FQP13 Fiqh of Penalties – Collective Repetitive Oath Taking, Qasamah
Channel: Hatem al-Haj
Series: Hatem al-Haj - Fiqh of Penalties
File Size: 41.75MB
Finish what before Ramadan?
the whole section on penalties maybe yes.
What else I'm about to say. So now inshallah we will go over Babel persona
which I translated as collective repetitive.
That's a descriptive translation
selective, repetitive or staking. So, and then we will, inshallah explain what it means.
Or maybe before we start, you know, reading, just a quick explanation. So basically someone died in a particular place, someone died in a particular place.
And we don't have proof
on who killed them. However, there was animosity between
that person, that victim and someone who lives in that particular neighborhood,
someone from the family or the tribe that lives in that particular neighborhood.
they, the family of this person are suspecting that it was that person, that person who came to them, they don't have proof, they take oath
in place of the proof,
that chapter of Kasama, we need to basically, you know, I hope that we will not spend the rest of the hour on the chapter of Kasama to
clarify it, but it is complicated. I have to tell you, it is very complicated.
The first person to
adjudicate a case on the basis of Kasama, or to introduce Kasama was what he did in mahira. fil a.
And then it was said that the Prophet sallallahu Sallam approved of it
And then we have you know, if you look at the Hadith of the sockeye salmon, although they are some of them are in Bukhari and Muslim, but if you look at the hadith of upasana,
there are too many variations
that make it extremely hard for people to depend only on sort of a literal interpretation of the text without invoking the principles, you know, affect the principles of Sharia the principles of the deen
too many variations about
one or the other. There is a hubby's here that the shift chose to start with a chapter by and let's go over this hobbies and try to understand
how the different takes on
this particular ruling
which is extremely controversial that many different levels and let's go over the different levels of controversy here. So jack says that our sad, sad Old Navy hazmat What if you have no caddied animal Hi, yes, sir. Well, Abdullah hipness in Tahlequah, Kibera haber, fetter, for lack of inactive quoted Abdullah hypnosis for Tamil yehudah be for para la sala salami oxymoron soon I'm in kumala Roger in main home, failed foul baremetal fekadu Imran lameness had who gave alifu cloudify to burrito calm Yahoo ba Manny comm cinnamon home, Carlo common kuffaar Carl, further Nabi sallallahu Sallam men, Kibera so sad of NaVi hosmer Andropov naka de generated that the highest and Abdullah
evanesce went to high bar and parted from each other among palm trees of the lightness and was killed and the Jews were blamed for the murder by the man and it sounded the brother of Abdullah Agnes and her yessuh his friend who was his companion on that trip,
the Messenger of
The Messenger of Allah sallallahu Sallam said, set them to your highest.
And why is his brother and Abdurrahman evanesce? He said to them,
let 50 of you take oath regarding
hacky use in a man
from them, and he should be surrendered with his rope. Surrender with his rope baramati meaning go around, usually means and like, it means his entire it means like his life, like surrender to you to kill him
with his rope around his neck, they said, We did not see this matter ourselves, how can we take an oath, he said, the Jews would exonerate themselves by the oath of 50 of them. They said, messenger of Allah, they are people who are unbelievers. So how would you trust their oath? That's what they wanted to say.
Then the Messenger of Allah sallallahu Sallam paid them the blood money himself, pay them the blood money, himself. Okay, so that's one story here.
Based on this story, the medic is and the hunt buddies who take our most literal interpretation of this version of the story, this version, because there are different versions of the stories of the story. The medic is on hand berries will say that when there is animosity, you know, Laos,
and particularly, ham bellies, they have their different sort of
concepts of Laos. So allows for the Han berries in the authorized position, meaning history of animosity
low with in the unauthorized position in the Hanbury method, meaning weaker evidence, evidence weaker than an admissible evidence in the case of equal equal distribution, one witness, they found him in a place with the man holding a knife.
Some other sort of corroborating evidence or weaker evidence that they, they found, they found them among a group of people.
So they cannot use one of them, they find them among a group of people that, you know, left him that so they can point to one of them different, but that in the authorized position now was basically which creates the suspicion and changes the dynamics, because what are the ongoing principles, in all cases of
litigation, available tournament, or whatever, you know, I'm an anchor, the proof is on the claimant, and the oath may be taken by the defendant.
