Note: Hujjat al-Islām wal-Muslimeen Dr. Alireza Abedi Sarasia is an associate professor at Ferdowsi University of Mashhad and one of the researchers in jurisprudence. For many years, he has been teaching at undergraduate, master’s, and doctoral levels in the Department of Jurisprudence and Foundations of Law at this university. The authorship of more than 50 articles and several books in the fields of jurisprudence and principles is the result of his past research efforts. One of his most important books is “Hermeneutics and Principles of Jurisprudence: An Introduction to Intentionalism,” published by the Islamic Research Foundation of Astan Quds Razavi. We discussed with him the challenges of resorting to judicial procedural principles. After outlining these challenges, he emphasized that resorting to judicial procedural principles distances judicial jurisprudence from its primary goal, which is the discovery of reality. The full text of the exclusive interview of Contemporary Jurisprudence with this scholar and researcher in the seminary and university is as follows:

Contemporary Jurisprudence: What challenges and harms does the use of judicial procedural principles entail? What should be done to address these challenges and harms?

Abedi Sarasia: Procedural principles are a set of legal presumptions that are resorted to when there is doubt about the real ruling and human access to indicative signs (amārāt) is limited, thereby determining the practical and apparent duty of the individual. The historical reality is that these principles did not hold their current position in the past and lacked today’s clarity and transparency; they have achieved their present growth and maturity only in recent centuries, particularly the last century. Today, a significant portion of uṣūl discussions revolves around these principles, occupying a large volume of uṣūl books. Of course, some view this matter negatively and sometimes use the sarcastic expression “uṣūl-bāzī” (playing with principles), which in our opinion is incorrect; because this “fattening” generally refers to theoretical development rather than practical excess! In fact, the current volume results from precision in clarifying the proper position of these principles relative to indicative signs and to one another; without such attention, their correct application is impossible, and the individual is exposed to error in practice.

However, alongside the necessity of “precise discussions” and “correct implementation,” there are two threats that are the focus of our current discussion: excess (ifrāṭ) and deficiency (tafrīṭ); each giving rise to other challenges.

The threat of excess pertains to unregulated and excessive application:

• Excess in precaution (iḥtiyāṭ) leads to hardship (ʿusr wa ḥaraj) and unnecessary strictness.
• Excess in exemption (barāʾah) leads to ignoring many realities.
• Excess in continuity (istiṣḥāb) and choice (takhayyur) similarly results in disregarding reality; moreover, over time, it leads to jurisprudential laziness, causing the individual to feel no need to investigate the truth.

The threat of deficiency pertains to a person refraining from applying procedural principles in situations where they are obligated to do so. Deficiency in applying procedural principles leads a person to resort to pseudo-evidence: a kind of strained reasoning, “evidence fabrication,” esthetic deductions (istinbāṭāt istiḥsānī), opinion-based ijtihād, and reliance on personal appearances and personal conjecture.

It seems that the main cause of these threats and challenges is the lack of clarity and transparency in these principles and their position; that is, despite all the valuable efforts made so far, further refinement is still needed to clarify the position of these principles in the hierarchy of evidence.

For example, the common and customary approach to the order of evidence, at a general glance, has been to first act upon indicative signs (amārāt — reality-revealing evidence) and then upon principles (duty-oriented evidence) (al-aṣl dalīl ḥayth lā dalīl); but this categorization is very general and requires greater clarity in practice. The problem arises when indicative signs or principles conflict with one another. If the order of evidence is not clear, we face difficulties in conflicts among indicative signs themselves. The same applies to conflicts among principles. Since our discussion is not about indicative signs, we pass over that. Regarding procedural principles, thanks to serious and deep discussions that have recently emerged, various types of principles have been distinguished from one another to the extent that they can, to some degree, be ranked. For instance, in a preliminary categorization, the following order may perhaps be proposed:

1. Indicative signs
2. Ascertained principle (istiṣḥāb)
3. Subject-matter or causal principle
4. Sharʿī principle (such as sharʿī exemption and precaution)
5. Rational principle (such as obligation [ishtighāl] and rational exemption)
6. Primary rational principle (permissibility [ibāḥah] and prohibition [ḥaẓr]).

Nevertheless, ambiguities still remain:

a. Regarding the common approach, the first question is whether there is any intermediary between indicative signs and principles?

In subject-matters, there are judicial indicative signs — namely, the state of affairs (shāhid al-ḥāl) or apparent state — which unfortunately have received little attention, lack discipline, and we will refer to them.

But what about rulings (aḥkām)? Can no intermediary be considered between valid indicative signs and principles? It has been said that the subject of principles is doubt, and doubt means the absence of valid evidence (lā ḥujjah); therefore, all invalid evidence fall under the subject of principles — is this general? For example, if we consider fame (shuhra), preponderance (ghalabah), or incomplete induction (istiqrāʾ ghayr tām) invalid in themselves, yet they give rise to preponderant conjecture (ẓann ghālib) that is truly preferred over doubt by rational people, can we still easily apply exemption here? Can this category of evidence not be regarded as an intermediate between indicative signs and principles?

