Evidence in Islamic law: reforming the Islamic evidence law based on the federal rules of evidence

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Notes

¹Hossein Esmaeili and Jeremy Gans, ‘Islamic Law Across Cultural Borders: The Involvement of Western Nationals in Saudi Murder Trials’ (2000) 28 Denv J Intl L Poly 148.

²Generally, see Joseph Schacht, An Introduction to Islamic Law (Oxford University Press, Oxford 1982).

³Generally, see David Bonderman, ‘Modernization and Changing Perceptions of Islamic Law’ (1969) 81 Harvard L J 1169. Also Wael B Hallaq, Sharia: Theory, Practice, Transformations (Cambridge University Press, Cambridge 2009).

⁴It is important to note that there are four major schools of thought under the Sunni branch of Islam (see note 23 below). This paper does not focus on the specific doctrines of any particular school of thought, but is a survey of rules across all the Sunni schools. However, major differences and variations among the rules between the schools are pointed out. However, there is no discussion on any doctrines of the Shiite branch of Islam. Moreover, reference is made from time to time to “jurists” who either support a certain view or oppose it. These jurists are Islamic legal scholars who either founded or helped shape a certain schools of Islamic thought.

⁵The reason the FRE were selected as a model is because they are considered to be, to a certain extent, a codification of several evidentiary common law doctrines, thus making it more efficient to explicate the rules and the historical rationale behind them. For an in-depth discussion on the FRE being a codification of common law evidentiary doctrines, see Glen Weissenberger, ‘Evidence Myopia, the Failure to See the Federal Rules of Evidence as a Codification of the Common Law’ (1999) 40 Wm Mary L Rev 1539.

⁶Esmaeli (n 1) 145, 147.

⁷Ibid. 147. Islamic law covers several legal aspects such as wills, donations, criminal law, personal status, and family law; Schacht (n 2).

⁸Bonderman (n 3) 1172.

⁹Ibid.

¹⁰Ibid. 1172, 1173.

¹¹Ibid. 1173.

¹²Ibid.

¹³Ibid. The orthodox legal system, known as the Shari'a, was the direct result of divine Quranic revelations and, as such, was entitled to be recognized not only as permanently valid and binding on all believers, but also as the only religiously valid legal system. Additionally, Islamic law from its earliest beginnings has been a theorist's law. That is to say, the Shari'a has been a pure and ideal legal system propounded almost wholly by learned and pious religious scholars who were generally unconcerned about actual practice.

¹⁴Esmaeli (n 1) 148.

¹⁵Ibid. 148.

¹⁶Bonderman (n 3) 1173. See Appendix A which defines all the Arabic and Quranic terms that appear in this paper.

¹⁷Esmaeli (n 1) 147–8; Bonderman (n 3) 1173.

¹⁸Bonderman (n 3) 1173.

¹⁹Ibid. 1173–4.

²⁰Ibid. 1173.

²¹Ibid. 1173–4.

²²Ibid.

²³Ibid. 1174. Following the Prophet's death in 632, Muslims were left leaderless as the Prophet left no successor. However, Abu Bakr Al Sideeq was accepted as the first Caliph (Deputy) following Mohammed's death, followed by three more Caliphs, the last of which was Mohammed's nephew, Ali Bin Abitalib. In 661, Mu'awiya, a member of the aristocratic Meccan Umayya family and then Governor of Syria, was successful not only in making himself Caliph, but also in making the office of deputy hereditary, and with that began the Ummayad Islamic Empire. The Umayyads tried to secularize the empire and have been denigrated ever since. In 750, they were overthrown in a burst of communal religious fervor by ‘Abbas, who was later successful in setting up his own dynasty. Religious fervor of the early ‘Abbasid times brought about a close, though temporary, integration of Shari'a and temporal law.

²⁴Schacht (n 2) 70.

²⁵Ibid.

²⁶Ibid. It is also noteworthy to mention that until the question of “who is qualified to practice ijtihad” was raised, independent reasoning was open to anyone sufficiently interested in embarking upon speculation on religious law. However, this freedom was progressively restricted due to several factors, namely: the achievement of a general consensus amongst the scholars on the state of Shari'a, the formation of groups or circles within the ancient schools of law, the subjection of unfettered opinion to the increasingly strict discipline of systematic reasoning, and finally the appearance of numerous traditions from the Prophet which embodied in authoritative form what had originally nothing more than private opinions.

²⁷Ibid. 70–7.

²⁸Ibid.

²⁹Bonderman (n 3) 1174–5. For a detailed discussion, see Schacht (n 2).

³⁰Schacht (n 2) 72.

³¹Ibid. The topic of ijtihad is the point of some controversy amongst scholars of Islamic law. While the majority of scholars concede to the closing of the gate of ijtihad, a few such as Wael Hallaq have taken the position that ijtihad was not abandoned; Wael B Hallaq, ‘Was the Door to Ijtihad Closed?’ (1984) 16 Int J Middle Eastern Stud 3. However, Hallaq's scholarship fails to explain the established notion that the rise of taklid resulted in no new schools of jurisprudence was successfully instituted; Ali Khan, ‘The Reopening of the Islamic Code: The Second Era of Ijtihad’ (2003) 1 U St Thomas L J 342. Moreover, no new legal methods were crafted to access the Basic Code; ibid. 368. Inevitably, jurists were only left to work with the methods established during the era of Ijtihad. Breaking no new ground in substantive or legal methods, taklid commentaries did refine the contents and methods of established schools, thus keeping the doctrine alive technically. However, the doctrine itself lost its creative hold. For a more in-depth discussion regarding the controversy of ijtihad, see Shaista P Ali-Karamali and Fionna Dunne, ‘The Ijtihad Controversy’ (1994) 9 Arab L Q 238.

