Preliminaries, Eleventh Preliminary: The Precedence of Certain Practical Principles over Others
Session Thirty-five
Preliminaries – Eleventh Preliminary: The Precedence of Certain Practical Principles over Others – First Aspect: The Precedence of Legislative Practical Principles over Rational Practical Principles
November 7, 2025
Eleventh Preliminary: The Precedence of Certain Practical Principles over Others
Up to this point, we have enumerated ten preliminaries regarding the Practical Principles. Prior to entering the discussion on the Exemption from obligation (Bara’ah), it was necessary to outline general preliminaries concerning the Practical Principles. One final preliminary remains, which, God willing, we shall expound before officially commencing the discussion on the Exemption from obligation (Bara’ah).
The eleventh preliminary concerns the precedence of certain Practical Principles over others. Even within the legislative principles themselves, the presumptive/revelatory principles (al-usul al-muhrizah) take precedence over the non-presumptive ones. Therefore, we shall investigate the precedence of certain Practical Principles over others from two distinct aspects, both of which are subsumed under this single preliminary. Thus, the title of the eleventh preliminary is “The Precedence of Certain Practical Principles over Others,” which we will analyze through two aspects:
- First Aspect: The precedence of legislative Practical Principles over rational Practical Principles.
- Second Aspect: The precedence of presumptive principles over non-presumptive principles within the domain of legislative principles.
We shall first compare legislative Practical Principles with rational Practical Principles, and subsequently, within the domain of legislative Practical Principles, we will examine the relationship between presumptive and non-presumptive principles to determine which takes precedence. Of course, based on the discussions in the tenth preliminary, the status of the second aspect is already largely clarified; however, to make this preliminary comprehensive and complete, we shall also briefly address it.
First Aspect: The Precedence of Legislative Practical Principles over Rational Practical Principles
The first aspect concerns the precedence of legislative Practical Principles over rational Practical Principles. To clarify the basis of this precedence, we must first address the differences between these two categories of principles: What are the differences between a legislative practical principle and a rational practical principle?
The difference is sometimes analyzed from the perspective of the substance and content of the rational and legislative rulings, and at other times from the perspective of the authority (the judge) issuing that ruling.
Regarding the content of the rational ruling upon which the rational practical principle is based, there is a divergence of opinion: Is the rational ruling comprised of intellectual perceptions, or is it based on the practical conventions of rational agents (bina’at al-uqala), or is it that which is compatible with the human soul? This issue traces back to the existing views concerning the nature of practical intellect (al-aql al-amali). For instance, some scholars, such as Muhaqqiq al-Isfahani, consider the rulings of the practical intellect to be among the “praiseworthy opinions” (al-ara’ al-mahmudah)—meaning those matters upon which rational agents have reached a consensus and their opinions align. Others, however, hold a different view; they do not concern themselves with what rational agents agree upon, but rather assert that these rulings are, in reality, the intellect’s direct perceptions of “oughts” and “ought-nots.” Since this pertains to the practical intellect, these are objective realities rather than being merely subject to the opinion or consensus of rational agents. Rather, they are truths perceived by human intellect, though this perception relates to “oughts” and “ought-nots,” which is distinct from the perception of “is” and “is-not” (which falls under the domain of theoretical intellect).
Regarding the legislative rulings upon which legislative Practical Principles are established and which constitute their content, there is also a divergence of opinion. These rulings, as we noted in the discussion on the reality of a ruling (hukm), are subject to scholarly disagreement: What is the essence of a legislative ruling? Is it a type of mental construct (i’tibariyyat), or is it an manifested will, or is it a formulation (insha’) driven by a specific motive? This is a matter of dispute. Consequently, the substance and content of rational Practical Principles differ fundamentally from those of legislative Practical Principles.
Furthermore, the authority in legislative principles is the Lawgiver / Legislator, whereas the authority in rational principles is the intellect. Of course, the fact that the authority in legislative principles is the Lawgiver / Legislator is not exclusive to these principles; it also applies to Indicative evidences (Amarat), meaning the authority behind Indicative evidences (Amarat) is likewise the Lawgiver / Legislator. Therefore, there is a complete distinction between rational Practical Principles and legislative Practical Principles, both in terms of content and authority.
