The Status of Judicial Practical Principles in Sunni Jurisprudence

Note: Judicial Practical Principles are widely used in Shiite jurisprudence; but is it the same in Sunni jurisprudence? Hujjat al-Islam wal-Muslimeen Morteza Torabi believes that since Sunni jurisprudence fundamentally does not accept the division of evidences into Indications (Amarat) and Practical Principles, the discussion of “Judicial Practical Principles” in Sunni jurisprudence is essentially meaningless; however, they possess important rules in the jurisprudence of adjudication (Fiqh-e Qaza) to which they adhere in proceedings. The detailed exclusive note of this professor of the Advanced Course (Dars-e Kharej) of Jurisprudence and Principles at the Qom Seminary regarding Judicial Practical Principles in Sunni jurisprudence follows below:

To clarify the status of Practical Principles, an explanation regarding the difference between Practical Principles and Indications (Amarat) must first be given. Evidences in Shiite Principles of Jurisprudence (Usul al-Fiqh) have been divided into two categories since the time of Vahid Behbahani:

First Category: Evidences that state the Real Ruling (Hukm-e Waqi’i) of objects and actions; such as evidences that express the rulings of things as they are, like the obligation of prayer, fasting, Zakat, Hajj, and others. These types of evidences are called Indications (Amarat) or Ijtihadi Evidences.

Second Category: Evidences that state the Apparent Ruling (Hukm-e Zahiri) of objects in the absence of evidence for stating the Real Ruling of objects. This second type of evidence is called Practical Principles (Usul-e Amaliyyah) or Faqih-based Evidences (Adillah-ye Faqahati).

There are four Practical Principles: 1. Presumption of Continuity (Istishab), 2. Principle of Choice (Asalat al-Takhyir), 3. Principle of Precaution (Asalat al-Ihtiyat), 4. Principle of Exemption (Asalat al-Bara’ah).

If a Mujtahid does not find the Real Ruling of a thing or an action after examining the evidences, if that thing or action has a known previous state regarding its ruling, then Istishab applies; and if it does not have a known previous state, if precaution is not possible in it—such as when its matter revolves between obligation and prohibition—then Asalat al-Takhyir applies. If precaution is possible, and if the principle of obligation is legally known but its object is unknown, then Asalat al-Ihtiyat applies; if the principle of obligation is not known and is doubtful, then the Principle of Exemption (Asl-e Bara’ah) applies.

Accordingly, Istishab is posterior in rank to evidences that state the Real Ruling of objects; but it is prior to other Practical Principles, as Istishab is an Establishing Practical Principle (Asl-e Amali-ye Muhriz).

This subject has been explained by Shahid Sadr in Buhuth.

Differentiation of Evidences into Indications and Practical Principles Among Sunnis

Among Sunnis, due to the lack of development in Usuli discussions, such a classification does not exist; rather, they consider Istishab and other Practical Principles as Conjecture-based Evidences (Adillah Zanniyyah) which are used for the conjectural discovery of the ruling.

This discussion pertains to evidences used in Principles of Jurisprudence for inferring a general Shari’a ruling. However, in jurisprudence (Fiqh), whether in the chapter of Judgement (Qaza) or non-Judgement, to determine cases of minor subject-matter doubts (Shubuhat Mawzu’iyyah Juz’iyyah), adherence is made to principles and rules which Sunnis do not consider valid as Practical Principles, but rather as valid Jurisprudential Rules (Qawa’id Fiqhiyyah). However, Shiites, due to the differentiation between Indications and Principles regarding rules cited in the chapter of Judgement or non-Judgement, first discuss whether its authority (Hujjiyyah) is from the aspect of a Practical Principle or an Indication.

Based on this, speaking of Judicial Practical Principles or non-judicial ones in Sunni jurisprudence does not appear to have a valid basis; that is, Sunni jurisprudence and principles of jurisprudence do not acknowledge evidences under the title of “Practical Principle” (Asl-e Amali) for us to have a discussion comparing two types of Judicial Practical Principles.

