This article was published on the Shiapedia, a website that was run by Shaykh Abd al-Hakeem Carney (d. 2007). After his demise, the domain and hosting services were not renewed and the website vanished. Soon after his death, someone had backed up his entire website and I had downloaded all the articles – around 60-70 – from this backup.

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Procedural principles¹ (الأصول العملية) are the principles that are used in a situation of doubt; they form a kind of fall-back position in the absence of legal evidence. Scholars of usul disagree on what they are, and which are most primary. The classification used by Muhammad Baqir as-Sadr is four-fold:

• Ihtiyat (الإحتياط), the principle of precaution. According to as-Sadr, this is the first and foremost principle: in a situation of doubt, one must observe precaution. If there is a possibility of something being impermissible, one should avoid; if there is a possibility of it being an obligation, one must follow it. Most scholars of usul in the past did not accept this as a principle, as will be discussed below.
• Bara’ah (البرأة), the principle of non-obligation. Traditionally, scholars of usul considered this to be a basic and primary rational principle. This principle states that, in a situation of doubt, things are assumed to be permissible until proven otherwise. Traditional scholars of usul considered it to be an act of injustice on the part of Allah to hold somebody responsible for that which they do not know. As-Sadr, on the other hand, considers Allah to have a basic right of obligation in all things, whether we know about them or not, and that He has the right to punish us if we disobey Him in ignorance. Nonetheless, as-Sadr concedes that Islamic law has given a dispensation to those who do not know about a particular rule and were unable to know.
• Munjiziyyah al-‘Ilm al-Ijmali (منجزية العلم الإجمالي). This is a principle that is universally accepted. When a person, for example, has two cups of water, and he knows that one of them is ritually impure without knowing which one is pure and which one is not, then it is an obligation to avoid both of them.
• Istishab (الإستصحاب). This is also a universally accepted principle. This principle operates when a person was in certainty about some state of affairs, and then doubts whether or not that state of affairs is still the case. The principle dictates that they assume that the state of affairs still holds true. For example, if a person did their ritual washing, and then doubts if they have done something to break their state of ritual purity, they should assume they are still in that state until proven otherwise.

The Procedural Principles and Usul al-Fiqh

Traditionally speaking, the mainstream of Shi’ite jurisconsults have envisaged the Divine Law – al-ahkam ash-shar’i – as an all-embracing body of instructions from the Lawgiver that govern the affairs of the legal agent, al-mukallaf.² Thus the Lawgiver is known to stipulate for all human actions a category for their performance: in some cases, actions are mandatory and if the mukallaf does not perform them, he or she is liable to punishment from God. Other actions, however, are strictly prohibited and it is incumbent upon the mukallaf to avoid these insofar as is humanly possible. Between these two extremes lies the category of permissibility, with regard to which a believer may choose either to perform or avoid acts at his own freedom. On the one hand, therefore, the divine-law deals directly with a human being’s actions. On the other hand, however, exists a separate category of rulings that do not deal directly with the legal-agent’s actions per se. Such rulings, known as al-hukm al-wad’i, or ‘situational rulings’, provide religious guidelines on any number of obligations that pertain to the validity of the mukallaf’s legal status in any number of different circumstances. In the case of marriage, for example, a number of different rulings exist before which a partner can be considered, legally speaking, ceremoniously married in Islam. The pronouncement of the marriage contract and the offering of a marriage gift (al-mahr) are necessary prerequisites before any marriage is considered legally valid in the Islamic tradition, and therefore they are regarded as specific laws to that situation, vis-a-vis the validity of a marriage contract.

Islamic law (ash-Shari’ah) is considered amongst most usulis as a complete way of life that was prepared for the legal agent by the Lawgiver. When the mukallaf has rationally ascertained this to be the case, it is his obligation by the sharicah to define for himself a duty, or ‘practical position’, in regard to it for any affair or issue. Obtaining this practical position, or al-mawqif al-amali, is the sole purpose of the discipline of legal understanding (fiqh), in which the faqih will attempt to find the relevant ruling whose referent is obliged upon the mukallaf. He will do this by a process of derivation through which he or she can establish an argument (dalil) for a particular divine-law ruling on any issue. To regulate his methods of derivation the science of the principles of jurisprudence – usul al-fiqh – provides the rudimentary guidelines that are common to any procedural attempt to derive the law from its sources, namely the Qur’an, sunnah, ‘ijmac and ‘aql.³

In this article I shall discuss the ‘procedural principles’ mentioned in usul al-fiqh and examine the views of traditional jurisconsults in Shi’ite Islam, with particular reference to the views of ash-Shahid Muhammad Baqir as-Sadr in his al-halaqat al-ula of Durus fi’l ‘ilm al-usul.

