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Ibn Ḥārith al-Khushanī recorded the following case as a ḥikāya, an anonymous report: A Christian appeared before the judge Aslam b. ʿAbd al-ʿAzīz, petitioning to be executed. But he was rebuked because he had committed no crime. The text explains that the Christian’s behaviour was motivated by his desire to die in imitation of Jesus, as an act of virtue (faḍīla), although—as our source points out—Jesus himself did not seek martyrdom. In response to the judge’s admonishment, the Christian explained that he would not in truth die. While his shibh, or likeness (i.e., a body that resembled his body), might perish, his real self would ascend to the heavens upon execution. The judge aimed to disprove this theory by ordering the Christian flogged. Thus, the judge illustrated that the Christian could indeed suffer pain and likewise would suffer death if a sword were to cut his neck.

Translation

Ibn Ḥārith said: I heard someone recounting that a Christian went [to the judge] asking to be put to death. Aslam reprimanded him asking him: “Woe unto you! Who provoked you to ask for your own death if you have committed no crime?” The stupidity and ignorance of the Christian led him to take upon himself a virtuous act (faḍīla) when nothing of the kind was attributed to Jesus, son of Mary – God bless Muḥammad and Jesus. The Christian told the judge: “You assume that if you execute me I would be the one killed.” The judge asked him: “Who else could be the one killed?” The Christian answered: “A likeness of me (shibhī) that was cast on a body is what you will execute, while my real self in that same hour will directly go to heaven.” Aslam then told him: “We lack sufficient information to have an opinion on the [outcome] that you argue for,[1]but you lack what it takes to make you realize that you are deceiving yourself. There is however a way to reveal what is right to us and to you.” The Christian asked the judge: “What could that be?” The judge Aslam summoned his court assistants (aʿwān) and told them: “Take the whip,” then ordered them to strip the Christian which they did, and then ordered them to beat him. When the Christian felt the flogging he became agitated and screamed. Aslam asked him: “On which back is the flogging taking place?” “On mine!” said the Christian. Aslam told him: “In the same way the sword will cut your neck, don’t be deluded into believing otherwise.”

Mohammad Fadel (Professor of Law, University of Toronto) and Connell Monette (Vice President of Academic Affairs, American Academy Casablanca) organized a PIL Forum Roundtable on the recent publication of al-Muwaṭṭaʾ – Recension of Yahya b. Yahya al-Laythī (d. 234/848) by Mālik b. Anas, distributed through Harvard University Press. This translation is based on the recently published Royal Moroccan Edition of the Muwaṭṭaʾ (Casablanca: Maṭbaʿat al-najāḥ al-jadīda, 2013/1434), and was commissioned by the Moroccan Ministry of Endowments and Religious Affairs. A team of Moroccan translators, under the supervision of Mohammad Fadel and Connell Monette, editors, working over the course of several years, prepared the translation.

Below are the essays contributed to the Roundtable on the ISLAMICLAWblog. Leading scholars which scholars comment on various aspects of the translation; some engage substantively with particular topics or themes in the Muwaṭṭaʾ, others comment on the translation and its style, and some combine elements of both.

Part of the Online Companion for Al-Muwaṭṭaʾ, the Royal Moroccan Edition: The Recension of Yaḥyā Ibn Yaḥyā al-Laythī.

Malik treats a host of issues that arise in connection with judicial rulings in this lengthy chapter of the Muwatta, beginning with the ethical duties of parties who participate in litigation, judges, witnesses, and litigants. The chapter deals with both general questions arising out of the law of evidence, and specific rules of evidence that apply in particular areas of the law.

Part of the Online Companion for al-Muwaṭṭaʾ, the Royal Moroccan Edition: The Recension of Yaḥyā Ibn Yaḥyā al-Laythī.

One of the longest chapters of the Muwatta', Malik includes in this chapter numerous reports about the earliest Muslim community concerning their performance of the Pilgrimage, one of the five pillars of Islam, and Malik's views on a number of rules that govern its performance.

Part of the Online Companion for al-Muwaṭṭaʾ, the Royal Moroccan Edition: The Recension of Yaḥyā Ibn Yaḥyā al-Laythī.

