Hadith 33: “Were People to be Given..”

On the authority of ibn Abbaas (may Allah be pleased with them both) that the Messenger of Allah (Allah’s blessings and peace be upon him) said, “Were people to be given according to their claims, men would claim the wealth and blood of the people. But the burden of proof is upon the plaintiff and the taking of an oath is upon the one who denies [the allegation].” It is a hasan hadith. Al-Baihaqi and others recorded it in that fashion and parts of it are in the two Sahihs [of alBukhari and Muslim].

  1. “Were people to be given according to their claims..
  2. “But the burden of proof is upon the plaintiff’
  3. “the taking of an oath is upon the one who denies [the allegation).”
  4. Other Points Derived from This Hadith:

General Comments About the Hadith: This hadith is of extreme importance in that it states a founding principle of judgment and claims in Islam. Ibn Daqeeq said that this hadith is the greatest reference to turn to in the face of claims and disputes. The shareeah seeks to protect religion, life, wealth, mental capacity and familial ties and honor. In particular, wealth, life and honor need to be protected from false claims and accusations. The shareeah has laid down the principle that a person is presumed innocent unless proven otherwise. If no such evidence is brought forth, the accusations will be dropped and the person’s wealth, life or honor will be protected.

The principles stated in this hadith are general and widely applicable. However, there are some exceptions that are mentioned in the books of fiqh. The Shafiees and the majority of the scholars state that the principle of taking an oath from the defendant is used in cases related to wealth, property, prescribed punishments, marriage and divorce. Malik does not apply it to cases of marriage, divorce and freeing of slaves. He says that in those cases, the defendant is not asked to make an oath until the plaintiff offers some sort of evidence, even if it is just one witness. The Hanafis only apply it to cases related to wealth and property.

1. “Were people to be given according to their claims, men would claim the people’s wealth and blood.”

Making a claim against somebody else is, practically not morally speaking, a very easy matter. If that were all it took to take other people’s wealth and blood, there would be a great deal of evil on the earth. Mankind, save those who have been protected and guided by Allah, is wont to be greedy and overbearing. If they had the chance to take others’ wealth and even ask for their lives, they would do so. This is a fact that is proven by this hadith of the Prophet (peace be upon him). Therefore, steps must be taken to protect society from such behavior. These “steps” are the laws or judicial process that have been enacted that protect everyone’s rights, life and property.

The Prophet (peace be upon him) specifically mentioned “men” in this hadith. Al-Haitami points out that the reason “men” is specifically mentioned is that, in general, they are the ones involved in such claims against other men. Another narration of this hadith mentions, “people,” instead of men. It is confirmed in the sunnah, that women have the right to bring cases against others, even on their own behalf or on the behalf of others. The goal of the shareeah is to bring about justice and to put an end to any form of wrongdoing. Hence, it would not make any sense to bar anyone from bringing a case to court if he or she was wronged in any way.

Incidentally, the word qaum or “people,” in the portion, “would claim the people’s blood,” is also often used just for men. However, it can be inclusive of women also. Here, it is understood to include both.

2. “But the burden of proof is upon the plaintiff’

The Definition of “Plaintiff’ and “Defendant”: In general, in every dispute, there are two parties. There is the claimant or plaintiff and the defendant. These are known as the al-muddaee and al-muddaa alaihi, respectively. There is some difference of opinion among the jurists as to the exact definition of these two terms. There are basically three views on this question. The first view is that the plaintiff is the one who is not charged with anything or can remain silent of the two disputants. In other words, he is the person who could give up his claims and not press charges, for example. The defendant is the one who cannot remain silent or unaffected once the charges have been pressed. He is the one being sought after.

A second view, which seems to be the stronger view in this author’s opinion, is that the plaintiff is the one who is claiming something other than what is apparent or what has not yet been established in the past. The defendant is the one who is on the opposite side, arguing according to what is apparent.

This difference of opinion has a number of fiqh ramifications. For example, suppose a polytheistic husband and wife embrace Islam and then they differ in their claims about when they embraced Islam. The wife claims that they became Muslim at different times while the man claims they became Muslim at the same time. If the wife’s claim is upheld, the marriage is dissolved; but the marriage remains intact if the man’s claim is upheld.
According to the first definition given above, ibn Raj ab says that the wife is the “plaintiff’ while the husband is the “defendant.” Hence, the wife must bring forth evidence for her claim that her marriage should be dissolved. However, according to the second definition, the husband is the “plaintiff’ because he is claiming something that is not the norm. Usually, people embrace Islam at different times. Therefore, the burden of proof will be upon him. Ifhe does not present any proof, the wife’s claim will be accepted. A third view is that the defendant is the one rejecting a claim while the plaintiff is the one making a claim.

