In recent decades, particularly following the victory of the Islamic Revolution, which resulted in the ascendancy of jurisprudential knowledge in the country’s governance, the following question has consistently been raised: Can practical principles—which merely serve to resolve uncertainty and are not intended to disclose reality—be used to administer people’s worldly affairs, one of the primary responsibilities of governance?
One sphere of people’s lives that governance must administer is the judicial sphere. Remarkably, practical principles also play a highly significant role in this sphere, and many disputes referred to courts culminate in judicial rulings through recourse to these very practical principles. Judicial practical principles, however, are not limited to the four well-known practical principles in Shi‘i legal theory—namely, continuity, exoneration, choice, and precaution. Rather, they also include other specific principles exclusive to the jurisprudence of adjudication. For example, the rule of darʾ is one of the jurisprudential rules specific to the jurisprudence of adjudication that, in fact, possesses the nature of a practical principle and is treated as a judicial practical principle in criminal jurisprudence.
It should be noted here that, unlike the discipline of legal theory, which divides proofs into two categories—those that disclose reality (indicia) and those that resolve uncertainty (practical principles)—no such classification has been made among jurisprudential rules. Consequently, certain jurisprudential rules that merely resolve uncertainty and do not disclose reality have not been treated as practical principles; rather, all of them have been subsumed under the general heading of jurisprudential rules.
The electronic journal “Judicial Practical Principles” seeks to examine these specific principles and elucidate their various dimensions and implications.
The first chapter of the journal explains the nature and dimensions of these principles. Given that these principles have seldom been discussed independently and specifically in relation to adjudication within jurisprudential scholarship and writings, this chapter assumes even greater importance.
If apparent meaning is regarded as an indicium or as one of the indicia, then the discussion of conflict between a practical principle and apparent meaning would amount to a discussion of conflict between indicia and practical principles in the jurisprudence of adjudication. But is every apparent meaning authoritative and accorded precedence over a practical principle? The second chapter addresses this issue.
To whatever extent recourse to practical principles in jurisprudential scholarship generally entails challenges, those challenges are compounded when judicial practical principles are invoked in the jurisprudence of adjudication. This is because this branch of jurisprudence concerns rulings involving retribution in kind, restitution of property, and interference with people’s lives, property, and honor. “The Challenges of Recourse to Judicial Practical Principles in the Jurisprudence of Adjudication” is the title of the third chapter of this journal.
Just as the discipline of law is divided into criminal and civil branches, judicial jurisprudence likewise comprises civil and criminal branches. This prompted us to examine the status of judicial practical principles in two separate chapters devoted respectively to criminal jurisprudence and civil jurisprudence.
It may be said that, among judicial practical principles, the two principles of exoneration and continuity occupy a particularly distinguished position in comparison with the other principles, and their applications are considerably more numerous than those of the other judicial practical principles. The sixth and seventh chapters of this journal separately discuss the dimensions and challenges involved in applying these two important judicial principles.
In any event, recourse to practical principles in adjudication is not exclusive to Islamic or Shi‘i jurisprudence. Other religions and denominations also make extensive use of these principles—particularly principles such as the presumption of innocence—in the processes of adjudication and dispute resolution. In the eighth chapter, we discuss the status of judicial practical principles among the various Sunni schools, and in the ninth chapter, the status of these principles among non-Islamic religions and schools of law.
Like the other electronic journals of the Contemporary Jurisprudence Studies Research Institute, the final chapter is devoted to the scholarly background of judicial practical principles. An index of articles, a bibliography, and a review of an important book on this subject constitute the discussions in this section.
This journal represents a brief and modest step toward addressing the subject of judicial practical principles seriously and independently. It is hoped that it will initiate a path that scholars and professors of the jurisprudence of adjudication will bring to fruition. Amen.