Some uṣūl scholars have considered effects other than authoritativeness for non-authoritative conjectures, such as preference or weakening of a chain. Although this discussion is different in nature from ours, it can help resolve the issue and at least make it worthy of consideration.

b. The second question regarding the common approach is whether continuity (istiṣḥāb) is always given precedence over other principles, even precaution in important matters (umūr muhimma)? It is interesting that some do not consider a single narration authoritative in important matters! So why has this not been raised regarding continuity? For example, if a person was a ḥarbī unbeliever and we now suspect he has become Muslim, can we apply continuity and kill him?

On the other hand, considering property as an important matter itself poses challenges. Does the well-known Prophetic hadith stating “The sanctity of a Muslim’s property is like the sanctity of his blood” indicate that these two are alike in all respects? Or does it intend to express the prohibitive ruling or both prohibitive and dispositive sanctity, including liability (ḍamān)? But can property truly be treated like life in terms of being an important matter, making precaution obligatory in it — in every property, even small amounts? Of course, some have tried to limit it to substantial property to reduce the weight of this claim, but even that is debatable and, moreover, ambiguous.

If we equate property with life in this issue, many common examples of uṣūl scholars in the discussion of exemption would fall under the domain of precaution. If you doubt the obligation itself, according to the dominant view, the place for exemption is there. Well, if the issue is financial? Here, the discussion of debt and liability to others arises. Even in khums and zakat, if we accept the basis of attachment to the poor because it is an important matter, precaution must be observed, even in cases of oscillation between independent minimum and maximum where collective knowledge is resolved; for example, where we are certain we owe a debt but do not know whether it is, say, 100 million or 150 million. Of course, according to the dominant view here, because the doubt concerns the obligated amount, precaution applies; but according to the basis of many contemporary scholars, since collective knowledge is resolved and turns into detailed knowledge and primary doubt, the doubted amount is the place for exemption. If, for example, we have detailed knowledge of 100 million, then in the additional 50 million, primary doubt arises and exemption applies. Now, because it concerns property and falls under important matters, must precaution be observed regarding it? (Unless it is said that precaution on one’s own side conflicts with and cancels precaution on the other party’s side.)

In any case, ambiguities of this sort still exist and require further precision. Otherwise, we will face a kind of indiscipline in the application of procedural principles, which in judicial issues will lead to challenges.

Contemporary Jurisprudence: Is the extensive use of procedural principles in judicial jurisprudence desirable and in accordance with proper rules, or should these principles be used only in limited and emergency cases?

Abedi Sarasia: If by “extensive” is meant excess in contrast to deficiency — which we referred to earlier and is certainly blameworthy — otherwise, little or much use in itself is neither desirable nor blameworthy. Rather, the amount of use is not in our hands; once the proper scope (majrā) of each is clarified, one must act according to the principle in its scope. Sometimes in certain issues, access to evidence and indicative signs is limited, so naturally we rely more on principles, and vice versa.

However, the expression “emergency” — saying that principles should only be resorted to in emergency cases — may not be appropriate. Perhaps a better expression is to employ principles in their proper place. But what is their proper place? After an ijtihādic effort to obtain evidence on reality. What does ijtihādic effort mean? It means “exerting all effort and capacity to obtain evidence on reality”; that is, the person has used all his effort and ability but achieved no result and truly has no access to ijtihādic evidence. Of course, emergency in this sense — meaning that since he has made the effort but without success and has no access to evidence and indicative signs, he necessarily resorts to procedural principles — is not unreasonable and even has a virtue: it constantly reminds the mujtahid or judge that procedural principles are like eating carrion. Until the emergency condition — as we described, exerting effort and truly not finding — is fulfilled, one should not resort to principles; and this is good.

Contemporary Jurisprudence: Considering modern methods of crime detection and reality discovery, is resorting to judicial procedural principles still desirable, or were these principles legislated for the time of revelation when methods of crime and reality discovery were limited?

Abedi Sarasia: Principles were not legislated for a specific time, and therefore resorting to them remains desirable; in this respect, there is no difference. The scope of a principle is doubt, and doubt — according to Shaykh Anṣārī and the uṣūl scholars after him — means the absence of valid evidence (lā ḥujjah). Of course, the difference lies elsewhere. Valid methods of crime detection eliminate the subject of the principle and leave no room for it, but they do not change the scope of the principle or indicative sign; they merely narrow its practical application and reduce its instances.

It was mentioned that a principle is resorted to in the absence of other evidence. In judicial discussions, the issue of evidence for proving a claim or crime also arises. An important question is: what counts as evidence? Are methods of proving crime fixed (tawqīfī) or not? Do they have instrumental value (ṭarīqiyyah) or substantive value (mawḍūʿiyyah)? Are modern methods for proving crime acceptable? Especially since in narrations, the criterion for judgment is either proof (bayyinah) or oath. Narrations such as the Prophetic hadith (peace be upon him): “I only judge among you by proofs and oaths,”[1] clearly indicate this restriction. Of course, it is debatable whether the restriction of judgment to proof and oath is additional or true. If it is a true restriction, then what about other evidence such as confession and the judge’s knowledge?

