Contemporary Jurisprudence

Mohammad Javad Ahmadkhani

Judicial Practical Principles/27

Translated by AI

While it is undeniable that advancements in forensic sciences—including DNA profiling, dactyloscopy, and forensic pathology—have drastically narrowed the parameters of "doubt" and brought the judicial process closer to objective "reality," these developments do not render Procedural Principles (Al-Usul al-Amaliyyah) obsolete. Such advancements are not only desirable but, from a Sharia perspective, their utilization is mandatory to establish truth and preclude the violation of rights. However, forensic science does not invalidate these principles; rather, it narrows the "subject matter" (mawdu') of their application.

Note: In traditional treatises on the Principles of Jurisprudence (Usul al-Fiqh), Procedural Principles are typically analyzed in the abstract, detached from the specific legal chapters in which they operate. This abstraction often obscures the nuanced variations in how these principles function across different domains of law. In this exclusive commentary, Hujjat al-Islam wal-Muslimeen Mohammad Javad Ahmadkhani, a senior scholar at the Islamic Seminary of Qom, explores the essence, utility, and contemporary challenges of employing Procedural Principles within the framework of criminal jurisprudence and law.

Nature and Scope of Implementation

In analyzing the intersection of criminal jurisprudence and Procedural Principles, one must distinguish between the “Ontological Basis” of these principles and the “Modality of their Application.” Regarding their basis, the four primary Procedural Principles—Innocence (Bara’ah), Continuity (Istishab), Option (Takhyir), and Precaution (Ihtiyat)—are universal axioms applicable across all jurisprudential sectors. Their core function is to define the legal obligations of the subject (mukallaf) in instances of irreducible doubt where definitive evidence (dalil qati) is absent.

The fundamental divergence arises in the “Intensity of Execution” and the “Governing Spirit.” The Legislator (al-Shari’) maintains an heightened sensitivity regarding “Life, Honor, and Property.” This necessitates that certain principles be applied with greater rigor in criminal contexts, often bolstered by specific secondary maxims. For example, the Principle of Innocence, while universal, is transmuted in criminal law into the “Presumption of Innocence,” reinforced by the celebrated Hadith: “Ward off the prescribed punishments by doubts” (Idra’u al-Hudud bi al-Shubuhat). Thus, criminal jurisprudence does not possess principles that differ in kind from other branches, but rather in the degree of their concentration and the gravity of their application.

Key Procedural Principles in Criminal Contexts

  1. The Principle of Innocence (Asl al-Bara’ah): The cornerstone of criminal justice. It dictates that an individual remains innocent until proven guilty beyond a reasonable doubt. The burden of proof rests entirely with the prosecution.

  2. The Rule of Dar’ (Exclusion of Punishment): Supported by extensive tradition, this serves as the procedural mechanism of the Principle of Innocence. It mandates that any substantive doubt regarding the commission of a crime or its attribution must result in a verdict for the defendant.

  3. The Principle of Continuity (Asl al-Istishab): Utilized to maintain a prior state—such as the presumption of insanity or minority—unless definitive proof of legal capacity is established.

  4. The Principle of Precaution (Asl al-Ihtiyat): Crucially, the vector of Precaution is inverted in criminal law. While in ritual law it leads to performing an act to ensure compliance, in criminal law it leads to abstaining from punishment to ensure that no innocent blood is shed.

The Impermissibility of Proving Crimes via Procedural Principles

A prevalent misconception suggests that Procedural Principles—whose primary function is to provide a “legal excuse” (u’dhr) before God—can be used to establish worldly punishments. This is a categorical error. Procedural Principles are instruments of “Excusability” (Ma’dhuriyyah), intended to relieve responsibility in the face of doubt. In contrast, the imposition of criminal sanctions requires “Actualization” (Tanjiz), which can only be achieved through definitive evidence (bayyinah, confession, or judicial certainty). A shield designed for the protection of the accused cannot be wielded as a sword for their conviction. Procedural Principles may negate a crime, but they can never instantiate one.

The Modern Relevance of Procedural Principles

Are these principles relics of a pre-scientific era? On the contrary, while forensic science narrows the scope of doubt, it does not eliminate it. Doubt persists regarding:

  • The reliability of the scientific method or human error in the laboratory.

  • The temporal attribution of evidence (e.g., DNA present at a scene but not necessarily during the crime).

  • The Mental Element (Mens Rea), which remains largely outside the scope of empirical science.

Procedural Principles have evolved from daily tools of adjudication to the “Last Bastion of Justice”—a safety valve ensuring that where science is silent, the law does not resort to conjecture.

Challenges and the Path Forward

The application of these principles faces three primary challenges:

  1. The Paradox of Truth vs. Procedure: The risk of allowing guilty parties to escape, potentially undermining public security.

  2. Definitional Ambiguity: The need for a more precise “Jurisprudence of Doubt” (Fiqh al-Shubhah) to prevent arbitrary judicial discretion.

  3. Victim Rights: Balancing the presumption of innocence with the rights of the victim (awliya al-dam).

Proposed Solutions:

  • Systematizing Doubt: Categorizing doubts into substantive, legal, and applied frameworks.

  • Prioritizing Reality-Discovery: Using Procedural Principles only after all legitimate forensic avenues have been exhausted.

  • Specialized Judicial Training: Bridging the gap between traditional jurisprudential foundations and modern forensic methodologies.

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