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Explanation of Hadeeth Number 33
That which is recorded in the Two Saheehs [i.e. al-Bukhaaree and Muslim] of this hadeeth mentions that Ibn Abee Mulaikah said that Ibn 'Abbaas (radiAllaahu anhumaa) wrote: "That the Prophet (sallAllaahu alayhi wa sallam) decreed that the taking of an oath [of denial] is upon the one against whom a claim is made", and in another narration: "That the Prophet (sallAllaahu alayhi wa sallam) said that if people were given everything that they claimed, men would [unjustly] claim the blood/lives of other men, and their property; but the taking of an oath is upon the one against whom a claim is made."
The compiler of the Forty Hadeeth [i.e. Imaam an-Nawawee] said: "This hadeeth has been narrated by al-Bukhaaree and Muslim in their two Saheehs in Marfoo' form [i.e. the chain of narration goes right up to the Prophet sallAllaahu alayhi wa sallam] from the narration of Ibn 'Abbaas, and it has been similarly narrated by the compilers of the Collections of Sunan [such as Abu Daawood, an-Nasaa'ee, etc] and other than them."
And al-Aseelee said: "Its chain up to the Prophet (sallAllaahu alayhi wa sallam) is not established - rather it is the statement of Ibn 'Abbaas", to which the collector [i.e. Imaam an-Nawawee] replied: "If it [the chain of narration] has been declared Marfoo' by the testimony of the Two Imaams [i.e. al-Bukhaaree and Muslim] then the statement of another who restricts it [to a Sahaabee] does not have any effect, and this is not considered to be a conflict nor disorder."
And this hadeeth is a principle from the Principles of the Sharee'ah, and a great authority to which one resorts in case of dispute or argument, and it implies that judgment is not simply passed by the claim of an individual.
And his (sallAllaahu alayhi wa sallam) statement "men would [unjustly] claim the wealth and lives of [other] people", then this has been used by some people to prove the invalidity of the statement of Imaam Maalik regarding the acceptance of the statement of the one who has been [almost] killed that "so and so killed me" or "my blood is on the hands of so and so", because if the statement of the sick man is not accepted that "so and so has my money" then how can this statement "my blood is on the hands of so and so" be accepted? However, there is no proof in this for them against Imaam Maalik, as he did not link the Qisaas or Diyah [the laws relating to murder] to the statement of the claimant, but rather to the division of the inheritance upon the murder.
And as for his (sallAllaahu alayhi wa sallam) statement "and the taking of an oath is upon him who denies", then the 'ulamaa have come to a consensus [ijmaa'] that the one against whom a claim is made can be forced to take an oath of denial in the case of disputed property/possessions, but the 'ulamaa have differed in cases other than that. So some have ruled that it is compulsory in every dispute such as in the case of divorce, or nikaah, or freeing a slave, and they have taken this from the apparent generality of the hadeeth. And if the claimed against refuses to take an oath, then the claimant may take an oath and his claim will be accepted.
And Abu Haneefah (rahimahu Allaah) said: "An oath is taken [from the claimed against] in the case of divorce and nikaah and freeing a slave, and if it is refused [by the claimed against] then the claimant may take an oath in all of these cases." And he also said: "And one does not force an oath in the case of the hudood".
Summary
1. That we do not have all our wishes and desires fulfilled for the sake of the general good.
2. That mankind cannot always know by themselves what is good for them all.
3. That man cannot be completely free of being selfish, and consequently unjust, without the control of Allaah.
4. That the one who claims something must prove it to be his.
5. That the one who denies what he is accused of must take an oath of denial.
Background
There are in every judicial dispute at least two litigating parties, the plaintiff and the defendant. The first claims what is contrary to the apparent fact; the second holds to the apparent fact and denies the claim. (Mahmassani: Falsaft al-Tashri' al-Islami - p 169, 170).
This hadith forms an important maxim. The text of the hadith has been expressed in the following way: "Evidence is for the person who claims; the oath is for the person who denies."
(The Mejelle 1967 article # 76)
Lessons
This hadith shows the supreme importance of proof to the administration of justice. The necessity of proof is a restrainer to false, weak, and unsubstantiated claims. (Mahmassani 168).
Therefore it becomes important to know upon who the onus of proof lies. There is no doubt that the burden is upon the plaintiff. This is explained by the fact that what is apparent is presumed to be the original state; any one who makes a claim to the contrary must prove such claim. (ibid)
The proof of a matter requires presentation of evidence until the matter attains the degree of certainty. Certainty is that which can be established by sight or proof. It can only be dispelled by another certainty. (ibid)
Since it is established that a defendant is presumed to be free from liability until the claimant proves the contrary, it is important to know who is the defendant and who is the plaintiff, who of the two must bear the onus of proof, and whose evidence takes precedence in case of conflict. (ibid p172).
The definition of "Plaintiff" and "Defendant"
There are three views regarding the above issue (Zarabozo 3/1167):
1. The plaintiff is the one who is not charged with anything or can remain silent of the two disputants.
2. The plaintiff is the one who is claiming something other than what is apparent or what has not yet been established in the past. The defendant is the one who is on the opposite side, arguing to what is apparent.
