SHARIAsource

In this source, al-Khallāl (d. 311/923) echoes the criteria adopted by al-Shāfiʿī (d. 204/820) for determining the credibility of witness. His approach is largely in line with that of Aḥmad b. Ḥanbal (d. 241/855) and the Companion Abū Mūsā al-Ashʿarī (d. between 42 and 53/662–73). However, Khallāl slightly diverges 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 Qurʾan 5:106. Aḥmad rejects the notion of non-Muslim uprightness forwarded by Ḥammād b. Sulaymān (d. 120/737) and Khayr b. Nuʿaym (in office 120-27/738-45), maintaining that individuals outside the Muslim community could not possibly be considered righteous in an objective sense given that they transgress fundamental commandments, for example they partake in wine and pork.

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.   

Ibn Wahb (d. 197/812), an Egyptian student of Mālik (d. 179/795), probes the legal implications of communal bias among Christians and Jews in the commentary. He writes that the presence of enmity between Jews and Christians results in a prohibition of the sale of slaves from one group to the other, as well as the prohibition of members of one group testifying against individuals from the other. In 8:425, Ibn Abī Zayd (d. 386/996) examines the positions of jurists on the admissibility of non-Muslim testimony in court. He relays the strict view of Mālikī jurist Ibn al-Qāsim (d. 191/806), which affirms the view of Ibrāhīm al-Nakhaʿī (d. 96/715), that non-Muslim testimony is wholly barred on the basis of Quranic verse 65:2. Ibn al-Qāsim indicates that the earlier Quranic verse 5:106—which allowed non-Muslims to serve as witnesses for a Muslim’s last will—has been abrogated by the verse 65:2. Ahmed El Shamsy employs this source in Justice and Leadership in Early Islamic Courts to address the broader legal implications of individual or communal biases' influence on the admissibility of courtroom 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.  

In this text Abū Bakr al-Jaṣṣāṣ (d. 370/980) and Abū Jaʿfar al-Ṭaḥāwī (d. 321/933) documents the Hanafī position—upheld by al-Shāfiʿī’s (d. 204/820) teacher Mālik (d. 179/795)—which maintained stricter criteria for the qualification of witnesses. Mālik held that the testimony of witnesses who displayed any degree of heresy should be rejected automatically. In Justice and Leadership in Early Islamic Courts Ahmed El Shamsy contrasts Mālik’s position with that of his student Shāfiʿī who had more leniently maintained that heretical beliefs can only disqualify a witness if they have no precedent and have no basis in any possible interpretation of revelation.

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 from his legal treatise, the Hanafī jurist al-Sarakhsī relays how the imperial grand judge Yaḥyā b. Aktham (d. 242/857) upheld the Ḥanafī position regarding the eligibility of non-Muslims to serve as witnesses. Yaḥyā was said to have permitted non-Muslim testimony against any other non-Muslims. He explained his position, writing that, “consulting the opinions of the earliest jurists, I have found no one forbidding the testimony of the protected people, except two [conflicting] opinions attributed to Rabīʿa.” Further, Sarakhsī relays the Ḥanafī criterion for witness eligibility which developed in a specific hierarchical framework. Muslims were placed above non-Muslims and, within that, locals above outsiders (dhimmī vs. ḥarbī). As Ahmed El Shamsy notes in Justice and Leadership in Early Islamic Courts, this framework equates the right to give testimony with the right to demonstrate legal authority (wilāya) over another.

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 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 document is a beyānnāme, or declaration, sent by Recāī Efendi, the Ottoman reʾīsül-kuttāb (chief scribe), to Britain's ambassador to the Ottoman Empire. It justifies the Ottoman declaration of war on Russia by explaining Russia's violation of treaty obligations, and gives insight into eighteenth-century Ottoman attitudes to international law and its relationship with Islamic law.

This Country Profile provides a basic overview of the legal history and institutional structures of the Kingdom of Bahrain (Mamlakat al Bahrayn), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Bahrain’s Constitution, Islamic law (sharīʿa or fiqh) has legal status, and is the principal source of legislation.

This Country Profile provides a basic overview of the legal history and institutional structures of the Islamic Republic of Iran (Jomhuri-ye Eslami-ye Iran), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Iran's Constitution, Islamic law (sharīʿa or fiqh) is the principal source of legislation. 