This is a broad and very useful discussion, but here I only point out whether the intended meaning of bayyinah in this hadith is the technical jurisprudential meaning (testimony of witnesses)? It seems that in this hadith, the intended meaning is the linguistic one: “Bayyinah in language is the clear proof or clear indication, whether rational or sensory.”[2] No specific sharʿī technical meaning has been established for it, especially in the time of the Noble Prophet (peace be upon him), and this linguistic usage is very common in the Qur’an as well.[3] This meaning can be called “bayyinah in the broader sense”[4] which consists of anything that clarifies or elucidates a matter or right.[5] On this basis, even the confession of the accused or the judge’s knowledge — provided it is based on clear evidence and proofs — is considered an instance of general bayyinah.

If we accept that the criterion for judgment is bayyinah in the broad sense — meaning anything that customarily clarifies and elucidates reality and truth — the way is opened for modern methods of crime detection. Of course, even these methods do not all have the same probative value and must be examined and ranked; for example, DNA testing does not have the same probative value as hypnosis or a polygraph.

Some other modern methods of crime detection include:

1. Digital analysis and data mining (Digital Forensics & Data Analytics); for example, using intelligent software in big data analysis such as bank transactions, phone communications, and online activities is effective in “detecting crime patterns” and, for instance, enables identifying money laundering networks through analysis of unusual transactions. Also, “recovering deleted information” and extracting data from smartphones, computers, and cloud services greatly aids crime detection.
2. Facial recognition systems, digital fingerprinting, and iris scanning.

Geolocation tracking; such as using GPS data from mobile phones, vehicles, and applications to determine the presence of suspects at the time of the crime.

Decryption of encrypted communications: using advanced tools to break encryption in messengers like Signal or WhatsApp (although this is ethically and legally challenging).

Voice detection technology and sentiment analysis; such as identifying stress or lying in individuals’ voices during interrogations using artificial intelligence.

Internet of Things (IoT) as the third eye of the law; such as internet-connected devices (smart security cameras, autonomous vehicles, and even smart TVs and refrigerators) that can collect valuable data on criminal activities.

Holograms and virtual reality (VR) for accurate reconstruction of the crime scene and three-dimensional visualization of evidence. This technology helps judges, juries, and experts examine the scene realistically and understand details and angles not visible in two-dimensional images.

Such tools and evidence, if reliable, are the very bayyināt that clarify right and reality and can serve as the criterion for judgment. It is clear that as long as we have bayyinah on reality, there is no turn to procedural principles; therefore, identifying and applying such bayyināt and precisely clarifying their position helps us become less dependent on procedural principles.

Contemporary Jurisprudence: What alternative solutions and proposals do you have to reduce the use of procedural principles in criminal and civil jurisprudence?

Abedi Sarasia: The first solution is what we referred to in the previous discussion. With the preceding explanations, it can be said that the subject of procedural principles is the absence of bayyinah — in its broad sense. Bayyinah means something that clarifies and elucidates truth and reality. The more precisely and completely we act in the first stage — i.e., resorting to general bayyināt — the narrower the scope of resorting to procedural principles becomes automatically.

Of course, a very important and decisive discussion is the order of evidence, which must be examined and determined according to the nature and probative value of the evidence. As we mentioned earlier, in subject-matters, other evidence applies before procedural principles, which is also one of the most important issues and truly requires work. In judicial discussions, the issue of evidence for proving a claim or crime also arises. For now, the following can be proposed in this order:

1. The judge’s knowledge; 2. Confession; 3. Written document; 4. Testimony; 5. Expert opinion; 6. Legal indicative signs[6]; 7. Judicial indicative signs; 8. Oath; 9. Procedural principles.

Although there is disagreement on the nature or precedence and delay of these items. For example, is expert opinion the same as judicial indicative sign or an independent evidence? And if independent, is it before indicative signs and oath or after them? Also, is local investigation and site inspection an independent evidence or the same as judicial indicative sign (as implied in Article 255 of the Civil Procedure Code of General and Revolutionary Courts) or attached to expert opinion?

Furthermore, the precedence of legal and judicial indicative signs relative to each other is disputed. For example, Dr. Langarudi considers legal indicative signs prior to judicial ones, but this view has been questioned. For instance, someone holding a bag (possession: legal indicative sign of ownership) but unaware of its contents, while another person without possession but aware of the contents (judicial indicative sign) claims ownership of that bag. In this case, which should be given precedence?[7]

It was stated that judicial indicative signs are discussed in jurisprudence under the title “state of affairs witness” or “apparent state.” There is disagreement on which takes precedence in a conflict between principle and appearance. Many jurists believe that if there is no evidence for the authoritativeness of appearance, the principle should take precedence; but some, such as Muḥaqqiq Qummī, present an extensive discussion that appearance should take precedence.[8] Muḥaqqiq Karkī considers precedence of appearance over principle to be the view of the majority and holds this opinion.[9] This statement is strengthened by noting that the apparent state has an indicative character and, to some extent, reveals reality.

