چکیده:
Discussion of the practical principle of Istishab is of great importance due to its abundant jurisprudential and legal effects; however, the significant point is the scope of Istishab in criminal and civil liability. Can responsibility be proven in criminal and civil matters through Istishab, and can it be ruled that there is no problem with the legal articles related to Istishab, or is the domain of Istishab limited? Regarding this, there is an opinion that has not existed in the words of the Usulists until now. According to this view, responsibility cannot be proven in criminal and civil matters through Istishab. Proponents of this view have relied on narrative evidences, reason, and the apparent ruling of Istishab to prove their claim, although all of them have been refuted. The present research, on one hand, criticizes this view and examines the correct view of jurists, and on the other hand, reaches this conclusion: regarding the flow of Istishab in criminal matters, many legal articles exist (including articles 117, 307, 308, 311, etc., of the Islamic Penal Code, Note 2 of Article 406 of the Code of Criminal Procedure for General and Revolutionary Courts in Criminal Matters, and the judicial precedents of our country) which have arisen based on the principle of Istishab. In civil matters as well, provided certain conditions are met, Istishab is applied, and in some cases of the Civil Code, including articles 117, 307, 308, 311, etc., the principle of Istishab has been applied.
خلاصه ماشینی:
The following research, on one hand, criticizes this view and examines the correct opinion of jurists, and on the other hand, reaches this conclusion: regarding the application of Istishab in criminal matters, many legal articles exist (including Articles 117, 307, 308, 311, etc.
In the present era, one of the professors of advanced courses (Dars al-Kharij) at the Qom Seminary 1 has also presented a theory regarding the authority of Istishab, which will lead to very extensive problems in criminal and civil liability and will encounter difficulties with some existing legal articles.
The conclusion is that Istishab is merely a principle of permission (rukhsah) that is only applied in facilitating matters, and for this reason, it cannot establish criminal and legal responsibilities (Ganji, 1393: 1393/12/11 and 1393/12/12).
Based on the narrations reported regarding the ignorance of servants and their excuse, and also considering that Islam is a religion of ease and tolerance (أوسع بين الأرض والسماء) and that God Almighty is a compassionate and merciful Lord, and that merely due to the existence of ignorance, He often rules for permission (tarkhis), reason dictates that in the rulings of Sharia, Istishab is not applied in obligatory matters and is exclusively limited to permissive and facilitating matters.
Therefore, the goal of Istishab, like other practical principles and apparent rulings, is to facilitate things for the servants and provide permission for the obligated; for this reason, Istishab is not applied in obligatory rulings and, in other words, its scope and domain are limited, and it cannot prove responsibility in criminal and legal matters (Ganji, 1393: 1393/12/11).
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