Note: Although the principles of operation have been extensively discussed in the discipline of usul al-fiqh, they have been less frequently examined in a specialized manner with respect to their spheres of application. Taking this as an opportunity, we held a discussion with Ayatollah Sayyid Nur al-Din Shari’atmadar Jazayeri regarding the status of the principles of operation in fiqh and criminal law. He, who has been teaching advanced fiqh and usul (kharij) in the Qom Seminary for over three decades, believes that the most important challenge in applying the principles of operation in fiqh and criminal law is identifying their proper sphere of application and correctly adapting them. The full text of the exclusive interview of Contemporary Jurisprudence with this veteran professor of advanced fiqh and usul in the Qom Seminary is as follows:

Contemporary Jurisprudence: Does fiqh and criminal law have its own specific principles of operation that differ from those in other branches of law, such as civil law, international law, and constitutional law?

Shari’atmadar Jazayeri: By way of preface, I should state that many divisions have been made regarding the principles of operation. For example, sixteen divisions have been proposed for istiṣḥāb alone. However, the principles of operation can generally be divided into four categories:

First: General principles of operation; these refer to the universal and general principles that apply across all chapters of fiqh and all branches of law, such as civil law, criminal law, international law, and penal law. For instance, istiṣḥāb is applicable in all fiqh chapters and all legal branches, including criminal, penal, international, and civil law.

Second: Specific principles of operation; these are principles of operation that do not apply across all fiqh chapters and are, for example, confined to one or a few fiqh chapters. An example is the qā‘ida of yad, which states that whoever has something in his possession is considered its owner. This rule is primarily applied in the chapters of transactions but, for instance, does not apply in the chapters of acts of worship such as purity (ṭahāra), prayer (ṣalāh), and fasting (ṣawm). Or the qā‘ida of ḍamān, which states that anyone who gains control over another’s property—whether through usurpation, ignorance, trusteeship, beneficence, or otherwise—becomes liable for it and remains liable until he returns it to its owner. This rule also applies in the chapters of transactions and has no application in the chapters of acts of worship. Another example is the qā‘ida of iqdām, which means that if a person’s conduct paves the way for harm, injury, or loss to be inflicted upon him by others, liability is lifted from those others. This rule applies both in civil claims and criminal cases and, depending on the type of claim, may result in the dismissal of the defendant’s liability, the issuance of an acquittal for the accused, or a reduction in his punishment. These rules are more applicable in financial and criminal matters and do not apply in acts of worship such as prayer, purity, fasting, and hajj. In contrast, some rules, such as the qā‘ida of purity, apply only in the chapter of purity and not in other chapters. The qā‘ida of purity is one of the well-known fiqh rules that presumes the purity of all things until their impurity is established. Therefore, whenever doubt arises regarding the purity or impurity of something, this rule is invoked to rule in favor of purity. The qā‘ida of nafy al-sabīl is similar and applies in the fiqh of international relations, not in all fiqh chapters. According to this rule, no legislative ruling is enacted in religion that would cause a disbeliever to gain dominion over a Muslim.[1]

Third: Shar‘ī principles of operation; these are principles and rules that are acted upon when valid fiqh evidence is unavailable, and in a state of doubt regarding the actual ruling or its subject matter. The basis for their authoritativeness (ḥujjiyya) is solely the statement of the Legislator (Shar‘), not His ratification. These general principles—which are also called fiqh evidences—and are employed in all fiqh chapters include: the shar‘ī principle of barā’a, the principle of istiṣḥāb, the shar‘ī principle of takhyīr, and the shar‘ī principle of iḥtiyāṭ.

Fourth: ‘Aqlī principles of operation; an ‘aqlī principle of operation is one that reason itself dictates, such as ‘aqlī barā’a, ‘aqlī iḥtiyāṭ (ishtighāl), and ‘aqlī takhyīr. The difference between a shar‘ī principle and an ‘aqlī one is that the shar‘ī principle contains an apparent ruling from the Legislator, whereas the purport of an ‘aqlī principle is the lifting of punishment and accountability for performing or omitting an act due to the Legislator’s failure to express the ruling; their affirmative evidence is reason. For example, if the evidence for the authoritativeness of barā’a were reason or the practice of rational people (‘uqalā’), it would be an ‘aqlī principle; but if its authoritativeness is based on texts such as the verse “We do not punish until We have sent a messenger” and the ḥadīth of raf‘, it becomes a shar‘ī principle.