Of course, it is necessary to mention that although Sunnis do not possess evidences or rules under the title of Practical Principles, from a practical—not theoretical—perspective, they acknowledge two Practical Principles that have the most application in the chapter of Judgement, which are:

The Principle of Exemption of Liability (Asl-e Bara’at-e Zimmah);
The Presumption of Continuity of Liability (Istishab-e Ishtighal-e Zimmah) after its establishment.

Therefore, the most important principles and rules in the chapter of Judgement that we can call Practical Principles are the two aforementioned principles.

An Explanation Regarding the Principle of Exemption of Liability

“The innocence of the accused until proven otherwise” is an important principle in adjudication that global thinkers, even in human legal systems, have attended to.

Article 11 of the Universal Declaration of Human Rights also explicitly states this principle, where it says:
“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”

Comparing this principle in contemporary human systems and the Principle of Exemption in Islamic Shari’a reveals the superiority of Islamic legislation over current systems; because this principle has existed in Islamic legislation since the beginning of the advent of Islam, whereas in contemporary laws, the emergence of this principle has been from the early 18th century as a result of the efforts of philosophers of the Renaissance and Enlightenment eras. Especially since the rule of “Principle of Exemption of Liability” established in Islamic jurisprudence operates in a broader scope than the penal domain, as it includes all types of duties and obligations, even purely devotional obligations.

The Evidence for the Principle of Exemption

Several reasons have been provided for this Islamic principle, the most obvious of which is “Istishab“; because the engagement of liability (Ishtighal-e Zimmah) with a right among rights is an occurrence (Hadith) preceded by non-existence; so whenever there is doubt in its realization, the requirement of Istishab is referring to the previous state, and the previous state is that very exemption. (See: Al-Mustasfa, p. 159)

The approximation of the argument based on Istishab is from two aspects:

Istishab of the non-existence of actual duty which certainly existed before puberty.
Istishab of the primordial non-existence (Adam-e Azali) which was established before the existence of the subject (Mukallaf); and based on the flow of Istishab in “Primordial Non-existences” (A’dam-e Azali)—the discussion of which has passed—the non-existence of duty is presumed. (See: Fara’id al-Usul, Vol. 1, p. 337)

Jurisprudential Rules of the Chapter of Judgement, According to Sunnis

The most important jurisprudential rules raised in the chapter of Judgement among Sunnis are:

Whoever is designated for an obligation, it is taken from him compulsorily (Man ta’ayyana ‘alayhi farz ukhiza bihi jabran);
The seeker of authority is not granted authority (Talib al-wilayah la yuwall);
The Sultan is the guardian of he who has no guardian (As-Sultan waliyyu man la waliyya lah);
Whoever assumes judgeship while being competent for it has a reward, and whoever is incapable of it yet assumes it has sinned (Man waliya al-qada wa huwa kuf’ lah ajr, wa man ‘ajaza ‘anhu fawaliyah athim);
The authority of the Imam is general and the authority of the judge is restricted to what the Imam has authorized him (Wilayat al-Imam ‘ammah wa wilayat al-Qadi qasirah fima wallahu al-Imam iyyah);
The principle is that he whom the Imam has appointed is not dismissed without cause, based on the priority (Al-asl anna man ‘ayyanahu al-Imam la yu’zal bidun mujib ‘ala al-awla);
The appointee by the Imam does not dismiss himself or another without an excuse he presents (Al-muwalla min qibal al-Imam la ya’zil nafsahu aw ghayrahu lighayr ‘uzr yubdih);
Knowledge of appointment and dismissal is realized by oral communication, writing, and other means of notification (Yatahaqqaq al-‘ilm bi-ta’yin wa al-‘azl bil-mushafahah wa al-kitabah wa bighayrihima min wasa’il al-iblagh);
The most exemplary then the next most exemplary is appointed, and for an excuse, the less excellent is appointed (Yuwall al-amthal fal-amthal, wa li-‘uzr yuwall al-mafdul);
Promoting the incompetent is treachery to God and His Messenger (Taqdim ghayr al-kuf’ khiyanah lillah wa rasulih);
Judgement of necessity is permissible where no Mujtahid exists (Qada al-darurah ja’iz haythu la yujad mujtahid);
Safety from calamities is more awe-inspiring for those in authority (As-salamah min al-afat ahyab li-dhawi al-wilayat);
The judge strives (yajtahid) in seeking the truth and has a reward in both cases, whether he is correct or makes a mistake (Yajtahid al-Qadi fi talab al-haqq wa lahu al-ajr fi al-halayn, in asaba wa in akhta);
The ruler’s judgment does not alter matters from what they are, or the ruler’s judgment does not change the realities of matters (Inna hukm al-hakim la yuhil al-umur ‘amma hiya ‘alayh aw inna hukm al-hakim la yughayyir min haqa’iq al-umur);
The judge must judge by the Book of God, then by the Sunnah of the Messenger of God, then by what the righteous have agreed upon, then by what he chooses (‘Ala al-Qadi an yaqdi bi-Kitab Allah thumma bi-Sunnat Rasul Allah thumma bima ittafaqa ‘alayhi al-salihun thumma bima yakhtar);
The judge must rule by his own Ijtihad and is not required to rule by the Ijtihad of another (‘Ala al-Qadi an yahkum bi-ijtihad nafsih wa laysa ‘alayhi an yahkum bi-ijtihad ghayrih);
The judge has no right to deviate from the consensus of his age to his own Ijtihad (Laysa lil-Qadi an ya’dil ‘an ijma’ ‘asrihi ila ijtihad nafsih);
Judgement is only after hearing from both adversaries (Innama yakun al-qada ba’d al-sama’ min al-khasmayn);
Reviewing the truth is better than persisting in falsehood (Muraja’at al-haqq khayr min al-tamadi fi al-batil);
Judgement based on unknowns is not valid, nor is testimony regarding them (Al-qada bi-al-majahil la yasihh wa la al-shahadah ‘alayha);
Fixed punishments are averted by doubts (Tadra’ al-hudud bi-al-shubuhat);
For the Imam to err in pardon is better than to err in punishment (An yukhti’ al-Imam fi al-‘afw khayr min an yukhti’ fi al-‘uqubah);
If fixed punishments are raised to the Imam, there is no intercession and the punishment is obligatory (Iza rufi’at al-hudud lil-Imam fala shafa’ah wa wajab al-hadd);