The Scope of Al-Usul al-Amaliyyah

The primary method by which a jurisconsult is able to infer the divine-law ruling involves a thorough examination of the textual (lafzi) as well as non-textual (ghayr al-lafzi) evidences by a process of rational inferences.⁴ All divine-law rulings that are achieved in this manner find their roots based in either of these two sources, and the jurisconsult will provide an argument (dalil) for the divine-law ruling. Arguments (that are extracted from the proof-texts) which lead to certainty about the divine-law rulings are called ‘substantiating evidences’ – al-‘adilat al-muhriza – as the sources of law substantiate the argument that is presented by the jurisconsult. Often, however, the textual and non-textual sources have no clear arguments in favour of any particular divine-law ruling, and as such, either due to their silence on the issue, or due to their evidences not having reached us, the jurisconsult is unable to infer any divine-law ruling with any sort of certainty (qati).

The procedural principles are employed by a jurisconsult in the process of deriving the divine-law ruling when no ascertainable substantiating arguments exist.⁵ Since one of the main features of usul al-fiqh is to reconcile between obscure and non-evident evidences, likewise, the principles of jurisprudence also provide rational methods by which a practical duty can be established when no substantiating evidences indicate as to what that particular ruling ought to be. In such a scenario, therefore, scholars in usul al-fiqh established the procedural principles as a means by which the legal-agent is able to act in accordance with the divine law.

Principle of Precaution (ihtiyat/إحتياط)

Ihtiyat is the principle which states that in cases where there is doubt, one ought to act with caution and avoid actions that are dubious and perform duties that seem important.⁶ The basis of this principle is the belief that there is always a religious obligation on the legal-agent, regardless of whether the divine-law ruling is clearly stipulated or not.

The principle of precaution thus represents a strict form of conservative, positivistic textualism in which the legal-agent is impelled to obey the Lawgiver in instances of possible duty as well as certain duty, or, in another sense, in cases where the proof-texts are clear and in cases in which they are silent. Jurisconsults who have traditionally considered precaution as the primary procedural principle do not consider it rationally conceivable that the law is silent in a negative sense; by which I mean that it should have no opinion in regard to a particular action. For them, the law is positive by definition, and it comprises a comprehensive body of instructions that stipulates in each and every single human action and situation a specific ruling or duty. Such religious maximilism is, however, based on the a priori belief in an all-encompassing law. This last point is not, however, accepted by all jurisconsults, some of whom proffer that the primary procedural principle is freedom from obligation as we shall discuss later. A third minority of jurisconsults have argued in favour of a minimalist approach to the applicability of religious law. For them, it seems, the law is regarded in a different light altogether and may be considered as not too dissimilar to the Mu’tazilite account of morality as the basis for law. According to this group, all religious injunctions ought to be moral, and if the Lawgiver has not stipulated (in a positive way) how one ought to act, reason would have reached it anyway. The presupposition that demarcates the point of departure among all three views therefore, appears to be a theological one in relation to the scope of the Islamic law. The majority of traditional jurisconsults, however, advocate an all-encompassing law based on a total and comprehensive belief in a divine command theory of normative law. Those who proffer the second view, i.e. that the legal-agent is free of obligation, provide a less conservative appraisal of the same initial group, whilst the third minority hold the belief in a rationalist, minimalist form of Islamic law that reads more in terms of ethical normativity than law per se.

