Introduction: Hujjat al-Islam wal-Muslimin Sayyid Ali Alavi Qazvini, born in 1963 in Qazvin, has long focused on legal studies alongside teaching Islamic jurisprudence and its principles. We discussed with him the conflict between principle and appearance, as well as the opinions and theories surrounding it. A faculty member at the Farabi Campus of the University of Tehran, he not only explained the concepts of appearance and principle with precision but also elucidated various foundations for interpreting these two concepts, accompanied by jurisprudential and legal examples. The full text of the exclusive interview with Contemporary Jurisprudence follows:

Contemporary Jurisprudence: What is meant by “appearance” and “principle” in the context of a conflict between appearance and principle?

Qazvini: The concepts of appearance and principle can be explained through an example. For instance, a man, after years of living with his wife, claims that he has not consummated the marriage and thus asserts that his wife is entitled to only half of the dowry. Here, the apparent state aligns with the wife’s claim, as it is presumed that a couple living together for an extended period would typically have consummated the marriage. Therefore, the wife’s claim is consistent with the apparent state. However, the principle of continuity (istiṣḥāb) of non-consummation supports the husband’s claim. According to some scholars, such as the late Imam Khomeini, this case falls under mutual claims (tadā‘ī): “It is not unlikely that this is a case of mutual claims, and the issue requires further reflection.” [1] He considers the criterion for distinguishing the claimant from the denier to be the subject of the dispute (masb al-da‘wā). In this case, the dispute centers on whether the payment was for the dowry or a gift. When mutual claims arise, mutual oaths (tahāluf) are required, and the judge rules that neither the dowry was paid nor a gift was given. Consequently, the property, which is definitively known to belong to the wife, is taken from her and returned to the husband, despite the certainty that it was either a dowry payment or a gift. There is no solution for this scenario unless it is truly a case of mutual claims, and the judge is authorized to return the property to the husband. The only justification for this is that the Lawgiver (God) is the guardian of the believers and has authority over their property, similar to the permissibility of consuming carrion (akl al-maytah), which the Lawgiver allowed due to His authority over people’s property. No other justification exists. However, the opinion of mutual claims is not the only view on this matter.

The late Ayatollah Khoei, the late Professor, and Ayatollah Sadr argue that whoever’s claim contradicts a religious principle is the claimant. They discuss whose claim in this case contradicts a religious principle. It is the husband’s claim, as he asserts that his debt to his wife has been discharged, while the wife counters that the debt remains. There is no dispute over the fact that the property belongs to the wife and is her necessary possession. Rather, the disagreement concerns whether the husband’s dowry obligation has been fulfilled. The husband’s claim contradicts the principle of continuity of non-payment of the debt, as the principle dictates that the debt has not been paid. One should not argue that the principle also implies that no gift was given, as this would be a positive principle (i.e., implying payment due to the absence of a gift). The principle of continuity of non-payment of the debt contradicts the husband’s claim, which aims to prove the discharge of the debt, and the discharge of the debt is contrary to the religious principle.

Contemporary Jurisprudence: In which cases is the precedence of appearance over principle applied in judicial and criminal jurisprudence?

Qazvini: There is a difference of opinion among scholars regarding the precedence of the apparent state over the principle. Ayatollah Sistani considers the apparent state as the basis for prioritizing the claim aligned with it, while most other jurists disagree with this view.

Contemporary Jurisprudence: Given that “appearance” is based on custom, does the precedence of appearance over principle lead to the customary interpretation of religion?

Qazvini: A customary interpretation of religion in matters of subject matter poses no issue. In fact, the foundation of religion relies on referring the determination of subject matter to custom. Thus, it is said that distinguishing between the claimant and the denier is feasible by referring to the apparent state (Ayatollah Sistani), and this does not conflict with the non-customary nature of religion in universal rulings.

Contemporary Jurisprudence: Does accepting the validity of the “apparent state” equate to superficial judgment based on individuals’ appearances, which is considered reprehensible?

Qazvini: Accepting the validity of the apparent state is limited to distinguishing between the claimant and the denier and has no applicability in other rulings. For example, if someone’s apparent state suggests intoxication from wine, they cannot be flogged, as the apparent state is not authoritative in such cases.

Contemporary Jurisprudence: Does the precedence of appearance over principle exist in other legal schools?

