Note: Hujjat al-Islam wal-Muslimeen Dr. Mohammad Hasan Movahedi Savoji, born in 1350 SH (1971–1972 CE) in Qom, heads the Theology Department at Mofid University. For many years he has taught and conducted research in jurisprudence and law, with particular focus on criminal jurisprudence and criminal law. His book The Jurisprudential-Legal Possibility of Converting Islamic Punishments represents one of his contributions to this field. In this exclusive contribution to Contemporary Jurisprudence, he examines two key principles in the jurisprudence of adjudication and punishment: the principle of non-authority and the principle of innocence. The full text follows:
The Principle of Non-Authority
Among jurists there is a principle that enjoys near-universal acceptance: the principle of non-authority. It may well be regarded as one of the most fundamental principles of criminal jurisprudence. The principle of non-authority holds that no human being has dominion or authority over another and possesses no right to interfere in his affairs, except in specific, exceptional cases supported by particular evidence. By way of contrast, certain figures—such as the Noble Prophet and the Imams (peace be upon them)—possess authority over others, as does a father over his minor child, subject to the relevant conditions.
The principle of non-authority is equally applicable in criminal law. Punishing an individual in fact constitutes an exercise of authority over him. Imprisonment, for example, interferes with his freedom; a financial fine or any other restriction similarly involves interference in his person and thus amounts to an exercise of authority. Given the principle of non-authority, the default position is that we have no right to punish others unless conclusive religious proof is established, in which case punishment may be implemented.
The Principle of Innocence
Another principle relevant to criminal jurisprudence is the principle of innocence. This principle stipulates that the default assumption is that a person has not committed a crime unless the contrary is proven. The combined effect of this principle and the principle of non-authority is that, absent certainty of guilt or conclusive proof thereof, punishment cannot be imposed.
“Conclusive proof” refers to those forms of evidence whose authoritativeness has been definitively established in the disciplines of uṣūl al-fiqh and fiqh—such as the solitary trustworthy report (khabar wāḥid). However, with respect to the solitary report—whose primary basis of authoritativeness lies in the rational practice of prudent people—a question arises: do rational persons rely on a trustworthy but probabilistic report in grave matters involving life (damāʾ) or honor (furūj), or do they refrain from doing so? For example, if a report establishes the permissibility of executing an individual—such as the ruling that a muḥārib must be executed—may a death sentence be issued solely on the basis of a trustworthy narration that does not yield certainty? Scholars such as Ayatollah Sayyid Ahmad Khwansari reject the authoritativeness of such a report in these contexts.
Grave matters are not confined to life and honor; the category extends to any serious issue, such as the deprivation of a major right or the imposition of a lengthy prison sentence, which entails the loss of years of personal freedom and is therefore considered grave. Flogging punishments likewise fall within this category. Moreover, certain jurists maintain that ḥudūd punishments cannot be executed during the occultation and must be deferred until the appearance of Imam Mahdi (may God hasten his noble advent).
The principal practical implication of the principles of non-authority and innocence arises in cases of doubt concerning the establishment of a crime—for instance, uncertainty as to whether an individual merits taʿzīr or a ḥadd punishment. In such circumstances, until certainty of criminality is attained or conclusive proof thereof is available, no ruling of guilt may be issued, nor may punishment be imposed. In the case of zinā, for example, punishment is impermissible absent certainty of its occurrence or the detailed testimony of four just witnesses.