Note: Practical principles (al-usul al-‘amaliyyah) stand in contrast to presumptions (amarat). But just as there are judicial practical principles, are judicial presumptions also conceivable? Mohammad-Mahdi Hakimi, in this article published on the website of the Baqir al-Olum Research Institute (November 15, 2014), explores the meaning of judicial presumptions and their distinction from legal presumptions.
Amarah (presumption/indication) literally means sign, mark, and indication, and its plural is amarat. [1] The difference between amarat and a mark (alamat) is that a mark is inseparable from the thing, such as the article al- (the) attached to a noun, whereas amarat can be separated from the thing, such as the presence of clouds in relation to rain. [2]
In legal terminology, pursuant to Article 1321 of the Civil Code, a presumption (amarah) consists of circumstances that, by virtue of law or in the view of the judge, are recognized as proof of a matter. According to this definition of presumption, it must be stated that a presumption is a known fact in reality by which an unknown matter claimed by a third party is proven; hence, matters proven through presumptions are recognized as valid because presumptions reveal reality. In truth, considering the literal meaning, presumptions are supplementary evidence existing in the external world that serve as a sign or indication of the existence of a right for its holder. Furthermore, proof through a presumption is more indirect than through any other form of evidence. [3]
In our law, presumptions are of two types: legal presumptions (amarat-e qanuni) and judicial presumptions (amarat-e qaza’i), each of which we shall briefly examine:
First Type) Legal Presumptions
Legal presumptions are circumstances that the law has designated as proof of a matter. [4] A party in a lawsuit who has a legal presumption in their favor is exempt from presenting further evidence, and if the opposing party denies the existence of the presumption, the party relying on it must prove its existence. The court must base its judgment on the proven presumption unless evidence to the contrary exists. Regarding legal presumptions, Article 1332 of the Civil Code provides: “Legal presumptions are presumptions that the law has designated as proof of a matter, such as the presumptions mentioned in this Code, including Articles 35, 109, 110, 1158, 1159, and others, as well as other presumptions explicitly stated in other laws.” Therefore, if the indication of the existence of a matter or set of matters and circumstances regarding the existence of another claimed matter stems from a statutory provision, it is a legal presumption, and thus its instances must be specified by law.
It is worth noting that in legal presumptions, although the indication is established by virtue of law, the indication itself derives from induction performed across similar cases—an induction even recognized by the public, which the legislator has ratified and declared as a general rule. [5] For example, the law recognizes the possessor of property as its owner, because possession either implies ownership by the possessor or is one of the effects of their ownership. [6] According to Article 35 of the Civil Code: “Possession under the claim of ownership is evidence of ownership, unless proven otherwise”; therefore, possession is a presumption. The law exempts a person who possesses property and considers themselves its owner from presenting further evidence, requiring the opposing party to prove that the possessor is an usurper (ghasib) and did not acquire it through a transmissive cause of ownership (sabab-e mamlik). Consequently, the possessor needs no other evidence to prove their ownership. In all property-related disputes, whether concerning movable or immovable property, claimants must prove their rightful entitlement against the possessor (zu al-yad). [7] In other words, in ownership disputes, the possessor always occupies the position of the denier (munkir) and respondent (mudda’a ‘alayh), and the burden of proof rests upon the party seeking to prove the contrary of the legal presumption of possession.
Finally, it should be noted that a legal presumption must be formally recognized in law, and a court cannot extend a legal presumption through analogy (qiyas), even if it be an a fortiori argument (qiyas-e awlawiyyah); hence, the instances of legal presumptions are limited. [8]
Second Type) Judicial Presumptions
Judicial presumptions are those circumstances that, in the opinion of the judge, are recognized as proof of a matter; that is, the judge attains certainty (qat’) and conviction regarding the unknown matter from those circumstances, typically demonstrating the truthfulness of the statements of one of the litigating parties. [9] If the circumstances do not produce such a state for the judge, they do not acquire the title of a judicial presumption. Thus, judicial presumptions are not established by law but are left to the discretion of the adjudicator and judge, and the adjudicator, through certain indications, endeavors to deduce and decide upon the reality of the claimed matter. For example, if a creditor returns a debt instrument to the debtor without deception or coercion, this act may, in the view of the judge, constitute proof of discharge of debt (bara’at).
