying that he should divorce her.
Hudhayfah then asked the caliph if the marriage was unlawful. To this the Caliph replied that it was not,
but that his example might be followed by others who might be lured by the beauty of the women of ahl
al-dhimmah. The caliph thus forbade something which the Qur'an had declared lawful so as to block the
means to an evil as he perceived it at the time. It might be interesting to add here that Ibn Qayyim al-
Principles of Islamic Jurisprudence ~
Kamali 271
Jawziyyah records at least seventy-seven instances and rulings of the learned Companions and the
subsequent generations of ulema in which they resorted to sadd al-dhara'i `so as to block the means
that led to evil.
[7. Ibn Qayyim al-Jawziyyah, I`lam, III, 122ff; Shalabi, Fiqh, p.188.]
The ulema are, however, in disagreement over the validity of sadd al-dhara'i`. The Hanafi and Shafi'i
jurists do not recognise it as a principle of jurisprudence in its own right, on the grounds that the
necessary ruling regarding the means can be derived by recourse to other principles such as qiyas, and
the Hanafi doctrines of istihsan and 'urf. But the Maliki and Hanbali jurists have validated sadd aldhara'i`
as a proof of Shari'ah
in its own right. Despite the different approaches that the ulema have
taken
to this doctrine, the Maliki jurist al-Shatibi has reached the conclusion that the ulema of various
schools
are essentially in agreement over the conceptual validity of sadd
al-dhara'i`
but have differed in
its
detailed application. Their differences relate mainly to the grounds which may be held to constitute
the
means to something else, and also to the extent to which the concept of sadd
al-dhara'i`
can be
validly
applied.
[8. Shatibi, Muwafaqat, IV, 201.]
Abu Zahrah has reached essentially the same conclusion by
observing that the Shafi'i and Hanafi jurists are for the most part in agreement with their Maliki and
Hanbali counterparts, and that they differ only in regard to some issues.
[9. Abu Zahrah, Usul, pp.227-228.]
The
following classification of sadd al-dhara'i' may cast light on the consensus, as well as some of the areas
which the ulema are in disagreement, over the application of this doctrine. It is perhaps well to
remember at this point that notwithstanding the application of sadd al-dhara'i' in respect of opening the
means to beneficence (maslahah), it is usually the prevention of evil (mafsadah) that acquires greater
prominence in the discussion of this principle.
From the viewpoint of the degree of probability or otherwise that a means is expected to lead to an evil
end, the ulema of usul have divided the dhara'i` into four types.
1 ) Means which definitely lead to evil, such as digging a deep pit next to the entrance door to a public
place which is not lit at night, so that anyone who enters the door is very likely to fall into it. Based on
the near-certainty of the expected result of injuring others, the means which leads to that result are
equally forbidden. The ulema of all schools are, in principle, unanimous on the prohibition of this type
of dhari'ah and a consensus (ijma`) is said to have been reached on this point.
Usul, p. 243.]
[10. Abu Zahrah, Usul, p. 228; Badran,
Having said this, however, it should be added that the jurists have envisaged two possible
eventualities. Firstly, the dhari`ah may consist of an unlawful act of transgression in the first place, as
was the case in the foregoing example, in which case the perpetrator is held to be responsible for any
loss or damage that might be caused, as by digging a pit in a place where he has no right or authority to
do so. Secondly, the dhari'ah may consist of an act which is basically lawful, in which case the ulema
have disagreed over the question of responsibility. If, for example, someone digs a water well in his
own house but so close to the wall of his neighbour that the wall collapses as a result, the act here is
held to be basically lawful as it consists of the exercise of the right of ownership, which is said to be
irreconcilable with the idea of liability for damages. According to a variant view, however, the
Principles of Islamic Jurisprudence ~
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