Note: Adjudication in courts often relies on practical principles due to the absence of evidence, doubling their importance in judicial jurisprudence. We discussed the nature and various dimensions of judicial practical principles with Hujjat al-Islam wal-Muslimeen Akbar Khadim al-Zakirin, faculty member of the Jurisprudence and Criminal Law Department at Jami‘at al-Mustafa. He does not consider judicial jurisprudence to possess exclusive practical principles distinct from the general practical principles of the science of jurisprudence. In his view, the evidence establishing the authoritativeness of practical principles also proves their authoritativeness in judicial jurisprudence. The full text of Contemporary Jurisprudence’s exclusive interview with this professor of advanced jurisprudence and principles at Qom Seminary is presented below:

Contemporary Jurisprudence: What practical principles are used in judicial and penal jurisprudence? Are these practical principles different from those discussed in the science of principles (usul al-fiqh)?

Khadim al-Zakirin: The practical principles discussed in the science of principles of jurisprudence are uniformAcross all chapters of jurisprudence, with no difference whether in judicial jurisprudence or penal jurisprudence. In other words, these principles guide the jurist when no definitive evidence is available for deducing a religious ruling. Among the most important practical principles are the principle of acquittal (bara’ah), the principle of precaution (ihtiyat), the principle of continuity (istishab), and the principle of postponement (ta’khir), which are applicable in both judicial and penal jurisprudence and serve as the basis for decision-making.

• Principle of Acquittal: This principle states that in case of doubt about the existence of an obligation, the default is the absence of obligation. In judicial jurisprudence, if there is doubt about an individual’s obligation or liability, the default is its absence unless evidence proves otherwise. In penal jurisprudence, acquittal means the presumption of innocence, i.e., a person cannot be deemed guilty until their crime is proven.
• Principle of Precaution: Contrary to acquittal, precaution requires that in cases of doubt about an obligation where the risk of error or serious harm exists, the cautious approach be adopted. In judicial jurisprudence, this principle can be applied to issues such as people’s rights and precision in issuing rulings. In penal jurisprudence, precaution means refraining from imposing severe punishments, especially hudud and qisas, in doubtful cases and using mitigation or alternatives whenever possible.
• Principle of Continuity: This principle indicates preserving the previous state until the contrary is proven. For example, if someone was previously the owner of property and doubt arises about the continuation of their ownership, the default is the continuation of ownership unless proven otherwise. In judicial jurisprudence, continuity can play a significant role in civil claims and proving allegations. In penal jurisprudence, if a person was previously deemed innocent and doubt later arises about their guilt, the default is the continuation of innocence unless definitive evidence of guilt is provided.
• Principle of Postponement: This principle states that in case of doubt about an obligation, it should be postponed until definitive evidence of its existence emerges. In judicial jurisprudence, this principle may apply in cases where doubt exists about the validity of a claim or evidence. In penal jurisprudence, it requires that if ambiguity exists in determining or enforcing a punishment, no action should be taken without sufficient evidence.

Contemporary Jurisprudence: Are jurisprudential practical principles different from legal practical principles, or do they share the same meaning?

Khadim al-Zakirin: One of the fundamental issues in jurisprudence and law is examining practical principles and their degree of alignment in these two fields. The question arises whether the practical principles applied in jurisprudence differ from those used in law or pursue the same meaning.

Some jurists and legal scholars believe that practical principles have the same meaning in both fields, as the legal systems of many Islamic countries, including those with Islamic legal structures, originate directly or indirectly from Islamic jurisprudence. Accordingly, principles such as acquittal, precaution, choice (takhiyir), and continuity, raised in jurisprudence, are also applied in law and serve as the basis for decision-making in the absence of ijtihad-based evidence.

In contrast, some thinkers argue that while practical principles in jurisprudence and law share similarities, differences exist in their execution, scope of application, and impact. In law, practical principles are more executive and applicational, and in many cases, statutes and regulations replace them. In jurisprudence, however, these principles serve as the basis for ijtihad and deducing rulings in situations of doubt and uncertainty.

Contemporary Jurisprudence: Does extending practical principles to judicial matters require specific evidence, or is the same evidence proving the authoritativeness of practical principles sufficient for their authoritativeness in judicial jurisprudence?

Khadim al-Zakirin: In fact, the same evidence proving the authoritativeness of practical principles also applies to judicial matters. Acquittal is divided into two types: rational acquittal, based on the reprehensibility of punishment without clarification (qubh ‘iqab bila bayan), and Sharia acquittal, based on the rule of “lifting what they do not know” (raf‘ ma la ya‘lamun).

For continuity, the rule is “do not overturn certainty with doubt” (la tanqud al-yaqin bi’l-shakk). The principle of precaution is considered a rational practical principle. For example, in doubt about the obligated act, the principle of postponement applies, and in conflict between two prohibitions, precaution applies.

