Note: Dr. Boshra Sadat Emami received her PhD in private law from Mofid University and has for several years been engaged in research and teaching at the university level. Her complete fluency in English and French, together with participation in numerous international conferences and seminars, has given her deep familiarity with legal systems around the world. We spoke with her about the principle of istishāb (continuity/presumption of continuance) and the dimensions and challenges surrounding it. In addition to discussing the difficulties of applying istishāb in Islamic fiqh and law, she also highlighted instances of its use in various legal schools and countries. The full text of her exclusive interview with Contemporary Jurisprudence follows:

Contemporary Jurisprudence: What are the challenges in applying the principle of istishāb in judicial and criminal fiqh? How can we overcome them?

Emami: The principle of istishāb is one of the practical principles (uṣūl ʿamaliyya) in the science of uṣūl al-fiqh. It is employed when there is doubt about the occurrence or continuation of something in order to deduce a sharʿī ruling. The clearest and most concise definition is that of Shaykh Anṣārī: “maintaining what was” (ibqāʾ mā kān). Istishāb operates by considering the prior state: if the existence of a ruling or subject was certain in the past but its continuation in the present is doubtful, the prior state is taken into account and the ruling or subject is deemed to persist.

The exact meaning of “fiqh of adjudication and penal law” in your question is unclear, but both fuqahāʾ and jurists—in private law as well as criminal law—have resorted to this principle to establish a doubtful ruling or subject that had a prior certain state.

The use of istishāb faces several challenges, including:

1. Conflict between istishāb and the rule of darʾ (aversion of punishment) in criminal law The rule of darʾ is one of the most important criminal-law rules: punishment is lifted when doubt exists. Fuqahāʾ differ on whether it applies to all punishments (ḥudūd, taʿzīr, qiṣāṣ) or only to ḥudūd in the strict sense. Some extend it to qiṣāṣ and taʿzīr as well. Article 120 of Iran’s Islamic Penal Code (1392/2013) uses the general term “crime” (jurm)—covering ḥudūd, taʿzīrāt, and qiṣāṣ—and accepts the rule for all punishments: “Whenever the occurrence of a crime, any of its conditions, or any condition of criminal responsibility is subject to doubt or uncertainty and no evidence negates it, the crime or the condition in question is not established.”

   Istishāb and darʾ frequently conflict. When istishāb requires establishing a ḥadd punishment while doubt exists, darʾ requires its removal. For example, if a man claims ignorance of a woman’s ʿidda period, marries her, and consummates the marriage (a factual doubt), istishāb of non-marriage would require punishment, yet darʾ lifts it. Numerous such cases exist in fiqh and criminal law.

   Fuqahāʾ have sometimes given precedence to darʾ and lifted the punishment, sometimes to istishāb and upheld it. Some writers classify darʾ as an authoritative proof (emāre) that overrides practical principles; others say darʾ prevails over istishāb only in rational ḥudūd and taʿzīrāt, while in qiṣāṣ and diyāt istishāb prevails.

2. Conflict with other principles (e.g., barāʾa—original non-liability). In general, the principle is innocence, but if a person with a prior conviction is suspected again and doubt arises, istishāb of prior guilt may conflict with the general principle of innocence. In fiqh, istishāb normally overrides barāʾa, but in criminal matters protecting the accused requires not presuming guilt even for repeat offenders.

3. Doubt regarding details of the ruling (e.g., exact quantum of punishment), making istishāb difficult to apply.

4. Mismatch with modern judicial practice, which relies on fresh evidence; resorting to istishāb when other proofs are available appears simplistic.

Solutions: Fuqahāʾ and jurists should first be obliged to exhaust all efforts to obtain proofs and indicants (adalāʾ wa amarāt) so that practical principles—which do not lead with certainty to reality—are not needed. Extreme caution must be exercised in applying istishāb. Criminal fiqh and law should be subject to continual revision so that judges and jurists have access to up-to-date evidence and rarely need to rely solely on istishāb. In any case, istishāb remains legitimate and necessary in criminal fiqh and legislation, but in interpretation and adjudication each case requires fresh ijtihād; a practical principle alone is insufficient.

Contemporary Jurisprudence: Is extensive reliance on istishāb in judicial and criminal fiqh desirable, or was the principle instituted only for emergency and limited cases?

