Note: The Principle of Exemption (Asl-e Bara’ah) has many applications in the jurisprudence of adjudication (Fiqh-e Qaza). But is this principle the same as the principle of primary permissibility in objects, or does it differ from it? Hujjat al-Islam wal-Muslimeen Dr. Seyyed Ali Alavi Qazvini, a professor in the Department of Private Law at the Farabi Campus of the University of Tehran, has discussed this issue in an article published in the Quarterly Journal of Principles Research. Below, a summary of this article is presented.

The main question of this research is: what is the relationship between the Principle of Permissibility (Asalat al-Ibahah) and Prohibition (Asalat al-Hazr) with Exemption (Bara’ah) and Precaution (Ihtiyat)? In the context of comparing these two practical principles (Exemption and Precaution) with the two principles of Prohibition and Permissibility, three views exist: the first view considers the difference to be in terms of the subject; the second view considers the difference to be in terms of the predicate; and the third view considers the difference to lie in the adopted criterion and the effect between them. Ultimately, this research examines the aspects of correlation and differentiation between these principles and assesses the arguments of the proponents of each aspect.

Key Concepts

Understanding concepts is of great importance in the science of Principles of Jurisprudence (Usul al-Fiqh). The four key terms under discussion are: Prohibition (Hazr), Permissibility (Ibahah), Precaution (Ihtiyat), and Exemption (Bara’ah).

1.1. The Concept of Prohibition (Hazr)

From a lexical perspective, “Hazr” means to ban and to restrain. In jurisprudential terminology, the prohibited (Mahzor) consists of an act for which performance is forbidden and abandonment merits reward. Seyyed Morteza says in the definition of Mahzor: “It is that matter regarding which its ugliness (Qubh) has been announced to the subject (Mukallaf).” Sheikh Tusi also introduces Hazr as “something in which there is no benefit and has harm, or its harm is stronger.”

1.2. The Concept of Permissibility (Ibahah)

“Ibahah” literally means revealing, release, expanse, and granting breadth. Terminologically, Ibahah means the removal of any restriction and granting breadth in the choice of performing or abandoning that act for someone. Sheikh Tusi considers Ibahah as a permissible act (Mubah) from which the doer benefits and which holds no worldly or hereafter harm for him. Shahid Sadr also considers Ibahah to mean freedom and opening the field of advancement in the choice of abandonment or action.

There is a difference of opinion regarding whether Prohibition and Permissibility are Shari’a-based (Shar’i) or rational (Aqli) constructs. Ghazali believes that Permissibility is one of the Shari’a rulings, but a group of the Mu’tazila, based on the theory of Rational Goodness and Ugliness (Husn and Qubh), believe that Permissibility is not a Shari’a ruling, but rather a rational issue; because any act that rationally contains no interest or corruption is permissible. Ghazali considers permissible acts (Mubahat) to be of three types: the first type is where the Shari’a has explicitly given the subject a choice (Shari’a Permissibility); the second type is where the ruling of permissibility has continued from the state prior to the arrival of the Shari’a (Rational Permissibility) and no auditory (scriptural) evidence has come regarding its permissibility; and the third type is where there is auditory evidence for the negation of hardship (Haraj).

Many scholars of Usul do not consider Permissibility to be part of the Defining Rulings (Ahkam Taklifi). The reason for this opinion is that a Defining Ruling entails a demand and burden (Kulfat), whereas in the permissible, there is choice (Takhyir), and there is no demand or hardship in abandonment or performance. Nevertheless, almost everyone agrees that Permissibility is one of the Five Rulings (Ahkam al-Khamsa).

1.3. The Concept of Precaution (Asalat al-Ihtiyat)

“Ihtiyat” literally means preserving. Terminologically, Precaution means the subject’s solicitude for definitive compliance with the commands of the Lawgiver (Shari’) and guarding the self against potential opposition to the real duty. The channel for this principle (which is the same as Asalat al-Ishtighal or the Principle of Engagement) is where there is summary knowledge (Ilm-e Ijmali) regarding the essence of the duty, but there is doubt regarding its instances. The execution of this principle is conditional upon Precaution (performing all sides or abandoning all sides of the doubt) being feasible.

1.4. The Concept of Exemption (Asalat al-Bara’ah)

“Bara’ah” literally means becoming pure, becoming clean, and release. In the science of Principles of Jurisprudence, Exemption is one of the four practical principles, the import of its apparent ruling being that in the case of doubt regarding a duty, and after searching and investigating and not finding valid evidence, the subject has no responsibility regarding that probable duty. The subject of the Principle of Exemption is doubt regarding the real ruling (actual obligation or prohibition).

2. Examination of Aspects of Differentiation (Taghayur)

Three aspects have been stated for the differentiation between the principles of Prohibition/Permissibility and Exemption/Precaution.