2.1 The “Burden of Proof’:

This hadith makes it clear that the burden of proof is upon the plaintiff or claimant. This is because he is the one making a claim that is not apparent or obviously true. Therefore, he must present his proof for his claim. The other party is considered free of guilt or responsibility unless proven otherwise. This is a fundamental legal maxim in Islam. The Majallah states, Freedom from liability is a fundamental principle. Therefore, if one person destroys the property of another and a dispute arises as to the amount thereof, the statement of the person causing such destruction shall be heard and the burden of proof as to any amount in excess of the testified amount is upon the owner of the property.

The word that the Prophet (peace be upon him) used in this hadith which was translated as “burden of proof’ is bayyinah, which implies something that makes a matter clear and evident. According to al-Bugha and Mistu, there is a consensus among the scholars that the meaning of bayyinah is witnesses. Indeed, another hadith from Sahih Muslim states that there was a dispute between one Muslim and another concerning a well and the Prophet (peace be upon him) told the claimant, “Your two witnesses or his oath.” There is no question that witnesses play a very important role in the courts of Islam. Witnesses are people who were present and saw what took place. They are the proof that what the person is claiming is true. Due to its importance, this topic of witnesses shall be discussed in some detail here. However, the exact meaning of bayyinah will be returned to in order to determine if witnesses is all this hadith referring to.

2.2 The Criteria for Being an Acceptable Witness

Not everyone is qualified to be a witness. If anyone’s witness were accepted, then it would be easy for fabricated or false testimony to be accepted in a court of law. This would defeat the purpose of attaining the truth and fulfilling everyone’s rights. Therefore, Islam has laid down certain criteria that a person must meet to be considered an acceptable witness. These are:
(1) The witness must be sane and competent.
(2) In general, the witness must be an adult. There are some exceptions to this wherein some scholars will allow the testimony of children.
(3) The witness must be a Muslim. In general, non-Muslims are not acceptable as witnesses unless it be in a case dealing with non-Muslims.
(4) The witness must be of sound memory. If someone is known to be senile or not able to recount what has occurred in the past, then his witness will not be considered acceptable.
(5) The witness must be a person of integrity and honesty. This, above all, implies that he is a good Muslim and fulfills his religious obligations while remaining away from the blatantly forbidden deeds. Even if a witness meets the above requirements, his witness will not be accepted if there is a clear conflict of interest. For example, if the witness is closely related to either disputant, an open opponent to one of the parties or he is to gain from the outcome of the trial, his witness will not be considered acceptable.

2.3 The Importance of Giving One’s Testimony

Once again, the attainment of truth and justice is emphasized in Islam. One of the most important means by which that is achieved is by people presenting what they know concerning issues of dispute. Therefore, it is very important that people offer their testimony and offer their testimony truthfully when called upon to do so. For this reason, appearing as witnesses and offering testimony is considered a communal obligation in Islam- if sufficient people fulfill this role, the others are absolved of responsibility. It can become an individual obligation if a particular person is the only one qualified to fulfill this responsibility.

Allah says in the Quran, “And the witnesses should not refuse when they are called” (al-Baqara 282). In his commentary on this verse, ibn Katheer points out that according to Qataada and others, the meaning of this verse is that when one is asked to be a witness to something, he should not refuse to witness it. The majority of the scholars state that it refers to giving one’s testimony. In other words, if one has agreed to witness something, then he cannot refuse to later give his testimony when asked to do so. Ibn Abbaas and al-Hasan al-Basri stated that the verse is in reference to both accepting the request to witness something as well as giving one’s testimony when called upon to do so.

To conceal what one has witnessed is a sin. Allah says, “And conceal not the testimony, for he who hides it is certainly sinful of heart. And Allah is all-knowing of what you do” (al-Baqara 283). Finally, giving false witness is one of the greatest sins that one can commit. Note the following hadith on the authority of Abu Bakra: “The Prophet (peace and blessings of Allah be upon him) said three times, ‘Shall I not inform you of the greatest of the great sins?’ They said, ‘Certainly, O Messenger of Allah.’ He said, ‘Associating partners with Allah, being undutiful to one’s parents,’ and then he sat up while before he was reclining and said, ‘And certainly giving false witness,’ and he continued to say that until we said, ‘If only he would be silent.”‘ (Recorded by al-Bukhari and Muslim.)

2.4 The Witness Requirement

Islam does not require the same number of witnesses for every type of crime or transaction. Instead, depending on the seriousness of the matter, more or less witnesses may be required. In the case of fornication or adultery, four men are required as witnesses to prove a person’s guilt. Allah says in the Quran, “And those who accuse chaste women and produce not four witnesses, flog them with eighty stripes and reject their testimony forever. They are the evildoers” (al-Noor 4). In the case of other crimes for which there is a stipulated legal punishment, like theft or alcohol consumption, two just and righteous men are sufficient to conclude that a person is guilty. Allah says in the Quran, “And take as witness two just persons among you” (al-Talaaq 2).

