FJT09 Fiqh of the Judiciary & Testimonies – Oaths in Court Claims

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Hatem al-Haj

Channel: Hatem al-Haj

Episode Notes

Episode Transcript

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Smith

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proceed. So

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we will finish now the chapter on old sin court claims about what you mean for

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the mountain. Kodama

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died in the 620 after Hydra and his book on that effect, which is 100. The primer said under the W mean for the hour chapter and hosts in court claims remain in the SRA field Haku immunoblot. Allah so on cannot hardly full Muslim man, aka Farah, the only admissible OHS for establishing grace through the courts and swearing by Allah Exalted is He, whether the person taking the oath is a Muslim or a non believer.

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So they will not take an oath by anything other than Allah, which is expected in a Muslim court, I believe.

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But I will, I will tell you what, I'll tell you later what a Christian or

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a Jew would say or maybe I should say now.

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And in the case of Togolese

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they don't talk about levy or

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various civil

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Muslim reported from Vietnam and how they see that the Prophet sallallahu Sallam said and this is extremely important because we don't we should not skip these concepts while we are talking about

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papaw

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this is from Abby oh mama.

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Hello, howdy thi

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man of pa

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pa

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ma n

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Muslim men

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BMA, E and E.

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How Jabba

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Allah Who? Laguna maharana

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Hello

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they said When can I say any sort of luck either we're in kind of Holden min Iraq or the but we're in we're in probably one min iraq away in Canada even

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even if it doesn't work. So, who ever

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takes the right of a Muslim man or a Muslim a Muslim person

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right

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takes or seizes

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whoever

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most of them person emerged in Muslim it would be Person

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B i mean he with his oath.

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How Jabba

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it means me that made it binding made binding.

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Allah

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Lahu for him

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and Hellfire

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harana made forbidden

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for him.

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paradise

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so that he should be remembered anyone who's taken an oath. Remember the Saudis whoever seizes or takes away the right of his fellow Muslim by his oath. Allah would make binding for him the Hellfire and will make forbidden for him paradise.

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Now

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Someone may say and this is reported by Muslim

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and then Bukhari and Muslim also similar meaning Locky Allahu Allah has not been he will meet Allah while he's angry with him while Allah is angry with him. But Someone may say

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what about this

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so what if you take the right of a non Muslim with

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with your hosts

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it will not be this Muslim is inconsequential.

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In these hobbies is inconsequential. Why did Allah Why did the Prophet then mentioned? Of course it's inconsequential. Allah subhanaw taala said, we met a fundament common piano fan visit a miter saw in a lot of Africa. And he, if you fear treachery from a people then you know cast their covenant back to them.

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So that you and them are well aware of the termination of the covenant in the La Nina Love is not like the treacherous and, and then

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you know, the prophets of Southern sediment valamar takasaki haco for fussy, momoyama piano whoever oppresses a covenanted non Muslim will take says right from him, I will be his attorney on the Day of Judgment, he will be the attorney of the

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non Muslim against the Muslim on the Day of Judgment.

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So, of course, this does not mean that taking the right of a non Muslim with an oath in which you live is permissible. The prophets of Southern said this because

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of two things. One, most likely Muslims are dealing among themselves like in Medina, most Muslims, they had their own market. And they were certainly mundane

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activities of life, such as setting, and buying, and mortgaging, and all of these things

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are not limited to Muslims. The prophet SAW them when he died, his field was mortgaged with a Jewish man, we know that we know this, but most of the time was going to be transacting with Muslims. So that's why he said that, and also

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lit dipsea, which means what? To make it look even worse, to make your treachery to make your lying look even worse, that you're taking the right of your Muslim brother. So yes.

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Can you extrapolate this to if they stay silent?

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Given that, brother,

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whoever if, if you have,

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like we sat before

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man had a cobbler and use

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the best of the witnesses, the witness the witness, who delivers his testimony before he is asked to deliver. And that's basically against silence. Certainly, we said if this will not bring about harm to the witness.

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But this is against silence. What about, you know,

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what I was doing, they deliver their testimony without being asked for it. It came as a condemnation from the Prophet so sentimental, he said, The difference here is that you can stay silent if you know that the person, the person who has the right knows that you know, and can can solicit your testimony in this case, you stay quiet until they ask you to deliver your testimony. But if you're not sure that they know that, you know,

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or if you're not sure that they are comfortable asking soliciting your testimony, then you do and extend

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the testimony you do and deliver the testimony even before getting asked.

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Because the ultimate objective here is that justice is served. And if you're able to contribute to that, then you should contribute to that. Serving justice. Yeah.