We must also note that even assuming these evidences are conjectural, since they concern subject-matters, their acceptance is much easier; because many who do not accept the absolute authoritativeness of conjecture accept its authoritativeness in subject-matters, and many jurists have acted upon conjecture in subject-matters. The author of Jawāhir, in the discussion of conjecture about the qibla, states: “Perhaps this conforms to the known rule that conjecture takes the place of knowledge when knowledge is unattainable in the subject-matters of rulings.”[10] He then says: “Hence, reference is made to the statement of the linguist, grammarian, morphologist, the principle of absence, the principle of continuity, conjectural signs, the statement of experts in compensation and similar matters, the statement of the physician, and other conjectures. It is only upon the Legislator to state the ruling, but in its subject-matter, reference is made to the known methods of obtaining it.” This last point of his is very important: in ascertaining the subject-matter, one must refer to methods known among the people and rational individuals. Well, the practice of rational people and custom in such cases does not require certainty and assurance; they consider the attainment of conjecture sufficient for determining subject-matters.

Also, if we accept the rule of preponderance (qāʿidat al-ghalabah), the matter becomes much clearer. The rule of preponderance or majority or attaching the doubted to the preponderant case with the expression “conjecture attaches the thing to the most common and prevalent,” was very common in early uṣūl (in Fuṣūl, Hidāyat al-Mustarshidīn, Qawānīn, etc.). When in modern uṣūl the principle of the prohibition of acting on conjecture was established, it created a ground for opposing this rule; whereas this rule pertains to subject-matters. Even in our opinion, although contemporary uṣūl scholars have not shown much favor to this rule, many established jurisprudential rules such as the rule of correctness, the rule of possession, and even uṣūlī issues like verbal principles and implications have roots in this very rule.

Of course, it may be said that even if we accept this conjecture in subject-matters, in the matter of judgment — due to the importance and sensitivity of the issue — we need stronger evidence; therefore, these conjectural matters should not serve as the basis for issuing a judge’s ruling unless they lead to knowledge or assurance. Although this statement is not baseless, attention must also be paid to the fact that in judgment we must make every effort to discover reality, and quickly resorting to procedural principles — which means disregarding the unknown reality — although perhaps causing no problem in personal rulings or even subject-matters in private life, in judgment can lead to ignoring realities; without attention to them, extensive violation of rights occurs and judgment deviates from the path of justice, fairness, and vindication of rights.

In any case, in our opinion, if the apparent state leads to knowledge or assurance, it is certainly authoritative and there is no dispute (although it is no longer an independent evidence and returns to the judge’s knowledge); but even otherwise, if it returns to matters such as preponderance, collective customs, practical custom, or customary understanding, the resulting conjecture is authoritative. Of course, as mentioned, the discussion concerns those cases for which we have no specific evidence for or against, and therefore, for example, cases where a principle is given precedence by a specific evidence are not disputed. Shahīd al-Thānī in Tamhīd al-Qawāʿid has listed some of these cases.[11]

An example that can be given for apparent state based on custom is the dispute between husband and wife regarding payment of dower (mahr). Shahīd al-Awwal, under the rule “Rulings change with the change of customs,” presents an example. In our opinion, this rule is also one of those rules that has been neglected and its due has not been given, and some have even accused Shahīd of oversight; whereas if correctly understood, the rule is among the self-evident or near self-evident judicial rules. The rule intends to say that if the subject-matter or object of the ruling or some of its conditions involved in the ruling is customary and that custom changes, the ruling changes accordingly. One of Shahīd’s examples is that if after consummation a dispute arises between husband and wife regarding possession of the dower. Naturally, the husband says he has paid the dower and the wife says she has not received it! In the narration, the husband’s statement is given precedence, and this was because of the custom of that time that the dower was presented before consummation; therefore, in such circumstances, the very marital life and consummation indicate that the dower has been received by the wife. Here, although the principle of absence indicates non-receipt of the dower, the apparent state takes precedence and the husband’s statement is accepted. Interestingly, Shahīd al-Awwal, despite the narrated ruling, says that in the present time it is appropriate for the wife’s statement to take precedence![12] Why? Because custom has changed. Now the custom has reversed: the wife goes to the husband’s house before receiving the dower and marital life and consummation take place; therefore, here, since there is no apparent state or it is the opposite of before and consistent with the principle, the principle’s purport — non-receipt of dower — is acted upon.

