Shaykh 'Abdul-Kareen bin 'Abdallah al-Khudayr [May Allaah Preserve him]
Member of Permanent Committee of Research and Fatwaa and Member of Council of Senior Scholars, Saudi Arabia
A process (in Usool al-Fiqh) which is known as Istishaab (الاستصحاب) is another way within the Shariah to derive rules and rulings.
The point behind Istishaab is to apply rulings that existed at the time of revelation to a time period where no revelation existed.
In Irshaad al-Fuhool, it gives Istishaab the definition of something that is established at the time of revelation, thus the same ruling is applied to any time that comes after it.
In Irshaad al-Fuhool, it gives Istishaab the definition of something that is established at the time of revelation, thus the same ruling is applied to any time that comes after it.
Meaning, if something was revealed and legislated in the time of revelation then the same ruling can be applied today without any changes occurring to the original ruling.
So if a scholar analyses the ruling of something and he finds no evidence to support a particular action, such as the virtues of Rajab or praying during the night of fifteenth Sha’baan…then in origin, the ruling is that they are not legislated.
For example, a person wants to create a sixth prayer during the day and he tries to seek evidence to support this, but he only finds that five prayers during the day are legislated, then in origin, there is no sixth prayer.
So if we take Salaat al-‘Eid or Salaat al-Witr – some stated that these are Waajib – and they have their evidences. But if there are no evidences at all, then you go through a process of Istishaab - meaning that nothing is legislated except what Allaah, the Exalted and Glorified, has Legislated in worship. Thus, we cannot worship except with evidence.
So if a person says, "I want to fast Rajab and this is necessary for me to do so" or "I must stand the fifteenth of Sha’baan in prayer" we say to him, "bring your evidence". If you are trying to prove a ruling and you have no evidence then there is no Istishaab for you, so in origin we stop until there is evidence.
The scholars also differed on its legality; is Istishaab a proof that we can rely on when there are no textual proofs?
Some said yes, Istishaab can be used as proof and others said no.
The Majority say it can be used as proof, from them are the Hanbalees, the Shafi’ees and the Maalikees as was stated by Ibn Haajib.
Others, like the Hanafees and some of the philosophers, stated that we need textual proof at all times. So if there is textual proof for doing something at the time of revelation then we also need proof to suggest that the same action is still relevant today.
So what does this all mean?
The Hanafees argue that if something was legislated at the time of the Prophet [Peace and Blessings of Allaah be Upon him] then we can’t assume that it can be applied today unless we have evidence to suggest that the ruling can be applied today, this means we can’t do Istishaab.
So for example, praying the fear prayer. The Prophet [Peace and Blessings of Allaah be Upon him] prayed the fear prayer in seven different ways, so we say that we can Istishaab and pray the fear prayer if the same situation occurs as that in the Aaahdith, and these rulings are will continue until the Last Day. This is because they are affirmed in the text, we have evidence for it and the fact the Companions [May Allaah be Pleased with them all] continued with this practice shows that it is still legislated.
However, Muhammad bin Hasan ash-Shaybaanee and Aboo Yoosuf would say that the rulings connected to fear prayer is specific to the Prophet [Peace and Blessings of Allaah be Upon him] and can only be applied today if we have proof
[Sharh al-Waraqaat Fee Usool al-Fiqh, tape 15]
So if a scholar analyses the ruling of something and he finds no evidence to support a particular action, such as the virtues of Rajab or praying during the night of fifteenth Sha’baan…then in origin, the ruling is that they are not legislated.
For example, a person wants to create a sixth prayer during the day and he tries to seek evidence to support this, but he only finds that five prayers during the day are legislated, then in origin, there is no sixth prayer.
So if we take Salaat al-‘Eid or Salaat al-Witr – some stated that these are Waajib – and they have their evidences. But if there are no evidences at all, then you go through a process of Istishaab - meaning that nothing is legislated except what Allaah, the Exalted and Glorified, has Legislated in worship. Thus, we cannot worship except with evidence.
So if a person says, "I want to fast Rajab and this is necessary for me to do so" or "I must stand the fifteenth of Sha’baan in prayer" we say to him, "bring your evidence". If you are trying to prove a ruling and you have no evidence then there is no Istishaab for you, so in origin we stop until there is evidence.
The scholars also differed on its legality; is Istishaab a proof that we can rely on when there are no textual proofs?
Some said yes, Istishaab can be used as proof and others said no.
The Majority say it can be used as proof, from them are the Hanbalees, the Shafi’ees and the Maalikees as was stated by Ibn Haajib.
Others, like the Hanafees and some of the philosophers, stated that we need textual proof at all times. So if there is textual proof for doing something at the time of revelation then we also need proof to suggest that the same action is still relevant today.
So what does this all mean?
The Hanafees argue that if something was legislated at the time of the Prophet [Peace and Blessings of Allaah be Upon him] then we can’t assume that it can be applied today unless we have evidence to suggest that the ruling can be applied today, this means we can’t do Istishaab.
So for example, praying the fear prayer. The Prophet [Peace and Blessings of Allaah be Upon him] prayed the fear prayer in seven different ways, so we say that we can Istishaab and pray the fear prayer if the same situation occurs as that in the Aaahdith, and these rulings are will continue until the Last Day. This is because they are affirmed in the text, we have evidence for it and the fact the Companions [May Allaah be Pleased with them all] continued with this practice shows that it is still legislated.
However, Muhammad bin Hasan ash-Shaybaanee and Aboo Yoosuf would say that the rulings connected to fear prayer is specific to the Prophet [Peace and Blessings of Allaah be Upon him] and can only be applied today if we have proof
[Sharh al-Waraqaat Fee Usool al-Fiqh, tape 15]
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