Note: For many years, in addition to teaching advanced courses in Islamic Jurisprudence (Fiqh) and Principles of Jurisprudence (Usul al-Fiqh) at the Qom Seminary, Hujjat al-Islam wal-Muslimin Akbar Khadem al-Zakerin has also been teaching Criminal Jurisprudence at Al-Mustafa International University. In light of this expertise, we conducted an interview with him concerning the application of the principle of innocence in judicial and penal jurisprudence, its dimensions, and the associated challenges. According to this faculty member of the Criminal Jurisprudence Department at Al-Mustafa University, the principle of innocence employed in judicial jurisprudence is precisely the same as that used in the Principles of Jurisprudence. The difference lies in the fact that the principle of innocence in the Principles of Jurisprudence pertains solely to cases of doubt regarding obligation, whereas the principle of innocence in penal jurisprudence is also applied in cases of doubt concerning the establishment of positive legal rulings, such as prescribed punishments (Hudud) and blood-money (Diyah). He does not, however, consider the application of this principle to mean that it is absolute without exception, and he delineates the cases where its application is excepted. The following is the detailed exclusive interview by Contemporary Jurisprudence with this Professor of Criminal Jurisprudence at the Qom Seminary.
Contemporary Jurisprudence: Is the principle of innocence used in the Principles of Jurisprudence different from the principle of innocence applied in judicial and penal jurisprudence?
Khadem al-Zakerin: The principle of innocence we have in the Principles of Jurisprudence pertains to doubt regarding obligation (shubhat al-taklifiyyah). We apply it when we are uncertain whether an obligation of permissibility or prohibition exists. This principle of innocence is divided into two categories: rational and religious. Rational innocence is based on the principle of the “prohibition of punishment without prior notification.” Religious innocence is encapsulated in the phrase “the removal of that which they do not know.” Now, if within the domain of judicial jurisprudence there exists doubt concerning an obligation, the answer is affirmative: the principle of innocence is applied there, exactly as it is applied in the Principles of Jurisprudence. However, in the realm of adjudication, we also have other rules that functionally serve the purpose of innocence in matters beyond obligation. For example, the rule of “Der'” (warding off), encapsulated in the maxim “Hudud are to be averted in cases of doubt,” dictates non-application of the prescribed punishment when there is doubt about its establishment. For instance, if someone commits theft but presents an excuse that casts doubt on whether the prescribed punishment should be applied, this rule states that it should not be applied. Therefore, the answer is that in cases of doubt regarding obligation, the principle of innocence applied in judicial jurisprudence is precisely the same as that applied in the Principles of Jurisprudence. However, in cases other than doubt regarding obligation, such as doubt about the establishment of a prescribed punishment (Hadd)—which is a positive ruling—the principle of innocence from the Principles of Jurisprudence is not applied, as it is specific to doubts concerning obligation.
Contemporary Jurisprudence: What are the challenges in implementing the principle of innocence in judicial and penal jurisprudence? How can these challenges be addressed?
Khadem al-Zakerin: Regarding the application of the principle of innocence in judicial and penal jurisprudence, no particular challenge is observed. In cases where a prescribed punishment (Hadd) or a discretionary punishment (Ta’zir) is established, we rule accordingly. In cases where a specific Hadd is not applicable, we apply a Ta’zir. Furthermore, if we doubt the establishment of a Hadd, we refer to the rule of “Der’.” Consequently, although significant challenges exist in judicial and penal jurisprudence, these challenges are not related to the application of the rule of innocence itself.
Contemporary Jurisprudence: Can forms of evidence such as testimony and oaths—given the prevalence of falsehood in them, which makes it difficult to be confident they reveal the truth—take precedence over the evidence provided by the principle of innocence?
Khadem al-Zakerin: Concerning testimony, if it is as the Prophet (peace be upon him) described—like the sun in the middle of the sky—and there is certainty about its correctness, then it is accepted. However, in cases where, due to factors such as the prevalence of falsehood, we are confident it is false, it naturally lacks authority (hujjiyyah) and, consequently, would not take precedence over the evidence of innocence. To put it differently, in this scenario, the issue is not merely its failure to take precedence over the evidence of innocence; rather, fundamentally, even if it did not conflict with innocence, it would still lack authority.
Contemporary Jurisprudence: Is the principle of innocence applicable to all criminal and civil accusations, or are there cases where the principle is contrary (i.e., non-innocence)? In other words, does the principle of innocence admit exceptions?
Khadem al-Zakerin: Although the principle of innocence is applied in the majority of cases involving doubt concerning obligation and, more broadly, the establishment of punishment, this does not imply that it is without exceptions. On the contrary, this principle does admit exceptions. These exceptions pertain to reputations, lives, and sexual inviolability. For instance, if applying the principle of innocence would place someone’s reputation, life, or sexual honor at risk of destruction, this principle cannot be invoked. Similarly, in cases where specific legal evidence or indicia exist, such as a defendant’s confession, one cannot have recourse to the principle of innocence.
The application of this principle is not confined to Islamic jurisprudence; it is also applied in international law. In criminal law, too, the principle of innocence is a definitive and fundamental principle. According to Article 37 of the Constitution of the Islamic Republic of Iran, the principle is innocence, and no one is considered guilty under the law unless their crime is proven in a competent court. In civil claims as well, the principle of innocence is applied as the jurisprudential and principle-based rule “Al-Asl Bara’at al-Dhimmah,” meaning: “A person’s liability (dhimmah) is presumed free and clear of any obligation or debt unless the contrary is proven.” Therefore, if someone claims a debt, right, liability, commitment, or guarantee, the burden of proof lies with the claimant.
Contemporary Jurisprudence: In the case of individuals for whom there exist conjectural indicators, such as a prior record of committing the same crime, is it rational to resort to the principle of innocence?
Khadem al-Zakerin: Yes, even if there are conjectural indicators suggesting a person’s guilt, one must still resort to the principle of innocence. In other words, the existence of conjectural indicators does not preclude recourse to the principle of innocence. Certainly, in such cases, the substantiation of the accusation must be examined with greater care, but this does not mean that the principle of innocence cannot be applied.