The Shafi’ ees say that this condition of two witnesses is for every case that does not deal with wealth or money. Hence, it is for cases like marriage and divorce. In those cases, they state that one must have two witnesses to confirm those acts. In the case of matters related to wealth or money transactions, such as sales, renting and so forth, the witnesses required to prove a case are two male witnesses or one male witness and two females. This is based on the Quranic verse, “And get two witnesses from among your men. And if there are not two men [available], then a man and two women, such as you agree for witnesses” (alBaqara 282).

2.5 Female Witnesses

The last case cited above brings up the question of female witnesses. Since this is a widely misunderstood issue, it shall also be discussed separately in some detail. First, it should be noted that Islam is the religion that is based on revelation from the Creator. Allah, the Creator, knows the abilities and limitations of all of His creatures. He has laid down His laws, based on His wisdom and mercy, in such a way that no one is unfairly burdened beyond his normal means. Furthermore, the laws are concerned with normal and usual circumstances and are not founded on unusual or exceptional circumstances. When it comes to the question of witnesses or testimony, the normal abilities of both men and women are taken into consideration. This is why the rulings concerning female witnesses differs from that concerning male witnesses.

In some cases, a woman’s testimony by herself is sufficient; in other cases, it is equivalent to that of a man; in yet other cases, it is equivalent to half of that of a man; sometimes, according to some scholars, it is not accepted. The cases where only women’s testimony is accepted are those matters concerning which men are not familiar or do not have privy to such information. For example, cases related to women’s menses, post-childbirth
bleeding and so forth are cases wherein women’s testimony alone are going to be accepted. According to Mahmassani, all the schools of fiqh accept this principle, they differ only as to the number of female witnesses required in different cases. Similarly, a woman’s testimony concerning breastfeeding, pregnancy, the birth of a child and the child’s crying at birth will be accepted on her own, according to the Hanbalis. The Prophet (peace be upon him) separated a man and his wife when a woman came testifying that she had breastfed both of them. (Recorded by al-Bukhari.) Abdul Razzaaq records that Uthman followed that same practice of accepting one woman’s testimony that she had breastfed specific people.

In other cases, the testimony of a woman is exactly equal to the testimony of a man. This is, in particular, true for what is today termed, “expert testimony”. If a woman is a doctor, for example, and she testifies based on her knowledge and expertise, there would not be any difference between her testimony and a male doctor’s testimony. Another example is that of a woman tailor. If she testifies in a court that a certain garment is not up to standard quality, her testimony would be accepted and would be the same as if a male tailor had made that testimony. There is precedence in this approach in some hadith of the Prophet (peace be upon him) and actions of Umar ibn alKhattaab. The Hanafis, for example, accept the testimony of one woman’s sighting of the moon for Ramadhan because it is a report of a religious nature for which one woman is sufficient. This is also the view of the Hanbalis and some Shafiees.

In some cases, though, the witness of two women will be considered equivalent to the witness of one man. These are in those areas concerning which women usually do not have as much experience as men, especially in an Islamic environment. The first of these categories in which two women are equal to one man are matters related to wealth, monetary matters and financial transactions. There is a consensus that a woman’s testimony is acceptable in these matters and that her testimony is equal to “one-half’ of a man’s. This view is clearly based on the verse in the Quran, “And if there are not two men [available as witnesses], then a man and two women, such as you agree for witnesses” (al-Baqara 282).

The purpose of that command is that when such contracts are to be witnessed, male witnesses should be sought. However, if they cannot be found or are not available, female witnesses may be used although females are usually not involved in such procedures. The Malikis and the Hanbalis say that a judge may decide a case based on two female witnesses and the oath of the plaintiff. Ibn Taimiya says that one female witness and the oath would be sufficient. Note that the verse above is simply talking about the procedure of getting witnesses during the contract or agreement. This does not mean, however, as ibn al-Qayyim pointed out, that a judge can only decide a case if there is at least one male witness and two female witnesses. The above procedure is simply to safeguard one’s wealth.

If a plaintiff has a male witness and two female witnesses, that should be sufficient to prove his case. However, that is different from a judge deciding a case. The judge has much more latitude and flexibility. He may decide a case even with just two female witness or one female witness if he has reason to believe the testimony given.

According to many scholars, the issues of marriage, divorce, returning to one’s divorced wife, paternal and maternal relations and similar matters are dealt with in the same way as monetary matters. In other words, two female witnesses will be equivalent to one male witness in such cases. This is the view of the Hanafis, Dhaahiris, ibn Taimiya, ibn al-Qayyim as well as a number of early scholars. The Hanafis, however, state that one man must testify with them, as explicitly stated in the verse quoted above concerning financial transactions. The evidence that woman’s testimony is to be accepted in such cases is found in the verse, “And take as witnesses two just persons among you [Muslims)” (al-Talaaq 2).

