Abdur Rahman ibn Yusuf Mangera – Hadith Series A Brief Overview of the Islamic Judicial Process

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.