2.1. Differentiation in terms of Subject

First Differentiation (Restriction to the Doubtful Ruling):

Muhaqqiq Isfahani has proposed this theory. In his view, the difference between Permissibility and Exemption is that: the subject in Permissibility is the performance of the act per se, regardless of the arrival of a Shari’a ruling; but the subject in Exemption is an act for which a ruling has been established but there is doubt regarding its lawfulness or prohibition.
In the chapter of Asalat al-Hazr and Ibahah, the subject consists of the subjects themselves regardless of whether the Lawgiver has a ruling or not. In this chapter, the investigation is from the perspective of primary principles and reason (such as disposition of land or drinking); however, in the chapter of Engagement (Ishtighal) and Exemption, the subject examines the doubtful ruling, meaning after knowing that there is a God, he does not know what God’s ruling is in that case and considers himself responsible before it.

Second Differentiation (Utilizable Dispositions):

Muhaqqiq Na’ini has stated this differentiation. In his view, the difference between Prohibition/Permissibility and Exemption/Precaution is that: the subject in Exemption and Precaution is the absolute act issued by the subject, whether it relates to an external subject from which benefit can be derived or not; but the subject in Prohibition and Permissibility is restricted to an external subject from which benefit can be derived.
The objection raised against this theory is that there is no evidence for the restriction of the subject of Asalat al-Hazr to dispositions (Tasarrufat), and other reasons (such as the Master’s right over the servant) might also be taken into consideration.

Third Differentiation (Before and After Shari’a):

A group of companions (scholars) have proposed this distinction. In their view, subjects in the issue of Permissibility and Prohibition are considered in terms of before the arrival of the Shari’a; but subjects in the issue of Exemption are considered in terms of after the arrival of the Shari’a. This difference means that our view is towards the priority and posteriority of the Shari’a’s arrival. If “before” refers to the rank prior to the Shari’a ruling, this view becomes united with the first differentiation.

2.2. Differentiation in terms of Predicate (Mahmul)

First Differentiation (Real Ruling vs. Apparent Ruling):

Muhaqqiq Isfahani and Na’ini have stated this theory. In their view, in the issue of Permissibility and Prohibition, the predicate is the Real Ruling (Hukm Waqi’i); but in the issue of Exemption and Precaution, the predicate is the Apparent Ruling (Hukm Zahiri). According to Muhaqqiq Na’ini, in the issue of Permissibility and Prohibition, what is discussed is the established rational ruling, but in the issue of Exemption, the ruling is not established; in other words, Prohibition and Permissibility are the requirement of the principle of Ijtihad, while Exemption and Precaution are the requirement of the practical principle.

Second Differentiation (Negation of Punishment vs. Real Ruling):

Muhaqqiq Isfahani states another aspect based on the negation of punishment (Mu’akhazah). In his view, in Exemption, the predicate is the negation of punishment and the lifting of responsibility; but in Prohibition and Permissibility, the predicate is the Real Ruling (real prevention in Prohibition and real permissibility in Permissibility). In the chapter of Engagement and Exemption, what is adjudged (Mahkum-bihi) is the comprehension of the ruling or the lack of punishment; but in the issue of Prohibition and Permissibility, the judgment is made for permissibility or prohibition.

2.3. Differentiation in terms of Criterion and Effect

First Differentiation (Tanjiz vs. Ownership):

In the issue of Engagement and Exemption, the criterion of discussion is the finalization (Tanjiz) of the real ruling (whether the ruling possesses Tanjiz or not). If there is no Tanjiz, Exemption applies; if there is, Precaution must be acted upon; but in the issue of Permissibility and Prohibition, the criterion of discussion is not Tanjiz, but rather, based on evidence, ownership (or lack of ownership by other than the Master) or exiting the garb of servitude (Ziyy-e Ragh’iyyat) is at issue.

Second Differentiation (Certainty of Punishment in Prohibition):

Muhaqqiq Isfahani states this differentiation based on the conditional nature of punishment in Precaution and its certainty in Prohibition. In his view, in the chapter of Engagement and Exemption (Precaution), the existence of punishment is conditional upon the probability of coinciding with reality; if there is no probability of agreement with reality, there is no punishment. However, in the issue of Prohibition and Permissibility (Prohibition), punishment is certain and is not conditional upon anything, because if we hold the view of Asalat al-Hazr and the subject makes a disposition without the Master’s permission, the decisive rational judgment is that this disposition is ugly (Qabih) and punishment is certain.

3. Arguments of the Proponents of Differentiation

Two main arguments have been presented for asserting differentiation:

3.1. Differentiation in terms of the Aspect of Ownership and the Aspect of Legislator-ship

The first argument, explained by Muhaqqiq Isfahani, is that in Permissibility, the aspect of Ownership (Malikaneh) exists, and in Exemption, the aspect of Legislator-ship (Shari’iyyah) exists. He considers the purposes of God Almighty to be of two kinds:

Shari’a Purposes (Aghraz Shari’iyyah): These purposes arise from the interests and corruptions of matters and are of four types:

• Type One: Cases where the Lawgiver’s goal is human perfection and delivery to the interests and corruptions of actions (such as Shari’a prohibition or Shari’a permissibility).

• Type Two: Where the Lawgiver sees no interest or corruption and grants license (Shari’a License).

• Type Three: Cases where a binding interest exists, but the hindrance of another matter (such as the interest of facilitation and preventing aversion to religion) causes the Lawgiver to enact permissibility.

