Note: Dr. Mahmoud Hekmatnia is one of the nation’s most long-standing and prominent jurists. A professor at the Research Institute for Islamic Culture and Thought (IICT), he spoke with Contemporary Jurisprudence in an exclusive interview about the position of usul amaliyyah (practical principles) in non-Islamic schools of law. Having become acquainted with the English language in his twenties, he has consistently followed developments in Western legal studies alongside his scholarship in Islamic law. Nevertheless, he maintains that in Western law, there is no such concept as usul amaliyyah. He attributes this disparity to the difference between the foundational philosophies of these legal systems and the philosophy underpinning the Islamic legal system. The full transcript of the exclusive interview between Contemporary Jurisprudence and this distinguished jurist and author is provided below:
Contemporary Jurisprudence: Are the judicial usul amaliyyah in non-Islamic schools of law the same as the judicial usul amaliyyah of Islamic and Shi’i jurisprudence, or do they differ?
Hekmatnia: In the stages of legislation and adjudication, legal systems worldwide refer to a set of principles. However, the principles they refer to are, in fact, analogous to our jurisprudential maxims (qawa’id al-fiqhiyyah) and can be considered a type of jurisprudential maxim. The distinction, of course, is that unlike jurisprudential maxims, they do not merely state a general jurisprudential ruling but also embody a set of values. Therefore, what we have in the field of law are general principles at the legislative and adjudicative stages, not jurisprudential maxims. Consequently, in Western law, we do not have a concept termed usul amaliyyah whose difference with the judicial usul amaliyyah of Islamic jurisprudence could be articulated. It is true that they have principles such as the presumption of innocence in cases of doubt regarding an individual’s guilt or the principle of precaution in cases of doubt regarding the discharge of an established liability, but they do not call them usul amaliyyah. Thus, while some of our maxims and practical principles are also discussed within their systems, the crucial point is that the function of these principles in Western law is analogous to that of jurisprudential maxims in Islamic jurisprudence, not that of usul amaliyyah. In other words, they use principles to ascertain the reality of a situation, not, as is the case with usul amaliyyah, to determine the practical duty when there is doubt about the Lawgiver’s will. The reason for this is that in Islamic jurisprudence, we are confronted with what is termed the “will of the Lawgiver,” and through usul amaliyyah, we establish grounds for either holding one accountable (munajjiz) or excusing them (mu’adhdhir) in relation to His will. In Western law, however, such a concept is fundamentally absent; what exists are the rulings of rational individuals and of reason itself. Consequently, it is evident why they do not speak of a “practical principle” whose purpose is to delineate the practical duty when in doubt about an obligation from the Lawgiver.
Contemporary Jurisprudence: In non-Islamic schools of law, are these same practical principles you referred to, such as the presumption of innocence and precaution, utilized as frequently and extensively as they are in Shi’i judicial jurisprudence?
Hekmatnia: Instead of inquiring about the application of usul amaliyyah in non-Islamic schools of law, we should pose the question as follows: In non-Islamic schools of law, do issues exist that are analogous to those for which we employ usul amaliyyah to find a solution?
The answer to this question is the same as the previous one. In fact, the reason they do not resort to usul amaliyyah is that they fundamentally do not encounter issues similar to ours, which involve doubt about the Lawgiver’s prescribed obligation. Therefore, they naturally have no need for a proof that serves the function of usul amaliyyah.
Contemporary Jurisprudence: Have the Shi’i usul amaliyyah endowed Shi’i jurisprudence with greater efficacy compared to non-Islamic schools of law, or is the difference between them confined merely to the domain of the afterlife and the existence or non-existence of an excuse before God Almighty?
Hekmatnia: It is not at all possible to compare the two. We must examine the internal issues that each legal system faces and the solutions it provides for them. Our legal system is a volitional one, based on the relationship between a master and a servant. God has specified rulings that date back 1400 years, which have been transmitted through generations, sometimes reaching us and sometimes not, and have been subject to ambiguities and vagueness. Here, we are dealing with the textual discourse of the Lawgiver, whereas Western systems fundamentally do not face such a reality to debate. Therefore, one cannot compare these two legal systems and rule on the superiority of one over the other. A comparison can, however, be made specifically in relation to judicial rulings, because law exists in both systems. In such cases, doubt may arise as to whether a particular law should be implemented or not, or whether it applies to the matter at hand. It is in this context that a discussion of practical principles can be relevant in both schools.
Contemporary Jurisprudence: What are the most significant challenges in applying practical principles in other schools of law? What measures have these schools taken to resolve these challenges?
Hekmatnia: Schools of law conduct their discourse based on their foundational philosophies. All legal systems possess a civilizational and historical framework. Because their philosophy of law does not include concepts such as the will of a master or a master-servant relationship, Western schools or systems of law do not encounter debates concerning doubt in discharging a liability or doubt in performing an obligation. Consequently, they find no need for usul amaliyyah. Of course, in the rare instances where there is doubt regarding the subject matter of a law, practical principles could conceivably be applied. However, such cases would require a specific comparative study, and one cannot speak of them in general terms.
Contemporary Jurisprudence: What are the key advantages of other schools of law that could be adopted by Islamic judicial jurisprudence?
Hekmatnia: The notion of an advantage for a particular school of law is predicated on the presupposition that it is even possible to compare the two schools. This is while the socio-cultural contexts and philosophical foundations of legal schools differ from one another. As we stated earlier, the Islamic school of law, in its pursuit of discovering the will of the Lawgiver, is substantively different from Western schools of law, which are entirely focused on discovering rational and intellectual rulings and pay no regard to a Lawgiver. Therefore, the disparities that exist among these schools of law stem from the differences in their philosophies and do not constitute an advantage of one over the other.