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If they're staying silent, and other persons being harmed with that result, paradise being forbidden.

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With that,

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for the person who's silent. Yeah, no, no, the hobbyist talks about the person who takes an oath while he is lying.

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Then the Hadith applies to a person who takes an oath while he's lying

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out I'm just

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talking about someone who takes an oath while he's lying. But again at the same time,

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it is the obligation of people to make sure that justice is served within their capacity within the company.

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So the answer their obligation to make sure that justice is served. And if you are the only witness, then if you are the only witness, then testimony as part of the failure, which is a communal obligation. If no one else is

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fulfilling for the failure is then you ought to fulfill it.

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So, here's the Amina mushroom theory, Amina Willa cannot hide for Muslim and alkaff Iran, the only admissible oath for establishing rights through the courts is swearing by Allah exalted as he whether the person taking those is a Muslim, or an unbeliever. So when you will say what law he, if you want to the mean, to basically stress they are mean to emphasize, they mean, the emphasis of You mean,

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which I will talk about here, I would usually talk about the end, but since he's not going to talk about it,

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he's going to talk about it here.

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Since we're talking about, you know, swearing by Allah subhanaw taala, whether you're Muslim or not Muslim, and if you want to emphasize the mean, you will tell the Jew for instance, where by Allah who split the sea for Moses,

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if you say, the Christians were By Allah, who

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swear by the Lord of Jesus, have brought that to life, with His permission,

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and so on and so forth. If someone is completely completely, you know, like a pagan and

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you can't really find anything

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meaningful Plus,

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you will say to him, sway but Allah, your Creator and sustainer sway is whereby Allah the Creator, and sustainer they didn't address them what had the atheist

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but, but then that that meant what it meant that the mean can be taken by Muslims or non Muslims, like, you know, the fact that you're Muslim, you come to court and you there is a dispute between a Muslim and non Muslim, we will not extend that they mean that the right of taking those only to the Muslim will extend that right to the non Muslim as well. And it meant also that we recognize that many of those people genuinely believe in what they believe in, although it may sound to you, like, you know, how could you really believe in the Trinity and some people may think that all the people that believe in the Trinity are not actual believers in the Trinity. But know that you know, the

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fact that we asked them this where by whatever it is, that the value indicates that we do truly believe that they genuinely believe in what they believe in, they genuinely believe in what they believe in.

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Can I have like a little article on this, I talked about

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the anatomy and concepts

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on

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you know the accountability of non Muslims

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and when when they are accountable then when they are hot or not. But anyway, we even you know, shabby for instance, used to say two questions, go, you know, this toggle is the emphasis of the mean,

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can be Togolese Beloved,

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as the man

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of Mecca, we we emphasize of the mean and Togolese or the emphasis of the mean is only solicited, when it is a big thing, you know, when it is a big thing,

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in which we mean applies, like for instance, what is a big thing in which you mean applies,

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like deny an assault,

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that does not result in equal retribution, that does not guarantee equal retribution, because not all assault weapons equal retribution. If you cannot establish equal retribution, then it will only result in what financial consequences and if it only results in financial consequences, that would be the sphere of operation of a man or oath. But in this case, we will ask you to emphasize area mean by saying

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I swear by

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it military

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washed out, etc. You say things that basically

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stimulate your conscience if the if you have any stimulate your conscience, I love the wording of the mean.

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And for the Jews and Christians we said that tell them you swear by loving split. See for Moses and things like that.

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The high basically you make the mean facing the stapler, that's high. That is your basically posture. While you're taking the mean, we we tell you what face the table are now.

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And certainly that that's the whole the whole emphasis is somewhat controversial, whether you ask people to make these, but you know the authorize the view and the 100 emails have accepts these forms of Togolese. So face the paper, for instance, is the man the time

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happens a lot of the house they say because the prophets all of a sudden says about three people that Allah will not look at or talk to.

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On the day of judgment, one of them is someone who sold an item after a house, hence war to the purchaser that he bought it for such and such when he's lying. Why are these line so they say that after us is have virtuous time, slotted was the middle of prayer for us was a virtuous time. So we asked you to deliver your Amina after hours. And then in McCann that place so if you are in Mecca, we asked you to go to Harlem and delivery or you mean if you were in Jerusalem, we asked you to go to our Sakura, the rock and delivery area mean, if you're elsewhere.

