This Hadith is related to the Law and Courts;- It teaches us how to raise cases in Court.
The Main Idea of the Hadith: It states the legitimate method of settling disputes between litigants
The Status of the Hadith: This Hadith is considered one of the Pillars of Islamic Jurisprudence and one of the best laws to refer to in matters of disputes and conflicting claims.
Dealings between human beings go through conflicts and everyone claims that the matter is on his side. This law shows us how to solve disputes, whilst giving everyone their rights. Islam as a practical religion sets laws that preserve the rights of people and restores their rights from those who take them. This Hadith shows us how to preserve or restore our rights from those who take them.
Every case brought to the court has the following elements:
1) The Two Litigating Parties - The Claimant and the Defendant
The Claimant is the one who raises the case in the court against someone else; claiming that something belongs to him or he has a right in it.
The Defendant is the one who rejects the claim. He cannot remain silent; he has to defend himself. This person is presumed to be free from any accusation until the Claimant proves contrary.
2) The Judge; who settles the dispute between the two parties.
3) The Case; which is the claim the Claimant brings.
"لو يعطي الناس بدعواهم"
"Were people to be given according to their claims"
Who gives people what they claim? Those in authority or the reformer amongst people.
What would happen if people were given in accordance to their claims?
"لأدعي رجال أموال قوم و دماءهم"
"Some men would claim other men's possession and blood"
Not any person will do that; only those who do not think of the Hereafter and do not fear Allah.
Possessions = Money, houses, land, cars, others rights (like an author claiming he wrote another ones book), etc
Blood = Someone accusing another of killing one of his relatives, etc.
"ولكن البينة على المدعي"
"But the burden of proof is on the claimant"
Claiming something against others is a very easy matter, and if left without regulation and restriction, there will be a great deal of evil on earth. Therefore, some steps should be taken to protect society from such behavior. Islam gives us legitimate ruling - upon the claimant is the burden of proof.
The Proof (البينة) is whatever makes the matter clear and evident (such as witnesses). If the claimant does not submit the proof, he will receive nothing from the judge.
"واليمين على من أنكر"
"And the taking of an oath is on the one who denies (the charges laid against him)"
In order to push the claim away from himself, the defendant should take an oath if the judge asks him to do so.
البينة - The Proof
البينة is a noun that encompasses all means of establishing and uncovering the truth, such as
a) Witnesses
b) Conclusive Presumption
E.g. It is presumed that a 5 year old child is incapable of murder.
c) Circumstantial Evidence
i.e. Indirect evidences; a number of simple facts which if looked at individually may not mean anything, but if gathered together will give us the full picture.
E.g. Scene #1 - A man testifies he saw A and B go to a room.
Scene #2 - He heard A telling B "I will kill you".
Scene #3 - He heard a shot
Scene #4 - He saw A walking out with a gun
البينة is mentioned in a whole chapter in the Qur'an; in Surah Al-Bayyinah [98:1-2]:
"Those who disbelieve from among the people of the Scripture (Jews and Christians) and among Al-Mushrikun, were not going to leave (their disbelief) until there came to them clear evidence."
"A Messenger (Muhammad (Peace be upon him)) from Allah, reciting (the Quran) purified pages [purified from Al-Batil (falsehood, etc.)]."
The Messenger of Allah reciting the Quran is the بينة for the disbelievers.
Why should the claimant present the بينة and not the defendant? The wisdom behind burdening the claimant with the proof is because the side of the claimant is a legally weak side. He is claiming something contrary to the apparent and not witnessed by people, so he needs to support his claim with البينة.
The side of the defendant is strong, because originally all people are innocent until proven guilty.