This verse is considered mujmal or “undetailed, ambiguous”. Its explanation or details are found in al-Baqara 282 quoted above: two just men are required or one man and two women. Furthermore, ibn Hazm records an incident in which a man divorced his wife and there were four women present at that incident. Umar accepted the evidence of those four women and separated that man from his wife. In addition, there are some hadith of the Prophet (peace be upon him) that are stated in a general fashion, not implying that they are particular for the case of business transactions only. For example, the Prophet (peace be upon him) stated, “The witness of two women is equal to the witness of a man.” (Recorded by Muslim.)

Indeed, it is argued, if the woman’s testimony is accepted in the case of business transactions, it should be accepted in the case of divorce and a man returning to his wife. This is because this would be something that she may witness on a more regular basis and would be something that she would be more familiar with. Hence, if her witness is accepted in the one case, it should also be accepted in the other. This was part of ibn Taimiya’s and ibn alQayyim’s argument on this question.

In cases of “unintentional felonies,” such as involuntary manslaughter, which require monetary retribution, the four schools of fiqh accept the testimony of women. However, the Hanafis, Shafiees and Hanbalis require the addition of one man to the women’s testimony. The Malikis, Dhaahiris and one opinion among the Hanbalis is that such is not a requirement. This view is based on the judgments made by Ali in which only women were witnesses of such offenses. The Hanbalis and Malikis also accept women’s testimony in cases of voluntary or intentional “felonies” which do not require a hudood punishment.

There are some areas in which the four schools of fiqh do not accept female testimony because, in general, they are areas in which they are not very much familiar and the resultant penalties are heavy. If there is any doubt concerning a crime, the hudood punishments are not to be meted out. Such crimes must be proven in a definite fashion. For this reason, these scholars do not implement the hudood punishments based on the testimony of female witnesses. Al-Zuhri is reported to have said, “The sunnah since the time of the Messenger of Allah (peace be upon him) and the two caliphs after him is that the testimony of women is not permissible in the cases of hudood.” Abdul Razzaaq also records something similar from Ali ibn Abu Taalib.

They also argue that such crimes are usually committed under particular circumstances, involving crime, fear and so forth. Under such circumstances, it would be difficult for a Muslim woman, who is usually sheltered from such things, to be considered a sound and trustworthy witness. Ibn Hazm argues that in every type of case, the testimony of a woman is accepted and is equal to half that of a man. Therefore, for example, the witness of eight women would be sufficient to prove the act of illegal sexual intercourse. This was also the opinion of Ataa ibn Abu Ribaah and Hamaad ibn Abu Sulaimaan of the early scholars. Taawoos said that the woman’s testimony should be accepted in every matter except illegal sexual intercourse as, he said, she should not be looking at such a matter (meaning that a woman’s extreme modesty and shyness would prevent her from seeing such an act and being able to witness or testify about it later).

The evidence for this view is the generality of the hadith above stating that two women’s testimony is equal to that of one man. Furthermore, the narration from al-Zuhri quoted above is not acceptable. The chain contains weak narrators and al-Zuhri’s narrations directly from the Prophet (peace be upon him) (that is, his mursal reports) are considered weak. Abdul Razzaaq presents a report in which Umar ibn al-Khattaab used the testimony of a man’s wife against him and punished the man for drinking alcohol. Ibn al-Qayyim also presents an incident in which Umar was about to punish a person for illegal sexual intercourse on the basis of the testimony of only one woman, who claimed she was raped, along with circumstantial evidence. When he discovered that the evidence was forged, he did not punish the person. If these reports are authentic, it seems that the strongest view would be that female testimony is accepted and acted upon even in cases resulting in hudood punishments.

2.6 The Meaning of Bayyinah

In this hadith, the Prophet (peace be upon him) stated that the plaintiff or claimant must provide the bayyinah or “proof’ for his claim. As stated above, many writers seem to think that bayyinah refers only to witnesses. Indeed, al-Bugha and Mistu claimed a consensus on that point. However, that does not seem to be correct. The meaning of bayyinah is much more comprehensive and also applies to means of proof other than witnesses. Al-Mutlaq stated, “Al-bayyinah is a noun that encompasses all means of establishing the truth. Providing witnesses is one of its more important means and that is why he [the Prophet (peace be upon him)] told the claimant, ‘Your witnesses or his oath. “‘ According to Mahmassani, “Bayyinah (evidence) in the linguistic sense means the evident or obvious. In law it has been used to connote ‘strong proof … because it makes the truth evident and obvious. “

lbn al-Qayyim argues that the concept of bayyinah is something that is misunderstood by the jurists. They have greatly restricted its meaning while there is no call to do so. He wrote, Al-bayyinah in the speech of Allah and His Messenger and the speech of the Companions is a word for everything that makes the truth plain and clear. It is more general than the jurists use of the word bayyinah, as they restrict it to two witnesses or a witness and an oath … For that reason, they make a mistake in their understanding of the texts and apply them in a way that they are not meant to be applied …

