Note: Hojjat al-Islam wal-Muslimeen Dr. Ali Mohammad Hakimian, born in 1960 in Yazd, is a graduate of advanced fiqh and usul courses from the Qom Seminary and holds a PhD in private law. Years of teaching various legal disciplines alongside seminary courses have made him one of the most knowledgeable individuals regarding the application of practical principles such as istishab in judicial fiqh. The former head of the Research Institute of Hawza and University believes that many jurists are unaware of the differing functions of fiqh and law, which has led them to err. He also argues that istishab, as a practical principle that does not reveal reality, has no effective role in judicial fiqh. Below is the full text of an exclusive oral commentary by this faculty member of the Research Institute of Hawza and University for contemporary fiqh:

Both in fiqh and modern law, we deal with the issue of adjudication (qadā). But is adjudication meant to uncover the truth or to resolve disputes? This question has significant implications. For example, if adjudication is understood as uncovering the truth, and a dispute arises where a judge issues a ruling based on evidence but one party knows they are in the right and the judge failed to uncover the truth, that party may reinitiate the claim to seek justice. However, if adjudication is seen as resolving disputes, even if the judge’s ruling contradicts reality, the rightful party cannot reinitiate the claim or take possession of their property if they see it elsewhere, as the judge has awarded it to another based on evidence.

Istishab Has No Application in Judicial Practice

Regarding the use of the practical principle of istishab in adjudication, it is important to note that knowledge is divided into two types: real knowledge and prescribed knowledge. Real knowledge refers to certainty or assurance that is customarily considered equivalent to certainty. Prescribed knowledge (‘ilm ta‘abbudī) refers to situations where a source does not genuinely produce certainty, but the Lawgiver (God) mandates treating it as certain. In adjudication, what is relevant is real knowledge, not prescribed knowledge. Prescribed knowledge is useful only in cases where the Lawgiver has mandated it, not in adjudication, which seeks to uncover reality and truth. Based on this, it becomes clear that istishab, as a practical principle, is not applicable to adjudication and should not be used for it.

The Difference Between Fiqh and Law

A point often overlooked by many jurists is the distinction between fiqh and law. Law is designed to create order in society and regulate interpersonal relationships, whereas fiqh is the product of jurisprudential reasoning and is not necessarily conducive to order. This distinction has led to a form of judicial irregularity when jurisprudential opinions are applied to judicial practice. The science of fiqh encompasses a variety of opinions from different jurists, but law is meant to establish order, and it is inconceivable to have multiple laws on a single issue. Fiqh, in its conventional sense, does not foster order. Consequently, when a judge is confronted with diverse jurisprudential opinions, they become perplexed, whereas, when dealing with law, such perplexity does not arise because the law is singular and does not allow for multiplicity.

Based on this, care must be taken to ensure that the use of fiqh in legislation does not disrupt social order. Many jurists fail to recognize that fiqh is distinct from law. Fiqh is akin to legal doctrine, not law itself.

The Role of Indicative Signs in Adjudication

It was mentioned that in adjudication, only knowledge is valid, and nothing else can be acted upon. Here, it is important to note that presumption (ẓann) is divided into presumption bordering on certainty (ẓann mutākhim ilā al-yaqīn) and presumption not bordering on certainty. The former is so strong that rational people would not consider the possibility of its contradiction. The latter, however, allows for a significant possibility of contradiction.

The first type of presumption is also referred to as the judge’s assurance or knowledge. According to Article 211 of the Islamic Penal Code: “The judge’s knowledge refers to the certainty derived from clear evidence in a matter brought before them. In cases where the ruling is based on the judge’s knowledge, they are obligated to explicitly state the clear signs and evidence upon which their knowledge is based in the ruling. Note: Items such as expert opinions, site inspections, local investigations, statements of informed individuals, reports of judicial officers, and other signs and evidence that typically produce knowledge may serve as the basis for the judge’s knowledge. However, mere inferential knowledge that does not typically produce certainty cannot be the basis for issuing a ruling.”

In adjudication, presumption not bordering on certainty may also be acted upon in some cases, as it serves as an indicative sign (amāra) and has the capacity to uncover reality. For instance, confessions, documents, and indicative signs are among the presumptions considered in adjudication. According to Article 181:

“Means of proving a claim: The means of proving a claim in labor dispute resolution bodies include, in order, confessions, documents, and indicative signs. Witness testimonies may be considered indicative signs if they meet the required conditions. If one party acknowledges the claim of the other party, the claim is proven by the confession, and no further evidence is required to substantiate it.”

Since istishab is not an indicative sign, it has not been considered in the law.