New Applications of Istishab in Emerging Issues

Note: The 26th session of the International Islamic Fiqh Academy was held from May 7–11, 2025, in Doha, Qatar. A delegation of scholars and professors from Iran, led by Ayatollah Moghbali, participated in this event. One of the presenters from the Iranian delegation was Professor Morteza Torabi, who presented a paper titled “Istishab and Its Concept, Types, Relationship with Other Sources of Legislation, Its Evidentiary Value, and Its Applications in Emerging and Novel Issues.” Below is the author’s report on this paper, which offers new applications to contemporary jurisprudence, including judicial and criminal law.

1. Istishab as a Practical Principle, Not an Indicative Sign

In this paper, while explaining the characteristics of indicative signs (amārāt) and practical principles (usūl ‘amaliyya) and the distinction between them, emphasis was placed on determining the position of istishab among the sources of deduction. It was highlighted that istishab is a definitive practical principle, thus subordinate to indicative signs but superior to non-definitive practical principles. It should be noted that this discussion is specific to Shi‘i jurisprudence, as Sunni jurists do not distinguish between indicative signs and practical principles. However, in prioritizing other sources over istishab, Sunni jurists rely on the weak presumption derived from istishab, which is open to critique.

Given the continuous development of ijtihad in Shi‘i jurisprudence and the meticulous attention to jurisprudential principles since the time of Wahid Behbahani (may his soul be sanctified), the distinction between indicative signs and practical principles has been established in Shi‘i jurisprudence, which appears to have brought about a transformation in the science of usūl al-fiqh.

In summary, the paper explains that in Shi‘i jurisprudence, sources of deduction are divided into two categories:

First category: Sources that express the actual ruling of objects and actions as they truly are, such as the obligation of prayer, fasting, zakat, hajj, and similar matters.
Second category: Sources that express apparent rulings. When there is no evidence to establish the actual ruling, recourse is made to this second category, known as practical principles (usūl ‘amaliyya). These principles are four: 1) Istishab (continuity), 2) Asālat al-Takhyīr (the principle of choice), 3) Asālat al-Ihtiyāt (the principle of precaution), and 4) Asālat al-Barā’a (the principle of exemption).

If a jurist, after examining the sources, cannot find the actual ruling of an object or action, and if the prior state of the object or action is known, istishab is applied. If the prior state is unknown and precaution is not feasible (e.g., when the matter oscillates between obligation and prohibition), asālat al-takhyīr is applied. If precaution is feasible and the obligation is known but its subject is unclear, asālat al-ihtiyāt is applied. If the obligation itself is uncertain, asālat al-barā’a is applied.

Based on this, istishab ranks below sources that establish actual rulings but above other practical principles, as it is a definitive practical principle.

2. Non-Application of Istishab in Conceptual Doubts

Another point emphasized in the paper is the need to refine the foundations for applying or not applying istishab in emerging issues. One key issue is whether istishab applies to conceptual doubts (shubha māhuwiyya). The correct view is that istishab does not apply in such cases.

The explanation is as follows:

Many instances of applying istishab in novel issues involve conceptual doubts, where the reality or external situation is clear, but the doubt arises from whether a concept applies to a new instance or from determining the scope of a term’s meaning. Examples include: whether the term “alive” applies to someone who has experienced brain death; whether “mother” applies to a woman who has rented her womb but whose egg is not used; whether “property” applies to cryptocurrencies; whether “sale” applies to electronic contracts; or whether “rational” applies to someone with Parkinson’s disease.

The issue with applying istishab in such cases is that rulings depend on the concept or title, and determining the applicability or non-applicability of a concept pertains to linguistics. The role of istishab is not to establish linguistic meanings, as these must be determined through specific indicators such as immediate association (tabādur), contextual coherence without external clues, or explicit definitions by linguists. Thus, istishab does not apply in cases of conceptual doubts. The paper, however, proposes a solution to this issue, which is discussed therein.

