Note: Hujjat al-Islam wal-Muslimeen Dr. Ali Sharifi, born in 1353 solar hijri (1974 CE) in Bamiyan, Afghanistan, has, in addition to many years of participation in advanced (khārij) classes in jurisprudence and principles at the Qom Seminary, earned his PhD in Jurisprudence and Criminal Law from Al-Mustafa International University. His authorship of numerous books and articles in jurisprudence and criminal law, combined with extensive teaching in seminaries and universities and long-term interaction with Sunni scholars, has established him as one of the foremost experts and researchers in Sunni jurisprudence and criminal law. In this exclusive interview with Contemporary Jurisprudence, he discussed the status of procedural principles in Sunni jurisprudence. He holds that, unlike in Shia jurisprudence, their application in Sunni jurisprudence is exceptional and infrequent, though grounded in jurisprudential reasoning. The full transcript of the interview with the Secretary of the Jurisprudence of Judiciary and Criminal Law Group at the Contemporary Jurisprudence Studies Institute follows:

Contemporary Jurisprudence: Are the judicial procedural principles recognized by Sunnis identical to those in Shia jurisprudence, or do they differ? Are procedural principles in Sunni judicial jurisprudence applied as frequently and extensively as they are in Shia jurisprudence?

Sharifi: When we refer to procedural principles (uṣūl ʿamaliyyah), we mean principles that serve as one avenue of deduction (istinbāṭ), ijtihad, and evidence for a sharʿī ruling. This evidential role is, however, understood with some qualification, as these are fiqhī evidences rather than strictly ijtihādī ones.

In the field of law proper, no concept of procedural principles exists, and legal science does not recognize them. In other words, procedural principles carry no substantive meaning within legal doctrine. Naturally, law requires principles and foundations, since a jurist’s task is to reflect on laws capable of governing society, and every enacted law must rest on foundations that justify its rationale. For instance, the command to amputate a thief’s hand rests on certain principles and criteria that explain its justification. These, however, are not procedural principles and differ fundamentally from them. Thus, if the question concerns the place of procedural principles in Sunni law, the answer is negative.

Regarding the application of procedural principles in Sunni jurisprudence—particularly in its judicial branch—the answer is affirmative: Sunnis do possess principles such as istiṣḥāb and barāʾah and employ them in various situations, though their formulation and scope of application differ from those in Shia jurisprudence. Nevertheless, a significant general distinction exists: in Sunni jurisprudence, procedural principles have an exceptional and highly limited role, whereas in Shia jurisprudence they have become virtually the norm. This difference arises because Shia deduction relies exclusively on the Qur’an, Sunnah, reason, and consensus, leaving many cases without a clear ruling in these sources, thus necessitating recourse to procedural principles. In contrast, Sunni jurisprudence incorporates additional tools—such as qiyās, istiḥsān, sadd al-dharāʾiʿ, maṣāliḥ mursalah, and the practice of the Companions—meaning rulings are typically found within these sources, and only rarely is resort to procedural principles required.

Another crucial distinction is that procedural principles in non-judicial chapters of fiqh generally pertain to substantive rulings (aḥkām), whereas those in judicial fiqh primarily serve for subject-matter determination (mawḍūʿ-shināsī). Judicial procedural principles apply precisely where the ruling is known but doubt surrounds the instantiation of its subject. For example, under the rule of darʾ, when the ruling is established but it is uncertain whether the individual falls under its subject, the rule of darʾ holds that punishment may not be imposed absent certainty of applicability.

Contemporary Jurisprudence: Have Shia procedural principles conferred greater practical efficiency upon Shia jurisprudence relative to Sunni jurisprudence, or is the difference confined to the hereafter-oriented concern of establishing excuse before Almighty God?

Sharifi: If efficiency means clarifying the practical duty of both mujtahid and mukallaf, then yes: procedural principles are highly effective for the mujtahid. Sunnis either lack certain principles or apply those they possess in very restricted circumstances. In Shia jurisprudence, thanks to these principles, no incident lacks a ruling: when indicants (amārāt) fail to yield a determination, procedural principles provide the necessary guidance. In this sense, Shia procedural principles are indeed highly efficient.

If, however, efficiency refers to rendering jurisprudence more dynamic, responsive, and adaptable to changing times, then no: procedural principles have not assisted Shia jurisprudence in this regard and are in fact among the factors contributing to its lag behind temporal developments. Reliance on them merely defines the mukallaf’s duty without addressing underlying questions. This limitation is especially pronounced with respect to certain non-rational and non-customary principles, such as retrogressive istiṣḥāb and istiṣḥāb of primordial non-existence, where Sunni deductive tools prove more effective and adaptive.

Contemporary Jurisprudence: What are the principal challenges in applying procedural principles within Sunni judicial jurisprudence? What steps have been taken to overcome these challenges?

Sharifi: In Shia jurisprudence we encounter certain “rulings” that are in truth apparent rulings (aḥkām ẓāhiriyyah) rather than real ones and serve only to exempt from actual liability (taʿdhīr min al-wāqiʿ). This generates significant challenges for the customary acceptability of Shia rulings. In Sunni jurisprudence, by contrast, where multiple avenues exist for ascertaining the real ruling, such challenges are considerably fewer.

Moreover, our principles of jurisprudence are hereafter-oriented, seeking solely to establish excuse for the mukallaf on the Day of Resurrection; whereas Sunni principles of jurisprudence are this-world-oriented and thus provoke far fewer objections from duty-bound individuals and the prevailing custom.