Note: Among the books written on judicial jurisprudence and criminal and judicial law, a book exclusively dedicated to judicial practical principles (usul-e ‘amaliyyeh-ye qaza’i) has not been found. However, there are books that have addressed practical principles by applying them to judicial jurisprudence or have discussed the rules (qawa’id) of judicial jurisprudence. Below is a brief report on these books.
Applied Principles of Islamic Jurisprudence (Usul-e Fiqh-e Karbordi), Volume Three (Practical Principles and Conflict of Evidence)
Hossein Ghafi and Saeed Shariati, SAMT Publications Organization, 25th Edition, 1403 HS (2024/2025), 268 pages.
The book Applied Principles of Islamic Jurisprudence (Practical Principles and Conflict of Evidence) Volume Three is a valuable work in the field of Islamic sciences and jurisprudence, examining and analyzing the practical principles and the conflict of evidence. With its academic and educational approach, this book has a systematic and methodical structure and strives to study the concepts of the principles of Islamic jurisprudence (usul al-fiqh) in an applied and precise manner. This volume, as a significant part of the “Applied Principles of Islamic Jurisprudence” series, analyzes the key issues of practical principles and how to resolve conflicts among evidences. The reason for mentioning this book in the bibliography of judicial practical principles is its focus on citing judicial jurisprudential and legal examples; a feature less commonly found in other books addressing the principles of Islamic jurisprudence and the exposition of practical principles.
Content of the Book
Chapter Four: Practical Principles
Section One: General Points and Preliminary Matters
This section examines the theoretical foundations of the practical principles, their position in the inference (istinbat) of rulings, and how they are implemented. It also addresses the general categorization of practical principles in Shi’a jurisprudence and its distinction from the principles of Islamic jurisprudence in Sunni Islam.
Section Two: The Principle of Istishab (Continuity)
The principle of istishab is one of the most important practical principles, based on the continuity of the previous state in case of doubt. This part addresses the conditions, types, and proofs (adillah) of istishab. Additionally, applied examples of istishab in various jurisprudential domains such as acts of worship (‘ibadat), transactions (mu’amalat), and law are examined.
Section Three: The Principle of Bara’ah (Exemption/Innocence)
The principle of bara’ah, as a principle that emphasizes the removal of obligation in the absence of a specified religious duty (taklif-e shar’i), is examined, and its conditions and foundations are analyzed. This section addresses the application of the principle of bara’ah in Imamiyya jurisprudence and its correspondence or difference with legal principles.
Section Four: The Principle of Ihtiyat (Precaution)
The principle of ihtiyat, which emphasizes observing the aspect of probable obligation, is examined in terms of its foundations, conditions of implementation, and jurisprudential effects. This principle is analyzed in various domains such as adjudication, transactions, and acts of worship, and the different views of legal theorists (usuliyun) regarding it are presented.
Section Five: The Principle of Takhyir (Selection)
The principle of takhyir, which grants the obligatory (mukallaf) the right to choose in situations where several options are presented without preference, is analyzed in this section. In addition to examining the conditions for implementing takhyir, specific instances of takhyir in Shi’a jurisprudence and its difference from Sunni jurisprudence are examined.
Chapter Five: Conflict of Evidence (Ta’arud-e Adillah)
In this chapter, the authors examine the conflict among evidences and the methods of resolving it. Although this chapter of the book is not directly related to practical principles, since the conflict of practical principles and jurisprudential rules is also discussed within its topics, reporting it is beneficial.
Section One: The Concept of Conflict and its Conditions
This section addresses the definition of conflict (ta’arud), the conditions for its occurrence, and the various types of conflict. It also discusses different categorizations of conflict, such as initial (bada’i) and settled (mustaqarr) conflict.
Section Two: Tazahum (Competition/Conflict of Obligations) and its Comparison with Ta’arud
The conceptual and practical differences between ta’arud and tazahum are examined in this section, and the fundamental distinctions between these two concepts are explained. Jurisprudential instances of tazahum in rulings on acts of worship and social matters are also examined.