The word bayinnah in the book of Allah is a word used for anything that makes the truth clear. Allah has said, “Verily, We sent our messengers with clear proofs (bayyinaat)” [alHadeed 25] … [lbn al-Qayyim quotes a number of verses and then continues:] There are numerous examples of that nature. The word bayyinah was never restricted to mean witnesses. Indeed, the Book [of Allah] never uses the word in that sense. If that is known, then the statement of the Prophet (peace be upon him) to the claimant, “Do you have any bayyinah?” and the statement of Umar, “The burden of bayyinah is upon the claimant,”… means, “Do you have any proof that will demonstrate the truth, being either witnesses or some evidence.” Under all circumstances, the Lawgiver intends to make the truth evident by any means of proof available … No right that is demonstrated by proof should ever be repelled. [If that were done,] the rights of Allah and His servants would be lost. The demonstration of truth, therefore, is not contingent upon any particular form of evidence ..

Therefore, this hadith does not mean that if a person cannot present two witnesses or a witness and an oath for his claim that his claim will not then be listened to. He may be able to present some other direct proof other than witnesses. If these other forms of proof are convincing, the judge must decide in his favor even if he cannot present any witnesses to support his claim. The goal is the attainment of truth and its enactment. Witnesses are an important means of reaching that goal but they are not the only means.

2.7 Circumstantial Evidence and Conclusive Presumption

The judge may also look into any relevant qaraain’ or circumstantial or conclusive evidence. In other words, the judge may take into consideration the clear signs that lead to a definite conclusion, although they are not at the level that evidently prove a certain conclusion. According to alSadlaan, the judge may take such into consideration when there is also clear evidence or admission or when clear evidence or admission is lacking. Indeed, a case may be decided solely on the basis of such circumstantial or indirect evidence. The validity of such evidence goes back to what ibn al-Qayyim was quoted as saying above: the goal is to reach the truth and no signs or bits of evidence that point to the truth should be ignored or discounted.

Al-Sadlaan points out that this implies that the modern forms of criminal investigation can be used in making judicial conclusions in Islam. If such is not done, rights will be lost and injustice will be allowed to prevail. Any form of such injustice is opposed by Islam.

The problem with such evidence is that jurists or judges may differ as to the strength of such evidence. The classic example is whether an unmarried woman who becomes pregnant should be punished for committing illegal sexual intercourse. In other words, is the fact that she is pregnant a strong enough sign that she is guilty of that crime? According to the Malikis, ibn Taimiya and ibn al-Qayyim, that is a sufficient sign to charge her with illegal sexual intercourse. The Malikis argue that if she were to claim that she was raped, her claim would not be accepted unless there were some signs that point to her truthfulness. If she had come bleeding or screaming for help earlier, that would have been a sign that she was raped. But if nothing of that nature occurred earlier, her claim of rape when her pregnancy had become apparent would not be accepted.

According to the Hanafis, Shafiees, Ahmad and the Dhaahiris, her becoming pregnancy is not a clear enough sign to charge her with the crime of illegal sexual intercourse. It is possible that she became pregnant due to rape although she is not able to prove that. It is also possible that a man’s semen could have entered her body without the actual act of penetration. Therefore, they argue that she should not be punished for the act of illegal sexual intercourse since such punishments are not to be enacted when there is any amount of doubt involved.

Nowadays, the moral laxity of the people is much greater. At the same time, though, there are many more ways by which a woman could get pregnant even without her knowledge. Therefore, it is difficult to say which of the above opinions is the stronger. The overriding principle, though, is that the person is free of blame until proven otherwise. Umar ibn al-Khattaab seemed to take an approach based on the situation. Malik records that he said that the punishment is to be implemented when the woman becomes pregnant or admits her crime. On the other hand, ibn Abu Shaibah records that the people were accusing a woman of fornication. Umar was told good things about the woman, so he went to her to ask her about her situation. She stated that she prayed during the late night and fell deep asleep. When she awoke, she was being raped. Based on her statement, Umar let her go.

3. “the taking of an oath is upon the one who denies [the allegation).”

If a case is presented to a judge, he first listens to the claim. Then he asks the defendant if he admits to the charges made against him. Admission is considered one of the strongest proofs against a person. If a person admits to something, he is bound by his own admission. Therefore, if the defendant admits the charges, the case is decided in favor of the plaintif.

