Note: Hujjat al-Islam wal-Muslimeen Ebrahim Baqeri is a distinguished professor of jurisprudence and law at the Qom Seminary. For several decades, he has been engaged in teaching and researching judicial and criminal jurisprudence and is one of the three main authors of a comprehensive and practical commentary on the Islamic Penal Code. As the top researcher of the Judiciary for seven consecutive years, in this exclusive note for Contemporary Jurisprudence, he explores the application of practical principles in judicial jurisprudence. He believes that practical principles are not applicable for proving a crime, but this does not mean they are ineffective in judicial jurisprudence, even in criminal matters. The full text of the exclusive oral note by a member of the Judiciary’s Jurisprudential Council follows.
The Meaning of Qada (Judgment)
In essence, jurisprudence is intended to provide guidance for the religious life of individuals in society by relying on robust and sound evidence and reasoning, delivering the rulings derived by a qualified jurist based on evidence and sources to those bound by religious obligations. One such set of rulings, which constitutes an independent chapter in jurisprudence, is the rulings of judicial jurisprudence (fiqh al-qada). In common usage, qada refers to arbitration between people or disputants. However, in jurisprudential terms, it refers to a ruling issued to resolve a dispute, under the conditions prescribed by Sharia and with the authority granted to those qualified by Sharia.
The Inapplicability of Practical Principles in Proving Criminal Rulings
Having clarified the meaning of judicial jurisprudence, we now turn to the role of practical principles in this field. Generally, issuing a judgment or resolving disputes between parties based on practical principles is extremely difficult, as the evidence establishing the legitimacy of a judge’s ruling does not include practical principles. For example, one such piece of evidence is the well-known prophetic tradition: “The burden of proof lies with the claimant, and the oath is upon the one who denies.” This tradition, along with another prophetic saying, “I judge between you based on evidence and oaths,” and other traditions affirming the authority of a judge’s ruling, indicate that the basis of a judge’s ruling is evidence and oaths. Practical principles such as istishab (presumption of continuity), bara’a (presumption of innocence), takhyir (freedom of choice), or ihtiyat (precaution) cannot be used as a basis for judgment. In other words, practical principles are not among the criteria for issuing a judgment, and thus, they cannot be relied upon for adjudication.
The Applicability of Practical Principles in Non-Criminal Ruling Contexts
Of course, when I state that practical principles are not applicable in adjudication, I mean they cannot be used as proof. However, there is no objection to using them to establish evidence or oaths. In other words, when we intend to issue a ruling between disputants and determine who is in the right using practical principles, I believe they cannot be relied upon. However, when we aim to establish the validity of evidence or an oath—without treating practical principles as proof themselves—there is no issue. For instance, we may use istishab to establish the continuity of a witness’s integrity to validate their testimony. Here, relying on practical principles is permissible. The late Naraghi also addressed this issue, stating: “There is no doubt regarding the permissibility of a witness’s testimony based on istishab.”
To establish the occurrence of a crime as a criterion in criminal matters, specific proofs have been enumerated and derived, which include: confession, testimony, qasama, the judge’s knowledge, and, in one instance, an oath. Therefore, practical principles are not effective in proving the occurrence of a crime. However, within these crimes, in their details and subsidiary matters, practical principles can be utilized. Why? Because the evidence establishing the validity of these principles does not limit their application to specific cases; rather, they are applicable in all cases. For example, the authentic hadith of Zurarah establishes the validity of istishab for all cases where there is doubt or uncertainty regarding the continuation of a previous state. For instance, if someone has committed murder and was previously insane, but we are now uncertain whether their insanity has been resolved or not, we can rely on istishab to conclude the continuation of their insanity. The late Saduq has discussed this issue extensively in Shara’i, and Shaykh Mufid has also cited a relevant hadith in his book Irshad.
These examples all pertain to proving details and implications of a ruling, but practical principles cannot establish the ruling itself. However, regarding the principle of bara’a, it can be traced back to the rational rule of the impermissibility of punishment without clear evidence, thereby negating punishment. The Islamic Penal Code states:
Article 120 of the Islamic Penal Code:
If the occurrence of a crime, some of its conditions, or any of the conditions for criminal responsibility is subject to doubt or uncertainty, and no evidence is found to negate it, the crime or the respective condition is not established.
Article 121 of the Islamic Penal Code:
In crimes entailing hudud punishments, except for muharaba, ifsad fil-ard, theft, and qadhf, the mere existence of doubt or uncertainty, without the need to obtain evidence, results in the crime or the respective condition not being established.
The principle of dar’ (averting hudud punishments due to doubts), based on the hadith “Avert hudud punishments in cases of doubt,” also reverts to the principle of bara’a. Therefore, the principle of bara’a is effective in criminal matters and can be applied.
The Application of Practical Principles in Civil Matters
In civil matters, such as marriage, divorce, and commercial transactions, practical principles can also be applied. For example, in the case of the option of withdrawal in a sale (khiyar al-majlis), based on the hadith “The buyer and seller have the option to withdraw as long as they have not parted,” if coercion occurs in parting and there is doubt as to whether the option is negated by coerced parting, istishab can be used to conclude the continuation of the option. Similarly, if a woman claims to have married a man, but he denies it, and she has evidence, the right is granted to her. However, if she has no proof, and there is doubt as to whether the marriage took place, istishab is applied to presume the absence of a marital bond. Likewise, if someone claims another owes them a debt but provides no evidence, the principle of bara’a can be applied to conclude that the alleged debtor’s obligation is not established. Thus, practical principles like bara’a are applicable in civil matters, such as negating a debt or an additional obligation.
Conclusion In summary, practical principles are not applicable in criminal matters for proving a crime, but they can be used in the subsidiary aspects of criminal issues. These principles are also applicable in civil matters.