Note: Hujjat al-islam wal-muslimeen Dr. Sayyid Baqir Muhammadi is a graduate of the Dars-e Kharij of Jurisprudence and Principles in the Qom Seminary and holds a PhD in Penal Jurisprudence from Al-Mustafa International University. Having taught and authored in the field of penal jurisprudence and law for years, he explains the various dimensions of the application of Istishab in penal jurisprudence in this exclusive note. The author of the book Jurisprudential Analysis of Obstacles and Substitute Institutions for the Execution of Hudud in the Era of Occultation believes that the principle lies in the non-application of Istishab in criminal matters, and therefore its application must be narrow, exceptional, and always in favor of the accused. The details of this exclusive note follow:
Non-application of Istishab in Criminal Matters
Istishab is not a certain evidence (dalil yaqini), but rather a speculative evidence (dalil zanni), and this creates a major challenge for us in criminal matters; because in criminal matters, both the ruling (hukm) and the subject (mawdu) must have been issued with certainty, and one cannot rule for punishment in criminal matters using speculative evidences whose probative force (hujjiyyah) is not clear. For example, regarding Istishab, through which many cases are proven—whether in matters of legislation (ja’li) or the principle of non-legislation—it is not a certain evidence. Even one of the evidences for proving the essence of the Sharia is Istishab. In non-criminal rulings, we can prove a ruling via Istishab, or in narrations where Istishab has been invoked, we can prove that ruling for all legally responsible individuals (mukallafin) in light of the Principle of Commonality of Rulings (asl al-ishtirak); however, in criminal matters, a ruling cannot be proven with Istishab.
In cases where a subject is intended to be proven via Istishab, the challenge is even greater. This point, of course, exists regarding other procedural principles (al-usul al-ʿamaliyyah) as well. For instance, in legal discussions, the Istishab of an individual’s non-guilt comes into conflict with the application of the Presumption of Innocence (asl al-bara’ah) regarding them; on the other hand, the application of Bara’ah is also an accepted principle in fair trial standards.
In civil matters, the judge observes the conflicting evidences and issues a ruling based on the balance between them; but in criminal matters, the ruling is difficult, for the proof of a crime must be certain rather than speculative.
Conflict of Istishab with Other Evidences in Criminal Matters
In many cases, the Istishab of the establishment of a criminal act finds disparity with the Rule of Dar’ (shunning punishment in cases of doubt); well, in such cases, even with the application of Istishab, the presence of doubt is not eliminated, and thus the Rule of Dar’ can be acted upon. There is much discussion here whether the subject of the Rule of Dar’ is the absence of knowledge—in which case it conflicts with Istishab—or the absence of knowledge and valid speculative evidence—in which case Istishab would be governing (hakim) and take precedence over it. This subject must be discussed in its proper place, but in any case, the spirit of the Rule of Dar’ is in conflict with Istishab.
The Principle is the Non-application of Istishab in Criminal Matters
Istishab cannot be invoked as a fundamental principle in jurisprudence; this is because the Legislator’s foundation in criminal matters is based on mitigation so that reform and education may take place. We have in the narrations that if an error occurs in pardon, it is better than an error occurring in punishment. In light of these points, if Istishab seeks to establish a penalty, it stands in conflict with this objective and purpose of the Legislator. In criminal discussion, the Legislator’s foundation is not upon the settlement of litigation, but rather upon the discovery of truth. From a legal perspective, the fundamental principle is Bara’ah (innocence), and Istishab is in conflict with Bara’ah. Furthermore, human dignity necessitates that the judge’s hand not be open in matters of blood (dima) and honor (a’rad); whereas the application of Istishab in many cases causes systematic injustice and the violation of human dignity. We must apply Istishab in exceptional matters that are in favor of the accused in doubts regarding the ruling (shubuhat hukmiyyah), but in other cases, it is not accepted. Generally, the application of Istishab in criminal matters must be narrow, exceptional, and in favor of the accused.