Jurisprudential Study of the Conflict between Fiction and Circumstantial Evidence in Litigations

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Avazpour Ehsan; Rai Masoud

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Journal Paper

Paper Information

Journal: ISLAMIC JURISPRUDENCE RESAERCH Year:2022 | Volume:17 | Issue:4 Page(s): 1283-1317

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Information Journal Paper

Title

Jurisprudential Study of the Conflict between Fiction and Circumstantial Evidence in Litigations

Author(s)

Avazpour Ehsan | Rai Masoud | Issue Writer Certificate

Keywords

Conflict of Fiction and Circumstantial Evidence

Imamiyyah Jurists

Sunni Jurists

Fair Judgment

Authority of Circumstantial Evidences

Abstract

The conflict between fiction and circumstantial evidence is one of the principal issues that has shaped certain controversies in principles of jurisprudence. One of the most important manifestations of such a situation is the flow of proceedings and the realization of judicial justice through the flow of fiction or circumstantial evidence. In cases between citing the fiction or circumstantial evidence, each of which leads to completely different results, we see the realization of such a conflict, and this view has been widely discussed among Shi'a and Sunni jurists. A glance at the literature formed in this field shows the precedence of certain suspicions and circumstantial evidences over the fiction, but all the words are in cases where one circumstantial evidence does not have a solid religious support and at the same time is documented according to custom (such as the circumstantial evidence of paying alimony for a couple who live under a single roof), domination (such as suspicion of DNA test results), evidence, and the like. In such cases, the question has been raised as to whether one can refer to the fiction or to such circumstantial evidence in the trial? The findings of the study indicate that Shi'a jurists believe in the primacy of the fiction, but the Sunni jurists, despite the consensus on the validity of absolute suspicion, have formed a wide disagreement that its origin is due to the difference between the views of mujtahids on the strength and weakness of circumstantial evidences.

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