Note: Practical principles (uṣūl ʿamaliyya) have always been contrasted with presumptions, and the prevalent view among uṣūliyyūn jurists is that presumptions prevail over and take precedence over practical principles. This also holds true regarding the relationship between judicial practical principles and judicial presumptions.
However, the question is: What are the judicial presumptions that take precedence over judicial practical principles?
The book “Jurisprudential and Legal Foundations of Judicial Presumptions in the Modern Judicial System” addresses both the nature of these presumptions and their jurisprudential and legal foundations.
Below is a content report of the book, quoted from the Contemporary Jurisprudence Encyclopedia website:
The book “Jurisprudential and Legal Foundations of Judicial Presumptions in the Modern Judicial System” is a Persian-language work on the scope of the authoritativeness (ḥujjiyya) of judicial presumptions in the judicial system, the foundations of their legitimacy, and an introduction to their examples.
The book has been authored by ʿAbd al-Ḥusayn Rażāʾī-Rād, Maysam Dūstī-Pūr, and Sayyid Ḥusayn Āl Ṭāhā.
The authors believe that judicial presumptions play a significant role in the modern judicial system and are therefore worthy of examination.
According to them, a judicial presumption consists of the inferences drawn by the judge during the proceedings, derived from the circumstances and conditions; hence, in the authors’ view, the most important point regarding judicial presumptions is the degree to which they convince (iqnāʿ-garī) the judge.
In the authors’ opinion, judicial presumptions today, with legal support, are considered important means of proving claims and are placed on the same level as documents and admissions.
Among the important examples of judicial presumptions mentioned in the book are: expert opinion, local investigation, inspection of the scene, DNA, fingerprinting, and testimony of children.
The authors, based on narrative evidence and the principle of covering (satr), hold that judicial presumptions should not be used to prove crimes in rights of God (ḥaqq Allāh), and their primary application is in rights of people (ḥaqq al-nās).
The main grounds for the legitimacy of these presumptions, according to the authors, are several verses from Sūrat Yūsuf, narrations concerning the story of the killing of Abū Jahl, and reason (ʿaql).
These presumptions may conflict with other evidence, and the authors have mentioned the cases of conflict, holding that only an official document and a binding admission take precedence over these presumptions, while in other cases judicial presumptions prevail.
Book Structure
The book consists of one foreword, one introduction, and two chapters.
The first chapter deals with the key concepts of the book.
The second chapter, titled “Judicial Presumptions,” addresses topics such as the definition of judicial presumptions and their difference from legal presumptions, examples of judicial presumptions including expert opinion, DNA, fingerprinting, and video recording, the jurisprudential evidence for the legitimacy of judicial presumptions and their characteristics, and conflicts between judicial presumptions and other means of proving claims.
At the end of the book, the authors present conclusions as well as the sources and references.
The Nature of Judicial Presumptions
The book’s authors define a legal presumption as a conclusion that the mind reaches based on preponderance and the natural course of events from signs and circumstances, in order to arrive at a reasonable conjecture about the unknown and achieve such conviction of conscience that it is highly probable to have reached the reality (p. 18).
After comparing the presumption in uṣūl al-fiqh and in law, the authors conclude that the presumption in its legal sense is entirely unrelated to the technical presumption in uṣūl and has been adopted from French law (p. 22).
They divide legal presumptions into legal presumptions and judicial presumptions.
According to the authors, legal presumptions are those that the law has established as evidence for a matter. For example, the presumption of possession is a legal presumption whereby if property is in the possession of one of the parties to the dispute and neither has evidence, the fact that the property is in the possessor’s hand serves as a presumption (sign) of his ownership, since property is usually in the possession of its owner. Thus, the criterion for the validity of a legal presumption is “preponderance,” and the legislator considers it valid in the absence of evidence to the contrary. The party favored by the legal presumption is exempted from providing evidence and proving the subject matter of the dispute, and the judge is obliged to follow it if no contrary evidence exists. Legal presumptions are resorted to where obtaining evidence is difficult, and therefore they resemble practical principles (pp. 40–43).
Judicial Presumptions
In defining judicial presumptions, the authors, citing the Civil Code of the Islamic Republic of Iran, describe them as “presumptions left to the discretion of the judge, derived from the circumstances and conditions concerning the subject of the dispute, and they may be relied upon if the claim can be proved by witness testimony or if they supplement other evidence” (p. 23).
According to them, judicial presumptions are obtained through the judge’s inferences from the existing indications during the proceedings, enabling the judge to infer an unknown matter from a known circumstance (pp. 39–40).