Qazvini: According to scholars who believe it is possible to distinguish between the claimant and the denier with the aid of the apparent state (such as Ayatollah Sistani), rational or even religious principles lack efficacy in identifying the claimant from the denier. The reason is that the validity of the apparent state in this context is specific to distinguishing the claimant from the denier, which is a narrower application than rational or religious principles, as a rational principle (such as the rule of possession, qā‘idat al-yad) possesses absolute validity. However, as mentioned, the apparent state is effective only in distinguishing the claimant from the denier, and it is evident that the specific takes precedence over the general.

Ayatollah Sistani has stated that sometimes the apparent state favors one of the two parties. According to custom and habit, it is contrary to the apparent state for a husband to gift such a large amount of property to his wife. Thus, the wife’s claim that it was a gift contradicts the apparent state. In other cases, the apparent state in certain transfers of ownership suggests a gift. For example, if a husband buys a gold ring for his wife on Women’s Day, the apparent state indicates it is a gift, while the husband claims it was part of the dowry payment. Whatever aligns with the apparent state serves as the criterion. Therefore, we must determine whose claim aligns with the apparent state and whose claim contradicts it. The one whose claim contradicts the apparent state is the claimant. However, if no apparent state exists, Ayatollah Sistani has stated that mutual claims (tadā‘ī) are accepted in such cases. [2]

This view is also attributed to Imam Malik, with a slight difference. According to Sheikh Tusi’s narration in Al-Khilāf, Malik holds that if no apparent state exists, the wife is the claimant. However, if an apparent state exists and the husband’s claim contradicts it, he is the claimant. If no apparent state exists, the wife is the claimant. Ayatollah Sistani, however, states that if no apparent state exists, it is a case of mutual claims.

We had raised an objection that if the apparent state is deemed invalid, as is assumed, it lacks coherence and credibility.

Ayatollah Sistani might respond by citing a reliable hadith in which the Prophet determined the claimant and denier based on the apparent state. Regarding a woman who, after her husband’s death, claims she has not received her dowry, the hadith states:

The authentic narration of Abdul Rahman ibn Hajjaj: “She is entitled to nothing, as she lived with him in stability until her husband passed away.” [3] A woman who lived with her husband for years now claims she has not received her dowry? This contradicts the apparent state. “If he divorced her and she came demanding her dowry”: Even if the husband divorces her, the same applies, as she lived with him for years. “She resided with him without demanding it until he divorced her; she is entitled to nothing.”

Of course, we know that dowries today differ from those of that era. Back then, dowries were immediate and paid in cash. The modern notion of “who gave and who received” applies to contemporary dowries. In that era, the dowry was paid in cash by the groom to the bride, and the matter was settled. Regarding the dowry of that time, it was said that a woman claiming years later that she did not receive her cash dowry contradicts the apparent state. When asked about the ruling, the Prophet stated: “If she was gifted to him”: After they married and she went to her husband’s home, “and she demands it afterward, she is entitled to nothing.” This is because the apparent state, according to the custom of that time, is that she received her dowry before entering her husband’s home.

This supports Ayatollah Sistani’s view, though there is a possibility that this ruling is specific to this case, implying that a woman’s claim to her dowry after entering her husband’s home is not admissible. The hadith further states: “It is excessive for her to demand that he swear by God.” This suggests that there is no need for an oath, as it states: “He has no dowry obligation toward her, whether small or large.” This implies that, in general, such a ruling cannot be universally applied. At most, it indicates that the one who contradicts the apparent state is the claimant, and the one aligned with it is the denier. In this case, the woman’s claim contradicted the apparent state, making her the claimant. The husband, lacking evidence, swears an oath, and his claim aligns with the apparent state—that he had already paid the dowry. The defendant’s claim aligns with the apparent state, so it is his turn to swear. How? “It is excessive for her to demand that he swear by God.” If the phrase were “It is excessive for her to be made to swear by God,” it would mean the claimant is not required to swear. However, if it is “to make him swear,” it means the claimant does not swear.

We must learn from the great scholars. One day, Mulla Darbandi said to Sheikh Ansari: “By God, I am more knowledgeable than you.” Sheikh Ansari replied with a single sentence: “The claimant does not swear.” That was sufficient. Now, if this woman is the claimant, the claimant does not swear, which is correct.

[1]. Tahrir al-Wasilah, Vol. 2, p. 301.
[2]. Minhaj al-Salihin, Vol. 3, p. 100.
[3]. Wasā’il al-Shi‘a, Vol. 21, p. 257.