For as-Sadr, who may be considered as belonging to the first group, Ihtiyat is mandatory in occasions of primary doubt on the assertion that the mukallaf has a duty to obey God in areas of certainty as well as doubt. Such assertions however require demonstration, and as-Sadr begins his defence of his ‘theory of obedience’ – haq at-ta’a – by referring the case to the source of obedience in the first instance. That source is reason, as it is through reason that the mukallaf reaches the position of surety that the Lawgiver must be obeyed, and, according to as-Sadr, reason itself concludes that He ought to be obeyed in cases of possible injunctions too.

… rather [it is] the case that the rightful claim to obedience, as reason understands it in the sphere of known injunctions, is also understood by reason in the realm of possible injunctions.⁷

The implications of this are that “we omit what we consider to be possibly prohibited and perform what we consider to be possibly mandatory”;⁸ this summarises the principle of precaution.

Although classically regarded as the conservative wing in Shi’ite Islam, the akhbaris, for whom reliance is only made upon the hadith in deriving the divine-law ruling, precaution applies only to instances where doubt is connected with something that might be prohibited, unlike as-Sadr’s conceptualisation of it. The point of departure, however, between the two is that the akhbaris argue in favour of their position on precaution based upon textual evidences, whereas for as-Sadr, the matter is resolved and adduced to by reason.

It is not clear if as-Sadr’s defence of precaution is based on the law qua law, or whether he articulates his own version of ethical practice in regard to it. It may be argued that his so-called offering of haq at-ta’a – that God has a claim to be obeyed in certain as well as possible injunctions – places on the legal-agent a duty that sounds remarkably similar to a categorical imperative that is characteristic of Kantian duty-based systems of morality. Certainly, a number of jurisconsults seem to think this ought to be the primary basis of Islamic law anyway. Nevertheless, according to this rather restrictive position, even for a subject on which the texts are silent, there is a religious obligation to be cautious.

Principle of Innocence (bara’ah/البراءة)

The principle of innocence (asalat ul-bara’a) is the antithesis of the argument for precaution, and states that in the absence of any contradictory evidences, everything is permissible.⁹ Thus, unlike the principle of precaution mentioned above, the principle of innocence does not convey any religious obligation when the proof-texts are silent. Rather it indicates freedom of obligation and is the view accepted by most jurisconsults as the primary procedural principle. The majority of jurisconsults do point out however, that bara’a ought not to be regarded as the divine law failing to provide a ruling. Quite the contrary, it is to be seen in the same light as the doctrine of ibaha by which the law has accommodated certain actions as permissible, and often, the two ideas are used interchangeably. Permissibility in maximalist [traditional] usulism therefore does not indicate a point at which the law stops, and bara’a becomes active as a remedy to a textual legal vacuum. Instead, when no clear ruling is apparent, the law stipulates permissibility. Although expressed in a sort of religious maximalism the doctrine of permissibility provides greater flexibility and freedom than its counterpart ihtiyat. S.M.G.S. Fatemi (2005) for example, in his article ‘Egg and Embryo Implantation: a Comparative Study of Shi’ite Teachings and Kantian Ethics’ demonstrates in a convincing and religious manner, how modern questions such as egg and embryo implantation might be resolved by the doctrine of permissibility. Thus, as the sources of law, namely the Qur’an and sunnah, provide no explicit articulations (khitab) about prohibitiveness of egg and embryo implantation, it is possible to infer that it is permissible to do these based on the principle of innocence.

It is noteworthy to mention that there is no clear-cut agreement in regard to the basis of the rule for innocence even amongst its advocates. Rationalists who have argued in favour of innocence have done so by basing their arguments on the probatitivity of assurance that is common to all types of procedural derivations of the law, and therefore, provide a very strong, rational argument for innocence. What we mean by assurance, and its Arabic equivalent “qat’ ” in usul al-fiqh , is the disclosure of a certain affair to a degree in which doubt does not subsist. Although the roots of this principle lie in philosophy, on the nature and epistemology of knowledge and its implications, its connotations in usul state that if the legal-agent is not aware of any compulsory duty upon him, the Lawgiver cannot punish or reward him for the actions he carries out thereof. From the point of view of the mukallaf it may be seen as a sort of justifiable reasoning, sometimes called excuse (albeit a rational one), with which he can argue with the Lawgiver for his chosen course of action. This aspect of the probativity of assurance, known as exculpatoriness, or mu’adhdhiriyya, is a rational justification for the principle of innocence.¹⁰ On the one hand, after striving hard to find a divine-law ruling, the jurisconsult is left in doubt as to whether a particular action is permissible or prohibited. On the other hand, however, he is certain that there are no substantiating evidences for either of these possibilities and therefore, based on his assurance of an unascertainable duty from either the textual and non-textual sources, he is free to act how he pleases on the knowledge that the Lawgiver cannot punish him. Fatemi (2005) makes an interesting comparison between contemporary law and the principles of Islamic jurisprudence on this point:

