Abdur Rahman ibn Yusuf Mangera – Hadith Series A Brief Overview of the Islamic Judicial Process
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Hadith number 33 of Imam Imam no is Arbaeen is a very interesting
Hadith and I really enjoyed this hadith looking looking it up today
from YBNL Ibis are the Allahu Anhu Ummah and the rasool Allah He
sallallahu alayhi wa sallam McCall lo Yatta Nast will be that were
home let the region Anwar Coleman with the motorhome
lurking al beginner to Al Muda. You will hear me know Adam and
anchor. However, Hadith, Hadith and Hassan roba whole basically
you will hear to her cover about the hoof is sahih Haney, if not
Abba, the Allahu Anhu relates and listen to this carefully that
Rasulullah sallallahu sallam said, if everybody was to just be given
based on their claim, you make a claim and your your claim is
accepted, and you get whatever you claim, then, so many men would
have claimed or laid claim to the wealth of people, or even to their
blood, which basically means that oh, he killed my son or my cat or
whatever. So he needs to be killed for that. So you can imagine that
if there was no due process, and if you just lay the claim, and
your claim was to be heard and accepted,
there'd be huge problems. So essentially, what the verse was me
saying there's a process you must go through
and what is the process he says luck him. However, the process is
the onus of proof is upon the claimant. If I claim something, I
must provide the proof. Well, you amino Adam an anchor, and the
taking of an oath or swearing of an oath is upon the one who denies
is upon the is upon the the the accused as such, okay. Now, what
does that mean?
This is actually for the judicial process of Islam. Again, it's a
very short narration, because the first part is just a prelude to
say, had it been so easy, then it would of course chaos. So then the
Prophet Aslam is giving a 50, again, a juridical procedure on
how to deal with cases. And it's actually a beautiful procedure.
Right? Does anybody into law here? Does anybody have a law background
here?
No. Otherwise, you would have been helpful actually, if you did.
This is the process, I have a claim, right? Or you've got a
claim against me that I scratched your car.
Right, I don't do that kind of stuff. But let's just say you got
a claim against me. So we go to the judge,
the arbitrator, the procedure here that Rosenstein is mentioning, and
there's several other iterations that mentioned some other features
here. Right, because this is quite general. What has to happen now is
the, the judge will ask the claimant, so you're the claimant,
and you're saying he scratched my car or make it easy. i Your claim
is that I owe you 1000 pounds. So he's gonna say, Okay, what's your
proof?
Right. So what is your proof? Oh, look at these emails, or look at,
I've got these two witnesses, they witness the fact that I lent him
1000 pounds, right, and there's no proof or evidence of it coming
back. So if you have the proof,
right, then it's your case, I owe you 1000 pounds. In fact, the way
the judicial system actually works is that you lay the claim, the
judge should ask me first, is he right in what he's saying? And if
I say yes, he's right, I do owe him 1000. That is done and dusted.
You don't have to bring any proof. Because that's what you call a
karar Confession. Confession is the strongest proof, right?
Because if you do bring two witnesses, or even four witnesses,
they could all be false. But if I do occur, then I'm assuming even
that could be false. I could just be saying, Let him have it. I'm
gonna say it. I want to be incriminated. But generally, that
doesn't happen. So confession, that would be if I don't continue
to say no, that's why he's bringing me to court. Because if I
had confessed, then we don't have to come to court. Right. So
generally, there'll be no confession, right? Unless I have a
change of mind or heart when I get to the court. So now he's gonna
ask you Albena to add on with dairy, which basically means the
burden of proof is on the claimant. Okay, you bring the
proof.
So you bring proof, you bring witness evidence, whatever it is,
if it's acceptable. Now, we will look into that as to what exactly
is the proof? What is the quantum of that? What is the amount of
that how many people or what kind of proof works or not? Right? I'll
explain that later.
If you have the proof, Hamdulillah, right. Whether it's
true or not, or whatever the case your proof is sufficient. If it
fits the bill, then I owe you 1000 pounds. However, if you're not
able to provide sufficient proof,
then is the case thrown out?
No. There's another procedure.
That's what the various alarm said here is well, you mean no alarm,
an anchor that only applies when the claimant cannot provide
evidence. So then the judge will turn to me and say, okay, he can't
provide evidence. But for you to basically exonerate yourself, you
need to swear an oath now that I do not owe him 1000 pounds.
Right. So if I now swear an oath, because for Muslim swearing an
oath is very much because you swear by Allah, that Allah is my
witness that is supposed to be effective, or you swear in the
Quran that's supposed to be effective, there are people who
can even swear falsely, but the majority of people will not.