So that claimant who is unable to prove establish
evidence on their claim, may then ask the defendant to take an oath and say, Well, I didn't do it, and then they walk free. That is the ongoing principle. That's long gone principle. Now, here in this story,
the magic is unhung berries are switching this
they're allowing the claimant to take oath to prove their claim.
So, what is changing the dynamics? This the presence of that sort of animosity, history of animosity and the fact that someone was killed and
so, live up to the Muslim like, we will not let that basically go on accounted for. We have to figure out you know, who can say that person nomadic is 100 bodies and certainly it is not that simple. Because what the magic is, values are saying is that you will take 50 years 50 people, each one will take one oath
What if we
you don't have
50 males because according to all of them except that the shafia ease females are not in
females are not involved in this or staking
saffy saffy he said females are involved in this oathtaking
if females are involved they can take these oaths it's not only about men were the prophets allah sallam said the oxen come sooner rather than men come 50 men have you should take oath courage
when it is not intended to restrict it to may and zone v it was just the because most likely it would have been males in a in a scenario of this nature so it is it was not necessarily intended
but that's the chapter is not the hanafi is maliki's and hand bodies
so according to the medic isn't combat ease
you know let me just say because it will be very difficult to go by the magic is and cranberries will allow the claimant to claim the life of the accused
the hafeez and jaffa ease will not allow this that's the biggest difference between them is that the hanafi is and jeff is well not considered by samah per se
sufficient for equal retribution at all
santa will only be sufficient according to the hanafi his answer is
for what compensation
compensation not equal distribution blood money compensation okay so keep in mind that the hafeez the hanafi method is the method of the vast majority of muslim history the official method in the vast majority of muslim history so the man is very sad they will they can claim the life of a particular person because the prophet sallallahu sallam said failed for la cumbre mati van if you take those the oath one of them would be given to you with his rope around his neck that means you know when he other in other factors the hakuna matata remain home then you will be entitled to the to the blood of one of them whoever you appoint whoever you designate as the killer because you can
designate to as killers according to the very vast majority of muslim scholars you cannot designate to as killers it's just one okay
so then you take the oath and you deserve your like you could take one of them the person that you designated to be to be killed for your relative now
we're talking about how the magic isn't companies were took this to heart
and had a literal interpretation of this hadees but if you go to like an authorize the book i'm very much have like cosafa or muttalib or sacramentality era that you will find that the mentioned 10 different conditions
for persona to be applicable
the biggest is this length is the presence of pre existing hostility between these two people
but in addition to this there has to be plausibility so if the person was not present at the time
in town he can confirm he can prove that he was in a different town there is no possibility then kasama would not apply
they need the heirs the heirs of the victim need to agree on
claiming for settlement even if they don't agree on taking the oath but they need to agree on claiming on making the claim pressing charges in other words pressing charges they need to agree the victims are the family of the victim need to agree one of them when basically and the person
will make it mood
one of the heirs and these are the heirs of the victim so plausibility the agreement among the
and several other conditions to make it less possible for kasama to take place now the korea is another condition that there have there has to be some male relatives but if i have three main relatives
three male relatives i will divide the 50 oats between them
so each one of them will do
posts comes up to 51
right so that's that's how it goes if i have too many relatives 25 and 2525 and 25
let me give you the customer according to the hanafi madhhab because i really love the persona according to the hana females
before we move on
so according to the hanafi madhhab is basically you find someone that in a neighborhood you know inside the company inside like a place
you will go to the people in that who were like the people who inhabit that place we're in charge of that place frequently that place you will go to those people
and you will give them first
the right to oathtaking not the family of the victim
that the it is the the the the the suspects are giving the oath and the hand the hand puppies will have versions of the report where the prophet sallallahu wasallam gave it first to these aspects the right to all thinking and these are authentic versions as well so the hammer phase will say we found him in this neighborhood we will bring 50 means of this neighborhood
to say by allah
i have not killed them and i don't know who killed them each one of them will come and say by allah i have not killed him and i do not know who killed them
once we're done with them
once we are done with them we will let them we will require them to pay them they all said by allah i have not killed him and i don't know who killed them once we have done this we will require them to pay the day
yeah because a muslim who was killed and they will have to be paid
they should have been you know the idea here is basically to
to enforce safety like you know he was killed on your premise he was killed inside your headquarters he was killed in your neighborhood
you either admit or tell us who killed him and then this case equal retribution will take place
where if you all take the oath and we acquit you from equal retribution you will have to pay the day for the family of the victim
if you refuse to take the oath the hammer piece will say we will lock you up until you do
indefinitely until you do
so that is basically i actually love the hanafy take on this okay so you know someone was killed some somebody here got to be responsible you know they didn't have that sort of advanced forensic investigations they bring all the people of this neighborhood or 50 men of the people in this neighborhood or this company or this or like whatever and they just tell them you know you have to you have to let us know someone was killed the hammer is also required for this process to be instigated that there would be signs of murder not natural death the ham bellies in the authorized view do not require signs of murder or natural death because they say someone can suffocate a person
and there would be no evidence
of death. It's true, if you put like a pedal on someone, like on someone's face, you may kill them without leaving evidence of, or at least in their times, he would not be able to detect it. But the Hanafi is required that there would be a sign of murder.