Knowledge of the obligation is crucial for someone to be held responsible. That is to say, it is not morally justifiable to consider someone responsible when his responsibility has not been communicated to him. In fact this principle is universally accepted by all legal systems. ‘The principle of legality of punishment’ indicates that if there is no law criminalising an action, there should be no punishment for it. This contemporary principle of criminal law is nothing but the translation of the moral principle of qubh ‘iqab bila bayan (wrongness of punishment without prior proclamation) widely referred to by Shi’ite scholars from the early period of jurisprudence.¹¹

Ironically, although as-Sadr is of the opinion that the basic principle is not innocence, rather that God has a claim to be obeyed in certain as well as possible injunctions, he supports the claim of the “other” rationalists and appears to reach the same conclusions:

It is not possible for the Master to punish him [i.e. the mukallaf ] for his disobedience as long as the human is assured of the absence of the compulsory duty. (Mottahedeh 2005)

One gets the impression that as-Sadr’s support for innocence is a reluctant but serious one. From a purely rational basis, it has been shown that the Lawgiver cannot punish his slave if any possible injunctions that have not reached him, and as-Sadr’s statement indicates his belief in this. At the same time, however, his offering of haq at-taca suggests a rational duty that is beyond the law per se, in which the legal-agent obeys the Lawgiver in certain as well as possible injunctions. Indeed one feels that had it not been for textual signification for bara’a from the proof-texts, as-Sadr may have continued to prefer precaution as the primary procedural principle. In the case of as-Sadr then, as for many others, bara’a is accepted as the primary procedural principle based on the following textual significations. First and foremost among these, is Q17:15, in which God remarks “We do not punish until We send a Messenger”.

Sadr’s own comments about this verse are instructive about his final stance on the matter:

“Messenger” is understood to imply a clear statement and a substantiating argument. The verse shows that there is no punishment without an argument. In way, the effective procedural principle becomes that precaution is not mandatory rather than mandatory, taking the point of departure to be innocence based on divine law rather than precaution based on reason.¹²

The majority of jurisconsults hold the opinion that both the rational and textual evidences for innocence only serve to enhance their position in regard to it, and therefore, it is virtually unanimously agreed upon (with the exception of the akhbaris) that innocence and freedom from obligation are the primary procedural principle. In the absence of clearly stipulated rulings, the mukallaf is free to choose how he or she wishes to act in the knowledge that the divine-law has neither specified an act to be mandatory nor prohibited it.

Occasions of Doubt

Part of the effort in practising ijtihad involves being able to distinguish different cases of uncertainty into various categories of doubt that are associated with each case, and, as we shall see, depending on which doubt is being dealt with, different procedural principles will take priority over others. It is not wholly accurate, therefore, to say that one procedural principle ought to be considered as the most important. Our discussion and the relevant conclusions we have derived thus far have been in regard to ‘primary doubt’ (shak badwi), in which the jurist has no knowledge about any obligations.¹³ In another sense, primary doubt is that when the jurist is faced with an issue that has no linked knowledge. Any attempt to stipulate a divine-law ruling in cases of primary doubt would therefore be pure speculation. An example of primary doubt that is common in discussions of usul is that in regard to the liturgical prayer on the day of ‘Id and whether or not it is obligatory. In this situation, the jurisconsult is unsure about which possibility it should be; whether obligatory or non-obligatory. Given that there is no evidence in support of either ruling, bara’a is applied here and the legal-agent is free from any obligation in regard to the ‘Id prayer. The principle of innocence, therefore, takes priority only in circumstances in which the jurisconsult is faced with cases dealing with primary doubt.