3. The defendant is the one rejecting a claim while the plaintiff is the one making the claim.
The meaning of al-Bayinah or "proof" (ibid)
Many jurists seem to think that "proof" refers only to witnesses. However, the meaning of proof is much more comprehensive and also applies to means of proof other than witnesses.
Explanation of Hadeeth Number 33
That which is recorded in the Two Saheehs [i.e. al-Bukhaaree and Muslim] of this hadeeth mentions that Ibn Abee Mulaikah said that Ibn 'Abbaas (radiAllaahu anhumaa) wrote: "That the Prophet (sallAllaahu alayhi wa sallam) decreed that the taking of an oath [of denial] is upon the one against whom a claim is made", and in another narration: "That the Prophet (sallAllaahu alayhi wa sallam) said that if people were given everything that they claimed, men would [unjustly] claim the blood/lives of other men, and their property; but the taking of an oath is upon the one against whom a claim is made."
The compiler of the Forty Hadeeth [i.e. Imaam an-Nawawee] said: "This hadeeth has been narrated by al-Bukhaaree and Muslim in their two Saheehs in Marfoo' form [i.e. the chain of narration goes right up to the Prophet sallAllaahu alayhi wa sallam] from the narration of Ibn 'Abbaas, and it has been similarly narrated by the compilers of the Collections of Sunan [such as Abu Daawood, an-Nasaa'ee, etc] and other than them."
And al-Aseelee said: "Its chain up to the Prophet (sallAllaahu alayhi wa sallam) is not established - rather it is the statement of Ibn 'Abbaas", to which the collector [i.e. Imaam an-Nawawee] replied: "If it [the chain of narration] has been declared Marfoo' by the testimony of the Two Imaams [i.e. al-Bukhaaree and Muslim] then the statement of another who restricts it [to a Sahaabee] does not have any effect, and this is not considered to be a conflict nor disorder."
And this hadeeth is a principle from the Principles of the Sharee'ah, and a great authority to which one resorts in case of dispute or argument, and it implies that judgment is not simply passed by the claim of an individual.
And his (sallAllaahu alayhi wa sallam) statement "men would [unjustly] claim the wealth and lives of [other] people", then this has been used by some people to prove the invalidity of the statement of Imaam Maalik regarding the acceptance of the statement of the one who has been [almost] killed that "so and so killed me" or "my blood is on the hands of so and so", because if the statement of the sick man is not accepted that "so and so has my money" then how can this statement "my blood is on the hands of so and so" be accepted? However, there is no proof in this for them against Imaam Maalik, as he did not link the Qisaas or Diyah [the laws relating to murder] to the statement of the claimant, but rather to the division of the inheritance upon the murder.
And as for his (sallAllaahu alayhi wa sallam) statement "and the taking of an oath is upon him who denies", then the 'ulamaa have come to a consensus [ijmaa'] that the one against whom a claim is made can be forced to take an oath of denial in the case of disputed property/possessions, but the 'ulamaa have differed in cases other than that. So some have ruled that it is compulsory in every dispute such as in the case of divorce, or nikaah, or freeing a slave, and they have taken this from the apparent generality of the hadeeth. And if the claimed against refuses to take an oath, then the claimant may take an oath and his claim will be accepted.
And Abu Haneefah (rahimahu Allaah) said: "An oath is taken [from the claimed against] in the case of divorce and nikaah and freeing a slave, and if it is refused [by the claimed against] then the claimant may take an oath in all of these cases." And he also said: "And one does not force an oath in the case of the hudood".
Summary
1. That we do not have all our wishes and desires fulfilled for the sake of the general good.
2. That mankind cannot always know by themselves what is good for them all.
3. That man cannot be completely free of being selfish, and consequently unjust, without the control of Allaah.
4. That the one who claims something must prove it to be his.
5. That the one who denies what he is accused of must take an oath of denial.
*~*~*~*~*~*~*~*~*~*~*
Background
There are in every judicial dispute at least two litigating parties, the plaintiff and the defendant. The first claims what is contrary to the apparent fact; the second holds to the apparent fact and denies the claim. (Mahmassani: Falsaft al-Tashri' al-Islami - p 169, 170).
This hadith forms an important maxim. The text of the hadith has been expressed in the following way: "Evidence is for the person who claims; the oath is for the person who denies."
(The Mejelle 1967 article # 76)
Lessons
This hadith shows the supreme importance of proof to the administration of justice. The necessity of proof is a restrainer to false, weak, and unsubstantiated claims. (Mahmassani 168).
Therefore it becomes important to know upon who the onus of proof lies. There is no doubt that the burden is upon the plaintiff. This is explained by the fact that what is apparent is presumed to be the original state; any one who makes a claim to the contrary must prove such claim. (ibid)
The proof of a matter requires presentation of evidence until the matter attains the degree of certainty. Certainty is that which can be established by sight or proof. It can only be dispelled by another certainty. (ibid)
Since it is established that a defendant is presumed to be free from liability until the claimant proves the contrary, it is important to know who is the defendant and who is the plaintiff, who of the two must bear the onus of proof, and whose evidence takes precedence in case of conflict. (ibid p172).
