Note: Hujjat al-Islam wal-Muslimeen Seyyed Mortaza Taqavi, born in 1961 in Kohgiluyeh and Boyer-Ahmad, pursued seminary studies while simultaneously studying sociology at university, and later developed an interest in law. His simultaneous mastery of the disciplines of fiqh and law led to his long-term leadership of the Fiqh Research Center of the Judiciary and the Islamic Research and Studies Center of the Islamic Propagation Office. The ten-volume set of transcriptions of the usul al-fiqh lessons of Ayatollah Vahid Khorasani, the eight-volume Fiqh al-Jaza’ , and another eight-volume set commenting on the new Islamic Penal Code are among his most important works. We spoke with him regarding the status, dimensions, and challenges of resorting to the principle of bara’ah in judicial fiqh. He responded to our questions concisely without prolixity. The details of this exclusive interview by Contemporary Jurisprudence with the former Editor-in-Chief of the Journal of Fiqh of the Ahl al-Bayt (AS) are presented for your review:

Contemporary Jurisprudence: Is the principle of bara’ah applied in usul al-fiqh different from the one applied in judicial and penal fiqh?

Taqavi: The principle of bara’ah applied in usul shares a common origin with judicial bara’ah but differs from it. The principle of bara’ah used in usul is in fact a type of mental operation in deriving meaning from a text and indicates exoneration from obligation; for example, when we read a text, we see that it imposes an obligation on the mukallaf, and we doubt whether the obligation has truly been imposed on the mukallaf or not. Here, a mental matter—namely, doubt—occurs, but neither does the mukallaf perform any action nor does anything happen externally or any action take place; rather, it is merely an interaction between the mind and the text that occurs. In judicial and legal terminology, in this mental operation, we place the principle on bara’ah and the non-realization of the obligation on the mukallaf; this may be bara’ah from crime, from debt, or from any other act.

However, legal bara’ah is in fact a criterion for determining the ruling on the accused; hence, it is not a mental matter but entirely objective and executable.

Based on the above explanations, it appears that the two are different from each other.

Contemporary Jurisprudence: What are the challenges of applying the principle of bara’ah in judicial and penal fiqh? What should be done to overcome these challenges?

Taqavi: It seems that the application of the principle of bara’ah does not create any particular challenge; because whenever there is no evidence to prove or disprove the crime, and the judge has doubt in some way regarding the establishment or non-establishment of the crime or the obligation, he places the principle on the bara’ah of the dhimmah of the person whose dhimmah is suspected of being occupied; therefore, it seems that the instances of applying this principle are clear and do not entail any particular challenge.

Contemporary Jurisprudence: Can evidences such as testimony and oath—which, due to the prevalence of falsehood in them, make it difficult to be assured of their disclosure of reality—be given precedence over the evidence of bara’ah?

Taqavi: Bayyinah through testimony or oath is among the means of proof in the Islamic legal system, and in their presence, there is no turn for bara’ah. Of course, today there are many disputes regarding the probative force of these evidences. For example, regarding testimony, given that many give false testimony in exchange for money and this has become a profession for them, it is difficult to accept the probative force of testimony. Similarly, regarding oath, many swear falsely and sometimes even receive money for it. If testimony and oath are of this kind, they fundamentally lack probative force and naturally are not given precedence over bara’ah; but if the judge truly becomes assured of the justice of the witnesses and the one taking the oath, this testimony and oath are accepted and, since they have probative force, they will be given precedence over bara’ah.

Contemporary Jurisprudence: Can evidences such as testimony and oath—which, due to the prevalence of falsehood in them, make it difficult to be assured of their disclosure of reality—be given precedence over the evidence of bara’ah?

Taqavi: Indications that testimony or oath is false, as long as they do not reach the level of certainty and conviction, cannot undermine their probative force, and thus they remain given precedence over bara’ah. Yes, if the indications are such that they eliminate the judge’s assurance in the justice or truthfulness of the witnesses and oath-takers, then here testimony and oath will no longer have authoritativeness, and one must resort to the principle of bara’ah.