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You know, of course when Medina you ask them, that's the most of the gnabry. But if you're elsewhere, we ask you to go by the member, any member in any master and deliver your yummy

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because the prophets of Solomon had enough job that said, Whoever swears I mean,

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on my member, this member of mine, while he is lying, for the other boat on the private home in

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Halifax, I mean it came out I mean, but he have available on the private. So let him wait for his seat and the head fire. So the scholars extrapolate from this and serve as you know, the member is a place where the mean would be emphasized. So you want someone to truly truly want to get all these things combine the shafia is after this to swear on the most half as controversial biblical dogma says, you know, this is not the Sunnah of the Prophet for the moment, Shafi cited,

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you know, someone called the bloomers and who's Akagi in Yemen, who used to make people swear on the most half, put their hand on the most half, while they're making the mean, you know, says there's not this one of the promises, and we will not leave the son of the prophet or send them for any medicine or anyone

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else, which tells you also that this isn't a bad thing, there is a gray area, sometimes sometimes legitimate scholars would accept something as okay. And some sometimes, and at the same time, other legitimate scholars would consider it to be a bit and when not accepted. That happened, you know, since the time of the Sahaba they disagreed over those issues. So there will always be, you know, extremes on the right and the left recognize that they all people, there'll always be a gray area in the middle where controversy is

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expected and should be tolerated and whether you are more inclined to basically strictness and this or you have more stringent criteria like sotheby for instance or you have looser criteria, we should be all sort of understanding

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and kind with each other with anyway so you want

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he like he wants to make the least as much as you can you say to him, go to the member happens a lot of us face the Tabler and say you know by law,

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you know, lovely lady, hello,

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etc, etc. and you add more of the names and attributes of a lot of even better. And then you take your oath. Now chabi used to say to Christians, go to church or go to the altar. Stand by the altar at the church and

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Deliver. So that is recognition that these people actually believe in what they believe in genuinely. And on the altar for them is the Macan where they would be most sort of conscious of God. So we tell them go to the church, to deliver their me, we send to witnesses with them to the church, to hear them, deliver them in the church, go all the way up to the altar, and have them deliver them in there. Anyway, and nowadays, it's it's hard to imagine that people will do that. But that just tells you

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it tells you that we do recognize how they genuinely believe in what they believe.

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Okay.

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Next, the SEC said

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well,

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which I mean, the end of the visa Salama, Visa hidden away, I mean,

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concerning properties,

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and the like it is permissible to base the verdict on one witness and one oath, because the Prophet sallallahu Sallam passed the judgment on the basis of one witness and one owes and we said that this has been authentically reported from webinar pass by the man who probably enemies are gonna be shady, what do you mean? So the prophets of Southern pass the verdict on the basis of one witness and one O's, and this was reported by bass, and that's why you find the Maliki's shafa is and the Han Bella is employing this, employing this and according to

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the position, you know, according to the Melbourne Tamia where Brianna is whatever clarifies the truth. There are a variety of things that could be the evidentiary standard there is concept of the evidentiary standard was a sort of

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wider concept that would allow

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a lot of flexibility in our times in the judicial system, in our times, and we said that I am sharing the same thoughts with him hypnagogia from the Hanafi 74 home from the Maliki's, these people are have shared thoughts similar to that.

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But anyway, going back to the issue of the one witness, and, and the oath, and the Hanafi did not accept this. And they can actually say, the Hadees that we talked about before where the prophets of Allah said that it is reported in Bukhari and Muslim where the Prophet sallallahu Sallam or at least the body I'm sure, where the prophet SAW Southern said Shay Dhaka, we Amina who, your two witnesses for his oath, and the Prophet did not give him in this hobbies,

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the option of one witness and what else

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so it is not like the hand of his will be stranded for evidence to support their position. But the judge who, you know, counted on the habits of cannabis, where it establishes that the Prophet did, in fact, judge on the basis of one witness and one owes and according to that more flexible understanding of the Yana or evidentiary standard, that will be what certain cases certain scenarios, that would be, that would confer certainty, that would give certainty to the judge, or, you know, like higher likelihood propensity great, sort of a likelihood that would be close to certainty kind of depends on the different scenarios.

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Then the SEC said,

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What a manakala alberty in what a manakala t in the Amina and Effie early hiree.

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All those are taken with certainty affirming or denying an occurrence except an oath denying someone else's Act, which is merely a negation of being aware of the act of being aware of the 100 Rami and when

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you know two people came to the Prophet sallallahu Sallam McKinsey and they came to the people to the prophets of Allah settlement dispute over a piece of land. So the HUD Romney said to him

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probably the claimant was the HUD Romney, the Prophet sallallahu Sallam said

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For him, okay, where's your proof, he said, I have no proof lacking.

