Note: Even if one cannot consider the most important application of practical principles to be in penal jurisprudence, certainly one of the most frequent applications of these principles is in this chapter of jurisprudence. Although there has been much discussion regarding practical principles in the science of Principles of Jurisprudence, less attention has been paid to the practical principles specific to penal jurisprudence. Hujjat al-Islam wal-Muslimeen Seyyed Mohammad Reza Shariatmadar Jazayeri has been teaching principles and jurisprudence in the Qom Seminary and various counties for many years. This lecturer at Baqir al-Ulum University has expounded upon these specific practical principles in this exclusive interview. The former Deputy of Research at the Imam Reza (AS) Seminary Institute of Higher Education believes that penal jurisprudence possesses both specific rules and practical principles whose most frequent application is in this chapter of jurisprudence. The detailed text of Contemporary Jurisprudence’s exclusive interview with this professor and researcher of the seminary and university follows below:

Contemporary Jurisprudence: Do penal jurisprudence and law have practical principles specific to themselves that differ from other legal chapters such as civil law, international law, and constitutional law?

Shariatmadar Jazayeri: Penal rules are specific rules that are exclusive to penal jurisprudence and are not applied in other chapters; such as the Rule of Dar’ (Aversion).[1] Undoubtedly, the most famous rule of the chapter of Hudud (fixed punishments)—which was first raised in the chapter of Hudud and then its extension to Ta’zirat (discretionary punishments) and other punishments was discussed—is the Rule of Dar’. The apparent position of the companions and Imami jurists, and even the Sunnis, is the acceptance of this rule and consensus upon it; such that the late Ayatollah Sabzevari considers this rule to be “among the rules that they have transmitted as axiomatic truths and established as that by which arguments are made, not against which arguments are brought” (Sabzevari, 1417 AH: 226) and considers it in no need of discussion or examination of its documentation. However, at the same time, a grand jurist among the Imami jurists such as the late Ayatollah Khoei does not consider the narration “Avert the Hudud by means of doubts” (Idra’u al-hudud bi-shubuhat) to be authentic (Sahih) and does not believe in such a generality. (Khoei, 2017: 136, 168, 169, 171, 233, 234, 329). Some also have reservations as to whether this rule expresses a new matter. Among the Sunnis, the expressions of Ibn Hazm Andalusi indicate a non-acceptance of this rule.

This rule expresses that whenever a doubt arises during the course of a Hadd procedure, such as the Hadd for sodomy or the Hadd for theft—whether this doubt is legal (hukmiyyah) or factual (mawdu’iyyah)—the Hadd is not applied. This rule is specific to penal jurisprudence and is not applied elsewhere.

Another rule is the Rule of Vizr (Burden). This rule emphasizes the personal nature of punishment and the non-prosecution of another person in exchange for the crime of any individual. This rule, whose title is derived from the verse “No bearer of burdens shall bear the burden of another” (La taziru waziratun wizra ukhra), is considered among the Islamic axioms among the Shia and Sunnis and among the written principles of divine religions prior to Islam; meaning God the Exalted wishes to say that everyone is responsible for their own actions; any criminal must receive the punishment that is related to themselves, and it does not relate to those who had no involvement in that act. This rule is also specific to penal jurisprudence.

Another rule is the Rule of Hirz (Secure Custody). The import of this rule is that anyone who steals property that is in a Hirz (protected place), the Hadd is applied to them. One of the conditions mentioned for the amputation of a thief’s hand is that the stolen property must be from a Hirz. In other words, in theft, the Hadd of hand amputation is not executed unless the stolen property has been removed from a Hirz. Therefore, using narrations and the expression “No amputation except in a Hirz,” one can refer to it as a general rule in the execution of the Hadd of theft, such that if it is not from a Hirz, the Hadd is not applied. This rule is also specific to penal jurisprudence.

Another rule is the Rule of Lawth and Qasamah. The import of this rule is that if someone is killed and the claimant of the murder requests Qisas (retribution in kind) for the murderer from the judge, but the person being the murderer is not proven to the judge for certain reasons, one must resort to the rule of Qasamah (compurgation). This rule is also specific to Qisas and, consequently, penal jurisprudence.

Contemporary Jurisprudence: Which are the specific or high-application practical principles in penal jurisprudence?