If the defendant does not admit to the charges, the plaintiff is then requested to present his proof. In general, if the plaintiff presents sufficient evidence, the case is decided in his favor. However, the defendant does have the right to respond to the plaintiffs evidence. Indeed, there is a hadith that states, “If two disputants sit in front of you, do not decide the case for one of them until you listen to the other as you listened to the first.”

If the claimant cannot offer any clear proof for his allegation, he may ask that the defendant to take an oath that he is free of the charges. The defendant may then have the charge or claim dropped simply by taking an oath by Allah that the charge or claim is false. Since the defendant is claiming what seems to be the apparent fact, he is not required to present any proof for his position. By mere appearance, he always seems to be innocent of the claim or charges. Therefore, all that is required of him to clear himself when the claimant cannot offer any strong proof or witnesses is an oath. He is not forced to present any proof that he is innocent or free of the claims against him.

3.1 When is the Defendant Asked to Make an Oath?

According to Abu Hanifah, al-Shafi’ee and Ahmad, in every case that the plaintiff requests it, the defendant is to be asked to make an oath. They do not distinguish between any particular defendants. The Malikis, on the other hand, say that the defendant is not forced to take an oath unless it is proven that there is some relationship, such as a business relationship, between the plaintiff and the defendant or if it is plausible that the plaintiff could have such a claim against the defendant. Their reasoning for this is that they do not want claims to be used as a way of bringing harm to others. They also do not want to leave the door open for the ignorant people to bring up charges against the righteous or noble people. If there is no warrant for a claim, it will just be dismissed. The defendant will not be disturbed in such a case.

There is no question that the view of the other three jurists is much closer to the letter of what the Prophet (peace be upon him) stated. However, Malik’s opinion has a good purpose to it. Perhaps his opinion should be modified for only those people who are proven to bring up false charges against others. If a person is known to bring up false charges, in that case, the defendant will not be brought and asked to make an oath that he is innocent. Allah knows best.

3.2 The Judge Should Remind the Defendant of Allah

It is considered proper for the judge to remind the defendant of Allah before he makes him state his oath. He should tell him to swear by Allah, the One besides whom there is no god, that such and such is true. He also should remind the defendant of the great sin of making a false oath. Al-Bukhari and Muslim record that ibn Abbaas acted in this fashion when two women were brought to him in a civil dispute. He reminded them of Allah and then read to them the verse, “Verily, those who purchase a small gain at the cost of Allah’s Covenant and their oaths, they shall have no portion in the Hereafter. Neither will Allah speak to them, nor look at them on the Day of Resurrection, nor will He purify them, and they shall have a painful torment” (ali-Imraan 77).

Making an oath is an “easy thing,” in the sense that it does not take much effort and it may be easy for the person to get away with a false oath. Among the important hadith that may deter a person from making a false oath are the following: When a claimant came to the Prophet (peace be upon him) about a case, the Prophet (peace be upon him) told him that he must present his witnesses or the defendant may make an oath. The man argued, “He will make an oath and he will not care [if he is making a false oath].” Then the Prophet (peace be upon him) said, “Whoever swears an oath (yameen sabr), and he is being treacherous in it, just to misappropriate the right of a Muslim man, he will meet Allah on the Day of Resurrection and He will be angry with him.” (Recorded by al-Bukhari and Muslim; the wording is that of al-Bukhari.)

Muslim also recorded the following hadith on the authority of Abu Umamah, “For he who [wrongfully] appropriated the right of a Muslim man by a [false] oath, Allah obligates the Hell-fire and forbids Paradise.” A man said to him, “Even if it is something minor, o Messenger of Allah (peace be upon him)?” He answered, “Even if it is a branch from the Araak tree.”

Siddiqi’s comment on this hadith is as follows, For a Muslim nothing is so damaging as the fact that he should go to the extent of taking a false oath in the name of Allah and that too for some material benefit over which he has no legitimate claim. It implies that such a person has no fellow feeling, no respect for the Lord, and he is absolutely bereft of the sense of fairness and justice and is consumed by a lust for material possessions.

3.3 What if the Defendant Refuses the Oath?

According to the Hanafis and the Hanbalis, if the defendant is requested to take the oath but he refuses to do so, the case is decided in favor of the plaintiff. The reasoning is that, obviously, if the charges against the defendant were not true, there would be no reason for him to refuse the oath. The Prophet (peace be upon him) said, “The oath is upon the defendant.” (Recorded by al-Bukhari.) The word ala (“upon”) implies obligation. The sane and religious person would not fail to fulfill this obligation upon him if the plaintiffs case were not true.