What are the kinds of البينة? It is not restricted to one type, there many, which develop through time.
a) The Witness
This is the strongest and most popular. With regards to debts, Allah says in Surah Al-Baqarah [2:282]:
وَاسْتَشْهِدُوا شَهِيدَيْنِ مِن رِّجَالِكُمْ ۖ فَإِن لَّمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌ وَامْرَأَتَانِ مِمَّن تَرْضَوْنَ مِنَ الشُّهَدَاءِ أَن تَضِلَّ إِحْدَاهُمَا فَتُذَكِّرَ إِحْدَاهُمَا الْأُخْرَىٰ
"And get two witnesses out of your own men. And if there are not two men (available), then a man and two women, such as you agree for witnesses, so that if one of them (two women) errs, the other can remind her."
b) Modern Forms of Criminal Investigation
E.g. DNA, CCTV Cameras
c) The Understanding of the Judge of the Case
This is by testing the litigants. This was done by the Messenger Sulayman عليه السلام when two women both claimed the baby was hers. He commanded a knife to be brought and the baby to be cut into two halves if the false mother did not admit, because the real mother would never accept it. She preferred for the baby to be attributed to the wrong mother than to have her baby killed. So he used his wisdom.
d) The Apparent Clear Evidence
E.g. A person running whilst having a pair of shoes and a barefooted person running behind him saying "Give me my shoes!"
E.g. The Story of Yusuf عليه السلام when the Wife of Al-Aziz tore his shirt from the back.
Which type of بينة is mentioned in this Hadith? The Scholars said it refers to the Testimony of Witnesses.
Giving ones testimony is a great matter in the Religion. If a person is asked to be a witness in a case, he should not refuse. In Surah Al-Baqarah [2:282]:
وَلَا يَأْبَ الشُّهَدَاءُ إِذَا مَا دُعُوا
"And the witnesses should not refuse when they are called on (for evidence)."
It is easy to say I will do it, but when push comes to shove, many opt out. It is obligatory for you to give your testimony if you are asked.
You should not just wait for people to come to you, you should take the initiative if you see something.
The Prophet ﷺ said:
أَلاَ أُخْبِرُكُمْ بِخَيْرِ الشُّهَدَاءِ الَّذِي يَأْتِي بِالشَّهَادَةِ قَبْلَ أَنْ يُسْأَلَهَا
"Shall I not inform you of the best of witnesses? The one who comes with his testimony before being asked for it" [At-Tirmithi]
It is considered a sin to conceal what one has witnessed. In Surah Al-Baqarah [2:283]:
"And if you are on a journey and cannot find a scribe, then let there be a pledge taken (mortgaging); then if one of you entrust the other, let the one who is entrusted discharge his trust (faithfully), and let him be afraid of Allah, his Lord. And conceal not the evidence for he, who hides it, surely his heart is sinful. And Allah is All-Knower of what you do."
Giving False Testimony is a Major Sin. The Prophet ﷺ said:
"ألا أنبئكم بأكبر الكبائر؟" قلنا: بلى يا رسول الله. قال: "الإشراك بالله، وعقوق الوالدين" وكان متكئا فجلس، فقال: "ألا وقول الزور!" فما زال يكررها حتى قلنا: ليته سكت.
Shall I not inform you of one of the gravest of the cardinal sins?" We said: "Yes, O Messenger of Allah!" He (ﷺ) said, "To join others as partners with Allah in worship and to be undutiful to one's parents." The Messenger of Allah (ﷺ) sat up from his reclining position (in order to stress the importance of what he was going to say) and added, "I warn you making a false statement and giving a false testimony. I warn you against making a false statement and giving a false testimony." The Messenger of Allah (ﷺ) kept on repeating this (warning) till we wished he should stop." [Bukhari and Muslim]
Some of The Conditions that the Witness must Meet:
1) They must be Muslim
2) Free; not a slave
3) Adult; not Child (Although there are exceptions)
4) Sane
5) A person of integrity and honesty
6) The ability to talk and write; not dumb or blind.
7) Sound memory; not forgetful
Types of Testimonies
-> Marriage and Divorce. These require two adult males. In Surah Talaq [65:2]:
"Then when they are about to fulfil their term appointed, either take them back in a good manner or part with them in a good manner. And take for witness two just persons from among you (Muslims). And establish the witness for Allah. That will be an admonition given to him who believes in Allah and the Last Day. And whosoever fears Allah and keeps his duty to Him, He will make a way for him to get out (from every difficulty)."