At other times, however, the jurisconsult may face a doubt with regard to an issue in which he has some linked knowledge. An example of this sort of doubt is the divine-law ruling appropriate to the liturgical Friday prayer (salat al-jumu’ah) and noon (zuhr) prayer. The jurisconsult is unsure about which of these two prayers is mandatory at the specified time on Fridays. In spite of this doubt, however, he is absolutely certain that one of these duties must be performed. One is assured, therefore, that in a case such as this, one of the two alternatives must be performed but he is unable to specify exactly which one. Such a doubt is referred to as ‘ilm al-ijmali which has been rendered into English as both ‘summary knowledge’ and ‘general knowledge’. In such cases of doubt, we are not permitted nor able to apply the principle of innocence since that would entail abandoning both alternatives. As the jurisconsult is certain that one of these alternatives must be mandatory his knowledge is authoritative in such a case and would not permit him to relinquish both duties. As-Sadr provides a useful lexical connection that exists between two alternatives in cases of summary knowledge. This phrasal construct can be applied to see whether or not a jurisconsult is dealing with summary knowledge or not, and takes the form of an “either… or…” statement: i.e. “either salat al-jumu’ah is mandatory or zuhr is mandatory”. The usulis have agreed that the principle of innocence does not apply to the two alternatives (taraf) when dealing with summary knowledge.¹⁴

Mutahhari (2005) provides a typical response to cases of summary knowledge that is agreed upon by as-Sadr and all other usulis on this matter:

If caution is possible [between the various alternatives], one must apply it, and both of the possible duties must be performed. (Motahhari 2005)

In situations where the jurisconsult faces summary knowledge then, the principle of precaution takes precedence if it is possible to apply it. That is to say, when the two alternatives are not absolute contradictories of each other, one must take caution. In some situations however, it may not be possible to perform ihtiyat as both alternatives are not simultaneously possible. The only get-out-clause in situations of this type is to allow the mukallaf freedom to choose which option he wishes to perform. This is known as takhyir, the principle of option in usul al-fiqh whose implication for the mukallaf is that “…if we choose the wrong direction [option], we are blameless”.¹⁵

Principle of Continuity (istishab/الإستصحاب)

Another of the procedural principles that verges on the border between rationally deduced and textually derived is that of istishab, otherwise known as the principle of continuity. In brief, all of the traditions that imply this principle are of the form “certainty should not be mastered by doubt” from which the jurisconsults conclude that the legal agent should maintain adherence to anything about which he or she was formerly certain about, but has then come to doubt that it persists. The principle of continuity deals therefore with situations in which the legal agent begins to doubt the persistence of a previous state of surety, be it in regard to the subject of a divine-law ruling, or the actual nature of the ruling itself.¹⁶ The rule itself presumes that, in all probability, following one’s certainty is likely to be the correct view than if one followed doubt.

Istishab applies in cases that are positive as well as negative. In the positive sense, istishab requires, for example, that a marriage contract is presumed to persist unless evidence of its dissolution can be established. A mere doubt or possibility that the marriage may have dissolved is not enough to rebut the presumption of istishab. Continuity of this sort, whereby the presence of something is presumed to persist, is referred to as istishab al-wujud al-asli , that is, the continuity of original presence. In the negative sense, therefore, istishab can also be used to presume the continuity of the absence of something when there is no evidence to suggest otherwise. At times, for instance, people doubt as to whether or not they have prayed knowing for certain that at some earlier time they had not prayed. The individual begins to doubt then as to whether they had performed the prayer knowing that, only a couple of hours before, they had performed it. In this case, as in all similar cases, istishab would require that one’s previous state of certainty is allowed to persist. In this example, therefore, continuation would presume the original absence, i.e. prayer not being performed. This sort of continuation is called istishab al-‘adam al-asli. Kamali mentions two further varieties of continuity; namely, istishab al-hukm, which “presumes the continuity of the general rules and principles of law”, and istishab al-wasf, which presumes the continuity of attributes such as the purity of water. Strictly speaking, however, they cannot be considered as separate categories of istishab, only a particular aspect of the more general category istishab al-wujud al-asli.