3. Types of Istishab

The third point addressed in the paper is the classification of istishab. In Shi‘i jurisprudence, istishab is divided into approximately 20 types, whereas Sunni jurisprudence recognizes no more than six. The paper highlights these classifications and related discussions to reflect the content of Shi‘i jurisprudence.

To briefly mention some classifications of istishab:

Whether the subject of istishab is an existential matter (wujūdī) or a non-existential matter (‘adamī);
Whether the non-existential matter is a predicative absence (‘adam mahmūlī) or an attributive absence (‘adam na‘tī);
Whether the subject of istishab is a legal ruling or the subject of a legal ruling;
Whether the subject is universal (kullī) or particular (juz’ī);
If universal, whether it is of the first, second, or third type;
Whether the subject is a definitive ruling (hukm tanjīzī) or a conditional ruling (hukm ta‘līqī);
Whether the subject is a cause (sababī) or an effect (musabbabī);
Whether the subject is fixed or gradual;
Whether istishab extends from the past to the present, present to the past, or present to the future;
Whether the doubt in istishab is actual or hypothetical;
Whether the doubt involves equal probabilities, favors continuity, or favors cessation;
Whether the evidence for istishab is a religious text, consensus, or reason;
Whether the doubt arises from uncertainty about the cause, the remover, or the remover’s efficacy;
If istishab pertains to rational implications, it is called a positive principle (asl musbit);
Whether istishab relates to previous religious laws or the Islamic Sharia.

Other classifications exist, and distinctions must be made when applying istishab in these cases.

4. Istishab and Its Applications in Emerging and Novel Issues

The second section of the paper addresses the application of istishab in emerging jurisprudential issues. It is noted that Islamic rulings encompass all aspects of life, including novel issues. After the general principles were outlined in the Holy Qur’an and by the Prophet (peace be upon him and his progeny) and his Household (peace be upon them), the task of elucidating detailed rulings, keeping pace with life’s developments, and addressing emerging issues related to legislation falls to jurists. Imam Sadiq (peace be upon him) said: “It is upon us to convey the principles to you, and it is upon you to derive the details.”

Istishab is one of the jurisprudential principles that a jurist uses to arrive at general legal rulings and is also a jurisprudential rule. A legally responsible person (mukallaf) can apply it to various subjects to derive their rulings.

In this regard, the paper references 25 novel issues where istishab can be applied to determine their legal rulings. A summary of a few examples follows:

Continuity of Obligations in Illnesses Affecting Memory and Intellect

Certain diseases, such as Alzheimer’s or Parkinson’s, may impair a person’s memory and ability to recognize people or objects. In advanced stages, where it is certain that the patient has lost the capacity for rational discernment and is no longer considered rational by customary standards, obligations such as prayer, fasting, and other duties contingent on rationality are lifted, as explicitly stated in jurists’ fatwas. However, in intermediate stages, where the patient has not yet reached this point, do religious obligations remain, or are they lifted? Additionally, are their transactions, gifts, or other financial dealings valid?

If there is doubt about whether the patient has reached that stage—whether due to uncertainty about the external reality (lack of knowledge about the person’s condition) or knowledge of the condition but doubt about whether the customary term “rational” applies, with no indicative sign to resolve the matter—istishab can be applied to assume the continuity of their prior rationality until their exit from that state is proven.

One jurist has stated: “In case of doubt about whether an elderly person has lost rationality, their rationality can be presumed through istishab, and their transactions can be deemed valid until the loss of rationality is established with certainty or confidence. With this istishab, no one has guardianship over them.”

However, an issue arises: if the doubt stems from the applicability of the concept “rational,” istishab of rationality does not apply, as this involves establishing linguistic meanings, which istishab cannot do.

Some scholars argue that, although istishab in conceptual doubts is problematic, it can be applied to the legal ruling of a specific external subject, i.e., stating: “This person was previously subject to obligations, and they remain so now.”