In the authors’ view, judicial presumptions arise from three foundations: the conjectures of judges, custom and habit, and circumstances, conditions, and indications (pp. 97–103).
They state that judicial presumptions fall under persuasive evidence rather than devotional or imposed evidence; that is, their validity depends on the extent of their effect in convincing the judge (p. 127).
The authors believe that presumptions (including judicial presumptions) can be relied upon in both criminal and civil matters and describe them as indirect evidence that, unlike other evidence, are not subject to formal preparation and whose presentation is not incumbent upon the claimant (pp. 26–27).
Among the reasons for the emergence of judicial presumptions mentioned in the text are lack of time, acceleration of proceedings, and absence of evidence (pp. 48–49).
In the past, the value of testimony and judicial presumptions was very low, but today they are placed on the same level as admissions and documents, to the extent that they are valid for all claims, even homicide (pp. 114–115); of course, the degree of validity of a judicial presumption depends on its authoritativeness and its ability to convince the judge’s conscience (p. 116).
The book mentions several characteristics of judicial presumptions: first, they do not have a “general” nature but provide assurance to the specific judge. Moreover, they are not general and cannot be generalized to other cases; finally, a judicial presumption can, through repeated reliance and use, turn into a law (pp. 110–113).
Another characteristic of judicial presumptions is that the parties to the dispute do not need to invoke them, and the judge himself can rule based on a judicial presumption without the parties’ reference to it (p. 121). However, if the judge’s knowledge is made the basis of the ruling without reliance on judicial presumptions and indications, it is contrary to law.
Nevertheless, the authors believe, according to various books, that the judge’s knowledge can serve as the basis for a ruling only if the judge possesses all the sharʿī conditions, whereas most current judges lack the sharʿī conditions for adjudication and act on this basis pursuant to governmental rulings (ḥukm ḥukūmatī) (pp. 124–125).
The authors hold that in rights of God, judicial presumptions should not be used to prove a crime, since Islam’s orientation is toward covering the offense and acquitting the accused; however, they may be used to negate a crime in rights of God. In contrast, in rights of people, means of proving claims are instrumental, so the judge should not restrict himself to specific evidence and must pursue justice through any available means (pp. 117–120).
According to the authors’ report, the prohibition on the judge gathering evidence in criminal matters is not operative, and the judge may collect evidence in criminal cases, whereas in civil matters the judge should not seek to gather evidence and issues rulings based on the parties’ evidence. Of course, this rule has been modified in several stages, granting the adjudicator powers in such a way that impartiality is not compromised and freedom in investigation and evidence collection does not harm the credibility of evidence (pp. 128–132).
In explaining the difference between judicial presumption and legal presumption, the authors describe the former as the judge’s own inference from circumstances and the latter as an imposition by law (p. 43).
The book’s authors examine the difference between judicial presumption and legal fiction (farḍ ḥuqūqī), considering legal fiction entirely distinct from presumption, since presumption is a means of discovering reality, whereas fiction is a tool for avoiding reality; the opposite of presumption is provable, while the opposite of fiction is not provable (pp. 45–48).
Examples of Judicial Presumptions
The authors do not consider examples of judicial presumptions to be limited or exhaustive; nevertheless, they refer to some of the most important ones, including expert opinion, local investigation, DNA, fingerprinting, testimony of children, audio and video recording, use of electronic documents, and the statements and reactions of the parties (pp. 50–97).
Expert Opinion
The judge seeks the opinion of an expert regarding the subject under consideration that requires specialization. Regarding the nature of expert opinion, the authors, after rejecting it as testimony or an independent means of proof, conclude on the basis of evidence that expert opinion is a judicial presumption and its authoritativeness depends on the conjecture it produces in the judge’s conscience. The law does not oblige the judge to follow the expert’s opinion; however, if the judge issues an order referring the matter to expertise, he cannot refuse to accept the expert’s view without justification. Of course, if the expert opinion does not align with other judicial presumptions, the judge may refer it to another expert (pp. 50–56).
Local Investigation
Obtaining information that local residents have about the subject of the dispute is another judicial presumption. The authors consider the nature of local investigation different from witness testimony and classify it among examples of judicial presumptions. According to them, conditions such as puberty, reason, faith, purity, and justice that are required for valid testimony are not conditions for local informants, since the probative force of their statements depends on the judge’s view (pp. 56–61).
