Note: Hujjat al-Islam wal-Muslimeen Dr. Masoud Ra’i is one of the most prominent professors of international law in Iran. Authoring several books and more than 200 articles in the field of international law has made him one of the most important professors of international law in Iran. Born in 1966 in Isfahan, he obtained his PhD in international law from Islamic Azad University and is currently a full professor at Islamic Azad University, Najafabad Branch. In this oral note, he has discussed the flow of principles of juristic operation in legal schools other than the Islamic legal school. He believes that many principles of juristic operation are the product of human reflections, and this very fact has caused their application in non-Islamic legal schools. The full text of the exclusive note by this prominent professor and researcher in international law follows:

Regarding the feasibility of the executive application of principles of juristic operation in legal schools, several points are worth examining.

First, legal schools, in a major and broad classification, fall into natural law schools and positivism. This broad classification exists in the discipline and branches of law, such as public law, private law, commercial law, criminal law, and international law. With reference to this first point, when speaking of the flow of principles of juristic operation in legal schools, as a rule, in this perspective, no specific broad discipline or branch is intended, and the response provided will solely address the possibility or impossibility of the existence of principles of juristic operation in legal schools, irrespective of their branches and disciplines.

Second, each of the disciplines and branches under natural law and positivist law forms smaller legal schools, the variety of which is very extensive; for example, when we specifically enter the international schools, two major schools emerge: the subjectivist school or the school of primacy of facts (objectivism), and the school of primacy of will (voluntarism). An examination of the primacy of facts leads us to the understanding that this school is, in fact, a subset of the primacy of will, and that, in truth, is the positivist school itself. Likewise, upon reflection, we realize that the natural law school itself branches into multiple sub-schools; just as positivism also has four sub-branches, including schools such as the New Haven School, which is the newest school in international law.

Third, the answer to this question can be provided in two forms: one concise response and two detailed responses.

In the concise response, the answer is affirmative; because the principles of juristic operation (usul ‘amaliyyah) discussed in usul al-fiqh are products of human thought, and the narrations (hadiths) also have a guiding (irshadi) aspect in this regard. Although in the discussion of bara’ah, the late Shaykh Ansari pursued a specific approach, the overall issue is that the rational individuals of the world, when confronted with an ambiguous matter in terms of ruling and where no principle or rule has been designed to resolve that difficulty, resort to such principles as bara’ah, precaution (ihtiyat), and continuity (istishab). This point is the same perspective presented by Ayatollah Sobhani in his classification of these principles into four principles in his usul book Al-Mujaz, where he fully explains the reason that these principles are rational (‘aqli). Reflection on this perspective shows that we are, in fact, dealing with a shared rational understanding among all rational people. This is the concise response.

However, the detailed response will be as follows: Upon considering the disciplines-branches of law and the schools defined under these disciplines-branches, such as criminal law schools and public law schools, we realize that these principles are, in some cases, presented as the product of human knowledge. For example, in international law, we have a rule called the Rebus sic stantibus rule (fundamental change of circumstances), the content of which is equivalent to the same meaning presented in the procedural principle of bara’ah. This rule indicates that whatever is not prohibited in international law is permitted; therefore, in the first stage, what is forbidden in international law must be proven; otherwise, as long as it has not been proven, we rule in favor of its permissibility. For instance, if a submarine in the territorial waters of a country does not surface and hoist its flag, doubt arises as to whether such an act is prohibited in international law or not. In response to this question, it is said that as long as there is no certainty of its prohibition, a ruling of permissibility is issued—which is, in other words, the principle of bara’ah. Of course, just as sometimes doubt arises in the application of the bara’ah rule as to whether its subject matter has occurred or not, similar doubt arises in the application of the Rebus sic stantibus rule; for example, if there is doubt whether this submarine is military or non-military? If the submarine is non-military, there is no need to surface, but if it is military, it must surface, and in such cases, the Rebus sic stantibus rule does not apply. However, in general, the Rebus sic stantibus rule is equivalent to the principle of bara’ah.

In addition to international law, in private law and criminal law as well, there are instances that indicate the flow of principles of juristic operation in the domain of legal knowledge. For example, in criminal law, as long as there is no probative evidence for punishment, there is no right to punish the accused. This rule, in truth, is the same as the principle of bara’ah.

