Invalidity of 'Substantiating Principle' and a Comparative Study of Article 874 of Iran's Civil Code

In article 874 of the civil code of the Islamic Republic of Iran, the legislator relying on the principle of Istishāb (presumption of continuity) says, "the person whose date of death is unknown will take an inheritance form the other." Jurists and experts of legal theories (Usulis) see this differently. Some consider this article of the civil code to be against the widely held (mashhur) opinion, but the truth of the matter is that not only this article is not against the widely-held opinion but it is also consistent with jurisprudential and legal standards. If we consider Istishab to be among the practical principles, according to Sheikh Ansari, Akhund Khurasani, Allamah Haeri and most of the Usul scholars who are of the view that things proved through practical principles are not valid, the article 874 of the civil code falls out of the signification of invalidity of the substantiating principle (asl-e muthbit). Additionally, there are exceptions in the said principles according to which the reason of authoritativeness includes this kind of implication, and that article 874 is consistent with some of these exceptions.   However, if we consider Istishab to be an indication (amāra) suggesting rational possibility, it is known among scholars that the ramifications of the indications (amārā) are authoritative. As a result, taking recourse to Istishāb and the substantiating principle in article 874 of the civil code is not contradicted. Some jurists like late Imam Khomeini (ra) whose opinion is based on meticulous rational examination of Islamic laws, have referred to the principle of deferment (ta'khkhur) of hādith (occurrence) irrespective of whether Istishab is viewed as an indication or not. Thus, based on this principle, the article 874 is in accordance with jurisprudential criteria.