They even talk about the difference between like blood coming out of your nose, first blood coming out of your ears and different things with which signs would be signs of murder. So, we found that the person in this place signs of murder, bring the people let them take owes, one of them would admit or tell us give us a lead to the person who killed them and then we can follow that lead until we establish equal retribution. If we are unable to follow any lead, if there are no leads to establish an equal distribution, then we will have them pay that the end divided among themselves, and it will not be too much for them. Beautiful.
here, or Thunder was that, you know, persona conception in the Hanafi madhhab, which is basically Great.
Let's go to the different levels of disagreement over persona. So the first level of disagreement over Kasama is an existential one is their customer to begin with.
And it's now
is this ruling a valid ruling to begin with ns lab.
So you have so many hobbies, but you're having consistencies, and those are hobbies. Some of these are either reported in Bukhari and Muslim but you still have some inconsistency between the Hadith of the reports in Korean Muslim in the different pair of narrations.
There does seem to be some root here for this.
We said that it was legislated before Islam
and that the Prophet sallallahu Sallam approved of it actually the fact that he was legislated before Islam was reported in Muslim.
Now, sadly, if not the labneh armor, one of the great phoca of Medina, one of the great fukuhara of Medina, from the time of the tambourine
did not accept persona, there is no persona. According to Solomon, Abdullah
amarapura Z's did not accept khazanah Hallmark na Z's wanted to adjudicate that case one day, and he had many fuqaha present and the majority accepted persona. But he said to Abu Dhabi,
what do you think? So how about I said to him, you have basically the most noble
sort of members of Arab tribes in your presence. And you have O'Meara and john, you have the generals of your army, in your presence, if they were all to agree, all of these noble, most trustworthy people, and these are the generals of not the generals of his he didn't Amalia, these are the generals of Omar Abdulaziz different castes of people. So if all of those people were to agree,
or were to claim that a man committed Zina in homes, or like some other city,
and they have not seen it, would you establish the heart? He said, No, if they were all to agree that some that he kept on, you know, using that argument, and then on whatever he's wrote to his vice ference or to has like agents in different localities that they should seize
the use of cassava.
He accepted the position of Abu Colaba. Basically, abracadabra reminded him of what the ongoing principles in Islamic law
obey innominate da,
ba da da, da, you have to prove it. And that the oath is given to the defendants, not to the claimants. Okay.
So that is the first type of the that is the first sort of disagreement
or the first point of contention here. So now we say to ourselves, but what do we do with
hubby's, what do we like we say to the armor of navajas is and this is out of nowhere, it is not anything. So what do we do with these hobbies?
Then they would say their argument is that the Prophet sallallahu Sallam actually was trying to point out to the believers, that Kasama is a bad idea.
He was setting them
take about I mean, if you want to go by, if you want to take the customer out, bring 50 men from you to take an oath on something they have not seen.
The Sahaba intuitively, and also based on whatever the Prophet had taught them from before, they said to him, how could we take an orphan something we have not seen? The Prophet did not tell them, this is the correct way, this is the son that take the oath. He said to them, then the Jews will take 50 oath and exonerate themselves from the murder,
they did not accept it. So the prophets of Allah Muhammad,
basically, whenever a believer and it said that the arm or the Alon Omar, whenever a believer gets killed the the you know, we will try as much as we can to compensate the family of the believer.