Of course, it is appropriate in the discussion of conflict between principle and appearance that the meaning of these two be made completely clear, and perhaps with their clarification, disputes will also decrease; because sometimes “principle” only means continuity, and sometimes “appearance” means verbal appearance that is considered among indicative signs and its precedence over principle is agreed upon and is not our concern here. Sometimes other meanings are intended. What deserves to be disputed in this discussion is what corresponds to judicial indicative signs in law, and for now we can define it as follows:

The intended meaning of appearance or state witness is clues and evidences that, regarding a claim, give preponderance to the truthfulness or falsehood of one of the two parties over the other and give rise to collective conjecture about a matter; of course, some like Dr. Jaʿfarī Langarūdī consider being decisive (qaṭʿ-āwar), and Professor Muḥaqqiq Dāmād considers certainty- or assurance-bringing as a condition[13] — apparently this condition is not necessary; if it brings certainty or assurance, it is no longer considered an independent evidence and returns to the judge’s knowledge; it is sufficient that customarily it gives preponderance to the truthfulness or falsehood of the claim and, in other words, gives rise to collective conjecture; for example, someone who has been unlawfully abducted and while in captivity commits a legal act (such as signing a contract) or a crime (such as online theft) and then claims duress — this claim is confirmed by the state witness. Being under unlawful captivity generally strengthens the conjecture of duress and gives preponderance to the truthfulness of the accused’s claim. In the discussion of conflict between principle and appearance, the issue is: if the person now claims duress, should we give precedence to the principle of absence of duress or to the appearance indicating duress?

In many cases, it is stated that the accused’s claim is accepted if it is “possible” for him and there is “probability of truthfulness” on his part.[14] Careful examination of the applications of these expressions shows that the intended meaning of possibility and probability is customary, not rational; because in all cases where the accused raises a claim, rationally there is possibility and probability for it; for example, it has been said: if a slave claims that his master forced him into an indecent act, this possibility exists for him, but if the master claims that his slave forced him, this possibility does not exist. Although this example is not applicable today, it clearly shows that the jurists’ intended meaning of possibility and probability was its customary sense and in many cases corresponds to the state witness.

One point to add here is that careful examination of various cases shows that in criminal matters, the order of evidence is such that first evidence such as knowledge, confession, and bayyinah (and legal indicative signs), then state witness, then the rule of doubt (qāʿidat al-darʾ), and finally procedural and rational principles are considered. But in civil matters, there is no rule of doubt, and after state witness, procedural and rational principles apply. In civil matters, if there is no bayyinah or state witness, procedural principles such as continuity and the principle of absence or rational principles such as the principle of earnestness and the principle of absence of inadvertence and error are acted upon; but in criminal matters, the rule of doubt takes precedence over these principles.

Regarding the scope of the rule of doubt, although there is disagreement, in our opinion, by examining the evidence related to the rule of doubt and also the statements and words of jurists, the generality of this rule is understood with respect to all Islamic punishments (ḥudūd, qiṣāṣ, sharʿī taʿzīrāt, and even governmental taʿzīrāt). But it does not apply to blood money and civil matters.

The disputed point is where the judge faces customary clues and signs that are typically conjectural and can customarily support the truthfulness or falsehood of a claim. In the opinion of many jurists, such evidences take precedence over procedural and rational principles as well.

Example 1: Someone who claims duress or necessity undoubtedly has a previous state of absence of duress and absence of necessity, and with the application of the principle of continuity, no doubt remains and his claim is rejected; but if such a person has been taken hostage, his claim is accepted without need for evidence and by resorting to the state witness; because the preponderant state in hostage-taking, human abduction, and unlawful imprisonment is duress, threat, and pressure.[15] (apparent state based on preponderance)

Example 2: If a person armed and aggressively enters someone else’s home and the homeowner kills him and claims legitimate defense, in the absence of proof against or in favor of the killer, based on this state witness, his claim is deemed true and he is acquitted.[16]

On the other hand, sometimes the “state testimony” is against an accused.

Example 3: If someone arrested with large amounts of counterfeit banknotes claims he obtained them from the market and was unaware of their counterfeit nature, but tools and equipment for counterfeiting are discovered in his home, his claim is rejected and a ruling is issued against him.

Example 4: If an addict is arrested with a quantity of narcotics and claims he did not recognize the narcotics and was carrying them thinking they were other objects, his claim is rejected based on the state witness.

Example 5: Article 121 of the Taʿzīrāt Law states:

“Anyone who passes off one commodity as another or sells less, and in general anyone who deceives the customer regarding the quantity or quality of the sold item, shall be sentenced to flogging up to 74 lashes.”

In the above case, if a shopkeeper who has committed such an act against multiple individuals claims that he mistakenly passed off one commodity as another or had no intention to deceive, his claim is rejected; because his expertise in identifying such goods due to his occupation and the repetition of the act itself indicates intent and purpose of deception.

Example 6: If someone living in the Islamic land claims ignorance of the prohibition of wine or adultery, his claim is not accepted although the principle is absence of knowledge (because a human being is not aware of these matters at birth); but the principle of absence and consequently the principle of exemption does not apply here; because the state witness takes precedence over these principles.

