Hujjiyat (proof Of Validity Of) Al-istishaab And The Adillah For Utilising It
1 – The Hukm Ath-Thaabit (established ruling) in the past remains as longs as the change of that Hukm has not been confirmed. That is because the matter established by certainty (Yaqeen) does not go away except by certainty.
So the one who makes Wudoo’ for the Salaah and then has doubt in respect to breaking the Wudoo’, prays with his Wudoo’ as much as he wishes to pray. That is because it has been related that a man came to the Messenger of Allah (saw) with doubt and said: “The person perceives that something happens in his Salaah”. He (saw) said:
“He does not (with emphasis) leave until he hears a sound or finds a smell” (Related by Muslim).
Therefore, the continuance or remaining of a matter that has been determined to be present remains predominant over its absence whilst doubt in respect to it does not remove it. This is what the Hadeeth of the Messenger of Allah (saw) has guided to and as such the Istishaab of the Wudoo’ from the past is not removed by doubt (Shakk) in the present but rather it remains present. Then if the person is certain about the occurrence of that which invalidates it, it is no longer present.
2 – The Messenger of Allah (saw) said:
“Verily I am only a man and disputes are presented before me. So it might be that some of them are more eloquent than others and so I believe him to be truthful and judge in his favour. So the one whom I have judged in his favour at the expense of a Muslim’s right then it will only be a piece of the hell-fire…” (Al-Bukhari)
This establishes passing judgment upon what is apparent i.e. that which is heard in the dispute. The apparent matter is that which the Hukm of a matter has been confirmed for it in the past and so the Hukm must be in accordance to what is apparent. If someone then claims the contrary to what is apparent, then he must bring a Daleel that supports his claim. Otherwise the matter stays as it was in the past in respect to the Hukm and this represents the reality of Al-Istishaab. It is the passing of judgment upon a matter in the present based upon its affirmation (or having been established) in the past i.e. previously.
3 – If that which has been established or confirmed in the past in terms of the existence of a matter, description or thing, and its disappearance has not become apparent, then it is necessary by Daroorah (necessity) for to be thought (Zhann) to be remaining in the present time, as it had been before that. This is in the case where working with Zhann in respect to the Ahkaam Ash-Shar’iyah is Waajib in the case where the Ahkaam Ash-Shar’iyah are built upon Ghalabat Azh-Zhann (preponderance/what is most likely) and where Al-Istishaab represents passing the Hukm upon the matter in the present based upon its confirmation and having been established in the past.
These three matters represent a Daleel for the Istishaab being a ‘Qaa’idah Shar’iyah’ that is to be utilised. This means that it is permissible for branching (At-Tafree’) to take place upon it. Consequently, in regards to that which its presence or existence has been established or affirmed and its disappearance has not become apparent, then its remaining or continuance is preponderant (Ghalaba ‘Alaa zh-Zhann).
For that reason, the absence of An-Naskh (non-abrogation) is the original position (Al-Asl) in respect to the Sharee’ah and the claim for the occurrence of abrogation must have a Daleel that indicates it. This is the essence of Al-Istishaab.
Therefore, in all matters the origin continues until a contrary Daleel is established.
If the Daleel establishes a Hukm of Wujoob (obligation), Nadb (recommendation) or other than these, then this Hukm remains constant and established (Thaabit). If another Hukm is claimed that is contrary to the one established by the Daleel then there must be a Daleel to indicate that. If there is no such Daleel the Hukm remains upon the Asl (origin) in accordance to what the Daleel brought.