Random Questions - M&F

[aussiemu]

sorry falah I completely seemed to have missed the first part of your first sentence and read the rest and got a bit muddled up thinking you were saying the principle is the same as the one about claiming worship etc.

[aussiemu]

at-Taif: I think the other similar hadith was the one also mentioned on Abdraheims link that I came across in arabic from ibn majah :

“Evidence is for the person who claims; the oath is for the person who denies.”
(The Mejelle 1967 article # 76)

[At-Ta'if]

I don't think it has been as we had a lot of the english translated stuff available of ibn al ayyim rahimahullah. I think my husband has it in Arabic probably.

What Abraheim posted has that it is a hasan hadith and from my not highly ualified estimation of what the Arabic is saying there are more than one references in various hadith books mentionign the same thing (or in similar wording). Are you after a reference for that particular wording or for the principal in general?

I was after a particular reference from the books of hadith that I can quote when writing. It's not a major issue, but it adds credibility to your work. It could be a reference to another hadith that has the same meaning, albeit in a different book.

[aussiemu]

And because I am a bit slow tonight I just realised the hadith is from the 40 ahadith of imam an-nawawi . A good place for more info in English would then be the 40 hadith commentary by Sh. Zarabozo in English.

[At-Ta'if]

at-Taif: I think the other similar hadith was the one also mentioned on Abdraheims link that I came across in arabic from ibn majah :

“Evidence is for the person who claims; the oath is for the person who denies.”
(The Mejelle 1967 article # 76)

I have a copy of The Mejelle and I can confirm it's in there, jazakAllahu khayr.

[aussiemu]

OK here is what it says in Sh. Zarabozos book:

Takhreej

This hadith is recorded by Al-Baihai in Sunan al-Kubra with a sahih chain. (1)

It has been recorded by others with slightly different wordings. Al-Bukhari, Muslim, ibn Maajah, Ibn Hibban and others record a hadith from ibn Abbas with the words:

"Were the people to be given according to their claims, people would claim the blood and wealth of men. However, the defedant can resort to an oath." (This wording is that of Muslim) (2) Ahmad and Abu Yala also have something very similar to the above.

Al bukhari, Muslim, Abu Dawood, al-Tirmidhi, al-Nasaai, al-Baihai and others also recorded from ibn Abbass that the Prophet (peace be upon him) decided a case based on an oath by the defendant.

[aussiemu]

(1) Ibn Muhammad, p.192. It is not clear to this author why al-Nawawi called this hadith hasan in the text. Its chain seems to be sahih and it is supported by hadith that are definitely sahih.
(2) Some people have objected to the this hadith, claiming that it is a statement of ibn Abbas instead of a hadith of the Prophet (peace be upon him). However, it has been reported through authentic enough means to be considered a statement of the Prophet (peace be upon him). See Al-Nawawi - Sharh Saheeh vol 12 pp. 2-3;

[aussiemu]

BTW Sh. Zarabozo has about 30 pages explaining this hadith in detail relating to Islamic law so if you can get access to it you should find it interesting reading

[At-Ta'if]

A bit off track, but it's a very interesting topic. There has been much debate regarding the weight documentary evidence holds in Islamic law in comparison to oral testimony.

[aussiemu]

I'm not sure if they are available online or in English but the fih councils that meet up usually yearly discuss a lot of contemporary issues together and it is very interesting. Things nowadays like surrogacy, dna testing, modern medical issues etc etc. They usually release a volume of the rulings every year or so I think? One of the major ones is the Kuwaiti one though I forgot the name. It's a huge volume set of rulings etc and discussions since the fatwa council started.

[At-Ta'if]

BTW Sh. Zarabozo has about 30 pages explaining this hadith in detail relating to Islamic law so if you can get access to it you should find it interesting reading

Do you know what the hadith number is out of the 40 hadith? I may be able to find it online.

[aussiemu]

Nope can't seem to find the exact page reference or anything in the book. It just says what it says above that is is in sunan al kubra al baihai

[At-Ta'if]

Sorry, I meant the hadith number as in 1-40 that's being commented on by Sh. Zarabozo.