The judgment of an accused person is not accepted (La yuqbal hukm min muttaham);
Ijtihad is not annulled by its like (Al-ijtihad la yunqad bi-mithlih);
A person is held accountable by his confession (Al-mar’ mu’akhaz bi-iqrarih);
Confession is restricted proof (Al-iqrar hujjah qasirah);
There is no confession with impurities of will (La iqrar ma’a shawa’ib al-iradah);
Accusation impugns dispositions (At-tuhmah taqdah fi al-tasarrufat);
Confession regarding the impossible is void, or confession regarding what Shari’a and reason contradict is void (Al-iqrar fi al-muhal batil, aw al-iqrar fima yunaqiduhu al-shar’ wa al-‘aql batil);
Retracting a confession in rights of people is not accepted. And in the right of God, regarding what falls by doubt, it is accepted, and what does not, is not (Ar-ruju’ ‘an al-iqrar fi huquq al-‘ibad la yuqbal. Wa fi haqq Allah mimma yasqut bi-al-shubhah yuqbal wa ma la fala);
It is more cautious to ensure the justice of witnesses, and this is emphasized in fixed punishments (Al-ahwat at-tawaththuq min ‘adalat al-shuhud, wa yata’akkad zalik fi al-hudud);
Testimony is only upon certainty, not upon conjecture (Innama takun al-shahadah ‘ala al-yaqin la ‘ala al-zann);
He for whom the judge’s testimony is not permissible, his judgement for him is not permissible (Man la tajuz shahadat al-Qadi lahu la yajuz qada’uhu lah);
Testimony upon testimony is permissible when the original is impossible (Tajuz al-shahadah ‘ala al-shahadah ‘inda ta’azzur al-asl);
Every testimony that implies drawing a benefit for the witness or repelling a loss from him is rejected (Kull shahadah tadammanat jarr maghnam lil-shahid, aw daf’ maghram ‘anhu turadd);
The trustee is believed by his oath regarding the exemption of his liability (Al-amin yusaddaq bi-yaminih fi bara’at zimmatih);
No one swears on behalf of another (La yahlif ahad ‘an ghayrih);
The oath is prescribed in rights, not in fixed punishments (Tushra’ al-yamin fi al-huquq la al-hudud);
The oath of the defendant is not accepted after his refusal (Nukul) and the issuance of the judgment (La tuqbal yamin al-mudda’a ‘alayh ba’d nukuhlih wa sudur al-hukm);
Evidence is upon the claimant, and the oath is upon he who denies (Al-bayyinah ‘ala al-mudda’i, wa al-yamin ‘ala man ankar);
Evidence is prior to the oath and is accepted after it (Al-bayyinah muqaddamah ‘ala al-yamin wa tuqbal ba’dah);
If evidences conflict, they are acted upon when equal; otherwise, the preponderant is acted upon; otherwise, both fall (Iza ta’aradat bayyinat yu’mal biha ‘inda tasawiha, wa illa yu’mal bi-al-rajihah, wa illa tasaqata);
The judge judges by his knowledge during his tenure, and regarding his judgment by his knowledge prior to it, there is disagreement (Yaqdi al-Qadi bi-‘ilmih hal wilayatih, wa qada’uhu bi-‘ilmih qablaha fihi khilaf);
The letter of a judge to his like is like addressing him in establishing the ruling (Kitab al-Qadi ila mithlih kal-khitab lahu fi ithbat al-hukm);
The definitive and preponderant indication stands in place of evidence in establishing rights (Taqum al-qarinah al-qati’ah wa al-rajihah maqam al-bayyinah fi ithbat al-huquq);
Drawing lots is only when interests and rights are equal (Innama takun al-qur’ah iza tasawat al-masalih wa al-huquq);
Expanding provision for judges so they have strength and there is an argument against them (At-tawsi’ah ‘ala al-qudat fi al-rizq liyakuna lahum quwwah wa ‘alayhim hujjah);
Gifts to workers are misappropriation, or the judge does not accept a gift from a litigant (Hadaya al-‘ummal ghulul aw la yaqbal al-Qadi hadiyyat mukhasim);
Bribery in judgment is from illicit gain (Ar-rishwah fi al-hukm min al-suht).