The Malikis and Shafiees take a very different approach to this question. According to them, if the defendant refuses to take an oath, he can ask that the plaintiff be made to take an oath. This is because the defendant is assumed to be innocent and, therefore, he cannot be asked to do anything if there is no evidence against him. Simply because he is not willing to make an oath is not sufficient to prove that he must be guilty. He may be avoiding a false oath as well as, out of fear of Allah, not wanting to make too many oaths out of fear that he might make a mistake. Perhaps he simply does not recall the details of the case. Given these possibilities, the case cannot be decided against him solely because he is not willing to make an oath.

Based on the hadith, though, it seems that the defendant must be forced to take an oath. Only if the defendant offers a good reason for refusing the oath should the case not then be decided against him. For example, if he swears that he cannot recall the details of the case, he should not be forced to take an oath nor should the case automatically be decided against him. Allah knows best.

3.4 Can the Plaintiff be Asked to Make an Oath?

Suppose the defendant refuses to make such an oath– since something is alleged against him concerning which no proof has been given– and the judge then makes the plaintiff make an oath that what he claims is true, must the plaintiff now make the oath? According to the Shafiees, the plaintiff must now make the oath. If he refuses to do so and is not willing to make such an oath, in essence, he is deciding the case against himself. This might be based on the hadith from ibn Umar that the Prophet (peace be upon him) turned the making of the oath back to the one who was demanding his rights (the plaintiff). This hadith is recorded by al-Daaraqutni, al-Baihaqi and al-Haakim. However, its chain is weak. However, the Hanafis argue that such is not the case. The plaintiff is
not asked to make an oath in any of the hadith of the Prophet (peace be upon him), such as this one under discussion here.

3.5 Evidence Presented After the Defendant Takes an Oath

When the claimant does not present any proof, the case is dropped when the defendant takes an oath. On that point, there is no difference of opinion. However, there is a difference of opinion as to what should be done if the plaintiff offers proof after the defendant has already taken an oath. One opinion is that the oath is a weak method of proof and by itself it does not terminate the dispute. Therefore, if evidence is offered later, it may overturn an oath made by a defendant. It is narrated that Umar said, “A lying oath is more deserving ofrejection than trustworthy evidence.” This is the view of the Hanafis, Shafiees and Hanbalis.

Malik allows the entrance of new evidence after an oath by the defendant only if the plaintiff was not aware of that evidence at the time of the oath. But if the plaintiff was aware of that evidence but did not present it and, instead, preferred to put the defendant to an oath, he cannot later present that evidence. Al-Ghazzaali of the Shafiee school is also of this view. A third opinion is that the oath is decisive and no further evidence may be presented later. In other words, the case is over and decided. This is the view of the Dhaahiris. It seems, Allah knows best, that the Maliki view, that only allows new evidence if the plaintiff was unaware of it previously, is the strongest in the light of the goals of the shareeah: justice and the fulfillment of rights.

3.6 Deciding a Case Based on One Witness and an Oath by the Plaintiff

It could be the case that the plaintiff only has one witness to support his case. However, the plaintiff may also be willing to swear an oath that what he is claiming is true. The question arises as to whether that one witness and oath would be enough to tilt the case in his favor. According to the Hanafis, such is not sufficient. The plaintiff must have a “complete” evidence, meaning two witnesses. If he does not, the defendant is simply required to make an oath to clear himself. Their evidence for that position is the hadith from Sahih Muslim, “Your two witnesses or his oath.” They also base it on the generality of the meaning of the hadith, “The oath is upon the defendant.” (Recorded by al-Bukhari.)

According to the Malikis, Shafiees and Hanbalis, a case may be decided on the basis of one witness and an oath by the plaintiff. They say that this is valid in cases related to money and wealth only. Their proof for their position is the hadith in Sahih Muslim that states that the Prophet (peace be upon him) decided a case based on one witness and an oath. This has also been reported from Abu Bakr, Ali ibn Abu Taalib and Umar ibn Abdul Azeez. There is no question that this hadith just referred to specifies the above hadith that seem to require two witnesses and requires an oath only on the part of the defendant. Hence, the Prophet’s example must be accepted and followed in this case. Furthermore, as was stated earlier, the bayyinah or evidence need not be restricted to witnesses. A person’s oath may also be used to support his case.

lbn al-Qayyim wrote, A judge may give judgement in cases other than those involving the rights of God on the testimony of one man whose integrity is established. God did not make it a duty for judges not to give judgement save on the testimony of two witnesses but merely ordered the owner of a right to safeguard his rights by two male witnesses or one man and two women. This does not mean that a judge may not give judgement on any lesser testimony. In fact, the Prophet gave judgement on the basis of one witness and an oath and even on the basis of one testimony only.

Ibn al-Qayyim also stated, “The methods by which a judge gives judgement are of greater latitude than those through which God has guided the owner of a right to safeguard it.”