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He asked him to swear that he does not know that his father sees the best land of mine by force house campus where that he does not know that his father

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sees this land from me by force. Now, this is testifying concerning the act of another person, right? So all you need to do is that testify that you do not know. It's not the heart, which is, you know, affirming the occurrence or lack thereof, of a particular occurrence of a particular incident, or lack thereof. If it is about you, you will have to say, Hi, I swear by God, this did happen, that not happened. And you have to be clear and specific. But if it is about someone else, then all you need to

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swear, all you need to establish here is your lack of knowledge. I swear by God that I don't know, of this property being seized by him from him or something of that nature, which is, you know, it's expected

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to even talk about you know, what, if it is your behemoth, for instance, your beast of burden, you have to be specific if it is about your negligence, but if it is about the behemoth itself, you will have to swear that you don't know that your behemoth caused this damage to this property or not.

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position

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to

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know your two witnesses or his oath your two witnesses if you are the claimant, you need to prove and produce two witnesses. That denier will only need to take an oath if you fail to produce your two witnesses.

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So the denier only needs to take an oath to deny the claimant is the one who needs to prove something the denier does not need to prove anything he just needs to take an oath of denial.

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So who may take an oath that she then said

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well, if I cannot admit I will move this hot corn beside for hot and move less

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water to marry it now who said Sabbath when lumea lefou for about the war on that idea mean lamb or if I'm sorry, if a better idea mean lamb use

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if at the sister bankrupt person is entitled to some right and has a witness to that, and then the bankrupt person or the heirs of the deceased to take an oath, this right will be granted. If they do not take an oath and the creditors offer to take an oath. They the color, the creditors will not be allowed to take one.

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You probably want to understand what that means.

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Right?

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Okay, so

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someone who was bankrupt

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if we find if we find the property that he owns, what happens to this property, bankrupt and there are creditors, he owes money to the creditors, right? owes money to the creditors and he's bankrupt and we found the property that he owns what happens this property will go to his creditors, we will divided between his creditors, okay. Now, there is one weakness

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that this property belongs to this bankrupt person. What does the bankrupt person need to do to be entitled to the property?

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take an oath. Okay, I'm not taking it.

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Well, he could be he could be he could be right or wrong. I'm not taking it because of the property's not mine. I'm not taking it because if I take it and basically claim this property now, it will go right away to the creditors.

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So I'm not taking it.

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Now. Can the creditors take the oath along with the one witness? No. That's what he's saying here. The creditors cannot take those. They cannot take the oath.

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This property belongs to this bankrupt person so that they are entitled to the property. That's basically what he's saying. If it makes sense,

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then the check says

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where they cannot sit down with

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me and when Carla and I believe we are mean and why that leads me read him young men who in an era

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if the claim is made by a group, he that denier must take an oath for each one of them.

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If he says I will take an oath, one oath for all of them, it will not be accepted, unless they approve of it, unless they approve of it. So each one of them is entitled to his oath. So he asked to repeat the oath for each one of the group. Now, if it is one person

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who made four claims against him, can he take one oath against the four claims? Or should he take four O's? for that one person? So the claimant is one person, he came and made four different claims against the denier. But denier has to take an oath for each claim? He has to take an oath for each claim he can't combine them in one else. Okay. Then the SEC says we're in a DA I don't.

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I didn't follow he frequently happening. I mean, if one person has many claims of entitlement against another, the defendant will have to take an oath for each claim that he denies we said that.

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Okay. Then the sheikh says, What do you mean with equally happened to me, while Coachella may not do the why, and the better the taking of an oath as prescribed regarding all the rights of humans, however, it is not prescribed regarding the rights of Allah, such as in Hadoop, and acts of worship,

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of course, and Hadoop, we're trying to get him out of it.

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So we are trying to get them out the way are actually suggesting to him get out of the the profits of Saddam Hussein, manikato kasara, I don't think you use you stole, so that he denies and walks away, and we just want him to get out of it. And, you know,

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armor also, when three people came and witnesses

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against someone,

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it was a case of about three, and the witness against someone. And the fourth was coming to deliver his witness

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spoke to him in a frightening way to just make him

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like backtrack, and not deliver his witness. This resulted in the three other witnesses being flogged, but at least he was able to spare the life of the vulture. So

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but

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but anyway,

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but then also what happens in this case, like when they recount because we talked we didn't talk about this last time when we talked about three kanthi. Well, you know, so each one of the three witnesses are told them, if you repent, I will accept your Shahada. And they repented except Abu Bakr Abu Bakr had said no, I'm not, you know, I didn't lie, I'm not repenting. It's very possible that this is what they saw. And the other Sahabi they testified against was basically with his wife.

