Note: The conflict between the Appearance and the Principle, although identifiable throughout the science of jurisprudence, gains double importance in the chapter of Judgement (Qaza). In Judgement, both the principle of the precedence of the Principle over the Appearance or vice versa is a subject of dispute and conversation, and also whether the intent of the Principle is the rational principle or the Shari’a principle? If we hold the view of the precedence of the Appearance over the Principle, does religion not become customary (Urfi) and appearance-oriented? If we prioritize the Principle over the Appearance, do judicial rulings not tend towards being irrational? These and some other cases are questions raised regarding the conflict between the Principle and the Appearance in the chapter of Judgement. Hujjat al-Islam wal-Muslimeen Seyyed Mohammad Ali Faqihi, a professor of the Advanced Course (Dars-e Kharej) of Jurisprudence and Principles at the Qom Seminary, believes that the primary rule is based on the precedence of the Principle over the Appearance, except in cases where the Lawgiver (Shari’) has made us devotees (Muta’abbid) to the contrary. At the same time, he considers the precedence of the Appearance over the Principle to be the ruling of all legal schools, not only the legal school of Islam. The detailed exclusive interview of Contemporary Jurisprudence with this professor of the Advanced Course of Jurisprudence and Principles at the Qom Seminary is as follows:

Contemporary Jurisprudence: What is meant by the Appearance and the Principle in the conflict between the Appearance and the Principle?

Faqihi: The intent of the Principle is the Practical Principle (Asl-e Amali). The intent of the Appearance is also the requirement of the sentence or that state accompanied by indicators (Qara’in) that are concurrent with it. Now, if the Appearance agrees with the Principle, there is no place for discussion. But if the Appearance disagrees with the Principle, here this discussion arises: which one is prior to the other? The discussion of the precedence or non-precedence of the Appearance over the Principle is raised in two places: one in the chapter of Judgement and the other in the chapter of Claims (Da’avi). However, in other than these two cases, we always refer to the Principle and pay no heed to the Appearance unless we have specific evidence for the precedence of the Appearance over the Principle. For example, in the chapter of Prayer, if after the prayer we doubt whether we have performed the third Rak’ah or not, although the Principle is based on non-performance and the prayer must be read anew, the Lawgiver has said that doubt after the completion (Faragh) of the prayer has no validity; therefore, we cling to the Appearance of the worshiper’s state, which is in the correct performance of the prayer, and we do not pay attention to the Principle of non-performance. It is the same in the cases of the Rule of Transcendence (Qa’idah al-Tajavoz), and the Lawgiver has devotionally (Ta’abbudan) prioritized the Appearance over the Principle. For example, if a subject (Mukallaf) doubts in the prostration (Sajdah) of the prayer whether he has performed the bowing (Ruku’) or not, although the Practical Principle necessitates the non-performance of bowing, the Lawgiver, by enacting the Rule of Transcendence, has tasked us with disregarding the doubt and building upon the Appearance of the worshiper’s state, which is the performance of the correct parts of the prayer. This is while the requirement of the Practical Principle of Presumption of Continuity (Istishab) is building upon the previous state of non-performance of bowing.

However, in cases where there is no specific evidence for the precedence of the Appearance over the Principle, we act according to the requirement of the Practical Principle.

The discussion of the precedence of the Appearance over the Principle in the chapter of Judgement is clear. But regarding Claims, the discussion is here that it is said: the Claimant (Mudda’i) is one whose claim is contrary to the Principle; this means that action must be taken according to the Principle unless the Claimant establishes evidence contrary to the Principle. Therefore, the Denier (Munkir), whose statement is in accordance with the Principle, does not need to bring evidence for his claim, and it is this Claimant who, due to the requirement that his statement is contrary to the Principle, is obliged to bring evidence; otherwise, his statement is rejected and the right is given to the Denier. For example, if someone who has grown up in an Islamic environment has consumed wine (Shurb-e Khamr) and claims in court that he was unaware of the ruling of the prohibition of wine consumption and the application of the fixed punishment (Hadd) upon its drinker. Here, the Appearance is on his awareness of this ruling, although the Principle is on his lack of awareness. In these cases, the Lawgiver has exceptionally prioritized the Appearance over the Principle and rules for the application of the Hadd upon him. Conversely, if someone who has grown up in a non-Islamic environment has consumed wine and claims that he was not aware of the ruling of prohibition and the application of the Hadd upon its drinker, judgement is made according to this very Appearance; although the import of the Appearance in this case is one with the Principle. Another example is where a man claims “So-and-so is my wife” and the sister of that woman also claims that she is the wife of this man. Here, if both marriages are valid, it results in the conjoining of two sisters (Jam’ bayn al-Ukhtayn), and thus is not possible. Now, if consummation (Dukhul) has taken place, judgement is made according to the Appearance, and the consummated woman (Madkhulah) is considered the legal wife of the man, while the Principle is on the non-existence of matrimony.

Contemporary Jurisprudence: Is the prioritizing of the Appearance over the Principle not synonymous with becoming customary (Urfi) and appearance-oriented (Zahir-gera) in religion?

Faqihi: If we always prioritized the Appearance over the Principle, this suspicion might arise that religion has become customary and appearance-oriented. But it is not so; rather, only in cases where there is specific evidence for the prioritizing of the Appearance over the Principle, the judgement is made for the precedence of the Appearance over the Principle. The Mujtahid judge must discover its instances from the evidence; if the judge is also not a Mujtahid like today’s judges, he must act according to the codified law which is taken from the fatwas of the Mujtahids.

Contemporary Jurisprudence: In case we consider the intent of the Principle to be Rational Principles, is the Appearance still prior to the Principle in the conflict between these two? What is the reason for it?

Faqihi: The intent of the Principle is general, including the Shari’a Principle and the Rational one, and is not exclusive to Rational Principles. If it was a Shari’a Principle and we had evidence for the precedence of the Appearance over the Principle, we act according to that evidence. But if the Principle was Rational, it is not clear that one can differentiate between it and the Appearance; because it is unlikely that reason would have two different rulings in one case.

Contemporary Jurisprudence: Does the precedence of the Appearance over the Principle exist in other legal schools as well?

Faqihi: The reason that causes the precedence of the Appearance over the Principle is its rational strength, and this strength is not exclusive to the legal school of Islam; rather, it is so in all legal schools; therefore, since the reason for the precedence of the Appearance over the Principle is its rational strength, one cannot state the contrary in any legal school. Of course, there may be differences and disagreements among legal schools regarding the instances of the Appearance and the Principle, but there is no disagreement in the principle of the precedence of the Appearance over the Principle.