Jurisprudential and Legal Explanation of the Doctrine of Restricting the Istizhārī Oath to Religious Claims with Reference to Judicial Practice

Abstract

The istizhārī oath (confirmatory oath) is one of the recognized evidentiary means in Imāmī jurisprudence and the Iranian legal system, particularly applicable in claims brought against a deceased person. This type of oath is administered after the testimony of two just witnesses in order to strengthen the plaintiff’s right and to eliminate potential doubts that may undermine the credibility of the claim. However, the scope of application and the necessity of attaching the istizhārī oath to claims against the deceased has been a matter of scholarly disagreement among jurists and legal scholars. A group of jurists and some statutory provisions consider the requirement of this oath to be limited exclusively to religious (debt-related) claims against the deceased, while others, by relying on narrations (riwāyāt) and jurisprudential principles, argue for extending its application to claims involving property, usufruct, and other rights. Statutory provisions—especially in the Civil Code and the Code of Civil Procedure—have addressed this issue ambiguously and incompletely, and judicial practice has not provided a clear resolution to this uncertainty. This article, employing a descriptive-analytical method and drawing on jurisprudential and legal studies, examines the textual bases in Islamic jurisprudence, statutory regulations, and judicial practice. It demonstrates that the generality of the narrations and the necessity of safeguarding the plaintiff’s rights justify the requirement of the istizhārī oath in all claims brought against a deceased person. Furthermore, it critiques the restrictive view and analyzes the role of the principle of istishāb (presumption of continuity) in this context. Finally, the study suggests that, given the philosophical foundation of the istizhārī oath, lawmakers and judicial authorities should consider expanding its application in claims against the deceased beyond purely religious (debt-related) matters.