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And they, because they, they used to cover their face, they may have mistaken her for someone else. It's very possible that we have good thoughts of all the Sahaba and say that they did not lie. He did not form a and stuff like this. So So anyway, but I said no, I'm not gonna do this. Because Apple bakra is the one who reported the Hadith of the Prophet sallallahu Sallam of Acrobat and cabal are the greatest of all enormities and he say Allah called Zhu Zhu. So if I'm the one that was reporting this holidays, you I heard from the profits all sudden that the greatest of enormity is the false testimony. false testimony is one of the greatest enormities I'm not going to say I lied,

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I'm not repenting. I'm not taking this back, I will just stick to my testimony. And he did. So they did not ever accepted his, you know, I Sahabi Shahada was never accepted afterwards. But here's the why I was accepted.

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His rewire was accepted. So you don't have to repent before you're required to be accepted. But you had to repent for your Shahada to be accepted. But the whole thing is is is like just murky.

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Anyway.

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So we are, we do not want to establish the heart against you, we want, we want to get you out of it. So if we want to get you out of it, we simply want you to deny, and we're not going to take you to tell you take an oath that you deny it, we're trying to get you to deny, even though we know you may have done it, like the prophet SAW, Saddam was trying to get my eyes to walk away. When he came to confess about his foreign vacation or his adultery, he was, you know, he knows that, you know,

00:35:32--> 00:35:39

this is consequential. And he just wanted to walk away and forget about it now has insisted.

00:35:41--> 00:35:49

But, of course, the profits are set up and not have to organize if he said, No, I didn't do it. Okay, take an oath. No, I'm trying to get you to the night.

00:35:50--> 00:35:56

So that's, that's what the when it when we say that, the mean, if you couldn't accept

00:35:57--> 00:36:02

about Hadoop, the mean will not apply in the case of Hadoop.

00:36:06--> 00:36:08

And I bet that also

00:36:09--> 00:36:18

and we will not ask you for the mean, for a better meaning to say that I paid my soccer when I asked you to take an oath that you paid yours.

00:36:21--> 00:36:53

So in the end, I bet it will not apply. Where else does that mean apply? If you see the footnotes here, you will find that the authorize the view and the Hanbury mother is that you mean and it does not mean that in the home that disagrees, but londa is brief. So he doesn't address this. But they mean in the Hammadi method will not apply to marriage restoration of marriage divorce ILA claiming the slavery of a found link Wella which has basically right of inheritance

00:36:55--> 00:37:07

of someone emancipated a claim of fathering a child with a slave your claim of lineage plus and equal retribution, aside from the case of Kasama.

00:37:09--> 00:37:30

So all in all these cases, they mean, is that these cases are beyond the operation of You mean, you don't take a mean, and these cases, you need two witnesses for marriage. You need two witnesses for a divorce, you can use one witness and you mean, you need two witnesses for ILA.

00:37:33--> 00:37:35

You mean whatnot.

00:37:36--> 00:37:49

Yeah, I mean, it is also if you say I did not violate them in Saudi, I did not you know, make a lot of my wife, we will not tell you taken over 30 that we like softer.

00:37:50--> 00:38:11

So, these are areas in which the mean is inoperable. So, the mean is mainly operable, and who could either mean and mainly in financial transactions mainly in financial transactions, but outside of financial transactions, we said sometimes, if it is related to finances, you, for instance,

00:38:14--> 00:38:47

caused me harm I lost the vision in my one eye, but he didn't put out the word he quote retribution will not be possible here, because how you know at least in their times, I cannot make you blind without booking culture i. So, equal retribution is not possible here. What is going to be do here is the half of the year you know, one half of the day or 50 cameras for instance, and in this case, this is the financial right. So yeah, I mean, is is operable here in this case.

00:38:50--> 00:38:53

So, that brings us to the end of the chapter on it, I mean, for the hour.

00:38:54--> 00:39:13

inshallah, next time, we will have the last chapter in the book of shahadat in some of the Hammadi books, this would be a book in and of itself that we will discuss next time which is the book of Accra, the book of acknowledgement slash confession, because

00:39:15--> 00:39:28

you know, if you want to translate a car will be acknowledgement slash confession because it includes both acknowledgement and confession Cody ever suffered by the electronic dance the fair go to where they

00:39:29--> 00:39:30

will happily upset