Section Three: Indirect Conflict and the Criteria for its Resolution
This section explains the solutions for resolving indirect conflict among jurisprudential evidences and its effects on the inference of rulings. Jurisprudential and methodological (usuli) methods for resolving this type of conflict are examined, accompanied by numerous examples.
Section Four: The Ruling on Settled Conflict (Ta’arud-e Mustaqarr)
This section examines the status of settled conflict and the methods of dealing with it. Examining which evidences are given precedence in situations of settled conflict and the principles for resolving this type of conflict are among the important topics of this section.
Section Five: Examination of Some Instances of Conflict of Evidence
In this part, examples of instances of conflict of evidence in jurisprudence are examined, and an attempt is made to provide solutions for them through jurisprudential analysis. Some of these instances include conflict in rulings on purity (taharat), marriage (nikah), and religious transactions.
Chapter Six: Ijtihad and Taqlid (Emulation)
This chapter addresses one of the most important jurisprudential topics, namely ijtihad and taqlid. However, this is outside the scope of our discussion, and therefore we will not elaborate on it.
Features of the Book
Among the most important features of this book are its educational approach, simple and fluent expression suitable for students, and the use of applied jurisprudential and legal examples.
The Book: “Jurisprudential Rules: Judicial Section” (Qawa’id-e Fiqh: Bakhsh-e Qaza’i)
Seyed Mostafa Mohaghegh Damad, Islamic Sciences Publishing Center, 1387 HS (2008/2009), 273 pages.
This book is the third volume of the series on jurisprudential rules authored by Dr. Mostafa Mohaghegh Damad. The topics of this volume are dedicated to the rules of penal jurisprudence (fiqh-e jaza’i). This volume consists of six chapters, each dedicated to one of the important judicial rules. In the following, each chapter of this book is briefly examined.
Chapter One: Islamic Culture and Civilization and its Judicial Organization
This chapter is divided into three main sections:
Section One: The Background of Islamic Culture and Civilization
This section examines the course of development and transformation of Islamic civilization and its impact on judicial systems in Islamic societies. In this part, the author refers to the formation of judicial institutions in the history of Islam and analyzes the manner of their interaction with religious and cultural teachings. The impact of Islamic civilization on contemporary legal systems is also addressed.
Section Two: Judicial Procedure (A’in-e Dadrasi) in Islam
In this part, the process of adjudication in the Islamic legal system is examined and compared with modern methods of procedure in contemporary law. Topics such as the procedure for filing a lawsuit, the method of examining evidence, and the methods of issuing judgments in the Islamic judicial system are among the subjects discussed in this section. In addition, the characteristics of the Islamic judge, his responsibilities, and the conditions for adjudication are also explained.
Section Three: Judicial Organizations in Islamic States
In this section, the author examines the various judicial organizations formed in Islamic states, including religious courts (dadgah-ha-ye shar’i) and judicial institutions affiliated with Islamic governments. The manner of administration of these organizations and their relationship with Islamic jurisprudence are other topics discussed in this section.
Chapter Two: The Rule of Bayyinah (Proof/Testimony)
This chapter consists of four sections:
Section One: Sources and Documentation of the Rule
This section examines the religious proofs (adillah-ye shar’i) and jurisprudential sources related to the rule of bayyinah (testimony). In this regard, the author refers to Quranic verses, prophetic hadiths, and the opinions of various jurists concerning this rule and analyzes its jurisprudential documentation.
Section Two: Legal Constructions (Ta’sis-ha-ye Hoquqi) of the Rule
In this part, the legal concepts related to the rule of bayyinah and its role in proving legal and criminal claims are examined. A comparison is also made between the position of testimony in the Islamic judicial system and contemporary legal systems.
Section Three: Conditions for Accepting Bayyinah
In this part, the conditions that testimony must fulfill to be accepted in court are examined, including the justice (‘adalah) of witnesses, the number of witnesses required in various types of claims, and the method of evaluating testimony.