Final edited version (as Senior Editor):

Masoud Ra’i Principles of Juristic Operation (Usūl ʿAmaliyyah) in Non-Islamic Legal Schools

In international law, we have a rule known as the rebus sic stantibus rule (fundamental change of circumstances), whose substance is equivalent to the meaning articulated in the juristic procedural principle of barāʾah (presumption of non-liability/innocence). This rule holds that whatever is not prohibited in international law is permitted; therefore, in the initial stage, what is forbidden under international law must first be proven; otherwise, so long as prohibition has not been established, a ruling of permissibility is issued.

Note: Hujjat al-Islām wal-Muslimīn Dr. Masoud Ra’i ranks among Iran’s most distinguished professors of international law. Having authored several books and over 200 articles in the field of international law, he stands as one of the foremost scholars in this discipline in Iran. Born in 1966 in Isfahan, he earned his PhD in international law from Islamic Azad University and currently serves as a full professor at Islamic Azad University, Najafabad Branch. In this oral commentary, he addresses the application of principles of juristic operation in legal schools outside the Islamic tradition. He maintains that many such principles stem from human rational reflection, which accounts for their presence and operation in non-Islamic legal schools. The complete text of this exclusive note by the eminent professor and researcher in international law follows:

Regarding the feasibility of applying principles of juristic operation in various legal schools, several points merit consideration.

First, legal schools, in a broad overarching classification, are divided into natural law schools and positivist schools. This major classification applies across legal disciplines and branches, including public law, private law, commercial law, criminal law, and international law. Bearing this initial point in mind, when discussing the flow of principles of juristic operation within legal schools, ordinarily no particular discipline or branch is specifically targeted in this broad view; the response addresses solely the possibility or impossibility of such principles existing within legal schools, independent of their specific branches or sub-disciplines.

Second, each discipline and branch falling under natural law or positivism itself comprises smaller, more specialized legal schools of considerable diversity. For instance, within international law schools in particular, two principal schools are recognized: the subjectivist school (or school of primacy of facts/objectivism) and the voluntarist school (primacy of will). Analysis of the primacy-of-facts school reveals that it is effectively a subset of the primacy-of-will school, which in turn is essentially the positivist school itself. Similarly, reflection shows that the natural law school branches into multiple sub-schools, just as positivism itself divides into four sub-branches, including the New Haven School—the most recent school in international law.

Third, the question can be answered in two manners: one summary response and two detailed responses.

The summary response is affirmative; the principles of juristic operation (usūl ʿamaliyyah) discussed in usūl al-fiqh are products of human intellectual effort, and the relevant narrations possess a guiding (irshādī) character in this respect. Although the late Shaykh Anṣārī adopted a distinctive approach in treating barāʾah, the general proposition remains that rational individuals worldwide, when facing an ambiguous ruling and lacking a pre-established principle or rule to resolve the ambiguity, resort to principles such as barāʾah, precaution (iḥtiyāṭ), and continuity (istiṣḥāb). This is precisely the view expounded by Ayatollah Sobhani, who classifies these principles into four rational principles in his usūl work Al-Mūjaz, clearly demonstrating their rational (‘aqlī) foundation. Reflection upon this perspective reveals that we are dealing with a shared rational understanding common to all rational beings. This constitutes the summary answer.

The detailed response, however, proceeds as follows: Upon examining the disciplines and branches of law—along with the schools defined thereunder, such as those in criminal law and public law—we observe that these principles appear in certain instances as achievements of human knowledge. For example, international law contains the rebus sic stantibus rule (fundamental change of circumstances), whose substance matches the meaning conveyed by the procedural principle of barāʾah. The rule asserts that whatever is not prohibited in international law is permitted; thus, prohibition under international law must first be proven, failing which a ruling of permissibility obtains. By way of illustration, if a submarine in a state’s territorial waters fails to surface and display its flag, doubt arises whether such conduct is prohibited in international law. The response is that, absent certainty of prohibition, permissibility is ruled—which is, in other words, the principle of barāʾah. Admittedly, just as doubt sometimes arises concerning whether the subject matter of barāʾah has materialized, similar doubt can occur with rebus sic stantibus—for instance, uncertainty whether the submarine is military or civilian. A civilian submarine need not surface, whereas a military one must; in the latter case, rebus sic stantibus does not apply. Nevertheless, in general terms, the rebus sic stantibus rule serves as the counterpart to the principle of barāʾah.

Beyond international law, private law and criminal law also contain instances demonstrating the operation of principles of juristic operation within the legal domain. In criminal law, for example, so long as no probative evidence establishing punishability exists, no right to impose punishment upon the accused arises. This rule is, in essence, identical to the principle of barāʾah.