Note: The conflict of Principle (Asl) and Appearance (Zahir), despite seemingly being a clear matter, has numerous hidden dimensions, the first of which is the definition of these two concepts. Hujjat al-Islam wal-Muslimeen Mohammad Javad Ahmadkhani, a professor of the Advanced Levels (Sutuh-e ‘Ali) at the Qom Seminary, in this exclusive note, addresses the clarification of the point of dispute (Tahrir-e Mahall-e Niza’) in this conflict as well as its various dimensions. This note can be considered an introduction to this discussion.

The discussion of the conflict of evidences is one of the fundamental discussions in Jurisprudence (Fiqh) and Principles of Jurisprudence (Usul al-Fiqh), the precise understanding of which, especially in the chapters of Judgement (Qaza), has a direct impact on the realization of rights and the implementation of justice. One of the most frequently used instances of this conflict is the confrontation between “Principle” and “Appearance.” The importance of this discussion lies in the fact that the criterion for distinguishing the “Claimant” (Mudda’i) from the “Denier” (Munkir) and, consequently, determining the burden of proof (Al-Bayyinah ‘ala al-Mudda’i) is often based upon it.

Explaining the Intent of “Principle” and “Appearance”

The intent of “Principle” in this context refers to rules and principles whose authority (Hujjiyyah) is established and taken for granted (Mafrugh ‘anh) by the Shari’a or reason. These principles often pertain to the previous state or a state of non-existence. Prominent examples include Presumption of Continuity (Istishab) and the Principle of Exemption (Asalat al-Bara’ah). Some of these Rational Principles are so solid that the legislator in positive law has also recognized them as legal presumptions (Amarah-ye Qanuni), such as the Rule of Possession (Qa’idah-ye Yad), which is reflected in Article 35 of the Civil Code of Iran. The authority of these principles is deep-rooted and agreed upon.

In contrast, “Appearance” or “Appearance of the State” (Zahir-e Hal) refers to an objective and tangible situation that creates a strong surmise regarding a matter based on external indicators (Qara’in) and circumstances. This concept in positive law bears much resemblance to the institution of Judicial Presumption (Amarah-ye Qaza’i), which is referred to in Article 1324 of the Civil Code of Iran, and its determination is left to the judge’s discretion. However, it must be noted that the authority of “Appearance” in jurisprudence is not established by itself and intrinsically, but requires the ascertainment of the Lawgiver’s endorsement (Imza-ye Shari’), whereas the validity of judicial presumption originates from the legislator’s will.

Cases of Using the Precedence of Appearance over Principle in the Jurisprudence of Judgement

Regarding the precedence of one over the other, various opinions exist. Some jurists, like Imam Khomeini (RA), due to the solidity of principles, consider the statement agreeing with the Principle to be prior. However, another view, emphasized by jurists like Ayatollah Sistani (May his shadow last), grants special validity to the “Appearance of the State” in the position of distinguishing the claimant from the denier. Based on this foundation, several cases can be stated as examples:

1. Dispute in the Occurrence of Intercourse: In a dispute between spouses after complete privacy (Khalwat-e Tammah) and years of living together, the husband’s statement regarding non-consummation agrees with the Presumption of Continuity of non-consummation (a Principle). However, the Appearance of the State and the definitive custom of a long shared life is a strong indication (Amarah) of the occurrence of intimacy. Here, proponents of the precedence of Appearance place the husband in the position of the claimant for raising a claim contrary to Appearance, requiring him to prove an exceptional and unconventional matter.

2. Dispute in the Nature of Paid Property: If the husband has given property to the wife, the “Principle” is non-donation (Adam-e Tabarru’) and payment for a debt (Dowry/Mahr). However, if indicators and circumstances (judicial presumptions), such as paying a specific amount on the spouse’s birthday or Eid, indicate it being a gift (Hibah), this Appearance takes precedence over that Principle, and the woman who claims it is a gift is considered the denier (Munkir).

3. Dispute over Household Effects: After separation, if there is a dispute over the ownership of household effects, the Principle of Possession (Yad) dictates that whatever property is in the possession of each spouse belongs to them. However, the Appearance of the State originating from custom has another ruling; customarily, items like jewelry and cosmetics are specific to women, and technical tools are specific to men. Here, Customary Appearance takes precedence over the Principle of Possession.

4. Claim of Insolvency (I’sar) and Inability to Pay Debt: The “Principle” regarding every debtor is their ability to pay the debt (Asalat al-Yasar). However, if the individual’s “Appearance of the State,” such as their clothing, housing, and job situation, clearly indicates poverty and inability, this Appearance can take precedence over the mentioned Principle, placing the burden of proving the debtor’s financial ability on the creditor.

