Justice: Court Claims

This is another article in the chapter Justice from the classical manual on Sharia called Reliance of the Traveller. The articles are posted one by one in the order they are given in the book.


023.1 If a plaintiff makes a claim that is not true, the judge considers it as if he had not heard it (0: and need not ask the defendant about it). When a claim is true, the judge asks the defendant, “What do you say?” If the defendant admits the claim is true, the judge does not give a decision on the case (A: there being no need to) unless the plaintiff asks him to. But if the defendant denies the claim, then if the plaintiff has no proof, the defendant’s word is accepted if he swears an oath to that effect. (0: This is when the claim does not involve blood (A: i.e. retaliation (def: (3) or indemnity (04». If it does, then if there is obscurity in the matter, the plaintiffs word is accepted (N: provided fifty separate oaths are sworn by and distributed over all those entitled to take retaliation).) The judge does not have the defendant swear an oath unless the plaintiff requests it. If the defendant refuses to swear, then the judge has the plaintiff swear (A: that his claim is true), and when he does, he is entitled (0: to what he -has claimed) (A: from the defendant). But if the plaintiff also refuses to swear, the judge dismisses both of them (0: from his presence). If the defendant is silent (0: not responding to the claim against him) then the judge should say, “Would that you would answer, for unless you do, I’ll give the plaintiff the opportunity to swear an oath.” If the defendant does not, then the plaintiff may swear an oath, and if he does, he is entitled to his claim.

023.2 If the judge knows the truth of the claim (0: against the defendant), and it concerns one of the prescribed penalties of Allah Most High, meaning for fornication, theft, rebellion, or drinking, then he may not sentence the defendant on that basis alone (0: on the basis of his knowledge of one of the above crimes. It is related of Abu Bakr Siddiq (Allah be well pleased with him) that he said,

“Were I to see someone who deserved a prescribed legal penalty, I would not punish him unless two witnesses attested to his deserving it in front of me.”)

But when the judge knows the truth about something other than prescribed legal penalties, he must judge accordingly (0: the necessary condition for which is that he plainly state that he knows, such as by saying, “I know what he claims against you to be true, and have judged you according to my knowledge”). .

023.3 When the judge does not know the language of the litigants, then he refers to upright (def: 024.4) persons familiar with it, provided they are a number (0: two or more) sufficient to substantiate the claim (def: 024.7-10).

023.4 If a judge gives a decision on a case but then learns of an unequivocal text relating to it (0: from the Koran or mutawatir hadith (def: 022. l(d(II»))) , a consensus of scholars, or an a fortiori analogy (022.1( d(I1I))) , that controverts his decision, then he reverses it.

023.5 A court claim is not valid except from a plaintiff possessing full right to deal with his own property.

023.6 It is not valid to litigate over something that is not determinately known (def: k2.1(e», though some exceptions to this exist, such as claiming a bequest.

If the plaintiff is claiming a financial obligation (dayn), he must mention its type, amount, and description. If he is claiming some particular article (‘ ayn) (0: such as a house), he must identify it. If he is unable to (0; as when the article is portable, and out of town), then he must describe it (0: with a description that would be valid for buying in advance (def: k9.2(d,g»).

023.7 If a defendant denies a claim against him (A: and the plaintiff has no proof). then his denial is accepted (A: provided he swears on oath), as also when he says, “I owe him nothing.”

023.8 If the claim is for a particular article that is currently in the possession of one of the litigants, then the word of the person who has it is accepted when he swears an oath that it is his. If the article is in the possession of both litigants (0: together, and there is no proof as to whose it is; or when it is in the possession of neither, such as when a third party has it), then each swears an oath (0: that it does not belong to the other) and half the article is given to each of them.

023.9 When another person owes one something, but denies it, then one may take it from his property without his leave (0: whether one has proof of it Or not). But if the person acknowledges that he owes it to one, one may not simply take it from him (0: because a debtor may pay back a debt from whatever part of his property he wishes).


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