The definition of "Plaintiff" and "Defendant"
There are three views regarding the above issue (Zarabozo 3/1167):
1. The plaintiff is the one who is not charged with anything or can remain silent of the two disputants.
2. The plaintiff is the one who is claiming something other than what is apparent or what has not yet been established in the past. The defendant is the one who is on the opposite side, arguing to what is apparent.
3. The defendant is the one rejecting a claim while the plaintiff is the one making the claim.
The meaning of al-Bayinah or "proof" (ibid)
Many jurists seem to think that "proof" refers only to witnesses. However, the meaning of proof is much more comprehensive and also applies to means of proof other than witnesses.
According to some early and contemporary scholars, "al-Bayinah" or proof is a noun that encompasses all means of establishing the truth. Circumstantial evidence, conclusive presumption, and clear signs that lead to a definite conclusion can all be taken into consideration.
Modern forms of criminal investigation can be used in making judicial conclusion. Otherwise, rights will be lost and injustice will be allowed to prevail.
The criteria for being an acceptable witness (ibid):
1. The witness must be sane and competent.
2. In general, the witness must be an adult.
3. The witness must be a Muslim unless it be in a case dealing with non-Muslims.
4. The witness must be of sound memory.
5. The witness must be a person of integrity and honesty.
The importance of giving one's testimony:
1. It is an obligation that people offer their testimony truthfully when called upon to do so. Allah the Almighty says: And the witness should not refuse when they are called. [Surah al-Baqarah: Ayah 282]
2. It is considered a sin to conceal what one has witnessed. Allah the Almighty says: And conceal not the testimony, for he who hides it is certainly sinful of heart. [Surah al-Baqarah: Ayah 283]
A warning to those who make successful false claims
It is noted that Islam stresses on appealing to fearing Allah whenever there is misuse of authority, or taking chances over others in all human relations such as trading, family disputes, and making false claims against others.
The Prophet, sallallahu 'alayhi wasallam, said: "I am a human being. You come to me as litigants. Perhaps, one of you is better in presenting his argument than the other and I decide in his favor according to what I have heard. If I have decided anything for someone from the rights of his brother, he should not take it for I have portioned for him a portion of the Hell fire."
In another hadith the Prophet, sallallahu 'alayhi wasallam, warns us that taking as little as a spin of a palm of some one else's property unjustly will be horribly taken responsible for in the Day of Judgment.
In a third hadith the Prophet, sallallahu 'alayhi wasallam, cursed the one who changes for no good reason the landmarks of a property.
Conclusion
Islam is a practical religion where it takes into account the possible natural conflicts, quarrels, and disputes among community individuals where people may claim something against one another. Islam establishes rules and principles by which these disputes are brought to an end in a just manner.
A person is free of guilt or claims made against him or her until proven otherwise.
Modern forms of criminal investigation can be used in making judicial conclusion. Otherwise, rights will be lost and injustice will be allowed to prevail.
The criteria for being an acceptable witness (ibid):
1. The witness must be sane and competent.
2. In general, the witness must be an adult.
3. The witness must be a Muslim unless it be in a case dealing with non-Muslims.
4. The witness must be of sound memory.
5. The witness must be a person of integrity and honesty.
The importance of giving one's testimony:
1. It is an obligation that people offer their testimony truthfully when called upon to do so. Allah the Almighty says: And the witness should not refuse when they are called. [Surah al-Baqarah: Ayah 282]
2. It is considered a sin to conceal what one has witnessed. Allah the Almighty says: And conceal not the testimony, for he who hides it is certainly sinful of heart. [Surah al-Baqarah: Ayah 283]
A warning to those who make successful false claims
It is noted that Islam stresses on appealing to fearing Allah whenever there is misuse of authority, or taking chances over others in all human relations such as trading, family disputes, and making false claims against others.
The Prophet, sallallahu 'alayhi wasallam, said: "I am a human being. You come to me as litigants. Perhaps, one of you is better in presenting his argument than the other and I decide in his favor according to what I have heard. If I have decided anything for someone from the rights of his brother, he should not take it for I have portioned for him a portion of the Hell fire."
In another hadith the Prophet, sallallahu 'alayhi wasallam, warns us that taking as little as a spin of a palm of some one else's property unjustly will be horribly taken responsible for in the Day of Judgment.
In a third hadith the Prophet, sallallahu 'alayhi wasallam, cursed the one who changes for no good reason the landmarks of a property.
Conclusion
Islam is a practical religion where it takes into account the possible natural conflicts, quarrels, and disputes among community individuals where people may claim something against one another. Islam establishes rules and principles by which these disputes are brought to an end in a just manner.
A person is free of guilt or claims made against him or her until proven otherwise.
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