Note: Judicial Practical Principles face numerous questions, one of the most important of which is how they flow in the context of Judgement which seeks to discover the right and reality; whereas these principles are fundamentally not in the position of discovering reality and merely place the removal of perplexity (Hayrat) on their agenda. Hujjat al-Islam Dr. Ali Sharifi, a professor in the Department of Penal Jurisprudence at Al-Mustafa International University, while confirming this point, considers this very matter as the cause for the minimal application of Practical Principles in the jurisprudence of Judgement. He also posits a significant difference between jurisprudential Practical Principles and legal principles, which makes these two completely distinct from each other. The detailed exclusive interview of Contemporary Jurisprudence with this professor and researcher of Judicial Jurisprudence regarding the nature and dimensions of Judicial Practical Principles follows below:

Contemporary Jurisprudence: Which Practical Principles are used in the jurisprudence of Judgement (Fiqh-e Qaza) and Penal Law (Jaza)? Are these Practical Principles different from the Practical Principles discussed in the science of Principles (Usul)?

Sharifi: This discussion can be raised in two forms:

One is that in the process of proving Shari’a rulings, do we have a series of Faqih-based Evidences (Adillah-ye Faqahati)? Now the question is, are the Faqih-based Evidences in the jurisprudence of Judgement and Penal Law the same Faqih-based Evidences used in other jurisprudential chapters, or are they different in chapters related to Judgement and Penal Law? Faqih-based Evidences are evidences used in the assumption of the absence of evidences; meaning, when we do not have evidence to ascertain the Shari’a ruling, we resort to these evidences. These evidences merely have the function of finalizing (Tanjiz) and excusing (Ta’zir) and are not used in the position of discovering the Shari’a ruling; in contrast to Establishing Evidences (Adillah-ye Muhrizah) which, in addition to expressing finalization and excusing, also have a semi-view towards discovering the Shari’a ruling. If we pose the question in this manner, in response, it must be said that the flow of Practical Principles in the jurisprudence of Judgement and Penal Law does not differ from its flow in other jurisprudential chapters.

The second form of raising the discussion is as follows: In the chapters of Judgement, sometimes the judge, due to various reasons, cannot find the ruling of the issue. For example, he encounters a question for which there is no answer among the laws. In some laws, it has been foreseen that if the ruling of the issue is not mentioned in the law, the judge can refer to a valid jurisprudential fatwa and rule based on it. Valid fatwas are of two categories: some of them specify the judge’s duty, but some of them still do not specify his duty and state the ruling in a general manner. In these cases, the judge cannot keep the dispute in abeyance but must rule to resolve it; hence, it is said that in such cases, the judge must rule based on principles. The intent of these principles is not Practical Principles; rather, they are principles such as the Principle of Justice; meaning the judge acts based on what he himself identifies as an instance of justice, even though it is neither explicitly stated in the law nor is there a valid fatwa according to it. The meaning of the non-existence of a valid fatwa is that either jurists have paused (Tavaqquf) in it or the fatwas are conflicting. In these cases, the judge can act on principles such as the Principle of Justice or the Principle of Custom (Urf). The intent of the Principle of Custom is to see to which side custom gives the right in these cases, and he too rules according to the view of custom.

Contemporary Jurisprudence: Are jurisprudential Practical Principles different from legal Practical Principles, or do they have a single meaning?

Sharifi: “Jurisprudential and legal Practical Principles” is not a precise expression. We have a series of jurisprudential Practical Principles which are for the position of perplexity and doubt, and we have a series of legal principles which are actually not Practical Principles but are supporting principles, or in other words, are counted among the foundations. The important difference between jurisprudential Practical Principles and legal Practical Principles lies here. Jurisprudential Practical Principles show the way in cases of perplexity and doubt; but legal Practical Principles serve as foundational theories for the science of law upon which laws are based. For example, the Principle of Exemption (Asl-e Bara’at) exists both in Principles of Jurisprudence (Usul al-Fiqh) and in Principles of Law; but its meaning in these two sciences is completely different. The import of the Principle of Exemption in the science of jurisprudence is that if a subject (Mukallaf) doubts whether an obligatory ruling is upon him or not, as long as he has not found valid evidence, the principle is that God has not enacted a duty for him; meaning he is free to perform that act or abandon it. However, in legal principles, the Principle of Exemption means that the accused is not a criminal as long as a crime has not been proven for him, and one cannot detain him or sentence him to a fine. In other words, the legal Principle of Exemption is both exemption and precaution. On one hand, it is the exemption of the accused from punishment, and on the other hand, it is precaution in considering individuals as criminals.

Contemporary Jurisprudence: Does extending Practical Principles to judicial matters require specific evidence, or do the same evidences proving the authority (Hujjiyyah) of Practical Principles also prove their authority in the jurisprudence of Judgement?

Sharifi: The position of Judgement is the position of discovering reality. We have very limited cases where Judgement is based merely on the resolution of hostility (Fasl-e Khusumat); meaning the judge says, “I have nothing to do with justice and which one of you is right, and my job is only the resolution of hostility.” Rather, the judge’s entire concern must be spent on observing justice and delivering the right to the rightful owner; therefore, the fact that jurisprudential Practical Principles fundamentally do not seek to discover reality prevents the possibility of their employment in the jurisprudence of Judgement; because they lack the foundation of the jurisprudence of Judgement, which is the discovery of reality.

Contemporary Jurisprudence: Is the extensive use of Practical Principles in the jurisprudence of Judgement and Penal Law a desirable matter and in accordance with the rule, or should these principles be used in limited and emergency cases?

Sharifi: In principle, the goal of the principles of Judgement, particularly in cases of criminal offenses, is the discovery of truth; therefore, the application of Practical Principles in this jurisprudential chapter will be very minimal. Among late jurists, doubts have also been raised regarding someone being executed, stoned, flogged, or having their hand amputated based on the flow of a Practical Principle like Presumption of Continuity (Istishab). In their view, the fact that Practical Principles such as Istishab have not been used in any narration for establishing punishment indicates that they are fundamentally not used in cases of Judgement and Penal Law; thus, there is a high probability that in the Lawgiver’s mind as well, principles like Istishab do not have application in the jurisprudence of Judgement; rather, in contrast, the Lawgiver has enacted rules such as the Rule of Aversion (Qa’idah al-Dar’) which fundamentally seeks the negation of punishment in cases of doubt.