Inspection of the Scene
Determining the necessity of inspecting the scene is at the discretion of the adjudicator; however, according to the book’s authors, inspection of the scene is essential in criminal matters (crime scene). The authors consider inspection of the scene a judicial presumption only when it is conducted to obtain indications for the parties’ claims; where inspection is for direct observation of the subject of the dispute, it constitutes direct evidence of proof and not a judicial presumption (pp. 61–66).
DNA
DNA is a method for identifying individuals’ genetic identity. After explaining the technical meaning of DNA and its history in crime detection, the authors consider this method superior to traditional evidence such as admission and witness testimony, because it produces certainty for the judge, and a judge’s opinion obtained through conventional and scientific means is authoritative in Iranian law. In this matter too, the judge may refer to an expert (forensic physician). This method is applied in cases such as determining paternity of an illegitimate child and identifying unidentified bodies. The authors conclude that although in Iranian law DNA is not explicitly cited as a court document, it is one of the judicial presumptions for which no stronger evidence exists worldwide. Of course, objections have been raised against this method, which the book’s authors note (pp. 66–77).
Fingerprinting
Obtaining images of the raised lines on individuals’ fingertips for identification and crime detection is called fingerprinting. According to the authors, the basis for the validity of fingerprinting as a judicial presumption stems from two scientific principles: the permanence of fingerprints throughout a person’s life and the fact that no two fingerprints are identical worldwide. This presumption too is not used as the basis for a ruling if it fails to convince the judge or conflicts with other judicial presumptions (pp. 77–84).
Testimony of Children
According to the authors’ report, the Civil Code does not accept testimony of children, but on the other hand accepts it as a judicial presumption and, in the absence of conflict with other circumstances, it can serve as the basis for a ruling. Of course, some jurists have accepted testimony of children over ten years old in cases of injury and homicide as testimony (pp. 84–87).
Legitimacy of Judicial Presumptions from the Jurisprudential Perspective
The authors cite two parts of Sūrat Yūsuf for the legitimacy of judicial presumptions. One is verse 18 of Sūrat Yūsuf, where Joseph’s brothers brought his blood-stained shirt to their father to indicate his death; yet Jacob did not consider this presumption as proof of Joseph’s death, leading to the conclusion that presumptions that definitively indicate their purport are authoritative.
In verses 26 and 27 of Sūrat Yūsuf, the story of Zulaykha tearing Joseph’s shirt is mentioned, and the judge (the Aziz of Egypt) considered the presumption (tearing of the shirt from the back) as proof of Joseph’s innocence and ruled accordingly.
Verses such as verse 42 of Sūrat al-Māʾida and verse 58 of Sūrat al-Nisāʾ, which command justice and equity in judgment, also indicate the legitimacy of judicial presumptions, since these presumptions bring the judge closer to those goals (pp. 104–107).
The authors also cite a narration supporting the authoritativeness of judicial presumptions, in which the Prophet, based on the greater amount of blood on the sword of one of Abū Jahl’s killers, identified him as the main killer so that the honor would be attributed to him (p. 108).
In addition to the Qurʾān and narration, the authors consider reason to support the legitimacy of judicial presumptions, as failure to use them would lead to violation of people’s rights (p. 109).
Conflicts between Judicial Presumptions and Other Means of Proving Claims
The authors envision several cases of conflict between judicial presumptions and other evidence and discuss the prevailing and overruled evidence:
- Conflict between two judicial presumptions: In this case, the presumption more consistent with principles and judicial policy prevails; if equal, both are discarded. According to the authors, preponderance should be based on what is more convincing to the judge (pp. 133–135).
- Conflict between judicial presumption and legal presumption: The authors consider the judicial presumption, if it convinces the judge, to prevail over the legal presumption (pp. 135–136).
- Conflict between judicial presumption and practical principles: The judicial presumption prevails if it convinces the judge (pp. 136–138).
- Conflict between judicial presumption and document: If the document is official, it prevails over the judicial presumption; but if ordinary, the judicial presumption prevails (pp. 138–140).
- Conflict between judicial presumption and admission: If the admission is binding, it prevails over the judicial presumption (pp. 140–141).
- Conflict between judicial presumption and oath: The assumption of conflict between these two is ruled out, because according to legal provisions, oath can serve as the basis for a ruling only when the claim lacks evidence and presumptions; thus, if a judicial presumption exists, there is no occasion for oath (pp. 142–143).
- Conflict between judicial presumption and witness testimony: The judicial presumption prevails (pp. 143–144).