Transactions with Cryptocurrencies Like Bitcoin

Cryptocurrencies are among the emerging phenomena, and there is disagreement among jurists regarding the permissibility of transactions involving them:

Some jurists deem such transactions invalid due to the presence of gharar (uncertainty), which is prohibited in Sharia.
Others consider them permissible, as they are customarily regarded as property, having rational benefit, being scarce, capable of ownership, and not subject to specific or general prohibitions. Gharar is negated because custom views them as equivalent to other credited assets.
Some refrain from issuing a ruling and advise precaution until the nature of these currencies is clarified.

A distinction can be made between well-known cryptocurrencies relied upon by financial markets and obscure ones, with the title of “property” applying customarily only to the former.

In any case, if doubt persists and the jurist cannot reach a conclusion, the reference point is istishab of the non-transfer of ownership and the continuity of the property in the hands of its owner, resulting in the invalidity of transactions with such currencies.

Use of Gelatin in Food

A contemporary application of istishab concerns the ruling on gelatin, a substance extracted from animals or certain plants that is soluble. If istihāla (transformation of essence) occurs, gelatin is deemed permissible based on istishab of the absence of a prohibition, unless it is proven harmful, in which case it would be forbidden due to harm.

However, if istihāla has not occurred—which is the correct view—the prior ruling is applied through istishab. Thus, gelatin follows the ruling of the animal from which it is derived: if the animal was slaughtered according to Sharia, the gelatin is pure and permissible; otherwise, it is forbidden based on istishab of its prohibition.

If there is doubt about whether the gelatin is animal- or plant-based, and no evidence suggests it is animal-based, the principle of purity (tahāra) and permissibility (hilliyya) applies, deeming it pure and permissible.

Use of Genetic Engineering

Is the use of genetic engineering in producing modified foods permissible? And is consuming such foods permissible?

If it is argued that this constitutes altering God’s creation, it would fall under the Qur’anic verse: “And I will mislead them, and I will arouse in them [sinful] desires, and I will command them so they will slit the ears of cattle, and I will command them so they will change the creation of Allah. And whoever takes Satan as an ally instead of Allah has certainly sustained a clear loss.” (Qur’an, 4:119)

In this case, genetic engineering would be deemed forbidden.

However, if it is argued that “changing God’s creation” in the verse refers to altering religion, or is limited to visible changes, and that genetic modifications without altering the appearance of creatures are excluded, or that it applies only to animals or to actions pagans performed for idols, and no other evidence of prohibition exists, and no harm has been proven, then istishab of the absence of prohibition applies, rendering it permissible for plants.

For genetic modification of animals, if the verse is understood to generally prohibit altering animal creation, it would be forbidden, as it is not an exception. However, if one does not accept the verse’s general applicability and considers the prohibited change to involve actions like cutting animals’ ears for idol worship, istishab of the absence of prohibition applies, rendering it permissible, as does the principle of exemption (barā’a).

Application of “Deceased” to Someone with Brain Death

Among contemporary scholars, there are two views regarding brain death and whether it constitutes actual death and the end of human life, particularly when the person is on life-support devices:

First view: Brain death without cessation of the heartbeat does not constitute death; the heart must stop for the person to be considered deceased.
Second view: Brain death, with or without a heartbeat, constitutes actual death, and cessation of the heart is not required to issue a death ruling. This view has been adopted by the International Islamic Fiqh Academy affiliated with the Organization of Islamic Cooperation.

Among Imami jurists, there is also disagreement. Some consider brain death to be actual or legal death, while others reject this, asserting that such a person is still alive and subject to the rulings of a living person.

Proponents of the second view (considering the person alive) rely on istishab in both the subject and the ruling, arguing that the patient’s life was certain before brain death, and this certainty is extended to the disputed situation, thus applying the rulings of a living person.

Therefore, selling or donating organs critical to life, such as the heart or head, or organs whose removal causes evident harm or mutilation to the body (considered a crime against the person), is not permissible by the individual or their guardian.