Section Four: Admonitions (Tanbihat) and Exceptional Cases
In this section, points and considerations regarding the validity of testimony, special conditions under which testimony may not be valid, and the method of relying on bayyinah in judicial processes are discussed.
Chapter Three: The Rule of Iqrar (Confession/Admission)
Section One: Jurisprudential and Legal Documentation
In this section, the jurisprudential and legal documentation of the rule of iqrar is examined, and its religious proofs from the Qur’an and hadith are referred to. Additionally, the author examines the views of various jurists regarding the validity of confession/admission in different claims.
Section Two: Conditions and Content (Mafad) of the Rule of Iqrar
The author explains the conditions for the validity of iqrar, its validity in courts, and the extent of its effect in proving claims. Conditions such as intellect (‘aql), maturity (bulugh), free will (ikhtiyar), and intention (qasd) in the validity of iqrar are examined.
Section Three: Cases of Violation (Naqz) and Exception
Points related to the validity of iqrar, the conditions for its acceptance, and how to rely on this rule in legal and criminal claims are discussed. Also, cases in which iqrar lacks validity, such as confession under duress or false confession, are discussed.
Chapter Four: The Rule of the Guardian’s Authority (Wilayat-e Hakem) over the Reluctant/Refractory (Mommen’e’)
This chapter examines the principle of the authority of the ruler (hakem) in cases where individuals refrain from fulfilling their obligations. The author addresses the jurisprudential documentation of this rule and examines the cases of its implementation in legal and criminal claims.
Chapter Five: The Rule of Dar’ (Prevention)
The rule “al-hududu tura’u bi al-shubuhat” (prescribed punishments are averted by doubts) is one of the most important jurisprudential principles in Islamic criminal law. In this chapter, the author examines various instances where, if there is doubt or ambiguity about the occurrence of a crime, the punishment is dropped. In addition to jurisprudential analysis, the author examines the applications of this rule in the judicial practices of Islamic countries. Furthermore, a comparison is made between this rule and similar principles in modern legal systems, such as the presumption of innocence in criminal law.
Chapter Six: The Rule of Trial in Absentia (Dadrasi-ye Gheyabi)
In this chapter, the conditions and rulings of trial in absentia in Islamic jurisprudence are carefully examined. The author analyzes the cases in which it is possible to issue a judgment in absentia and also explains the method of implementing such judgments. The application of this rule to contemporary judicial systems, particularly in relation to the principles of fair trial, is another important topic of this chapter. This chapter also addresses potential challenges and criticisms leveled against trial in absentia and provides jurisprudential solutions to resolve these challenges.
The Book: “Textbook on the Rules of Penal Jurisprudence” (Darsnameh-ye Qawa’ed-e Fiqh-e Jaza’i)
Ahmad Haji Dehabadi, Research Institute of Hawzah and University Publications, 1400 HS (2021/2022), 224 pages.
This book is considered one of the important educational resources in the field of Islamic penal jurisprudence, compiled with the aim of explaining the general principles and rules governing Islamic crimes and punishments. The book is organized into three chapters, each chapter examining a category of jurisprudential rules including hudud and ta’zirat, qisas, and diyat.
Introduction and Generalities
In the introduction, the author addresses the definition of the rules of penal jurisprudence, their place in the Islamic legal system, and the impact of these rules on the inference of criminal rulings and their implementation. The rules of penal jurisprudence are general principles applied in determining hudud, qisas, and diyat, leading to the implementation of Islamic criminal justice. In this section, the author examines the jurisprudential sources of penal rules, the role of Quranic verses, hadiths, and consensus (ijma’) in inferring these rules, as well as the position of these rules in the Islamic Penal Code of Iran.
Chapter One: Rules of Hudud and Ta’zirat
In this chapter, the concept of hudud and ta’zirat is first explained. Hudud refers to punishments whose measure and quality are determined in the Sacred Law (shar’), including crimes such as adultery (zina), false accusation of unchastity (qadhf), consumption of intoxicants (shurb al-khamr), theft (sariqah), enmity against God (muharabah), and corruption on earth (ifsad fi al-ard). On the other hand, ta’zirat refers to punishments whose measure and type depend on the discretion of the religious ruler (hakem-e shar’) and the legislator, including punishments such as imprisonment, discretionary flogging (shallaq-e ghayr-haddi), and pecuniary fines.
