Introduction
The principle of Istishab, rooted in Imamiyyah jurisprudence as a means to preserve prior certainty in the face of doubt, has long held a significant role in legal reasoning and judgment. Over time, this rule has expanded beyond its jurisprudential origins to influence legislative frameworks and judicial practices in Iran. While most previous studies have focused on its theological and logical foundations, the structural and social roles of Istishab have received less attention. Drawing on Reinhart Koselleck’s theory of conceptual history allows for a dynamic interpretation of Istishab as a conceptual and institutional force in legal knowledge systems. Koselleck’s framework—especially the distinction between the "horizon of expectation" and "space of experience"—enables a re-reading of Istishab’s meaning and function across historical and legal contexts. This study aims to explore Istishab not merely as a jurisprudential tool, but as a mechanism for institutionalizing legal continuity and social stability.
Materials & Methods
This research employs a qualitative analysis of jurisprudential, legal, and sociological texts based on Koselleck’s theory of conceptual history. Data were collected through documentary analysis of primary sources in Islamic jurisprudence, Iran’s civil code, civil procedure law, and relevant legal-sociological literature.
Discussion& Results
A conceptual analysis of Istishab at the levels of jurisprudence, legislation, and society reveals its transformation from a technical principle to a legal stabilizing mechanism. Jurisprudentially, Istishab is anchored in rational custom (sīra ‘uqalāʾiyya), and many contemporary scholars classify it as a form of legal indication (amāra) with epistemic value in inferring real rulings. Legally, although not explicitly mentioned in the Civil Code or the Code of Civil Procedure, the effects of Istishab are evident in provisions regarding ownership, options in sale (khiarāt), liens, and debt claims. Historically, the concept evolved from the lexical meaning of “accompaniment” into a rule of continuity applied to doubtful legal states. Koselleck’s theory of conceptual temporality illustrates how Istishab acquired diverse meanings and functions in changing sociopolitical contexts. Furthermore, the institutionalization of Istishab in judicial reasoning—particularly through the presumption of continuity—demonstrates its embeddedness in legal memory and reasoning.
Conclusion
Findings show that Istishab plays a central role in maintaining legal stability and reducing litigation uncertainty. In civil disputes, it allows courts to presume the continuity of rights or obligations unless proven otherwise, thereby reinforcing procedural predictability. Socially, Istishab enhances public trust in the legal system by protecting individuals from arbitrary changes in their legal status. The principle also forms a practical bridge between classical jurisprudence and the needs of a modern legal system. Ultimately, Istishab functions not only as a tool for resolving doubt but as a normative model for legal continuity and institutional legitimacy. Its multilayered role affirms the necessity of interdisciplinary approaches in the study of fundamental legal concepts.