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 known as Istishaab (الاستصحاب) is another way within Shariah which helps us forms rules and rulings.
The point behind Istishaab is to seek to find what is relevant from the original ruling at the time it came down.
In Irshaad al-Fuhool, it gives Istishaab the definition of something that is affirmed in the time of revelation so it must be affirmed in the times that came after it.
Meaning, something was revealed and legislated in the time of revelation and the same ruling can be applied today without any changes occurring to the ruling.
If a scholar sits down to look at 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…so if one wants to fast or pray during these times and there is no evidence for it, 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.
Ok, let’s take Salaat al-‘Eid or Salaat al-Witr – some stated that these are Waajib – and they have evidence. So you try and look for evidence, this is the process of Istishaab. Thus in its application it means that nothing is legislated except what Allaah, the Exalted and Glorified, has legislated in worship. So 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 the following; 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 you have textual proof for doing something at the time of revelation then we also need proof to suggest that we can do it on our times 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 use this and pray in this way if we are in a similar situation, and these rulings are upheld 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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