3.7 A Judgment Does not Render the Unlawful Lawful

The judge will make a decision based on the evidence or oaths made in front of him. Obviously, though, his decision may not be in agreement with the truth of the matter, for example, due to deception on the part of one of the litigants or lying witnesses. The judgment may end up in favor of the liar or cheater. If the litigant knows that he has lied or acted falsely, then what is decided for him does not become lawful for him. It would be much better for him to give it up and admit his wrongdoing than to take such wrongful gains. The Prophet (peace be upon him) stated, “You come to me as litigants. Perhaps, one of you is better in presenting his argument than the other. For whoever I decide in his favor according to what I have heard, if I have decided anything for someone from the rights of his brother, he should not take it for I have portioned for him a portion of the Hellfire.” (Recorded by al-Bukhari and Muslim.)

4. Other Points Derived from This Hadith:

• Islam is a complete way of life. It contains correct beliefs, pure acts of worship, noble character and a remarkable code of law. It gives everyone his due rights. It protects the wealth, life and honor of the people. Since disputes and claims are a normal part of human life, Islam has enacted the proper and best means to bring an end to such disputes in a just manner. This hadith is one example of how the shareeah achieves such a lofty goal.

• Islam is also the “most practical religion,” in the sense that it takes into consideration the real nature of mankind. It does not have laws that violate how mankind is created. At the same time, Islam does not expect all of its adherent to be like “little angels.” There will always be some evil in society, even in the best of societies. There may always be hypocrites and those of weak faith present. Therefore, the laws of Islam are also structured to take those elements of society into consideration. Part of the means by which the remainder of society can be protected from those elements are the laws and principles related to judicial proceedings, witnesses and so forth.

• A person is free of guilt or claims made against him until proven otherwise.

• No decision is to be made in favor of a claimant simply because he is from a higher class while the defendant is from a lower class. No matter how noble or righteous the plaintiff is, if he cannot offer any proof for his claim, the charges against the defendant will be dropped if he takes an oath that he is innocent of said charges.

• Any oath taken by a Muslim must be in the name of Allah only. The Prophet (peace be upon him) stated, “Whoever is to swear an oath must swear by Allah or remain silent.” (Recorded by al-Bukhari and Muslim.)

• It is permissible for the judge to make the plaintiff swear that his witnesses are telling the truth. According to Imam Ahmad, this was done by Ali ibn Abu Taalib. Furthermore, the judge may also make the witnesses themselves swear that what they are stating is the truth. This is in order to remove any doubt from their testimony.

• The judge may not decide a case based on his own knowledge of particular events. He is only allowed to decide a case based on what is presented in front of him. Al-Bukhari and Muslim record that the Prophet (peace be upon him) stated, “I am a human being. You come to me as litigants. Perhaps, one of you is better in presenting his argument than the other and I decide in his favor according to what I have heard. If I have decided anything for someone from the rights of his brother, he should not take it for I have portioned for him a portion of the Hell-fire.” The wisdom behind this is obvious. It is to prevent any kind of wrongdoing or harm on the part of the judge. He may, if such were permissible, claim to have some knowledge and decide in favor of anyone he wishes. Instead, he may only decide matters on the basis of the clear evidence presented in front of him. This also prevents the judge from being bribed to decide a case. It also frees the judge himself from suspicion as he may have decided a case based on his own knowledge of a matter while people may suspect that he did not really have such knowledge and was just doing injustice.

• Acting as a judge between people is a very important job. It is through such people that rights are protected and many obligations are fulfilled. The reward for being a just and honest judge can be great. If a person sincerely tries to solve a case honestly and justly, he will be rewarded by Allah even if he was not able to achieve the correct conclusion. The Messenger of Allah (peace be upon him) stated, “If a judge [or ruler] decided a case and strove [to determine the correct ruling], then if he were correct, he receives two rewards. And if he strove and was incorrect, he receives just one reward.” (Recorded by al-Bukhari and Muslim.) In the latter case, he received one reward for his striving although he was not able to come to the correct conclusion. However, the “judge” must be very careful in his decisions. He must do his best to base his decision on knowledge and not allow his emotions or desires to sway his judgment in any way. The Prophet (peace be upon him) also said, “Judges are of three categories: one in Paradise and two in the Hell-fire. As for the one in Paradise, it is a man who recognizes the truth and judges in accordance with it. As for the man who recognizes the truth but is unjust in his ruling, he is in the Hell-fire. And the man who judges among the people with ignorance, he is also in the Hell-fire.”

Summary of the Hadith:
• Laws must be structured to prevent men from enforcing false claims against others. If the laws of evidence and procedure are not respected, people would start claiming everybody else’s property and wealth.
• The burden of proof is upon the claimant. He is claiming something that goes against the apparent or obvious situation.
• If the claimant cannot provide any proof, the defendant may make an oath to clear himself of all charges or claims against him.
• Figure 33 .1 is a graphical representation of the process that is described in
this hadith.