Nevertheless, it must be emphasized that the mere existence of this procedure in positive law does not create Shari’a authority for it. From a jurisprudential perspective, the main question is: where does the validity of “Appearance of the State” or “Judicial Presumption” originate? Mere delegation to the judge’s opinion by the legislator is not sufficient for the jurist, and its authority must be documented by valid evidence endorsed by the Lawgiver.

Precedence of Appearance over Principle and the Suspicion of “Religion Becoming Customary”

One must distinguish between the domain of rulings and the domain of diagnosing subjects. Validating “Appearance of the State” takes place in the second domain, i.e., in the position of subject diagnosis. That is, in the position of judgement, we refer to Appearance to identify the claimant, and this does not mean changing the fixed Shari’a ruling. Of course, this point must also be noted that although this distinction seems correct in theory, in practice, it must be observed with care so that the expansion in subject diagnosis via custom does not lead to negligence in applying the Shari’a ruling and changing its content.

Relationship between “Authority of Appearance of the State” and “Reprehensible Appearance-Orientation”

First, let us point out that the authority and validity of “Appearance of the State” is not an invention of the Lawgiver; rather, it is rooted in a general rational tradition. Rational people of the world in all societies, to manage daily affairs and resolve their disputes, inevitably rely on valid appearances. If proving the ownership of every good required definitive knowledge and the chain of previous hands back to the first producer, no transaction would take place. The Holy Lawgiver has also endorsed and confirmed this rational method as an efficient and necessary tool for the Islamic legal system; thus, its validity is not a foundational (Ta’sisi) validity, but an endorsed (Imza’i) one. Islamic jurisprudence is based on the premise that in the world of proof (Isbat) and judgement, access to realities-in-themselves (Nafs al-Amri) is not always possible, and sufficing with valid and rational conjecture (Zann) is adequate for preserving order and preventing the violation of rights. The judge trusts “Possession” (Yad) and “Disposition” (Tasarruf), not because he has definitive knowledge of the possessor’s ownership, but because “Possession” is the best and most valid conjectural revealer of ownership. So, this Appearance of the State is a way to determine the duty of the parties to the dispute and has nothing to do with reprehensible appearance-orientation (Zahir-garayi-ye Mazmum). Reprehensible appearance-orientation is superficial and hasty judgment based on individuals’ appearance and personal guesses, which is severely forbidden in Islamic ethics. This type of judgment does not become the basis for determining Shari’a and legal rights and duties.

Conflict of Appearance with “Rational Principles” (Legal Presumptions)

Even if the intent of “Principle” (Asl) is Rational Principles (Usul-e Oqala’i)—such as the Principle of Correctness (Asalat al-Sihhah)—in the position of conflict, Appearance (Zahir) still takes precedence over the Principle.

The reason for this precedence is that Rational Principles are rules that rational agents (Oqala) have established for organizing affairs and facilitating social relations based on prevalence (Ghalabah) and probability. For example, the Principle of Correctness says to assume the correctness of others’ actions so that the order of transactions is preserved. But this is an assumption used in the absence of contrary evidence.

In contrast, Appearance (like possession or confession) is itself an indication (Amarah) and a revealer of reality. When the Appearance of a matter shows something contrary to the Principle of Correctness (e.g., an individual selling goods with obvious signs of being stolen), rationally, heed is paid to this Appearance, and adherence to that general and hypothetical principle is abandoned. In other words, “Appearance” is specific evidence regarding a specific subject, whereas “Rational Principle” is a general rule, and specific evidence always takes precedence over the general rule by adhering to the rule of “Precedence of the Specific over the General.”

Existence of the Rule of Precedence of Appearance over Principle in Other Legal Schools

The distinction between Principle and Appearance is also clearly seen in the world’s legal systems.

• “Appearance of the State” in jurisprudence is equivalent to Judicial Presumptions in the Civil Law system, crystallized in the French Civil Code and consequently in Article 1324 of the Civil Code of Iran.

• Valid jurisprudential principles, such as the Rule of Possession or the Principle of Correctness, are equivalent to “Legal Presumptions” referred to in Article 1322 of the Civil Code of Iran.

This similarity shows that referring to Appearance is a rational matter consistent with the logical procedure of adjudication. Nevertheless, this point should not make us neglectful that in the Islamic jurisprudential system, the authority of any evidence must ultimately return to the endorsement of the Holy Lawgiver. The mere existence of similar procedures in other legal systems and their enactment does not create Shari’a authority for it, and ascertaining the Lawgiver’s satisfaction is a principle that must be carefully considered by the jurist in all stages of deduction.