Emami: As noted, istishāb—like other jurisprudential principles—must be used cautiously and within reasonable bounds. It is primarily for situations of doubt about the continuation of a prior state. Therefore, unrestricted and widespread use in criminal law is not desirable. The principle appears designed for emergency and specific cases where proofs and indicants are unavailable. Istishāb can never replace ordinary means of proof (testimony, confession, documents, etc.) or legal and judicial presumptions (possession, expert opinion, etc.). Relying solely on continuation of a prior certain state may lead to unjust rulings, whereas criminal fiqh and law aim at correction, education, and social rehabilitation, not mere punishment. Istishāb should be used only when no other proof or indicant exists.

Contemporary Jurisprudence: Can non-standard forms of istishāb (e.g., istishāb of eternal non-existence, suspensive istishāb, etc.—assuming their authoritativeness in uṣūl al-fiqh) be employed in judicial and criminal fiqh, whose purpose is dispute resolution and convincing the parties of justice?

Emami: Although istishāb can help determine rulings in cases of doubt, non-standard forms (eternal non-existence, suspensive istishāb, etc.) are highly disputed regarding authority and require extra caution. Their use—whether in legislation, interpretation, or adjudication—should be left to the faqīh or jurist fully acquainted with the specifics of the case, so that justice and fairness are preserved. In legislation, fuqahāʾ and jurists should remain free to resort to proofs, indicants, and practical principles as appropriate, but in adjudication the clearer the proofs and the narrower the resort to practical principles, the easier it is for parties to defend themselves and the lower the risk of arbitrary or unjust rulings.

Contemporary Jurisprudence: In the maxim “the claimant is the one whose statement opposes the principle, the denier is the one whose statement accords with the principle,” does “principle” refer only to non-rational sharʿī principles such as istishāb, or also to rational principles?

Emami: Practical principles are classified into three categories:

• purely sharʿī (e.g., istishāb—established only by the Lawgiver through narrations);
• purely rational (e.g., takhyīr—option);
• both rational and sharʿī (e.g., barāʾa and iḥtiyāṭ).

One criterion for identifying the claimant (muddaʿī) is: “The claimant is the one whose statement opposes the principle.” Thus the claimant asserts occurrence/change and must prove it; the denier accords with the (default) principle. The “principle” here is not limited to rational or sharʿī principles but includes every valid principle that may apply—negative principles (lack of existence, barāʾa) or positive ones (istishāb, aṣālat al-ṣiḥḥa, qāʿidat al-yad).

Some fuqahāʾ refine it: “The claimant is the one who asserts contrary to the principle and legal presumptions.” Criticisms include conflicts among principles/presumptions and cases where no principle applies. Many therefore prefer “manifest state of affairs” (ẓuhūr al-ḥāl—judicial presumption in modern law) or, like Ṣāḥib al-Jawāhir, simply the common view (ʿurf).

In contemporary Iranian procedure, the plaintiff who files the claim bears the initial burden of proof; the defendant becomes claimant if he asserts something contrary to a legal presumption or manifest state. In most cases procedural law itself determines the burden, leaving little room for practical principles to identify claimant and denier.

Contemporary Jurisprudence: In other legal schools, what principles replace istishāb? What advantages does istishāb have over them?

Emami: Every legal system develops principles and presumptions to avoid gaps and ensure coverage. In common-law systems the primary tool is legal presumptions—accepting a fact as true until rebutted by credible evidence.

A prominent example is the presumption of continuity/continuance. Traces appear worldwide:

• India: Courts presume the continuation of things as they were (Section 114, Indian Evidence Act).
• Australia: Past facts or states of mind may illuminate the present; used in traffic cases (speed unchanged shortly before accident) and especially in native title claims—the ALRC recommends presuming continuous observance of traditional laws and customs unless disproven.
• United States: A fact shown to exist is presumed to continue until the contrary is proved. Georgia courts repeatedly invoke “the doctrine of continuance”: once a state (residence, sanity, marriage, ownership) is proven, its continuation is presumed.
• Famous U.S. case (People v. Scandore, 1957): an old title deed sufficed; the court held that proven past ownership is presumed to continue.
• International law: the “presumption of state continuity” (a state attacked and occupied is presumed to continue existing).
• French Civil Code, Art. 1315: the debtor remains liable until discharge is proved—explicitly the same idea as istishāb of liability.

Although names and details differ, the core concept—continuation of a prior state unless disproven—is nearly universal. Because the function of istishāb is essentially identical to these presumptions of continuity found in many systems, istishāb enjoys no clear superiority. Like istishāb, these presumptions are applied across family law, contracts, torts, and even criminal law when no direct evidence exists or to ease proof. The global convergence on this mechanism confirms its practical wisdom, whether formulated as a sharʿī practical principle or a secular legal presumption.