In a ṣaḥīḥ hadith, Abū ʿUbayda asks Imam al-Ṣādiq (peace be upon him) about a woman who remarried despite having a husband; the answer is that if she had the capacity for sexual relations with her husband, she is stoned, otherwise flogged. The narrator asks: if she was ignorant of the prohibition of her act? The Imam asked: Did she not live in Dār al-Hijrah (the land of Muslims)? He said: Yes. The Imam said: There is no Muslim woman today who does not know that a Muslim woman cannot marry two husbands, and continued: If a woman who committed adultery says “I did not know that what I did was forbidden” and no ḥadd is applied to her, then ḥudūd will be suspended.[17]

In another reliable hadith, Yazīd al-Kunāsī also asks about a woman who committed adultery during the ʿiddah of revocable divorce. Imam al-Ṣādiq (peace be upon him) considers her ruling to be stoning. The narrator asks: if she was ignorant? The Imam (peace be upon him) replies: “There is no Muslim woman who does not know that ʿiddah is obligatory upon her in divorce or death.”[18]

As can be observed, the Imam took living in Islamic lands at that time as an indicative sign of the woman’s knowledge of the prohibition of the mentioned acts, and this very state witness eliminates doubt and suspicion, so there is no turn to procedural principles or even the rule of “doubt.”

Therefore, the first step that must be taken to reduce reliance on procedural principles is to clarify the status of all elements that a judge may refer to in terms of authoritativeness and validity, as well as the order of evidence. However, a second task also appears necessary: placing greater emphasis on realism rather than duty-based reasoning or even apparent intentionalism, which I will address in the next discussion.

Contemporary Jurisprudence: Does the use of non-customary sharʿī procedural principles not pose a challenge to the issue of “judgment,” whose essence is resolving disputes and convincing the parties to observe justice?

Abedi Sarasia: What is meant by non-customary sharʿī procedural principles? In one sense, all procedural principles are customary and rational, even sharʿī principles such as sharʿī exemption whose subject is lack of knowledge; because rational people also consider excusable ignorance as an excuse. Continuity, obligation, and choice in oscillation between two prohibited or conflicting matters in the absence of a preferable, are all customary and rational matters. This division into sharʿī and rational is based on their evidence; otherwise, the purport of the hadith of rafʿ, for example, which is evidence for sharʿī exemption, is itself a rational matter. Of course, the only case that can truly be called non-customary sharʿī is choice in conflicting narrations in the absence of customary reconciliation and no preferable. Here the rational rule is mutual cancellation (tasāquṭ), but the Sacred Legislator, out of leniency and facilitation and to remove bewilderment, has permitted choice; therefore, here choice is non-customary. Of course, this choice is specific to conflicting narrations, and in other conflicting evidence there is no evidence for choice; therefore, in contemporary judgment where judges very rarely need direct reference to narrations, it has little place.

But apart from this discussion, overall it can perhaps be said: resorting to procedural principles in judgment is not consistent with its ultimate goal (which is justice and vindication of rights) and is only consistent with its intermediate goal (which is resolving enmity); that is, as if the Legislator, seeing that the judge’s hand is short of achieving the main goal — realization of justice in the shadow of discovering reality — and on the other hand, considering the continuation of bewilderment, confusion, dispute, and enmity harmful, by recognizing these principles — which are in fact a kind of legal presumptions — intended to terminate enmity and dispute — by disregarding the unknown reality — in a regulated manner; which of course is itself a kind of relative justice but is not intrinsically desirable and is very insignificant compared to real justice. On this basis, excess in employing procedural principles distances us from the ultimate goal of judgment, which in truth stems from the challenge of realism or duty-based reasoning.

To explain this, we mention another point we promised earlier. We said earlier that one of the things that, if done, automatically reduces resorting to procedural principles is to focus on realism instead of duty-based reasoning or even apparent intentionalism in the principles of deduction. This is a broad discussion and we will try to refer to it very briefly.

Our jurists in discovering rulings and in issuing fatwas are duty-oriented; that is, they do not seek to discover reality but to discover duty; that is, what excuses and binds. Even in understanding verbal evidence, which are to some extent intentionalist and pursue the Legislator’s intention, they are apparent intentionalists, not real intentionalists; and for this reason, they do not consider personal assurance as the criterion for the authoritativeness of appearances; therefore, they deal with collective and positional appearances, not personal and actual ones. In a sense, it must be said that even our principles of jurisprudence are not designed for discovering reality but for attaining apparent intention and discovering excusing duties. Of course, this type of approach may be good and desirable in its place and has advantages and disadvantages, and it is not bad to pay attention to alternative theories, but that is not our topic.

