SHARIAsource

In this excerpt from Muḥammad b. Yūsuf al-Kindī's (d. 350/961) book on early Muslim judges, the author reports that the Qaysī Arabs and Yamanī Arabs, two warring tribes, were prohibited from testifying against one another by the Egyptian judge Tawba b. Namir (in office 115–120/733–738). On the second page, Kindī discusses the issue of non-Muslim testimony. He writes that while many Muslim jurists barred non-Muslim testimony entirely, those authorities who permitted it were faced with the challenge of devising techniques to screen witnesses from diverse communities. In this regard, Kindī records how the Egyptian ḥadīth scholar and judge Khayr b. Nuʿaym (in office 120–27/738–45) verified the personal credentials of non-Muslim witnesses by interviewing members of their respective circles (yasʾal ʿan ʿadālatihim fī ahl dīnihim). This procedure assumed that non-Muslims might also obtain a status of righteousness, a notion which is not necessarily assumed by other jurists. In Justice and Leadership in Early Islamic Courts Ahmed El Shamsy references this source to explore how the concern of bias due to enmity might also serve as sufficient grounds to reject testimony in an internal Muslim context due to political-factional enmity. 

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 text, Muḥammad b. Idrīs al-Shāfiʿī (d. 204/820) lays out his legal theory regarding the criterion for witness eligibility. Shāfiʿī’s introduces specific criteria, inferred from the Qurʾān, for admitting or rejecting testimony on an individual rather than group basis. He also forbids non-Muslim testimony, citing Qurʾānic precedent. [In section 6:476,] Shāfiʿī theorizes that a concern over individually held bias from enmity represents the underlying rational for denying the testimony of individual witnesses in courts. This rational extends to cases involving Muslim and non-Muslim witnesses and plaintiffs. He notes that, “We do not permit the testimony of an enemy against his enemy” (in Arabic “lā nujīz shahādat ʿaduww ʿalā ʿaduwwih”). Shāfiʿī proceeds to condemn baseless hatred due to factional rivalries and dictates that displays of such bias negate one's credibility to serve as a witness in all cases. Shāfiʿī also considers the consequences for one who might hold theologically related bias from heretical religious beliefs. This approach largely agrees with the Ḥanafī position. [In section 7:513-516,] Shāfiʿī provides two additional categories of individuals whose testimony should be rejected due to their theological beliefs, namely, (1) those who do not accept that false testimony is forbidden in Islamic law and (2) those who harbor enmity against a specific individual due to a theological dispute. Notably, Shāfiʿī qualifies that the latter case only proscribes the individual from testifying against those with whom he is in dispute (and thus potentially biased against). So, his convictions would not negate his overall credibility as a witness to testify in other cases. [In section 7:573-74,] In a further presentation of nuance, Shāfiʿī indicates that there is no blanket prohibition to disqualify the testimony of the gamer and poet. Rather, the testimony of these characters ought only to be disqualified on a case-by-case basis if it was discovered they were dishonest or derelict in their religious duties. In contrast, as Ahmad El Shamsy notes, other legal scholars indiscriminately excluded these "shady" characters. [In section 8:40,] Shāfiʿī demonstrates a more lenient approach towards including Muslim witnesses of questionable status, he represents a more stringent position regarding non-Muslim testimony which he completely prohibits. Since there is no reliable Hadith on the topic, Shāfiʿī relies on Qurʾānic verses to construct his argument. He cites 2:282 and 65:2, respectively, to select, “from those you approve as witnesses,” and the “upright witnesses from among you” to argue that non-Muslims are excluded because they are neither 'approved of' by Muslims nor considered part of the community of ‘upright witnesses.’ Shāfiʿī then anticipates and rebuts a counter-argument to his position on non-Muslim witnesses from the jurist al-Shaybānī (d. 189/804 or 805) who supports non-Muslim testimony. In his rebuttal, Shāfiʿī dissects Shaybānī's position and highlights the absurdity of preferring scripturalists over other non-Muslims for the purpose of testimony, given that they are seen to have falsified their scripture and should therefore be assumed even less trustworthy. Also Shāfiʿī hyperbolically questions why Shaybānī would show more concern for preserving the legal rights of Muslims over the rights of individuals of questionable status within the Muslim community, such as slaves or Bedouins, who are excluded from testimony because their integrity cannot be verified. Ahmad El Shamsy notes in Justice and Leadership in Early Islamic Courts that Shāfiʿī’s approach might be characterized as one which grants decisive authority to scripture. 

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.  