This Country Profile provides a basic overview of the legal history and institutional structures of the Arab Republic of Egypt (Jumhuriyat Misr al Arabiyah), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Egypt's Constitution, Islamic law (sharīʿa or fiqh) is the principal source of legislation. 

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.

The plaintiff brought a case before the General Court of Roudehen seeking the Court’s authorization for remarriage. The Court rejected his claimed and stated that Article 16 of the Family Protection Law 1974 was unconstitutional.

The General Body of The Supreme Court of Iran issued a unifying decision requiring the Fund for Bodily Injuries to pay the difference in diyah of men and women both in cases of death and other bodily injuries. 

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. 

Fatwā concerning the legality, based on their interpretation of Islamic law, of fasting in the month of Ramadan, during the COVID-19 pandemic. The answer provided by Ayatollah Seyyed Ali Khamenei on 19 April 2020 is that individuals must fast during Ramadan, unless an individual has a reason to believe that fasting will 1) cause an illness, 2) intensify an illness, 3) prolong an illness, or delay one’s recuperation. 

This document is an authenticated copy of a court decision from Rabi I 1358 (June/July 1939). The original decision was issued on 13 Rabiah II, 1332 (March 10, 1914) by Yahya b. Muhammad b. Abbas. The decision describes a controversy in the Jewish community of Sanaa and the enforcement of the Pact of Umar on the community. The controversy revolved around a group of Jews that had rejected the teaching of a Jewish mystical text, the Zohar. The document describes that the Imam (Yahya Muhammad Hamid al-Din) brought the controversy to court. The judge rules to allow the Zohar to be taught and institutes a number of orders to maintain the peace and the status quo in the community. The judge also issues several other orders related to the Jewish community, including orders regulating the appearance of Jewish men and women, and a process for resolving potentially new (and therefore illegal) synagogues.

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.”

Resolution 16 (4-3) (“Resolution”) cites primarily to a compendium of “studies on the subject of [a]rtificial insemination” and the testimonies of “experts and physicians.” The Resolution enumerates seven known methods of artificial insemination. The first five of those seven methods are “absolutely prohibited… due to ensuing consequences manifested in confusion about parenthood and loss of motherhood and other Shari’a prohibited matters.”  The sixth and seventh methods of artificial insemination are permissible in cases of necessity. 

One of the core functions of the courts in the Ottoman Empire was to allow the government to keep its officials in check, and to allow subjects to challenge abuses of power. In this court case from Cairo in 1672, the commander of Muwaylīḥ fortress on the Hijaz coast, in what is now northern Saudi Arabia, is accused of aiding a pirate attack on a boat belonging to an Upper Egyptian merchant.

The merchant brought the lawsuit in al-Dīwān al-ʿĀlī, the council of the Ottoman governor of Egypt, which functioned as a sharīʿa court as well as an administrative council. When operating as a court, a qāḍī presided over the proceedings, as in any other sharīʿa court, but in many cases, such as this one, the governor attended as well.[1] The reason that the lawsuit was brought in Cairo is not only that the plaintiff was Egyptian. While the Ottoman Hijaz was governed by a semi-autonomous dynasty, its military administration was the responsibility of the governor of Egypt. Muḥammad Āghā, the fortress commander, was therefore subject to the jurisdiction of governor Ibrāhīm Pasha.

The military status of the defendant also helps explain the frustrating lack of a clear conclusion to this case. After the plaintiff provides evidence, the qāḍī finds Muḥammad Āghā guilty of aiding the pirate attack, but specifies no punishment or compensation. Instead, according to the document, he simply imposes “what the sharīʿa deems necessary.” As the defendant was a military officer, the qāḍī’s role in this case was simply to determine the facts and assign liability. Any penalties were likely decided by the military authorities, possibly by Ibrāhīm Pasha himself.

No registers of the Dīwān al-ʿĀlī survive from this period; the earliest extant register is from 1741. This case has survived in the form of a ḥujja, the certificate issued by the court to litigants at the conclusion of a case, a copy of which was made in the register. To be precise, the document is a certified copy of the ḥujja. It is now held at the Başbakanlık, the central Ottoman archives in Istanbul, which suggests that the case was sufficiently important to have been reported to the central government.

[1] On the function of the Dīwān al-ʿĀlī, see James E. Baldwin, Islamic Law and Empire in Ottoman Cairo (Edinburgh: Edinburgh University Press, 2017), 37-9, 63-71.