However, an objection has been raised, as this issue involves a conceptual doubt (the scope of the term “life”), and istishab cannot establish linguistic meanings.

The correct view is that istishab can apply to a specific ruling in such cases. While istishab does not apply to the subject or concept, it can apply to the ruling, provided the conditions for istishab in the ruling are fully met, as some contemporary scholars have argued.

Terminally Ill Patients and Use of ICU Devices

In critical conditions, as diagnosed by physicians, patients suffering from a stroke or heart attack are placed on life-support devices in intensive care units. If these devices are disconnected, respiratory or cardiac issues may occur, potentially leading to premature death, making their connection essential.

However, in cases where brain death is diagnosed, should the devices remain connected, or can they be disconnected since there is no hope of recovery?

Based on istishab, the ruling is to maintain the connection of the devices, and disconnecting them, which customarily leads to death, is forbidden unless there is a necessity. Some Imami jurists have issued such a fatwa.

However, if the devices were not connected initially, there is no obligation to connect them.

Among non-Imami jurists, the prevailing view permits disconnecting life-support devices. The International Islamic Fiqh Academy has issued the following decision:

If all brain functions have completely ceased, and trusted medical specialists confirm that this condition is irreversible and the brain is decomposing, life-support devices may be disconnected, even if some organs, such as the heart, continue to function with assistance.

Some non-Imami jurists condition this permissibility on confirmation by three specialist doctors that continuing the devices is futile.

Continuity of the Right to Annulment After Treatment and Removal of a Defect

Certain defects in a woman grant the man the right to annul the marriage without needing a divorce. If the man discovers such a defect after marriage but the defect is treated through surgery or medication before he exercises his right to annulment, does his right to annulment remain?

Some jurists argue that the mere presence of a defect at the time of marriage establishes the right to annulment. If there is doubt about whether this right persists after the defect is resolved, istishab of the continuity of the right to annulment applies.

Gender Reassignment

Gender reassignment refers to converting a man to a woman or a woman to a man. Is such an act permissible? And if it is permissible or forbidden, do the legal rulings related to a person change after gender reassignment?

Explanation of the Issue:

In the modern era, with advancements in cosmetic surgery, some individuals who feel they belong to the opposite gender (a man feeling like a woman or vice versa) undergo gender reassignment. This involves removing sexual organs and grafting organs that resemble those of the opposite gender. Additionally, the individual uses hormones to align their appearance with the desired gender.

However, some sexual characteristics remain unchangeable:

Genetic Code: Women have XX chromosomes, and men have XY chromosomes, present in all body cells and unchangeable.
Reproductive Organs: Women produce eggs, and men produce sperm. Surgeons can only remove these organs, not create those of the opposite gender.
Body and Bone Structure: Fundamental differences exist between male and female skeletal structures, with only minor changes possible through surgery.

Thus, the question arises: Are these external changes sufficient to alter legal rulings?

Some Imami jurists permit gender reassignment and the application of the new gender’s rulings, provided the new title applies customarily. Others argue that neither gender reassignment is permissible nor do legal rulings change with external changes. The second view—denying the possibility of actual gender change and deeming it forbidden even if possible—appears stronger.

Among non-Imami jurists, it seems such an act is generally considered impermissible. The International Islamic Fiqh Academy has stated:

“Gender reassignment is legally forbidden, as it constitutes altering God’s creation.”

A key jurisprudential reason for not changing legal rulings despite external bodily changes is istishab. As long as there is doubt about an actual gender change, the prior ruling must be upheld.

The conditions for istishab are fully met here, and thus, the legal rulings for a man or woman remain as they were before the reassignment, as medical opinions indicate that the change is merely external, not actual, and thus has no effect on legal rulings.

However, istishab does not apply to the subject (determining whether the person is a man or woman), as this involves a conceptual doubt, and istishab cannot establish the scope of a concept. Unless it is argued that determining the continuity of the subject is a customary matter, and custom does not consider such changes sufficient to alter the subject (man or woman).