This is an English translation of the 2014 fatwā issued in the Malaysian state of Selangor entitled “Fatwā Pemikiran Liberalisme Dan Pluralisme Agama,” or “Fatwā on the Thought of Liberalism and Religious Pluralism.” It is significant and controversial for explicitly naming the activist organization Sisters in Islam as "deviant" from the teachings of Islam for promoting "liberalism" and "religious pluralism." 

This is the original (Bahasa Indonesia) fatwā issued by the Indonesian ‘Ulema Council (MUI) in 2005 that declared that “religious pluralism, liberalism, and secularism are notions that are against Islam." 

This is the English translation of the original Bahasa Indonesia fatwā issued by the Indonesian ‘Ulema Council (MUI) in 2005 that declared that “religious pluralism, liberalism, and secularism are notions that are against Islam."

In response to the decision that the Federal (civil) High Court holds jurisdiction over syariah courts on the matter of legal custody in Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & ORS (2013), Pathmanathan Krishnan successfully appealed his case in 2015 to the Civil Court of Appeals in Pathmanathan Krishnan v. Indira Gandhi Mutho & Other Appeals (2015). The Court of Appeals held that first, the Judicial Commissioner had no jurisdiction to determine the issue of the children’s conversion to Islam as the validity of the conversion of any person to the religion of Islam and status of whether a person is a Muslim or not was “a matter falling under the exclusive jurisdiction of the Shariah Court under section 50 of the Administration of the Religion of Islam (Perak) Enactment 2004.” Secondly, the court held that the learned Judicial Commissioner had “committed a grave error when he approached the jurisdiction issue” by venturing into the constitutional construct of the fundamental liberties.

These materials include (i) a compendium of the Sharia Courts Laws enacted by the sharīʿa states, in the form of the Zamfara State Sharia Courts Law annotated section by section to show variations between it and all the rest; (ii) tables correlating the sections of the Zamfara State Sharia Courts Law with the Area Courts laws of 1967-68, from which the Zamfara law was derived; (iii) other statutory materials; (iv) materials on civil procedure in the Sharia Courts; (v) selected decisions by state High Courts and the federal Court of Appeal on matters related to the Sharia Courts, including their jurisdiction and the law applicable in them; (vi) information on the judges of the Sharia Courts, including their numbers, qualifications, and remuneration; (vii) data on caseloads of courts in the sharīʿa states, including the High Courts and Sharia Courts of Appeal, 2011-2015; and (viii) data on numbers of judgments of amputation and stoning to death imposed by Sharia Courts, 2011-2015, and numbers of appeals from such judgments going to High Courts and Sharia Courts of Appeal.

These materials are a part of The Nigeria Papers – a SHARIAsource Special Collection, compiled and edited by Independent Scholar Philip Ostien and others. 

This entry provides a definition and analysis of the term ijtihād, drawing on works by SHARIAsource Senior Scholar Sherman A. Jackson, King Faisal Chair in Islamic Thought and Culture and Professor of Religion and American Studies and Ethnicity at the University of Southern California.

Sherman A. Jackson, Legal Scaffolding and the Scope of Legal Injunctions in Post-Formative Theory: Muṭlaq and ʿĀmm in the Jurisprudence of Shihāb al-Dīn al-Qarāfī, Islamic Law and Society 3, no. 2 (1996): 165–92.

*Note: All page numbers used as citations refer to the above article.

A female applicant filed a complaint against the Traffic Police for refusing to grant her a motorcycle license. The Court of Administrative Justice rejected the argument that the police department was allowed to issue such a license only for men and stated that riding a motorcycle has nothing to do with gender and is not prohibited under law.

Religion appears in the constitutions of the Arab world, almost all with Muslim majorities, in a variety of ways. But aside from ensuring a public role for religion, these states are far from theocratic and show considerable though subtle diversity within them. 

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.

Resolution 90/7/9 (“Resolution”) cites primarily to a compendium of “research papers forwarded to the [IIFA] on the subject of AIDS” and to the Qur’an.  The Resolution addresses six different issues relevant to the treatment of individuals diagnosed with AIDS: (1) it is not necessary to isolate patients; (2) deliberate transmission of AIDS to a healthy individual is haram—Shari’a proscribed—and is “considered among the major evil sins and transgressions”; (3) abortion of a fetus by a mother infected with AIDS is impermissible; (4) it is permissible for a mother infected by AIDS to retain custody of her child and to breastfeed her child; (5) it is permissible for a wife to seek separation from a husband infected with AIDS; and (6) AIDS is considered terminal according to Shari’a when “all of its symptoms are present and the victim is no longer capable of carrying out ordinary living, and death is imminent.”