Important Rules of Chapter One
The Rule of Dar’ (Prevention): This rule states that in case of doubt (shubhah), the hadd (prescribed punishment) is dropped; meaning, if there is ambiguity in proving a hadd crime, the hadd punishment will not be executed. This rule is derived from the famous hadith “Idra’u al-hududa bi al-shubuhat” (Avert the prescribed punishments by doubts), which has been cited by many Islamic jurists and legal scholars.
The Rule of Repetition of a Hadd Crime (Takrar-e Jorm-e Haddi): According to this rule, if an individual repeats a hadd crime several times, his punishments are intensified depending on the type of crime. For example, in the crime of hadd theft, the right hand is amputated first; upon repetition, the left foot; and in subsequent instances, the death penalty may be issued.
The Rule of Multiplicity of a Hadd Crime (Ta’addod-e Jorm-e Haddi): This rule determines whether, if an individual commits several different hadd crimes, all punishments are applied to him or not. Some jurists believe that if implementing all the hudud would result in the individual’s death, the most severe hadd is implemented, and the rest are not applied.
The Rule of Authority (Wilayat) in Implementing Hudud: This rule emphasizes that the implementation of hudud is solely the responsibility of the religious ruler (hakem-e shar’) and the Islamic state, and ordinary individuals are not permitted to execute hadd punishments.
Chapter Two: Rules of Qisas (Retribution)
Qisas is one of the most important principles of criminal justice in Islam, based on proportionate retribution in crimes against life and bodily limbs. This chapter examines the rules that specify how qisas is implemented and its conditions.
Important Rules of Chapter Two
The Rule of Merger/Integration (Tadakhul) in Qisas: This rule addresses cases where an individual has committed multiple intentional felonies (jenayat-e ‘amdi). In such a situation, it is examined whether all felonies are subject to separate qisas or not.
The Rule of Equality of Men and Women in Qisas Below the Threshold of Homicide (Qisas-e Madun-e Nafs): This rule states that in felonies other than murder, men and women are equal in the implementation of qisas.
The Rule of Prohibition of Punishment Exceeding the Felony (‘Adam-e Javaz-e Mojazat-e Bishtar az Jenayat): This rule stipulates that qisas must not exceed the injury inflicted; for example, if a person causes the amputation of one finger, more than that amount cannot be implemented in his qisas.
The Rule of Pardon (‘Afv) in Qisas: This rule emphasizes the right of the heirs of the victim (awliya-ye dam) to pardon qisas and convert it to blood money (diyah).
Chapter Three: Rules of Diyat (Blood Money)
Diyat is one of the methods of compensation in Islamic penal jurisprudence, applied in unintentional homicide and bodily injuries. This chapter examines the important rules involved in the calculation and implementation of diyah.
Important Rules of Chapter Three
The Rule of Diyah for Paralyzing Limbs (Diyah-ye Falaj Kardan-e A’za’): This rule specifies how the amount of diyah is determined if a limb of the body becomes paralyzed but is not amputated.
The Rule of Arsh (Compensation for Injuries without Prescribed Diyah): This rule addresses the determination of the amount of diyah in cases where a specific amount has not been set for it in the Sacred Law (shar’), delegating its assessment to the discretion of the judge.
The Rule of Merger/Integration (Tadakhul) of Diyat: This rule examines whether, if a person inflicts multiple injuries upon another’s body, the diyah for all of them is calculated separately or some of them merge with each other.
The Rule of Diyah for the Crime of Feticide (Diyah-ye Qatl-e Janin): This rule specifies that the amount of diyah in case of abortion varies depending on the stage of fetal development. In Islamic jurisprudence, the diyah for a fetus has a specific amount at each stage of development.