But what is important for us here is that the position of judgment differs from the position of issuing fatwas. In judgment, the goal is vindication of right, observance of justice and fairness. Perhaps it can even be said that resolving enmity is an intermediate goal and the ultimate goal is justice and vindication of right, and only then does true resolving of enmity occur and the root of dispute is generally removed. With this explanation, it becomes clear that what is desirable in judgment is discovering reality; therefore, a reconsideration must take place in its principles and be adapted accordingly, ways of discovering reality must be developed or strengthened, and principles that have been established merely to remove bewilderment in practice and concern practical duty must be greatly limited and confined to the limit of necessity — with the meaning we mentioned earlier.

At the end, several proposals are presented to complete the discussion:

• Reconsideration of the goals of understanding: The goal of understanding sharʿī texts in general, jurisprudential texts in particular, and judicial texts specifically should be reconsidered. Goals such as real intentionalism, discovering external truth (from Heidegger), discovering the inner truth of the text (from Roland Barthes), and contemporary understanding (from Gadamer) are some goals that can be proposed for religious texts.
• Compilation of practical guidelines: Creating practical guidelines for judges and lawyers in interpreting and using evidence, indicative signs, and procedural principles can help reduce diverse and inconsistent interpretations. For this, all matters that can be referred to by a judge in judgment — whether reality-revealing or concerning resolving enmity and removing bewilderment in practice — must be identified, listed, and ranked according to their nature and probative value. The more detailed and complete this list and the more precise its ranking, the more it helps judicial discipline. For example: 1. The judge’s knowledge; 2. Confession; 3. Written document; 4. Testimony; 5. Expert opinion; 6. Legal indicative signs; 7. Judicial indicative signs (and local investigation and site inspection); 8. Oath. 9. Ascertained principle (continuity); 10. Subject-matter or causal principle; 11. Sharʿī principle (such as precaution and sharʿī exemption); 12. Rational principle (such as obligation and rational exemption); 13. Primary rational principle (permissibility and prohibition). This list is certainly incomplete and its ordering is debatable, some aspects of which were mentioned earlier. (A similar work is necessary in sharʿī evidence as well.)
• Scholarly dialogues and group research: Encouraging scholarly dialogues and group research with the participation of jurists and legal scholars, especially those with judicial experience, can help improve understanding and correct interpretation as well as proper application of evidence, indicative signs, and procedural principles and ultimately strengthen the judicial system.
• Training of judges and lawyers: Holding training courses for judges and lawyers on evidence, indicative signs, and procedural principles and their correct interpretation and application can help reduce conflicts and inconsistencies.
• Establishment of supervisory institutions: Establishing supervisory institutions to examine and evaluate the compliance of judicial decisions with evidence and procedural principles can help increase transparency and coherence.

Given these challenges and solutions, one can contribute to improving the use of judicial procedural principles and reducing the resulting harms.

[1] Mustadrak al-Wasāʾil; Book of Judgment, Chapter 3 of the Chapters on Rulings of Claims.

[2] Tāj al-ʿArūs min Jawāhir al-Qāmūs; vol. 18, p. 84

[3] Such as His saying, the Exalted: “Is then one who is upon a clear proof from his Lord…” (Hūd: 17) and His saying “until there comes to them the clear proof” (al-Bayyinah: 1) and His saying “that he who perishes may perish upon a clear proof and he who lives may live upon a clear proof.” Of course, the use of bayyinah in the sense of just witnesses is common in the chapter of claims, and claiming a sharʿī or sharʿī-technical truth there is not far-fetched; unless it is said: the origin of that usage was the abundance of witnesses and scarcity of other bayyināt, while abundance does not cause complete detachment from its absolute meaning.

[4] Just as the restriction inferred from the word “innamā” in the Prophetic hadith is not compatible with the narrower meaning of bayyinah, and bayyinah in the broader sense includes istiḍāfah, the judge’s knowledge, and even confession. It can even be said that pure knowledge of the judge arising from conjecture (or matters like divine knowledge not based on customary evidence) is not considered bayyinah and the Prophetic hadith does not include it; rather, the hadith and its purpose are to avoid such cases; but knowledge based on evidences and clues remains under the broader meaning of bayyinah.

[5] It may be said: bayyinah in the hadith cannot be in the linguistic sense because in that case separating oath from bayyināt would not be correct; since oath is also part of bayyinah in the linguistic sense (matters clarifying right and reality). Some have responded to this objection that: the apparent meaning of bayyinah is something that clarifies the matter and reality independently of the judicial context, whereas oath is not so and is only considered clarifying in the judicial context regarding others’ rights. (Tabrīzī, Mīrzā Jawād, Usus al-Qaḍāʾ wa al-Shahādah, p. 78) Another response can be given that perhaps the distinction between this bayyinah and oath in the narration is according to the difference in what they undertake from the prevalent perspective; because according to the rule “the proof is upon the claimant and the oath upon the denier” and this usage and similar cases are themselves evidence that the intended meaning of bayyinah in such narrations is other than oath; rather, it is not far-fetched that in the Legislator’s usages, which are also abundant, we consider bayyinah detached from oath.