A translation of the Arabic Majallat al-Ahkam al-A'dlīyyah. This is a book on the principles of rules and regulations according to Muslim jurists under the Ottoman Empire. 

A book on the principles of rules and regulations, according to Muslim jurists under the Ottoman Empire. 

In this excerpt of his compendium of law-related ḥadīth reports, al-Ṣanʿānī (d.211/827) relays prophetic sources on various topics, among them an ambiguous ḥadīth on the criterion for witness eligibility, which states that, “No community may testify against another, except the community of Muḥammad.” Ahmed El Shamsy notes in Justice and Leadership in Early Islamic Courts that this verse is legally ambiguous. Later authorities debate its correct interpretation. While it is widely agreed that non-Muslims are ineligible to serve as witnesses against Muslims, some argue that in certain circumstances a scripturalist (generally defined as Jews and Christians) might testify against another scripturalist. Notably, Ṣanʿānī is the only source which transmits this ḥadīth, and it is not included in the work of his contemporary Ibn Abī Shayba.

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.  

Abū Yūsuf (d. 182/798) records a statement attributed to the Caliph ʿUmar I (d. 23/644) on the legal standing of non-Muslims which considers "all of unbelief" to be a single community in contradistinction to the community of Muslim believers and concludes that “neither do we inherit from them, nor they from us.” In this respect, non-Muslim and Muslim communities operate under separate legal statuses. Abū Yūsuf also relates in the same text the noteworthy opinion of Ibrāhīm al-Nakhaʿī (d. 96/715), an Iraqi jurist and forebearer of the Hanafī school, regarding non-Muslim testimony.  Nakhaʿī opined that the verse of Q. 65:2 functioned to proscribe non-Muslim testimony and could be understood to abrogate the allowance of non-Muslim testimony in verse 5:106. Ibrāhīm’s opinion differed from that of Companion Abū Mūsā al-Ashʿarī (d. between 42/662 and 53/673), among others, who had relied on the Quranic verse 5:106 to specifically permit non-Muslims testimony to record the last will of a Muslim traveler who dies away from home. Ḥammād b. Salama (d. 167/784) distinguished all non-Muslims as one community discrete from Muslims in his argument that non-Muslims were permitted to testify against any other non-Muslims, regardless of confessional lines. Ahmed El Shamsy notes the legal premise of non-Muslims' and Muslims' separate legal status in Justice and Leadership in Early Islamic Courts.

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. 

Al-Jāmiʿ is an addendum to ʿAbd al-Razzāq al-Ṣanʿānī’s Muṣannaf—a collection of Hadith that bring attention to the theme of enmity between Muslims. He relates an account in which Caliph ʿUmar I (d. 23/644) reacts negatively when the spoils of a conquered territory are brought before him because of his fear that “when such opulence besets a people, God casts enmity and hatred in their midst!” This quote reveals the Caliph’s concern about how wealth would exacerbate social tensions among the people. In Justice and Leadership in Early Islamic Courts Ahmed El Shamsy cites this account to provide historical background to the subsequent institution of progressive limitations on the eligibility criterion for serving as a witness, which aimed to address biases that might be introduced into the judiciary from internal rivalries.

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.  

This text documenting the positions of the jurist Aḥmad Ibn Ḥanbal (d. 241/855) relays a disagreement he had with the scholar Isḥāq Ibn Rāhawayh (d. 238/853). While Aḥmad b. Ḥanbal had maintained the non-Muslims might only testify regarding the last will of a deceased Muslim, Isḥāq b. Rāhawayh upholds the opinion suggested by earlier jurists that non-Muslim scripturalists might testify in Muslim courts so long as they only testify against members of their own faith communities. Isḥāq b. Rāhawayh cites an event in the Prophet Muḥammad’s life as Sunnaic proof for the admissibility of non-Muslim testimony in court. He relays an incident in which Muḥammad apparently accepted the testimony of Jewish individuals against a Jewish couple accused of adultery. Ahmed El Shamsy notes in Justice and Leadership in Early Islamic Courts that Isḥāq b. Rāhawayh seems to be one of the only jurists of his day to employ this anecdote to permit non-Muslim testimony.

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.  

This is one of many sources in which Aḥmad b. Ḥanbal (d. 241/855) and many others including companion Abū Mūsā al-Ashʿarī (d. between 42 and 53/662–73) echo the criteria forwarded by al-Shāfiʿī for determining the credibility of witness. However, these sources slightly diverge in permitting non-Muslims to testify in the specific case regarding the last wishes of a Muslim who dies while traveling, a scenario explicitly condoned in Q. 5:106.