One of the conditions that is rightly pointed out by as-Sadr is that of the unity of the subject about which there is doubt. Any procedural attempt, therefore, to deduce the practical duty by istishab about a subject of a ruling about which there was a previous state of certainty, but is no longer considered the same subject, would be invalid.¹⁷ In such a situation, an alternative principle would have to be consulted. A recent example of a situation like this has arisen with regard to the manufacture and reprocessing of gelatine that is legally prohibited in Islam. Some jurisconsults have argued that since the substance after refinement is no longer gelatine, any doubt about its prohibited nature ought not to bear any significance on the permissibility, or otherwise, of the new subject in question.

On a final note, it is noteworthy to point out an interesting remark from Kamali in regard to presumptive evidence in Islamic law and modern principles of legality:

…the principle of original absence (istishab al-‘adam al-asli) … is widely upheld not only in the field of criminal law but also in constitutional law and civil litigations generally.

That is to say, the presumption of innocence and freedom from liability are generally accepted norms in modern society until and unless there is evidence to the contrary.

Conclusion

The usul al-amaliyya are an important means by which divine-law rulings may be stipulated when no clear substantiating evidences exist in either the textual or non-textual sources of law. Establishing one’s duty in regard to the divine-law is incumbent upon all those who believe in God and accept Muhammad as his final messenger. Fortunately or unfortunately, a vast number of situations are left unattended by the sources of the shari’ah and no clear divine-law ruling is apparent in such cases. The procedural principles enable all Muslims to deal with different situations they face in their daily lives and provide clear and instructive tools to help determine how to act in a legally appropriate manner. From a conservative point of view, they may be regarded as elements possibly used in deriving Islamic laws; but, in another, much wider sense, many regard the procedural principles as representing the true ethos of the Islamic message. That message aims to enliven the human consciousness and prompt humanity, all of it, to act according to what is good, and morally correct. This is supplemented, at times, with divine providence in the form of clear guidelines from God’s messengers to pin-point the most calamitous and malign aspects of human conduct. At other times, however, Islam has permitted the majority of things, and accepted and catered for a number of different cultures, customs, and practices unlike no previous religion. It seems, therefore, in line with the Islamic way, that things ought to be, as a general rule, permissible unless expressly prohibited by the sources of Islamic law. Such open-mindedness is perhaps true of only Islam, and the true importance of the procedural principles is known in this way.

Bibliography

As-Sadr, M.B. (2003). Principles of Islamic Jurisprudence According to Shi’I Law. London: ICAS

Fatemi, S.M.G . (2005). ‘Egg and Embryo Implantation: a Comparative Study of Shi’ite Teachings and Kantian Ethics’. Islam and Christian-Muslim Relations. 16, 3, p297-312.

Kamali, H. (2003). Principles of Islamic Jurisprudence. Cambridge: Islamic Texts Society.

Mottahedeh, R.P. (2005). Lessons in Islamic Jurisprudence. Oxford: Oneworld.

Mutahhari, M. (2002). Understanding Islamic Sciences. London: ICAS

 

1. The usul al-amaliyya have been termed as both the ‘practical principles’ as well as ‘procedural principles’ by translators of the Arabic terminology. For the purpose of this essay, I have used procedural principles as an appropriate translation of the Arabic terms usul al-amaliyya.
2. The mukallaf is the legal agent who is the subject of the divine law in Islam, and therefore obliged to act according to its injunctions and legislations.
3. Such a process, known as Ijtihad, is adhered to by the majority of Shi’ites. The Akhbaris however, rejected this and espoused an alternative version of fiqh in which the mukallaf is ordained only to follow the traditions of the infallible Imams.
4. Mottahedeh p.36
5. Mottahedeh p. 119
6. Mottahedeh p.121
7. Mottahedeh 2005
8. Motahhadi 2005, p. 122
9. Mottahedeh p. 125
10. Mottahedeh p. 59
11. Fatemi 2005
12. Mottahedeh 2005
13. Mottahedeh p. 125
14. Mottahedeh p. 128
15. Motahhari p. 201
16. Mottahedeh p. 135
17. Mottahedeh p. 137