Konsep Istishab dalam Fiqh: Sebuah Tinjauan Komparatif

The concept of istishab in Islamic jurisprudence, or fiqh, is a fundamental principle that plays a crucial role in legal reasoning and decision-making. It refers to the presumption of continuity, meaning that a state of affairs that has been established is presumed to continue until there is evidence to the contrary. This principle is deeply rooted in Islamic legal tradition and has been extensively discussed by scholars throughout history. This article will delve into the concept of istishab, exploring its theoretical foundations, practical applications, and comparative analysis with other legal systems.

The Theoretical Foundations of Istishab

Istishab is based on the principle of "al-qawa'id al-kulliyyah" (universal principles) that govern Islamic jurisprudence. It is derived from the Quranic verse, "And Allah does not change the condition of a people until they change what is within themselves" (Surah Ar-Ra'd, 13:11). This verse emphasizes the principle of continuity and the presumption that things remain as they are until there is a change. The concept of istishab is also supported by the Prophet Muhammad's sayings (hadith), such as the famous hadith, "The Muslim is presumed to be in a state of righteousness until proven otherwise."

Applications of Istishab in Fiqh

Istishab has numerous applications in various areas of Islamic law, including:

* Personal Status: In matters related to marriage, divorce, and inheritance, istishab is used to determine the legal status of individuals. For example, if a person is known to be married, they are presumed to remain married until there is evidence of divorce.

* Financial Transactions: Istishab is applied in determining the validity of financial transactions, such as contracts and loans. If a contract is validly entered into, it is presumed to remain valid until there is evidence of its termination.

* Criminal Law: In criminal law, istishab is used to determine the guilt or innocence of an accused person. If a person is presumed innocent, they remain innocent until proven guilty beyond a reasonable doubt.

Comparative Analysis of Istishab

The concept of istishab has parallels in other legal systems, such as the principle of "stare decisis" in common law, which emphasizes the importance of precedent. However, there are also significant differences. In common law, precedent is binding, while in Islamic law, istishab is a principle of interpretation that can be overridden by other evidence or legal arguments.

Conclusion

The concept of istishab is a fundamental principle in Islamic jurisprudence that plays a crucial role in legal reasoning and decision-making. It is based on the principle of continuity and the presumption that things remain as they are until there is a change. Istishab has numerous applications in various areas of Islamic law, and its comparative analysis with other legal systems reveals both similarities and differences. Understanding the concept of istishab is essential for comprehending the intricacies of Islamic law and its application in contemporary society.