[6] Legal indicative signs are situations and circumstances that the law has made evidence for a matter. (Jaʿfarī Langarūdī, Muḥammad Jaʿfar, Terminology of Law, p. 77, Tehran, Ganj-e Dānish Library Publications, 19th ed., 1387 SH/2008–2009) In Article 1332 of the Civil Code regarding legal indicative signs, it is stated: Legal indicative signs are those that the law has made evidence for a matter, such as the indicative signs mentioned in this law, e.g., Articles 35, 109, 110, 1158, and 1159 and others, and other indicative signs explicitly stated in other laws.

Possession (yad) and marital bed (firāsh) are two instances of legal indicative signs; the former evidence of ownership and the latter evidence of sharʿī lineage.

[7] Although this case is disputed, it seems that in the conflict of these two, if the judicial indicative sign leads to certainty or at least assurance, it takes precedence on account of the judge’s knowledge; otherwise, the legal indicative sign should take precedence; similar to where the rule of marital bed establishes the sharʿī lineage of a child but the apparent resemblance of the child to the adulterer contradicts it.

[8] Mīrzā-ye Qummī, Abu al-Qāsim b. Muḥammad Ḥasan, al-Qawānīn al-Muḥkamah fī al-Uṣūl (new print) – Qom, 1st ed., 1430 AH.

[9] Muḥaqqiq Karkī, Jāmiʿ al-Maqāṣid fī Sharḥ al-Qawāʿid, vol. 12, p. 479

[10] Najafī, Muḥammad Ḥasan, Jawāhir al-Kalām, vol. 7, p. 345

[11] Shahīd al-Thānī, Tamhīd al-Qawāʿid, p. 300

[12] Shahīd al-Awwal, al-Qawāʿid wa al-Fawāʾid, vol. 1, p. 152

[13] Judicial indicative signs are the same situations and circumstances that appear to the judge as evidence for a matter, meaning the judge attains certainty and assurance regarding the unknown matter from those situations and circumstances and typically conveys the correctness of one party’s statements in the dispute. (Jaʿfarī Langarūdī, Muḥammad Jaʿfar, Terminology of Law, p. 78) Professor Muḥaqqiq Dāmād also believes that as long as the apparent state — i.e., clues and situations and circumstances — does not lead to certainty or at least assurance of the judge, it is not followable. (Muḥaqqiq Dāmād, Sayyid Muṣṭafā, Principles of Jurisprudence, vol. 3, p. 186)

[14] Among others, in the Penal Code, Article 166, Note 1 – If the person who drank wine claims ignorance of the ruling or subject-matter and the truthfulness of his claim is probable, he shall not be sentenced to ḥadd.

[15] Al-Mabsūṭ, Shaykh al-Ṭūsī, vol. 3, p. 36; al-Muhadhdhab, al-Qāḍī Ibn al-Barrāj, vol. 1, p. 414; al-Sarāʾir, Ibn Idrīs al-Ḥillī, vol. 2, p. 514; Jāmiʿ al-Maqāṣid, al-Muḥaqqiq al-Karkī, vol. 9, commentary p. 208; al-Durūs, Shahīd al-Awwal, vol. 3, p. 129; Majmaʿ al-Fāʾidah, al-Muḥaqqiq al-Ardabīlī, vol. 13, commentary p. 315; al-Yanābīʿ al-Fiqhiyyah, ʿAlī Aṣghar Marwārīd, vol. 12, p. 140.

[16] Al-Mabsūṭ, Shaykh al-Ṭūsī, vol. 8, p. 78; Qawāʿid al-Aḥkām, al-ʿAllāmah al-Ḥillī, vol. 3, p. 572; Taḥrīr al-Aḥkām, al-ʿAllāmah al-Ḥillī, vol. 5, p. 386; al-Lumʿah al-Dimashqiyyah, Shahīd al-Awwal, p. 247; Sharḥ al-Lumʿah, Shahīd al-Thānī, vol. 9, pp. 351–352; Kashf al-Lithām (J edition), al-Fāḍil al-Hindī, vol. 10, p. 656; Jawāhir al-Kalām, al-Najafī, vol. 41, pp. 663–664; Majmaʿ al-Fāʾidah, al-Muḥaqqiq al-Ardabīlī, vol. 13, commentary pp. 312–313; Taqrīrāt al-Ḥudūd wa al-Taʿzīrāt, Taqrīr of Ayatollah Golpaygani’s class, vol. 2, pp. 203–205.

[17] The text of the hadith is as follows: “… I said: What if she was ignorant of what she did? He said: Did she not live in Dār al-Hijrah? I said: Yes. He said: There is no Muslim woman today who does not know that a Muslim woman cannot marry two husbands. He said: If a woman who committed adultery says: I did not know or was ignorant that what I did was forbidden and no ḥadd is applied to her, then ḥudūd will be suspended.” (Ḥurr al-ʿĀmilī, Wasāʾil al-Shīʿah, vol. 18, Chapters on Ḥadd of Zinā, Chapter 27, Hadith 1).

[18] Ibid., Hadith 3.