And this will come out from beta. So, the Muslim Treasury, and that is what the prophets eventually did, he paid the compensation from the Muslim Treasury
for the man that was killed.
this position is a very minority position, but it does have some strength, it has obvious strength, and all the consensus in consistencies in their various reports would tell you that sort of a reasoned rational approach to the issue is a valid approach. So, the position of ahmednagar Aziz is a strong position, the position of the Hanafi is is a strong position as well it
according to the Hanafi is you could say that they employ the Hadees but certain version of the ahaadeeth and try to reconcile and so, according to the Hanafi conception is is also very reasonable. And at the end of the day,
Islam really wants to make sure that no one is killed and basically not accounted for not given justice. So, the second question that we ask ourselves, so what is
the second question that we ask ourselves is, so what is due?
If we establish this, what is you
and what is you according to the HANA fees and jafra is, is only the data
once you according to the Maliki's on honeyberries is the blood of the
accused, but according to the hotkeys and Sharpies is only the day. The other question that we want to ask ourselves,
who will take those first.
And according to that, you're more the claimants will take the oath first. But according with the conditions that the gym were established, like, according to the Canon bodies, for instance, all of them have to agree all the family members have to agree on pressing charges. And there has to be plausibility and there has to be pre existing hostility and all of these things.
But the Hanafi said, it is the defendants that will take those first defendants
and if they don't, they get locked up and they need to tell take that off. It's basically a means to
establishing guilt, if there is guilt, you know, you you have met or you tell us who did it or we lock you up
until you take the oath you take the oath and why are you not taking that was like if we are invited to walk in your why you're not taking notes, you must be hiding something, just take it off and move and go home.
So that then the other question that we about that is important to ask is What is this?
What is this idea of you know,
what will change the dynamics that is what law says about what
is the factor that will change the dynamics of biometric data and even on color i would make a sama valid because panorama seems to break every principle of litigation at a slap so what is it that is causing this and you know in the hanbury method as i told you it is the pre existing hostility but there is so much disagreement among them as i have about laos as i say in the commentary some of the levels that some of the things that will cause laos that i mentioned in the commentary are enough in some judicial systems to establish guilt are enough in some judicial systems to establish guilt like you feel like someone holding a knife was blind standing next to the like victim who was stabbed by
that knife that is considered laos you know many people would consider this enough to establish guilt okay so these are important things to keep in mind
when it comes to when it comes to concern
and like i said whenever something is hard for you like whatever something in the law or in islam is hard for you to wrap your head around just slow down try to like study the matter investigate
you may have come across one opinion two opinions try to figure out like
the entire spectrum of positions on this issue and the whole discussion and then if you still have this comfort tried to categorize this matter is a definitive and transmission and implication or not definitive and transmission and implication if it is definitive and transmission and have an implication then it is time it is time to have to steep and asleep to have faith and to accept it even though you can't wrap your head around that it's fine if you can that's fine
if it is not definitive in implication or
any transmission or or implication to talk of suspend judgment that's fine just to suspend judge
okay next the sheriff said fermata woody daugherty da da ohanian calcula who cannot be no mhada what else can i can i've been alongside you i had an accident earlier i hadn't been home from seeing me and and for me help you hannaford medalla he comes in i mean what better for a naca lu family
so this is the hammadi way of kasama now and some of the hanbury description here is not is not authorized the view and we will point that out when a murder when a murder victim is found if his heirs blame a certain man for killing him and that has to be all of his heirs all of his heirs have to press charges even if they don't all take owes some can press charges but not equals and it is known that there was hostility between them previously as well as reasonable suspicion as in the case of the unsolved and the people of khyber then those airs will take 50 o's so it is 50 taking one hose each or one taking 50
again it's one of them and they will thereby be entitled to take his life and we said canopies and schaeffler is don't give them that entitlement only the day
if they do not take the oath then the defendant will take 50 oath that he is innocent and will be acquitted if they declined to take the oath they will be bound to pay the day
so now if you don't take the oath says the claimant the defendant will have to take those
and then the if the defendant denies or declines taking those we will force him to pay today
the question is i mean it doesn't seem i know there are variations i don't know it seems like they were saying you know playing god has brought
They did not seem
that they were identifying the person right from
home failed for ni kompromat II but the prophet SAW someone told them to take the oath concerning a man have one person among them
to be given to you You cannot basically according to the vast majority, you cannot basically accuse more than one person of the murder. Yeah.