Thus, the evidence establishing the authoritativeness of practical principles applies in both jurisprudence and law, with no difference whether in judicial or penal jurisprudence. Consequently, the general scholarly principles used include continuity, acquittal (rational and Sharia), postponement (rational), and precaution in cases of comprehensive knowledge.

Contemporary Jurisprudence: Besides the practical principles shared in judicial jurisprudence, do fields such as penal jurisprudence, civil jurisprudence, and international law jurisprudence have their own exclusive practical principles?

Khadim al-Zakirin: Practical principles such as acquittal, incumbency (ishtighal), choice, and continuity apply across all jurisprudential chapters, but in some fields, due to their specific nature and requirements, exclusive practical principles may also emerge.

For example, in penal jurisprudence, due to the importance of preserving the accused’s rights and the principle of acquittal, specific practical principles such as “precaution in bloodshed” (asalat al-ihtiyat fi al-dima’) or “presumption of innocence in punishments” (asalat al-bara’ah fi al-‘uqubat) may receive more attention. In civil jurisprudence, which deals with rights and obligations, the principle of continuity and the binding nature of contracts play a more prominent role. In international law jurisprudence, which involves interactions between states, principles such as “respect for treaties” and “good faith in international obligations” may be examined as specific practical principles.

Thus, while practical principles exist that are shared across all jurisprudential chapters, the possibility of field-specific practical principles is not ruled out due to each field’s requirements. Additionally, indicants (amaraat) and circumstantial evidence play a significant role in determining religious rulings and resolving doubts in these fields. Therefore, contemporary jurisprudence requires deeper and comparative examination of practical principles across its various chapters.

Contemporary Jurisprudence: Is extensive use of practical principles in judicial and penal jurisprudence desirable and in accordance with the rule, or should these principles be applied only in limited and emergency cases?

Khadim al-Zakirin: Extensive use of practical principles in judicial and penal jurisprudence depends on specific conditions and situations. In principle, practical principles such as acquittal or precaution are typically applied when no strong evidence or definitive proof is available for an issue; thus, if valid evidence exists in judicial and penal jurisprudence to determine the religious ruling, practical principles should not normally be used. In cases where Sharia evidence is unclear or access is limited, practical principles come into play.

Since judicial and penal jurisprudence deal with sensitive and precise matters, precise and valid Sharia principles should generally be used, with practical principles applied only in emergencies where Sharia evidence is unavailable. Such use must be limited and precise to prevent legal and jurisprudential errors and issues. Therefore, in general, extensive use of practical principles in this field is not desirable and should only be resorted to in cases of necessity and emergency.

Contemporary Jurisprudence: Is the primary principle in judicial and penal jurisprudence acting based on rational methods in punishment and crime detection, or is the principle the establishment of judicial and penal rules and laws?

Khadim al-Zakirin: In response, it must be said that in penal and judicial jurisprudence, besides established rules enacted by the sacred Legislator, principles exist based on rational methods in human societies. In this regard, we encounter the establishment of rules that can be considered within the framework of narrations and Sharia fatwas. For example, one of the most important narrations in this field is the hadith “The burden of proof is on the claimant, and the oath is on the denier” (al-bayyinah ‘ala al-mudda‘i wa’l-yamin ‘ala man ankar), which emphasizes that the burden of proving a crime lies with the claimant, and if the claimant cannot provide sufficient evidence, the accused can defend with an oath. This principle, from a rational perspective, means that rational people require acceptable evidence to prove a claim and only issue a ruling upon presenting such evidence.

For this reason, rational people act when they gain sufficient certainty; but if the presented evidence cannot provide the necessary assurance, a ruling cannot be issued based on it, and in this case, the evidence is only a valid Sharia proof. This issue is important from the perspectives of principles of jurisprudence and rationality, as it contributes to the rationality of the judicial process and prevents unjust rulings.

In some cases, the sacred Legislator has also established rational rules. For example, the rule “Hudud are averted by doubts” (dar’ al-hudud bi’l-shubuhat), found in jurisprudential sources, indicates that in case of doubt in proving a crime, hudud should not be enforced. This rule actually refers to the rational principle of “aversion” (dar’), where rational people refrain from enforcing punishment in the presence of doubt. That is, if no certainty or assurance exists about the occurrence of a crime, punishment cannot be applied to the individual.

Additionally, another principle in penal jurisprudence is the “principle of negation” (asl al-‘adam), according to which, until a crime is proven, the default is no punishment. In this principle, the assumption is innocence until the contrary is proven. This approach is based on reason and fairness, that no one should be punished without evidence and proof of crime.

In general, it can be said that penal and judicial jurisprudence rely heavily on rational principles in many cases, and the sacred Legislator has established and endorsed these principles in many instances; however, the principle cannot be placed on whether they are established or endorsed.