Shariatmadar Jazayeri: Aside from the rules that were mentioned, there are other rules and principles that, although not exclusive to penal jurisprudence, have their most frequent application in this chapter of jurisprudence, or have significant application in this chapter. One of these rules is the Rule of Ikrah (Duress).[2] The Rule of Ikrah expresses that if matters such as murder, assault, adultery (Zina), consumption of alcohol, sodomy, and the like, which necessitate the application of a Hadd, occur out of duress, the Hadd is not applied to them.

Although this rule extends across all chapters of jurisprudence, its most frequent application is in penal jurisprudence. The Rule of Bara’at (Acquittal/Presumption of Innocence), which is the import of the Hadith of Raf’ (Release) regarding “what they do not know,” is the same way; and although it has application in all jurisprudential chapters, its most frequent application, or one of its most frequent applications, is in penal jurisprudence.

Contemporary Jurisprudence: Can worldly punishments be proven using religious practical principles, the basis of which is the creation of an excuse before the Lawgiver?

Shariatmadar Jazayeri: Initially, it comes to mind that practical principles negate a duty, not that they prove a duty and act as a finalizer (munajjiz) for it; however, although this is the case in the majority of instances and practical principles are negators of duty, in some instances, they are affirmers of duty. One of these instances is the Rule of Maysur (The Feasible),[3] which expresses the proof of a ruling. Another rule is the Rule of Qasamah, according to which, if 50 people take an oath, murder is proven. Or in the case of the Rule of Hirz, when it is proven that the theft was from a Hirz, the Hadd is proven. Also, regarding the Rule of “The confession of rational people against themselves is admissible” (Iqrar al-uqala ‘ala anfusihim ja’iz), according to which, anyone who confesses and admits to committing a crime under the specific conditions that have been stated, this crime is established for them.

Contemporary Jurisprudence: Given the modern methods of crime detection and discovery of reality, is recourse to penal practical principles still a desirable matter, or were these principles enacted for the time of legislation when the ways of discovering crime and discovering reality were limited?

Shariatmadar Jazayeri: If new methods of proving a crime result in certainty regarding the establishment of the crime, the turn for [applying] rules no longer arrives. Rules and practical principles are applied in cases where doubt exists, and in cases where there is absolute certainty, practical principles are not applied. If we possess something that causes the attainment of certainty for the judge that this crime has occurred, it is no longer the turn of the practical principles; however, if these methods do not result in certainty, one must act according to the practical principles, and ancient or modern times have no effect on this.

Contemporary Jurisprudence: What are the challenges of using practical principles in penal jurisprudence and law? What solutions do you suggest to resolve these challenges?

Shariatmadar Jazayeri: The challenges are numerous. One of them is the statutory laws of Islamic countries for determining crime or Ta’zir. Sometimes these laws are in conflict with Sharia rulings and the fatwas of jurists. Now, what must the judge do? Must he act according to the text of the law or according to what is the fatwa of the jurists?

Another challenge is the benchmark fatwa for penal laws. In penal jurisprudence, regarding the determination of Hadd and Ta’zir and their instances, there are significant differences among jurists. Now, based on which fatwa should the law be established?

Another challenge is the opposition of the global community and modern civilization to certain punishments, such as killing, execution, stoning, and Qisas. It appears that in these cases, one must act according to the opinion of the Vali-e Faqih (Guardian Jurist). The opinion of the Vali-e Faqih is sometimes the stabilization of the same ruling, and sometimes, with the observance of certain expediencies (Maslahat), it is a change in the Sharia ruling.

[1]. The Rule of Dar’ (Aversion) is a jurisprudential rule based on which the suspension of the execution of Hudud is ruled in the event of the existence of a doubt. According to this rule, in cases where the occurrence of the crime, or its attribution to the accused, or his deserving of punishment is doubtful for any reason, the crime and punishment will be negated.

[2]. Ikrah (Duress) is forcing an individual to perform an act that they would not have performed had there been no fear of harm resulting from the threat of the coercer. Ikrah is famous as a jurisprudential rule among jurists, and upon it, rulings and effects such as the lifting of criminal responsibility from the coerced person, and the liability and punishment of the coercer—in cases other than murder—are contingent.

[3]. The Rule of Maysur (The Feasible) is among the jurisprudential rules, and its content is that whenever the performance of a duty in its complete form, with all its parts and conditions or all its instances, becomes difficult or impossible, the performance of the part of it that is possible and capable for the obligated person (mukallaf) does not fall from their responsibility.