That's why actually what it says in terms of the procedure is that
before you get the person to swear the oath, you must actually remind
them of the seriousness of this, the burden is taking on, you must
sit and look if you swear, a false of this is what you do for
yourself in the hellfire. What's the point of this? It's only 1000
pounds, you give them all that you give them the entrepreneur, right?
So you make it serious. And then okay, if I swear enough, then the
case is thrown out, according to the majority. Right? The case is
thrown out, according to the majority. There's no case left, he
couldn't provide proof. And I swore an oath to say I don't know
the purpose in any money. And the default status actually supports
me, because the default status is that I haven't given the default
status is that I don't owe him any money.
Right? He can prove it. Is the default status like you owe
someone money? Or is the default status that you don't owe somebody
money? Does everybody owes somebody something? Or is the
normal status is that you don't owe somebody money? Right. So that
that's why now
the case is thrown out of court. That's it, it's as simple as that.
Can you see how the safety nets work in place? Now, let's look at
some of the peculiar particularities here.
Any system needs a conflict resolving process for any system
to be complete, and Islam is gamble and moto Carmen? Right,
Islam is complete. And there are aspects in there, which complete
one another. So part of that is a judicial process. And this hadith,
believe it or not, is actually one of the fundamental principles of
the Islamic judicial process. Right. So that's why this is so
important.
Now, if there's a claim, what kind of witnesses accepted? What kind
of witness what kind of testimony what kind of proof is acceptable?
So now that depends on this level of the claim? So for example, in
cases where you're saying that somebody committed Zina, that's a
very difficult one, when you say somebody is fornicated, and you
will know about that specific versus to do with that in there,
you actually need for men to bear witness, that is probably the most
difficult proof to provide. When you claim that somebody has
fornicated you'd have to prove it through for men, no women, right?
Women are not accepted here. It's that four men saw the act, not
that they thought so. Or they have huge suspicion, or they have
dominant opinion. No, they actually saw the graphic Act, the
penetration essentially, right, that's what they'll have to do.
And then it gets even more particular that they have to
actually
keep on this opinion, until this until the penalty is taken is
taking place. Right? So they can't even retract if they retract
everybody, you know, I this one is the most difficult. If one of them
retracts, the other three get punished for slander. So it's a
very difficult one. So people are going to think twice, even before
becoming a witness even one of the four witnesses. It's almost like
it's never going to happen type of thing. Unless you unless it was so
public, right? Something that's number one. That's the most
difficult burden of proof. And there's verses in surah. To know
that talk about that in detail. Right? Number two,
believe it or not, killing is of a lower degree murder than Zina
it's amazing. The reason for Zina is that the Sharia does not want
you to even discuss fornication, because it's psychologically if
you that that person is going out with her, or She's flirting with
him or they're doing it. It creates in your mind that if they
can do it, I can do it. It's just really unhealthy. The most Zina
that you discuss, the more shaytaan will actually make me
it's just the way lust works psychologically. So that has the
most difficult burden of proof. The next level is essentially
murders and all other everything else in where the Sharia has
provided a specific penalty, which are called the WHO dude. Alright,
which are called the hood. For example, stealing drink
You kink. Right. And the other one is slandering. These have specific
designated penalties mentioned the Sharia. So what is if somebody
says he slandered me, or she slandered me, or he drank wine, or
he stole? What is the burden of proof there?
In that one, you need two men. Again, here women, women are not
accepted. You need two men in this case, not four. You need two men.
All right? Women are not accepted in this. That's why Allah subhanaw
taala says in Surah Talaaq will actually do the way idly men come,
right? You bring us proof to upright men. Okay. And there's
other verses as well. Number three, the third level are other
smaller monetary issues, claim a claim like your 1000 pound issue,
right? The claim 1000 pounds that's less than Zina fornication,
it's less than killing. It's less than what you call it, stealing
and so on, right? It's just you lend me money and haven't given it
back to you, for example. So in any claims that's do with wealth,
or transactions, such as purchases, rentals,
lending money and so on, then that's where you that's what the
famous verse in the Quran you have for this was the Shih Tzu, Shaheed
Nene Marija Alikum. Right, seek out to men as witnesses for Illa
Mucuna Raju Lainey. And if there aren't two men available, then
Faraj will warm rotten, then one man and two women. Alright,
memento, Davina Mina shahada among those that you will be satisfied
with them as witnesses. So in this one, you can either have two men
or one man and two women, right? And the reason for one man and two
women is generally women did not. One of the reasons given is that
generally women did not deal with these kinds of matters, right?