[aussiemu]

Not sure if it helps but the footnote reference is:

ibn Muhammad, Fauzi al-Adhwaa al-Samaawiyyah fi Takhreej Ahadeeth al-Arbaeen al-Nawawiyah. Amman, Jordan: al-Maktabah al-islamiyyah 1413 A.H

The hadith is found on page 192 of the above.

[aussiemu]

It's hadith #33. Personally i would just reference it as a hadith in nawawi

[At-Ta'if]

It's hadith #33. Personally i would just reference it as a hadith in nawawi

Awesome! May Allah reward you. I also found a commentary by Dr. Jamal Ahmed Badi.

Can you confirm the below excerpt is in the book you have just to make sure?

"Al-Qaa’idah... this is yet another hadith from which Fiqh Principles are derived. Important to note that Imam Shafi’i stated that taking an oath from the defendant only applies to case of wealth, property, prescribed punishments, marriage and divorce. "

[aussiemu]

I don't know if it is relevant but I was reading the commentary and it speaks about what the word 'bayyinah' or proof means - it seems most scholars took it to mean witnesses but ibn al ayyim argued that the term bayyinah is misunderstood by a lot of jurists and that they have greatly restricted its meaning whilst there is no call to do so. Basically saying that this hadith does not mean that is f aperson cannot present two witnesses 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 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 attainment of truth and its enactment. Witnesses are an important means of reaching that goal but they are not the only means. There is a long uote of ibn al ayyim about the word bayyinah then and its meaning/context.

[aussiemu]

I'll scan the pages for you tomorrow inshallah if you want. It goes into things like witnesses, female witnesses, does a defendant have to take an oath, evidence etc. Probably relevant to what you are after.

The statement about Shafi'is is:

The Shafiees and the majority of the scholars state that the principle of taking an oath from a defendant is used in cases related to wealth, property, prescribed punishments, marriage and divorce. Malik does not apply it to cases of amarriage, divorce and freeing of slaves. He says that in those cases, the defendant is not asked to make an oath uuntil the plaintiff offers sort sort of evidence, even if it is just one witness. The Hanafis only apply it to cases related to wealth and property.

[At-Ta'if]

I don't know if it is relevant but I was reading the commentary and it speaks about what the word 'bayyinah' or proof means - it seems most scholars took it to mean witnesses but ibn al ayyim argued that the term bayyinah is misunderstood by a lot of jurists and that they have greatly restricted its meaning whilst there is no call to do so. Basically saying that this hadith does not mean that is f aperson cannot present two witnesses 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 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 attainment of truth and its enactment. Witnesses are an important means of reaching that goal but they are not the only means. There is a long uote of ibn al ayyim about the word bayyinah then and its meaning/context.

SubhanAllah, you touched on what I read about recently.

Basically there are two Islamic views regarding al-Bayyinah, which corresponds to the term 'evidence' in common law.

The first view is that al-Bayyinah is a term that connotes anything that clarifies and explains the existence of a right or manifests the truth.

This is the position of distinguished scholars such as Ibn Qayyim, Ibn Taymiyyah (both Hanbali legal scholars), Ibn Farhun (Maliki scholar), and Ibn Hazm al-Zahiri.

The second view is that al-Bayyinah is a term employed solely to mean Shahadah, that is, the oral testimony of witnesses.

This view is held by the majority of Hanafis, Malikis, Shafi'is, and Hanbalis. Both arguments provide supporting evidence from the Qur'an and Sunnah.

However, it's crucial to note that this disagreement was only regarding the terminology of al-Bayyinah, and not the method of proof.

[At-Ta'if]

I'll scan the pages for you tomorrow inshallah if you want. It goes into things like witnesses, female witnesses, does a defendant have to take an oath, evidence etc. Probably relevant to what you are after.

The statement about Shafi'is is:

The Shafiees and the majority of the scholars state that the principle of taking an oath from a defendant is used in cases related to wealth, property, prescribed punishments, marriage and divorce. Malik does not apply it to cases of amarriage, divorce and freeing of slaves. He says that in those cases, the defendant is not asked to make an oath uuntil the plaintiff offers sort sort of evidence, even if it is just one witness. The Hanafis only apply it to cases related to wealth and property.

Please don't go out of your way to scan it, if you have spare time though, I will appreciate it.

The Hanafis are really strict regarding the admissibility of documentary evidence, with a few exceptions.