Introduction: Hujjat al-Islam wal-Muslimeen Dr. Seyed Hassan Vahdati Shabiri, in addition to his expertise in fiqh and uṣūl al-fiqh, is well-versed in the field of law, particularly civil law. As a faculty member of the Private Law Department at the University of Qom, he has, for decades, integrated principles, fiqh, and law in his research and teaching in both the seminary and university settings. Regarding practical principles in fiqh and civil law, he believes that there are fundamentally no practical principles exclusive to civil law or civil fiqh. However, there are principles that are more frequently applied and thus more prevalent in fiqh and civil law compared to other practical principles. The president of the Faqāhat School of the Family of the Prophet (PBUH), in this exclusive interview, also discussed the difference between acts of worship and social rulings in terms of the extent to which practical principles are applied.

Contemporary Fiqh: Does fiqh and civil law have practical principles specific to itself and distinct from other legal domains such as criminal law, international law, and constitutional law?

Vahdati Shabiri: Practical principles are not exclusive to civil law. The same principles used for deduction from texts and various sources are also applied in civil law. For example, Article 1059 of the Civil Code states that the marriage of a Muslim woman to a non-Muslim man is not permissible. Now, does this article have an opposite implication, meaning that it only prohibits the marriage of a Muslim woman to a Muslim man, and thus the marriage of a Muslim man to a non-Muslim woman is permissible? These matters, such as whether a text has an opposite implication or not, are common across fiqh and law, and even across all disciplines related to texts. Or, for instance, is the authority of custom in civil law limited to identifying subjects, or can we also use custom to identify rulings and the scope of deducing rulings? For example, if custom today recognizes ownership, does that mean it is also acceptable from a Sharia perspective? This discussion is not specific to civil law but applies broadly.

Contemporary Fiqh: Which practical principles are specific or more prevalent in civil fiqh?

Vahdati Shabiri: We do not have specific practical principles in civil fiqh, but we can identify more prevalent practical principles. For example, the principle of continuity (istiṣḥāb) is very widely used and more prevalent than other practical principles. However, apart from istiṣḥāb, we also deal with the principle of exemption (barā’a) in some cases. Other practical principles have their own applications, though istiṣḥāb may have greater significance.

Contemporary Fiqh: Can practical Sharia principles, which are fundamentally designed to provide an excuse before the Lawgiver, be used to establish worldly matters that are the subject of civil law?

Vahdati Shabiri: With Sharia practical principles, we can, to some extent, address issues in civil law. However, the reality is that since our subjects are social matters, we cannot solely rely on practical principles. In social issues, we must identify real benefits and harms and issue fatwas based on them. Therefore, merely not finding evidence for a matter does not allow us to say that the principle of non-authority applies.

In social matters, due to their complexities, we must conduct a more extensive investigation than in acts of worship. In acts of worship, when we do not find a specific obligation through investigation, we apply the principle of exemption (barā’a) or the principle of non-existence (aṣālat al-‘adam). However, in social matters, since they may entail undesirable consequences, we must consult specialists in the field. For instance, regarding the issue of whether birth control is permissible, someone might, by applying the principle of permissibility (aṣālat al-ibāḥa), deem birth control permissible. However, upon consulting demographers and sociologists, we realize that population decline has harms and consequences, based on which a jurist must issue a fatwa beyond the scope of textual evidence and rule that birth control is impermissible.

Contemporary Fiqh: Given modern methods of discovering reality, is resorting to practical principles in civil law still desirable, or were these principles established for a time when methods of discovering reality were limited?

Vahdati Shabiri: It seems that methods of discovering reality must be taken into account. For example, if DNA testing reveals facts related to inheritance or wills, we must utilize these new methods. Therefore, merely applying practical principles for issuing fatwas in emerging social issues is not sufficient.