Jurisprudential Rules of the Chapter of Judgement, According to Shiites

The most important jurisprudential rules raised in the chapter of Judgement among Shiites are:

The confession of rational people against themselves is permissible (Iqrar al-‘uqala ‘ala anfusihim ja’iz);
Bind them to what they have bound themselves to (Alzimuhum bima alzamuu anfusahum);
Evidence is upon the claimant and the oath is upon he who denies (Al-bayyinah ‘ala al-mudda’i wa al-yamin ‘ala man ankar);
Everything that is doubtful between lawful and unlawful is carried upon the lawful (Kull shay’ kana mushtabihan bayn al-halal wa al-haram yuhmal ‘ala al-halal);
Debt is prior to inheritance (Ad-dayn muqaddam ‘ala al-irth);
The guarantor is liable (Az-za’im gharim);
People have dominion over their properties and themselves (An-nas musallatun ‘ala amwalihim wa anfusihim);
Carrying the act of a Muslim upon correctness (Haml fi’l al-Muslim ‘ala al-sihhah);
Hearing nothing but denial after confession (Adam sama’ illa inkar ba’d al-iqrar);
Contracts follow intentions (Al-‘uqud tabi’ah lil-qusud);
Upon the hand is what it took until it returns it (‘Ala al-yad ma akhazat hatta tu’addiyah);
The deceived has recourse to the deceiver (Al-maghrur yarji’ ‘ala man gharrah);
For every problematic matter, there is casting of lots (Li-kull amr mushkil qur’ah);
No harm and no reciprocating harm in Islam (La darar wa la dirar fi al-Islam);
The legally prohibited is like the rationally impossible (Al-mamnu’ shar’an kal-mumtani’ ‘aqlan);
Whoever owns a thing owns the confession regarding it (Man malaka shay’an malaka al-iqrar bih);
And never will Allah grant to the disbelievers a way over the believers (Wa lan yaj’al Allah lil-kafirin ‘ala al-mu’minin sabila);
And He has not placed upon you in religion any difficulty (Wa ma ja’ala ‘alaykum fi al-din min haraj);
The usurper is taken by the harshest of conditions (Al-ghasib yu’khaz bi-ashaqq al-ahwal);
No statement is attributed to a silent person (La yunsab lil-sakit qawl);
The ruler is the guardian of the abstainer (Al-hakim waliyy al-mumtani’);
The ruler is the guardian of he who has no guardian (Al-hakim waliyy man la waliyya lah);
The absentee is upon his argument (Al-gha’ib ‘ala hujjatih);
Writing is like speech (Al-kitab kal-khitab);
The old right is not annulled by anything (Al-haqq al-qadim la yubtiluhu shay’);
Compromise is permissible among Muslims except a compromise that permits a prohibition or prohibits a permission (As-sulh ja’iz bayn al-Muslimin illa sulhan ahalla haraman wa harrama halalan);
The condition is permissible among Muslims except a condition that permits a prohibition or prohibits a permission (Ash-shart ja’iz bayn al-Muslimin illa shartan ahalla haraman aw harrama halalan);
There is no dissimulation (Taqiyyah) in blood (La taqiyyah fi al-dima);
The intentional act of a child is like a mistake (‘Amd al-sabi bi-manzilat al-khata);
Islam wipes out what came before it (Al-Islam yajubbu ma qablah);
Establishing fixed punishments belongs to him to whom judgment belongs (Iqamat al-hudud ila man ilayhi al-hukm);
Fixed punishments are averted by doubts (Al-hudud tadra’ bi-al-shubuhat);
The blood of a Muslim does not go in vain (Dam al-Muslim la yazhab hadara);
Necessities are estimated by their extent (Ad-darurat tutaqaddar bi-qadariha);
Necessities permit prohibitions (Ad-darurat tubih al-mahzurat);
Every felony for which there is no fixed estimation has an indemnity (Arsh) (Kull jinayah la muqaddar laha fafiha arsh);
Every organ for which retaliation (Qisas) is taken in its existence, blood money (Diyah) is taken in its loss (Kull ‘udw tuqtassu minhu ma’a wujudih tu’khaz al-diyah ma’a faqdih);
Every prohibited thing to which one is compelled is lawful (Kull muharram udturra ilayh fahuwa halal);
Permission in a thing is permission in its requisites (Al-izn fi al-shay’ izn fi lawazimih);
Indeed, conjecture avails not against the truth at all (Inna al-zann la yughni ‘an al-haqq shay’an);
The legally prohibited is like the rationally impossible (Al-mamnu’ shar’an kal-mumtani’ ‘aqlan);
The Principle is the evidence where there is no evidence (Al-asl dalil haythu la dalil);
Ijtihad is not annulled by its like (Al-ijtihad la yunqad bi-mithlih);
If probability comes, reasoning becomes void (Iza ja’a al-ihtimal batala al-istidlal).