Istishab and its impact on modern medical liability
Abstract
This study examines the principle of Istishab, one of the disputed evidentiary sources in the science of Usul al-Fiqh (Islamic legal theory), and its application to the field of modern medical liability, in light of the principles and objectives of Islamic law (Sharia). It outlines the concept of Istishab, its types, the conditions for its validity as legal evidence, and the scholarly debate surrounding its probative authority.
The research also explores the foundations of medical liability in the context of contemporary scientific and technological developments, which have led to new forms of accountability requiring renewed jurisprudential reasoning.
A central focus is placed on the role of Istishab in proving medical error, particularly in cases where direct evidence of fault or a causal link between the medical act and the harm is difficult to establish. The analysis draws upon legal maxims such as “the presumption is that a prior state continues to exist” and “freedom from liability is the original state.” It also considers the use of Istishab in assessing the civil liability of physicians and the legitimate guarantees for potential harm, through contemporary applied examples.
The study concludes that Istishab is a valid inferential method in the absence of conclusive evidence and may, when its conditions are met, support the patient’s claim in ambiguous cases. It recommends a controlled application of Istishab in medical adjudication to balance the protection of patients’ rights with fairness toward physicians, and calls for further applied jurisprudential studies to address emerging challenges in modern healthcare.
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This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