• Type Four: Cases where there is corruption in an act, but the time does not necessitate the Lawgiver to announce it immediately (such as the initial ruling on wine).

Ownership Purposes (Aghraz Malikiya): These purposes are from the perspective of Mastership (Mawlawiyyah) and actions, not from the perspective of observing interests and corruptions.

Muhaqqiq Isfahani believes that reason judges a disposition as ugly where the Master has a purpose (Owner-based or Shari’a-based) and the servant performs an act without His permission. In cases where Shari’a evidence has not arrived (the subject of Asalat al-Hazr and Asalat al-Ibahah), the Shari’a purpose is negated. Since God is intrinsically self-sufficient, the Owner-based purpose also has no meaning for Him; therefore, no purpose remains, and reason does not judge the disposition as ugly, thus Asalat al-Ibahah is established.

Objection to this argument: In the servant’s disposition of the Master’s property (as the whole world is God’s property), exiting the customs of Mastership and Servitude is always at issue, even if the Lawgiver has no legislative purpose; because disposition without permission in the Master’s property is ugly.

3.2. Differentiation in terms of the Criterion of the Right of Obedience (Haqq al-Ta’ah)

The second argument for differentiation is that in Precaution, the criterion of the Right of Obedience (the Master’s right to be obeyed) exists, whereas in Prohibition, such a criterion does not exist. Shahid Sadr, in the discussion of the finalizing and excusing nature (Tanjiz and Ta’zir) of certainty, raises the Right of Obedience. He believes that Mastership (which consists of the right to the servants’ obedience) and Proof (Hujjiyyah – Tanjiz and Ta’zir) are not separate from each other.

If we hold the view of the Master’s Right of Obedience in all rulings of the servants, opposition to the Master is ugly in all determined cases. Shahid Sadr believes that if there is a probability of harm and punishment, the rule of the necessity of repelling probable harm applies. He believes that the Master’s Right of Obedience is expansive and includes cases where certainty does not exist (i.e., doubtful and surmised cases).

In Shahid Sadr’s belief, Asalat al-Hazr is the rational proof for Asalat al-Ihtiyat in every doubtful duty, and reason judges in the sides of summary knowledge for the necessity of repelling probable harm; therefore, Precaution will be the primary rational principle in all doubts. He considers the separation between Mastership and Proof (Hujjiyyah), which the famous scholars (Mashhur) have held, to be incorrect; because Proof is in fact a discussion of the boundaries of Mastership.

4. Examination of Correlation (Talazum) between Principles

Some scholars of Usul believe in the existence of a correlation between Permissibility/Prohibition and Exemption/Precaution.

4.1. Rational Proof for the Flow of the Principle of Precaution in Prohibition

Some scholars believe that Asalat al-Hazr is the very same rational proof for Asalat al-Ihtiyat.
Based on the third path (the Principle of Suspension/Stop / “La-Adri“) in the primary principles of objects, reason judges that one must avoid unnecessary actions. In any act where we do not know if it is forbidden or lawful, we have no right to commit it and must judge for suspension or prohibition and avoid ambiguous matters; and this is the very desired outcome.

4.2. Prohibition and Permissibility as Assentient Principles (Mabadi Tasdiqi) for Exemption and Precaution

The second argument for correlation is that Permissibility and Prohibition are posited as assentient principles (presuppositions) for Exemption and Precaution.
Muhaqqiq Na’ini believes:
Whenever someone holds the view of Prohibition in the chapter of Permissibility and Prohibition, they must also hold the view of Precaution in the chapter of Exemption and Engagement. Whenever someone holds the view of Permissibility in the chapter of Permissibility and Prohibition, they must also hold the view of Exemption in the chapter of Exemption and Precaution. According to him, if we hold Asalat al-Ibahah in the first issue, it automatically becomes evidence that we should hold Asalat al-Bara’ah in the second issue.

Objection to Correlation: Muhaqqiq Shahroudi, in his lectures, objects to Na’ini’s statement, saying that these two issues have no relation to each other. The issue of Permissibility and Prohibition arises from primary titles (such as disposition of another’s property); but the issue of Engagement and Exemption is a secondary issue, because doubt regarding the existence or non-existence of corruption (the doubtful ruling) has entered. Since primary and secondary titles are not related to each other, these two issues are also not related.

5. Conclusion

1. Considering the existing differences among the scholars of Usul, it is concluded that a relationship of differentiation (Taghayur) exists between Asalat al-Hazr/Ibahah and Asalat al-Ihtiyat/Bara’ah.

2. This difference is evident in terms of the subject (whether the doubt is in the ruling or in the essence of the subject), the predicate (whether it is an apparent ruling or a real one), and the criterion and effect (whether the discussion is about Tanjiz or ownership).

3. The arguments of the proponents of correlation between these principles do not seem very justifiable. Although a correlation might exist from some aspects (such as Prohibition being evidence for Precaution), the differences between the two are greater, and one cannot make a general judgment for their existential correlation.

4. Furthermore, although Permissibility and Prohibition might be “Assentient Principles” for Exemption and Precaution from one perspective, since these issues are examined from various facets, one cannot make a general judgment regarding their correlation.