In this passage, the Quran addresses the Islamic community as witnesses against mankind, declaring: “We have appointed you a middle nation, that ye may be witnesses against mankind, and that the messenger may be a witness against you.” Some suggest that this passage could be interpreted as having implications for legal procedure in Islamic courts. However, Ahmed El Shamsy maintains in "The Logic of Excluding Testimony in Early Islam" in Justice and Leadership in Early Islamic Courts that this passage does not have practical relevance to judicial procedure but rather relates to ethical witnessing in this world or the hereafter. 

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.  

In this excerpt, al-Sharīf al-Murtaḍā (d. 436/1044) cites a number of opinions regarding whether judges are permitted to rule according to their personal knowledge of a case. He focuses specifically on the question of how many additional witnesses are needed alongside a judge’s use of his own knowledge to render a valid verdict. In his chapter on circumstantial evidence in Justice and Leadership in Early Islamic Courts, Hossein Modarressi cites this source to illustrate some Shīʿī jurists’ endorsement of the validity of judicial knowledge.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale (ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

In this excerpt, Jalāl al-Dīn al-Dawānī (d. 908/1502–3), philosopher and chief judge of the southern Iranian province of Fars in the late fifteenth century CE, reports that the maẓālim courts were able to resolve many cases because of their ability to consider diverse forms of evidence. In contrast, he says that the traditional Islamic courts’ admission of only oral testimony could hamper Muslim judges’ ability to administer justice. In his chapter on circumstantial evidence in Justice and Leadership in Early Islamic Courts, Hossein Modarressi draws on Dawānī’s treatise and its illustration of how justice was obstructed in the traditional courts of his day through bureaucratic maneuvers orchestrated by the ʿudūl, or court clerks. The ʿudūl nitpicked at the specific wording of the petitions and various types of testimony, and they oversaw a lengthy process of determining the credibility of witnesses by bringing in further witnesses to testify for or against the main witnesses. Modarressi quotes Dawānī’s lament that as a consequence, “a small petition [lingered] around in the court for such a long time that the parties [got] fed up with the process. When the case is a criminal case, the purpose is completely lost” (115). Modarressi argues that these difficulties in traditional courts were exacerbated by the fact that Islamic legal procedure restricted judges to using testimony or oaths, and that these procedural rules were not open to modification.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale (ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

In this excerpt, Ibn al-Jawzī (d. 597/1201) relays cases in which a presiding judge revealed the falsity of the petitioner’s or defendant’s claim by employing shrewd investigative techniques to detect their guilt. For example, in one case the petitioner accused the defendant of failing to return money he had entrusted to him. The judge bade the petitioner to go to the mosque in Karkh where he claimed the money had been transferred and fetch a page of the Qurʾānic muṣḥaf kept there, so the defendant might swear his innocence on it. Once the petitioner was on his way, the judge asked the defendant whether he thought the petitioner had already reached the mosque. Although the defendant had claimed that he was not familiar with the site in question, he answered, “Not yet.” Having caught the defendant in a lie, the judge decided the defendant was deceitful and must return the money to the petitioner. In a second case, the judge of Hamadān discerned the dishonesty of a man who was called to give testimony by noting a difference in his stride. The man usually walked with a measured stride, taking a certain number of steps through the courtyard when he was called as a witness, but this time the judge noticed that the crossing took him several additional steps, “indicating that he walked slower to feign dignity.” The judge thus drew on his individual knowledge of the witness’s behavior to reject the latter’s credibility on the basis of subtle evidence. In his chapter on circumstantial evidence in Justice and Leadership in Early Islamic Courts, Hossein Modarressi cites these cases to illustrate how the judge might employ various forms of evidence, including his own knowledge, in order to resolve a case and achieve justice. However, he notes that both instances occurred before the stage of the case at which procedural due process begins, and thus they do not prove that the judge can employ personal knowledge later.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale (ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

In the book Ijhāḍ: Aḥkāmuh wa-ḥudūduh fī al-sharīʿa al-Islāmiya waʾl-qānūn al-waḍʿī [Abortion: Related Islamic Rulings and Limitations in Islamic Law and in Modern Law] Muḥammad Ḥasan al-Nujaymī discusses the regulations and prohibitions surrounding abortion in Islamic law.