With this preliminary explanation in mind, we wish to examine which of the two—rational Practical Principles or legislative Practical Principles—takes precedence. If we have a rational practical principle, such as rational exemption or the Ugliness of punishment without declaration, and on the other hand, we have the Postulate of Continuity (Istishab), which is a legislative principle, which one takes precedence? This scenario occurs frequently and is highly practical. Where both the Postulate of Continuity (Istishab) and rational exemption can be applied, which one is prioritized? (Here, we are solely comparing legislative practical principles with rational practical principles.) In this comparison, without a doubt, legislative Practical Principles take precedence over rational Practical Principles.
For example, let us assume that in a certain case, our intellect rules that there is no obligation based on the principle of the Ugliness of punishment without declaration. The substance of rational exemption is precisely this: it states that since no obligation has been declared, punishing someone for not performing that obligation is ugly, because nothing was declared to you as an obligation for which you could be punished for omitting. On the other hand, suppose we had certainty about something in the past and now we doubt; the Postulate of Continuity (Istishab) dictates that we must maintain our previous certainty and preserve what was. The assumption here is that the previous certainty establishes an obligation upon us. If the previous certainty itself was the absence of obligation, there would be no conflict; rational exemption would say “absence of obligation” and the Postulate of Continuity (Istishab) would also say “absence of obligation.” However, the assumption is that the Postulate of Continuity (Istishab) imposes an obligation, whereas rational exemption removes it. In this case, without a doubt, the Postulate of Continuity (Istishab) takes precedence over rational exemption, either by way of Ingress / Outlining (Wurud) or by way of Governing / Overruling (Hukumat).
The reason for this precedence is that, according to the rational rule of the Ugliness of punishment without declaration, if there is no declaration, then punishing a person for not performing an obligation that was never declared to him is ugly. However, by virtue of the Postulate of Continuity (Istishab), preserving what was is, in fact, considered a “declaration.” The evidence for the Postulate of Continuity (Istishab) indicates the prohibition of violating certainty with doubt. This is a declaration from the Master. The Master has said: “Do not violate your past certainty with doubt.” Now I doubt, but because I have past certainty, the Master Himself has obligated me to act upon that past certainty in such cases. Therefore, this is, in reality, a declaration. Consequently, the subject matter of the Ugliness of punishment without declaration is eliminated. By virtue of the Ugliness of punishment without declaration, punishment is ugly only if there is no declaration. The Postulate of Continuity (Istishab) says: “I am the declaration.” Thus, the subject of punishment without declaration is negated. This is equivalent to Ingress / Outlining (Wurud) and eliminates its subject matter.
Alternatively, it can be said that it takes precedence by way of Governing / Overruling (Hukumat) because it presents the content and substance of the Postulate of Continuity (Istishab) as a declaration; that is, it narrows the scope of “absence of declaration.” This is how Governing / Overruling (Hukumat) operates. The proof “Do not violate certainty with doubt” acts as an interpreter and regulator of the Ugliness of punishment without declaration. It modifies the subject matter of the rational exemption evidence and restricts its scope. The Ugliness of punishment without declaration states that punishment is ugly where there is no declaration, but since the Lawgiver / Legislator Himself has said: “Do not violate past certainty with doubt,” it is as if this is no longer an instance of “absence of declaration,” but rather, it is a declaration itself. For this reason, it is said that the Postulate of Continuity (Istishab) is either incoming (warid) upon rational exemption or governs (hakim) over it.
We must note that our current discussion is on the precedence of legislative Practical Principles over rational Practical Principles. Legislative exemption (Bara’ah Shar’iyyah) is itself a legislative principle, and the Postulate of Continuity (Istishab) is another legislative principle; however, the Postulate of Continuity (Istishab) is a presumptive principle, while legislative exemption is a non-presumptive principle. We shall examine this in the second aspect: whether presumptive principles take precedence over non-presumptive principles when both are legislative principles.
Therefore, legislative principles take precedence over rational principles. Even non-presumptive legislative principles take precedence over rational principles. This precedence is not exclusive to presumptive legislative principles; rather, absolute legislative principles—whether presumptive or non-presumptive—take precedence over rational principles. I have already explained the basis of this precedence. We have rational exemption and rational choice (takhyir). In cases of conflict between obligation and prohibition, we have rational choice. Wherever there is a rational ruling and a rational practical principle can run, and opposite to it there is a legislative practical principle (whether presumptive or non-presumptive), the legislative practical principle definitely takes precedence.