In jurisprudential terminology, judicial presumptions are referred to as the “apparent state of affairs” (zahir al-hal). The apparent state of affairs is not among the specific conjecture-based proofs (zunun-e khassah) validated by Sharia; rather, it belongs to unvalidated conjectures (zunun-e ghayr-e mu’tabar) and cannot be followed unless the apparent state of affairs—that is, the circumstantial evidence and context—produces certainty or at least reassurance (itminan) for the judge. [10] Pursuant to Article 1324 of the Civil Code, presumptions left to the discretion of the judge consist of circumstances specific to the case, and are admissible provided that the lawsuit can be proven by witness testimony or supplements other evidence. Of course, this article was enacted at a time when the use of testimony as evidence was subject to limitations, and most civil lawsuits could not be proven by testimony; hence, judicial presumptions under this article did not possess substantial probative value. However, today, since those limitations on testimony have been lifted while the qualifications for witnesses have been made stricter, and testimony carries probative value in almost all lawsuits, a transformation has occurred in the application of judicial presumptions. Relying on judicial presumptions, the judge can issue rulings in many cases without needing to seek additional evidence and make the presumption supplementary to it. [11]
The validity of a judicial presumption is grounded in the certainty and conviction attained by the adjudicator during trial proceedings from the existing external circumstances. Therefore, if a judicial presumption establishing the existence of a right for the claimant exists at the time of adjudication, the adjudicator shall rule accordingly, because through it, knowledge (‘ilm) of the existence of the right is attained by the adjudicator. If the judicial presumption fails to generate decisive knowledge and conviction for the adjudicator and merely produces mere conjecture or supposition, it shall hold no religious/shariah-based binding force (hujjiyyah-e shar’iyyah). [12]
Judicial presumptions are left to the discretion of the adjudicator and judge; unlike legal presumptions, judicial presumptions are not limited to specific cases, and therefore listing their instances is impossible. Wherever circumstantial evidence guides the judge to the truth, a judicial presumption arises. [13]
Conflict Between Legal Presumptions and Judicial Presumptions
In cases where legal and judicial presumptions align in the same direction, they reinforce that direction and strengthen the proof. However, in cases of conflict between presumptions, it must be stated that if the presumptions on both sides are legal or both judicial and neither possesses preference, they both fall away, just like a conflict between two opposing pieces of evidence. But if one presumption is legal and the other is judicial, the judicial presumption is valid and the legal presumption must be disregarded, because a legal presumption based on general objective conjecture cannot stand. On the other hand, it can be said that judicial presumptions are close to primary evidence (adillah), while legal presumptions are close to practical principles (al-usul al-‘amaliyyah); although both are presumptions and to some extent reveal reality, because the reality-revealing power (kashfiyyah) of a judicial presumption is greater, it takes precedence over a legal presumption. Furthermore, in cases where the law obligates the judge to utilize legal presumptions or provides a legal presumption, it immediately considers its validity binding only so long as evidence to the contrary does not exist; hence, if a judicial presumption exists, it takes precedence over the legal presumption.
Articles 300 and 302 of the former Code of Civil Procedure also clearly demonstrated the superiority of judicial presumptions over legal presumptions. [14] Therefore, if someone claims that a bag in the possession of another belongs to them, while the opposing party relies on the presumption of possession (amarah-e tasarruf/yad) mentioned in Article 35 of the Civil Code—recognized as a legal presumption—and considers themselves the owner on the strength of the presumption of possession; if the claimant knows the specific contents inside the bag while the possessor is unable to provide details regarding its contents, the bag must be awarded to the claimant, and a ruling of ownership rendered in their favor. This is because from the judicial presumption in this example, certainty regarding the claimant’s ownership is attained. Generally, in a conflict between a legal presumption and a judicial presumption, the judicial presumption takes precedence over the legal presumption. [15] Consequently, the presumption of possession (amarah-e yad), which is a legal presumption rather than a judicial one, if it conflicts with a judicial presumption, the judicial presumption takes precedence over the presumption of possession.
[1] Dehkhoda, Ali-Akbar; Lughatnama-ye Dehkhoda, Tehran, Tehran University Press, 1st ed., Autumn 1993, Vol. 2 of the new series, p. 2826; Moin, Mohammad; Moin Persian Dictionary, Tehran, Amir Kabir Publications, 18th ed., 2001, Vol. 1, p. 346; Bandar-Rigi, Mohammad; New Arabic–Persian Dictionary (translation of Munjid al-Tullab), p. 11.
[2] Dehkhoda, Ali-Akbar; Lughatnama-ye Dehkhoda, Vol. 2, p. 2826.
[3] Shams, Abdollah; Civil Procedure, Tehran, Derak Publications, 5th ed., Spring 2006, Vol. 3, p. 366.
[4] Jafari Langarudi, Mohammad-Jafar; Legal Terminology, Tehran, Ganj-e Danesh Library Publications, 19th ed., 2008, p. 77.
[5] Shams, Abdollah; Civil Procedure, ibid., Vol. 3, p. 367.
[6] Emami, Sayyid Hasan; Civil Law, Tehran, Abu Rayhan Publications, 6th ed., Spring 1985, Vol. 6, p. 207.
[7] Regarding the characteristics and probative power of legal presumptions, see Shams, Abdollah; Civil Procedure, Vol. 3, pp. 367–370.
[8] Sayyid Hasan Emami, Civil Law, Vol. 6, p. 210.
[9] Jafari Langarudi, Mohammad-Jafar; Legal Terminology, Tehran, Ganj-e Danesh Library Publications, 19th ed., 2008, p. 78.
[10] Muhaqqiq Damad, Sayyid Mustafa; Usul al-Fiqh (Principles of Jurisprudence), Book 3, p. 186.
[11] Madani, Sayyid Jalal al-Din; Evidence in Lawsuits, Tehran, Paydar Publications, 9th ed., Autumn 2006, p. 224.
[12] Muhaqqiq Damad, Sayyid Mustafa; Usul al-Fiqh, Book 3, p. 189; Emami, Sayyid Hasan; Civil Law, Vol. 6, p. 321.
[13] Regarding the characteristics of judicial presumptions and their difference from legal presumptions, see Shams, Abdollah; Civil Procedure, Vol. 3, pp. 370–373; Madani, Sayyid Jalal al-Din; Evidence in Lawsuits, pp. 225–228; Emami, Sayyid Hasan; Civil Law, Vol. 6, p. 321.
[14] Article 300 of the former Code of Civil Procedure (enacted in 1939) provided: “Whenever a specific document serving as the basis of a claim or statement by one party is in the possession of the other party, upon request of the party, that document must be produced. If the opposing party admits to possessing the document but refuses to produce it, the court may consider it among the proving evidence.” Article 302 of the Code of Civil Procedure (enacted in 1939) also provided: “Whenever a merchant whose commercial books have been cited refuses to produce their books and cannot prove their destruction or unavailability, the court may make this part of the proving evidence for the opposing party’s statement.”
[15] Emami, Sayyid Hasan; Civil Law, Vol. 6, pp. 223–224; Madani, Sayyid Jalal al-Din; Evidence in Lawsuits, pp. 230–231.