This was was not their forte to deal with business matters and
things like that. Or number two, the there are other reasons given
as well, emotional issues and things of that nature. We won't go
into that right now. And number four, then there's a fourth level
of burden of proof, which is that those matters in which only women
would know, right? There are personal issues to women, right
women issues, for example, related to when somebody is born, right, I
know you have a lot of male gynecologist nowadays, but I mean,
generally, this is supposed to be a woman's forte, I still don't
understand why have male gynecologist, I still don't get
that. Right. I know. It's probably one of the highest paid things in
America, at least gynecologist very high paid special
specialization. Number two, whether somebody is still a virgin
or not, if there's a reason to look for that, or whether
breastfeeding took place or not, you're not going to go and ask men
about that you ask women about that, because there'll be more
privy to these matters. So in that case, you bring women, this is
where women would act as witnesses.
Now, what's very interesting is that this is a very hard and fast
rule. Let's say that the judge that you go to knows
that
Ahmed does owe the person money. He knows it because he's a family
friend, or he knows it from other ways. He knows it. 100% No doubt.
Is he allowed to legislate in court based on his knowledge?
What do you think he's not? He has to follow the same procedure. He
will tell the claimant, okay, you bring your evidence, right,
because he can't be the evidence, you know, somebody will have to
be, if he can't say okay, you swear the oath. Can you imagine
it?
If he if he if he knows even otherwise, and he knows that the
the witnesses are lying, he still has to legislate. And the Prophet
sallallahu sallam said that very clearly, he says that look,
sometimes some of you and you come to me with cases, you're more
eloquent than your than, than the other party. And sometimes I will
actually legislate and decree for you because you've been more
eloquent in conveying your, you know, in fighting your case.
Right? That doesn't mean that I'm making halal for you what I'm
legislating for you. You're basically what you're doing by
that is that you're basically securing for yourself, just a
piece of the Hellfire, but due process has to be followed.
Otherwise, can you imagine the corruption in that? If you corrupt
judges, they'll just say no, no, I know this. I have got personal
knowledge about this and then legislate, there's no checks and
balances in that. That's why this is very hard and fast rule. So
this is the default situation. Now some mud hubs do have certain
differences. Some Imams do have certain differences, but this is
not the time to go into it. Right. For example, Imam Muhammad will
have another process Imam Malik will have slightly a different
process can for example, if I'm the accused, right and he got he
doesn't swear no
You know, he can't bring proof the claimant cannot bring any
evidence. I'm told to swear an oath. But I say, look, rather than
me swearing off, let him swear an oath that he does that I do owe
him the money. And I'm willing to do that. Have you seen all that is
not agree on because the Hadith makes it very clear that you
either bring evidence, the prophets also told somebody,
either you bring evidence, or he's going to swear an oath, there's
nothing left. There's nothing beyond that. Meaning, if you want
to swear evidence, if you're sorry, if you want to swear by
Allah, that he does owe you, that's not good enough, but
according to some Muslims, that's good enough. So there are some
differences like that in the slight difference in process. But
otherwise, the main framework is the same.
Right? And I find that such a foolproof, I've used it sometimes,
you know, when you've got your children or somebody else I'll
come about and you've got an issue, just use this process.
Now, Imam, Abu Hanifa, once he was forced to become a judge, because
swearing by Allah is not a light idea. So he took the position
begrudgingly, and now he's dealing with a case of some guy comes
along, and he says he owes me I don't know, 50 pounds, right 50,
Durham's, or whatever. So he says, Have you got proof? Does he owe
you? He has no, he doesn't owe me Have you got witnesses? I don't
have any witness. So his witness was insufficient. So the process
okay, can you swear an oath, and the guy is about to swear an oath,
the man is a Stopstopstop, he pulled out 50 pounds is that just
take it, I'd rather you as a petty amount you'd rather take that than
you swear by Allah. Right? Because swearing, you know, some people
have this idea of just swearing all the time with Allah. It's it's
not good. It's discouraged. So hopefully that gives us an
explanation here. Right. If I'm to finish off by saying that the
wisdom behind this this distribution of burden is that the
claimant, what he's claiming is something which is hidden, right?
Nobody knows. Otherwise, he was clear, then there wouldn't be no
reason for him to have to prove it, because it would be apparent,
right? So he's essentially claiming something that is not so
well known. So he needs evidence to be able to solidify it, right.
That's why he has to bring the evidence. The claim the accused,
he is in a lighter position, he the default ism on his side. So
swearing an oath is a lighter burden is a lighter responsibility
than bringing proof. So that's why he has to his his job is to just
do just to swear the oath, and that should suffice his situation
just to repel and deflect from him this accusation that's basically
the reason why the background reason for this to happen. So
let's stop here.