The general principles of operation (the first category) apply across all fiqh and legal branches, such as criminal law, penal law, international law, and civil law. However, the second category—specific principles of operation—are confined to one or a few fiqh chapters and do not apply across all fiqh and legal branches. For example, the qā‘ida of nafy al-sabīl applies in the fiqh of international relations and international law but not in the chapter of purity. Or the qā‘ida of ḍamān and yad apply only in financial and criminal matters and, for instance, do not apply in acts of worship. The ‘aqlī and shar‘ī principles, however, apply in all fiqh chapters.

Contemporary Jurisprudence: Which principles of operation are specific to or most frequently applied in criminal fiqh?

Shari’atmadar Jazayeri: The most frequently applied principle of operation is istiṣḥāb, which is widely used both in acts of worship and in judicial, criminal, and international matters. After that, the most frequently applied principle is barā’a, which is also extensively employed in all judicial, criminal, and international branches. Following these two, the principles of iḥtiyāṭ and takhyīr come, which have comparatively less application than these two principles of operation.

Contemporary Jurisprudence: Can worldly punishments be established on the basis of shar‘ī principles of operation, whose foundation is to create an excuse before the Legislator?

Shari’atmadar Jazayeri: Yes, there is no problem. The evidence for the authoritativeness of the principles of operation—reason in the case of ‘aqlī principles and shar‘ in the case of shar‘ī principles—can serve as probative wherever they are deemed authoritative, whether in otherworldly matters or in worldly ones.

Contemporary Jurisprudence: In light of modern methods of crime discovery and ascertaining reality, is recourse to criminal principles of operation still desirable, or were these principles legislated only for the era of revelation when methods of crime discovery and ascertaining reality were limited?

Shari’atmadar Jazayeri: New methods of crime discovery and the principles of operation are fundamentally not on the same level so that we could compare them. Therefore, the very question of whether, in the presence of new methods of crime discovery, one can still refer to the principles of operation is incorrect. The explanation is as follows: Methods of crime discovery are of two kinds; some are certainty-producing and can definitively show us the reality and truth, while others are not and give rise to doubt. In the first case—which includes the new methods of crime discovery—no doubt remains that would necessitate recourse to the principles of operation. The principle of operation applies in the case of doubt, and when knowledge and certainty exist, there remains no room for its application. Therefore, when we refer to the principles of operation, it means that no definitive method for discovering the crime existed—among which are precisely these new methods of crime discovery. Hence, these two types of evidence are not on the same level, and consequently, they never conflict with each other such that this question would arise.

Contemporary Jurisprudence: What are the challenges in using the principles of operation in fiqh and criminal law? What solutions do you propose for addressing these challenges?

Shari’atmadar Jazayeri: The most important challenge in employing the principles of operation—both in the discipline of fiqh and in the discipline of law—lies in the quantitative knowledge regarding the subject matter and the conditions for their proper application. Anyone who wishes to apply these principles must be fully aware of them and their subject matter and must know, for example, whether this is a case for an ‘aqlī principle or a shar‘ī principle? Whether this is a case of independent rational judgments (mustaqillāt ‘aqliyya) where there is no room for the principles of operation, or not. Even when doubt exists, determining which principle of operation should apply still requires familiarity with the principles and the conditions of their application; for example, whether barā’a or iḥtiyāṭ should be applied in this case. For the principles of operation to be applicable, either the person himself must be an expert, or he must refer to an expert.

[1] This rule is considered one of the most frequently applied and important secondary rulings (aḥkām thānawiyya) in fiqh, and it is said to take precedence over primary rulings; that is, any primary ruling that contradicts it is nullified. Some jurists have held that the qā‘ida of nafy al-sabīl must govern all individual and social relations between Muslims and non-Muslims. Relying on this rule, they have issued fatwas declaring the invalidity of marriage between a Muslim woman and a non-Muslim man, because it causes a disbeliever to gain dominion over a Muslim. The most important Qur’anic evidence for the qā‘ida of nafy al-sabīl is the verse of nafy al-sabīl itself. It is also supported by a ḥadīth stating that Islam is superior to everything else.