-> In case of Adultery, four adult men who have witnessed the act while it is in progress are required (which is almost impossible). That is why stoning happens rarely. In Surah An-Nisa [4:15]:
"And those of your women who commit illegal sexual intercourse, take the evidence of four witnesses from amongst you against them..."
-> Child custody, giving birth, virginity. There is no place for men here, therefore the testimony of women is required.
-> Testimony in cases of murder, theft, alcohol consumption, prescribed punishments. This requires the testimony of two adult males. If in such case men are not around, the testimony of two females will be taken.
-> With regards to money transactions like selling, money, debts, rentals, money cases, two male witness or one male and two females are required. In Surah Al-Baqarah [2:282]:
"O you who believe! When you contract a debt for a fixed period, write it down. Let a scribe write it down in justice between you. Let not the scribe refuse to write as Allah has taught him, so let him write. Let him (the debtor) who incurs the liability dictate, and he must fear Allah, his Lord, and diminish not anything of what he owes. But if the debtor is of poor understanding, or weak, or is unable himself to dictate, then let his guardian dictate in justice. And get two witnesses out of your own men. And if there are not two men (available), then a man and two women, such as you agree for witnesses, so that if one of them (two women) errs, the other can remind her. And the witnesses should not refuse when they are called on (for evidence). You should not become weary to write it (your contract), whether it be small or big, for its fixed term, that is more just with Allah; more solid as evidence, and more convenient to prevent doubts among yourselves, save when it is a present trade which you carry out on the spot among yourselves, then there is no sin on you if you do not write it down. But take witnesses whenever you make a commercial contract. Let neither scribe nor witness suffer any harm, but if you do (such harm), it would be wickedness in you. So be afraid of Allah; and Allah teaches you. And Allah is the All-Knower of each and everything."
Steps Followed in Court
Step #1 - The claimant presents the case before the judge
Step #2 - The judge brings the two litigants before him and listens to the claimant first. He then asks the defendant of what he has been accused of. If the defendant admits, then the case is settled, in favour of the claimant. Admission is the master of all بينة. If he denies the charges:
Step #3 - The judge requests the claimant to present his proof
Step #4 - If he brings the proof, the judge will have to rule in his favour, even if the defendant denies the proof.
If the claimant has only one witness and not two, it will be accepted along with an oath of the claimant. Ibn Abbas said that the Messenger ﷺ accepted one witness and an oath.
The judge had the right to ask the oath of both the claimant and the witness if he suspects him. In Surah Maa'idah [5:106]:
"O you who believe! When death approaches any of you, and you make a bequest, then take the testimony of two just men of your own folk or two others from outside, if you are travelling through the land and the calamity of death befalls you. Detain them both after As-Salat (the prayer), (then) if you are in doubt (about their truthfulness), let them both swear by Allah (saying): "We wish not for any worldly gain in this, even though he (the beneficiary) be our near relative. We shall not hide Testimony of Allah, for then indeed we should be of the sinful."
If the claimant has no sufficient proof, he is entitled to request the judge to ask the defendant to take an oath that he is innocent.
فَقَالَ لَهُمْ " تَأْتُونَ بِالْبَيِّنَةِ عَلَى مَنْ قَتَلَهُ ". قَالُوا مَا لَنَا بَيِّنَةٌ. قَالَ " فَيَحْلِفُونَ "
(The Prophet ﷺ said) Bring your proof against the killer." They said "We have no proof." The Prophet (ﷺ) said, "Then they (the defendants) will take an oath." [Al-Bukhari #6898]
If he swears, the charges will be dropped and his innocence will be declared.
If there is more than one defendant, the judge should ask each defendant to swear that he is innocent.
It is important that the judge remind both sides to fear Allah and of the punishment of Allah for those who take false oaths. In Surah Aal-Imran [3:77]:
"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 (Paradise). 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."
Making an oath is something easy and does not require any effort. It is easy to say it to escape from what you have been accused.
If the defendant refuses to swear to prove his innocence, the judge will take this refusal as an evidence for his guilt.
