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The Status of the Practical Principles of Bara’ah and Istishab

Throughout the history of Islamic fiqh, the principle of bara’ah (freedom from obligation), as a rational principle, has been employed, to varying degrees, by a wide spectrum of schools, in the resolution of cases for which there have existed no textual evidence. In the 4th century AH, the appearance of various works on `ilm al-ususl prompted a wider discussion of the concept of bara’ah. Throughout this period the notion of bara’ah came to be increasingly linked with that of istishab in the works of usuli faqihs, so much so that in the coming century bara’ah was deemed as a particular instance of istishab. The turning point came with Ghazzali who considered the “proof of reason and istishab” as the fourth source of fiqhi reasoning. He also viewed bara’ah as the purest form of istishab. Unlike the principle of bara’ah, that of istishab, in its limited connotation, failed to attract the support of rationalist circles. In fact, in the 5th century AH, the theory became the subject of intense criticism by the usulis among the Mu`tazilites, Shafi`ites, Hanbalites and early Hanafites. Here, however, were also cases of limited reconsideration. For example, Abu Mansur Maturidi (d. 333 AH) set forth a theory – which found supporters among the Hanafite leaders in Samarqand – according to which istishab was deemed as obligatory in cases of absence of textual evidence. Another view held by the likes of Abu Zayd Dabusi considered the application of istishab as permissible as a means of rejection and not affirmation of a rule.

source: Pakatchi , Ahmad "Islam Entry" The Great Islamic Encyclopedia. Ed. Kazem Musavi Bojnourdi.Tehran: The Center of Great Islamic Encyclopaedia , 1989-, V.8 ,pp.451 - 452

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