Yeah, so but they initially came in, they blame the Jews, not the Jews of hi but not necessarily one particular person.
November's then Okay, so that's clear. Then the chick said find the own while I'm here though be mean and muda Lee whether who else Mmm. Invited man. What? yoke Simona extra Meanwhile, head when am jacobina Hamada Medallia Meanwhile, Haider Abadi.
So he says if the plaintiffs do not take the oath and do not accept the oath of the defendant, then the emem authorities will pay the indemnity of the victim from baited man. They they cannot the claimants or the plaintiffs cannot take oath against more than one person if there was neither no on pre existing hostility between them, nor that was reasonable suspicion.
reasonable suspicion according to Abner Kodama would include the man who has the knife in his No, according to the authorized the view, that Laos and is the reasonable suspicion which is the pre existing hostility,
the defendant will take one oath only and will thereby be acquitted. So,
if there is no, if there is no that was thought pre existing hostility, the defendant would only take one host and be acquitted. So that is basically a persona. So Kasama is when we are unable to produce when someone is killed
in a particular neighborhood, or you know, particular locale where that is inhabited by a certain tribe, a certain family is certain group of people, you know, inside the factory and so on, you bring out, sir, we could still use this. This is a very beautiful way
of establishing justice. Basically, someone got killed inside of an factory, you lock up everyone not lock up, you bring them to court, and you ask them to take us That was
our informant pattern I By Allah, I have not killed them, and I don't know who killed them. And then you it's, it's it, it is a good way of doing it. So whether you take it out of his position, or the hanafy position, or if you're comfortable enough with a Medicare value position, that's fine. I personally find the hanafy position to be a way of
employing those hobbies and applying the concept of persona in a way that does not compromise the ongoing principles. compromise the ongoing principles. The uncommon principle is in litigation in Islam, lbnl amadora immunodominant.
The proof is required from the plaintiff and the yameen. is required from the defendant. Yes. In the last night, where there is no
suspicion or reason why there
is only one person that has to meet the person. He didn't continue to say after he's been acquitted is the
So now what happened to
so if he refuses to take the oath, then he will have to pay the data. If he does not refuse to take the oath he would walk free like have any liability
The idea behind
some kind of compensation. Yeah, but but then we were unable to establish it here in any way. There is no pre existing possibility.
Under the in the last scenario is he says here?
When you're conveying
if there was no, there was no house pre existing hostility, then the defendant will take one house and, and be free. I mean, at the end of the day like things happen
and then there is no pre existing austerity you come and claim that I can do your relative all I need to do is just take the oath and that I didn't
if there is no pre existing assets, yes.
It's just that we don't have any proof like
if someone died in the midst of people in a crowded place, for instance, and we were not able to establish proof on any one of them, the Imam will pay for that. And that is a case that happened during the time of Amara, the Allahu anhu. And
you know, Omar Allah animal consulted on he told him that you know, no Muslims life will just go out accounted for you pay for him from beta and math. And this is a person that was like an Stampede scaled, but the the family did not play accuse anyone of getting them
so they pay their day for Betamax
if you don't have 50, like I said, if you have three people then 17 hours for each one.
we can we can have that we can add all staking like the idea here of in the hanafy conception of Kasama it complements all the forensic investigations and everything, all taking by everybody in the neighborhood, also taking by everybody in the factory, or taking by everybody who is suspected to have been around at the time of the murder, bring them all home taking for everyone repeated and
we find and then if we have like seven people divide the 50 owes between them. And the idea of 50 owes is basically it's about
like when you take the oath once and twice and three times it you know, if there is any sort of faith in your heart, at one point, you just can't do it and you admit or you you let your let them know who did it or you give them any leads
that could could lead to the establishment of equal retribution.
back person back to the person who was standing there.
There is there is controversy about that particular case and there are reports that this particular case happened
it happened during Ramadan.
And it was found that the killer was not that person. He just walked in and found that knife held the knife and people walked in and found them.
But it was not.
So it can happen.
To what I
I don't know what to do with our lives.