When the Prophet ﷺ said:
"واليمين على من أنكر"
"And the taking of an oath is on the one who denies (the charges laid against him)"
This is not absolutely restricted to the defendant. Sometimes it is also required from the claimant to do so:
E.g. During Al-Lian, when the husband accuses the wife of committing adultery. He is required to swear four times, that he is truthful. In Surah Nur [24:6]
"And for those who accuse their wives, but have no witnesses except themselves, let the testimony of one of them be four testimonies (i.e. testifies four times) by Allah that he is one of those who speak the truth."
E.g. al-Eela
E.g. The claimant should swear when he accuses a person for killing another. For example, if he heard his brother saying before he died that so and so killed him.
E.g. The one who is accused of abandoning the prayer claims he prayed at home. He has to swear that he is truthful.
When a judge issues a judgement, it does not mean it is final and the right is truly with that person. Some people can bring false testimonies and other kind of بينة although they may be liars, and the judge may rule in their favour. The judgement of the judge is not necessarily always with the truth. We should be cautious. Do not think that person is necessarily innocent and the other is criminal.
The Prophet ﷺ said:
إِنَّمَا أَنَا بَشَرٌ وَإِنَّكُمْ تَخْتَصِمُونَ إِلَىَّ وَلَعَلَّ بَعْضَكُمْ أَنْ يَكُونَ أَلْحَنَ بِحُجَّتِهِ مِنْ بَعْضٍ فَأَقْضِيَ لَهُ عَلَى نَحْوِ مَا أَسْمَعُ مِنْهُ فَمَنْ قَضَيْتُ لَهُ مِنْ حَقِّ أَخِيهِ بِشَىْءٍ فَلاَ يَأْخُذْ مِنْهُ شَيْئًا فَإِنَّمَا أَقْطَعُ لَهُ قِطْعَةً مِنَ النَّارِ " .
"I am only a human being, and you bring your disputes to me, some perhaps being more eloquent in their plea than others, so that I give judgement on their behalf according to what I hear from them. Therefore, whatever I decide for anyone which by right belongs to his brother, he must not take anything, for I am granting him only a portion of Hell." [Sunan Abu Dawoud #5383]
The judge should not issue according to what he knows in advance. For example, If he knows such and such is truthful, he should not directly judge that the truth is with him. He should wait for the proof.
Acting as judge is a very difficult and important job. Not anyone should apply for it, because the one who does not judge according to Allah's laws will be in the Hellfire.
Conditions the Judge must meet
1) He should have Knowledge of what is Halal and Haram
2) He should have knowledge of how to judge between people and investigate thoroughly
3) He should Refer to the Shari'ah
4) He should Judge with Justice
The Prophet ﷺ said,
إِذَا حَكَمَ الْحَاكِمُ فَاجْتَهَدَ فَأَصَابَ فَلَهُ أَجْرَانِ وَإِذَا اجْتَهَدَ فَأَخْطَأَ فَلَهُ أَجْرٌ
'If a judge passes judgment and strives to reach the right conclusion and gets it right, he will have two rewards; if he strives to reach the right conclusion but gets it wrong, he will still have one reward." [An-Nasaa'i]
And he ﷺ said,
الْقُضَاةُ ثَلاَثَةٌ قَاضِيَانِ فِي النَّارِ وَقَاضٍ فِي الْجَنَّةِ رَجُلٌ قَضَى بِغَيْرِ الْحَقِّ فَعَلِمَ ذَاكَ فَذَاكَ فِي النَّارِ وَقَاضٍ لاَ يَعْلَمُ فَأَهْلَكَ حُقُوقَ النَّاسِ فَهُوَ فِي النَّارِ وَقَاضٍ قَضَى بِالْحَقِّ فَذَلِكَ فِي الْجَنَّةِ
"The judges are three: Two judges that are in the Fire, and a judge that is in Paradise. A man who judges without the truth, and he knows that. This one is in the Fire. One who judges while not knowing, ruining the rights of the people. So he is in the Fire. A judge who judges with the truth, that is the one in Paradise" [At-Tirmithi]
Islam is a complete way of life, it protects our wealth, life, and honour, in a court of law.
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