Perbandingan Istishab dalam Hukum Islam dan Hukum Barat

The concept of Istishab in Islamic law and Western law is a fascinating subject that delves into the intricacies of legal principles and their application in different cultural contexts. Istishab, a principle of Islamic jurisprudence, is often compared to the presumption of continuity in Western law. This article will explore the similarities and differences between these two principles, providing a comprehensive understanding of their roles in their respective legal systems.

Istishab in Islamic Law

Istishab is a fundamental principle in Islamic jurisprudence. It is based on the presumption of continuity, meaning that a state of affairs is assumed to continue until there is evidence to the contrary. This principle is used in various aspects of Islamic law, including matters of personal status, property rights, and criminal law. For instance, in a dispute over property ownership, the party in possession of the property is presumed to be the rightful owner until proven otherwise. This presumption of continuity provides a sense of stability and predictability in legal proceedings, ensuring that the burden of proof lies with the party seeking to change the status quo.

Presumption of Continuity in Western Law

In Western law, the presumption of continuity is a similar concept to Istishab. It is a legal principle that assumes that things remain the same until proven otherwise. This principle is applied in various areas of Western law, including civil, criminal, and administrative law. For example, in a criminal case, the accused is presumed innocent until proven guilty. This presumption safeguards the rights of individuals and ensures fairness in legal proceedings. It also places the burden of proof on the party seeking to alter the existing state of affairs.

Comparing Istishab and the Presumption of Continuity

While Istishab and the presumption of continuity share a common underlying principle, there are notable differences in their application. In Islamic law, Istishab is a universal principle that applies to all aspects of the law. It is deeply rooted in Islamic teachings and is considered an essential tool for legal reasoning. On the other hand, the presumption of continuity in Western law is not universally applied. It varies depending on the specific area of law and the legal traditions of different countries.

The Role of Evidence in Istishab and Western Law

Another key difference between Istishab and the presumption of continuity lies in the role of evidence. In Islamic law, the principle of Istishab is closely tied to the concept of evidence. The presumption of continuity remains until there is clear and convincing evidence to the contrary. In contrast, Western law places a greater emphasis on procedural fairness. The presumption of continuity can be rebutted by a lower standard of proof, depending on the nature of the case and the rights at stake.

In conclusion, while Istishab in Islamic law and the presumption of continuity in Western law share a common principle, their application and interpretation differ significantly. Both principles play a crucial role in their respective legal systems, providing a framework for legal reasoning and ensuring fairness in legal proceedings. Despite their differences, both principles underscore the importance of stability and predictability in the law, highlighting the universal nature of these legal concepts.