³²Schacht (n 2) 71.

³³Ibid. 72.

³⁴Ibid.

³⁵Bonderman (n 3) 1175.

³⁶Bonderman (n 3) 1174–5.

³⁷Schacht (n 2) 73.

³⁸Ibid. 73. A mufti's main function is to advise interested members of the public on what was, in their opinion, the correct course of action from the viewpoint of Shari'a; ibid. Initially, a mufti's function was private; his authority was based on his reputation as a scholar and his opinion has no official significance. However, in order to provide the public and government officials with authoritative legal opinions, Islamic governments appointed learned and pious scholars as official muftis; ibid. 74.

³⁹Ibid. A judge (kadi, hakim) is appointed by political authorities and hears cases and issues judgments; ibid. 188, 189.

⁴⁰Ibid. 74.

⁴¹Ibid. 75.

⁴²Ibid.

⁴³Ibid.

⁴⁴Hallaq (n 3) 443. It is important to note that by the mid-20th century, most of what is now the Near Eastern countries were colonized by Western powers; Bonderman (n 3) 1170. Western influence in Islamic law arose out of contact between the modern Western civilization and the Muslim world; Schacht (n 2) 100. As a result of colonialism, many Islamic legal systems borrowed heavily from European Civil Codes, and English common law; Khan (n 31) 369.

⁴⁵Hallaq (n 3) 444.

⁴⁶Ibid.

⁴⁷Ibid. 445.

⁴⁸Ibid.

⁴⁹Ibid.

⁵⁰Ibid. 445–9. Hallaq notes that the modernization of Sharia occurred due to five main devices. The first is the concept of darura (necessity), used to justify changing the law. The concept was transformed in order to be more effective by transposing it into the domain of legal theory that came to regulate the operation of positive law. Additionally, the concept was broadened so that the law in its entirety was redefined. The second device was procedural; thus instead of changing substantive law, a certain “positive law” was simply excluded from judicial enforcement. The third device was a combination of takhayyur (selection) and talfiq (amalgamation). Through this approach, doctrines and opinions from different schools and even from Shiite schools were incorporated into Sunni doctrines. The fourth device is “neo-ijtihad,” allowing for logical interpretation of Shari'a doctrines. The final method was simply incorporating any law that did not contradict Shari'a.

⁵¹Ibid. 474.

⁵²Ibid. Also see Hallaq (n 3) 443–99, on an in-depth discussion of which nation-states Islam was reincorporated into and how that was accomplished.

⁵³Ibid.

⁵⁴Ibid.

⁵⁵Ibid. 475.

⁵⁶Ibid.

⁵⁷Ibid.

⁵⁸Ibid.

⁵⁹Ibid. 475–8. An example of the “Islamists” is the Muslim Brothers, a group prevalent in Egypt, Syria, and Southern Lebanon. Although the founders of the Brothers never explained what sort of Shari'a they seek to uphold in their envisioned Muslim society, they mainly focused on creating a society where religious morality was “at the center of the social order.”

⁶⁰Esmaeli (n 1) 148.

⁶¹Ibid. Saudi Arabia is the only country that applies Islamic law in its traditional form. Iran and Sudan, however, have systems that are blended with the civil or common law systems.

⁶²Ibid. 150.

⁶³Ibid.

⁶⁴Ibid. 152.

⁶⁵Ibid.

⁶⁶Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (Cambridge University Press, Cambridge 2005) 7.

⁶⁷Esmaeli (n 1) 152.

⁶⁸Mohammad Abdel Haleem, Adel Omar Sherif and Kate Daniels, Criminal Justice in Islam: Judicial Procedure in the Shari'a (I.B. Tauris, London 2003).

⁶⁹Peters (n 66) 7. The three categories are: crimes against the person (qisas and diya), crimes against God (hudud), and discretionary punishment crimes (ta'zir).

⁷⁰Ibid.

⁷¹Ibid.

⁷²Haleem (n 68) 44. In cases of bodily harm or homicide, the people (or person) who bring a case to court before a judge are the victim's next of kin (or the victim himself in the event of a non-deadly injury); the family (regarded as the plaintiff) is the equivalent of a prosecutor (wali al dam, pl. awliya' al dam). Upon the finding of guilt, retaliation, which refers to punishment by inflicting the same injury inflicted on the victim by the criminal (qisas), can only take place if the deceased victim's next of kin demands it. However, in most schools of thought, qisas is only allowed if the victim's bloodprice is the same as or higher than the offender's. Thus, if retaliation is not possible, or if the offender has unintentionally or semi-intentionally committed murder or bodily harm, the criminal is liable to pay the bloodprice of the victim (diya) to the family; ibid. 49. On the other hand, the victim's family can demand bloodmoney (diya) instead of qisas in cases of homicide or wounding as a financial compensation for damages suffered by the heirs of the victim (in case of his death) and for the victim himself (in case of non-deadly bodily harm); ibid. 7.

⁷³Esmaeli (n 1) 162. Qisas, from the Arabic qassa (to follow), describes a method of punishment whereby the offender is punished in the same way, and by the same means, as the crime that they have been convicted of. Thus, if one is convicted for murder, the punishment to be received is the death penalty, Qisas-al-Nafs (Qisas for life). For lesser personal injuries, Qisas Ma Doon Al-Nafs (Qisas for less than life) is available. However, carrying out the lesser punishment is sometimes difficult due to a strict requirement that the punishment match the injury inflicted by the criminal. Some Islamic schools have held that, like qisas for non-fatal injuries, the death penalty for murder should be performed in a way that matches the original method of killing. However, in Saudi Arabia for instance, the only country that practices beheadings, they strictly rely on a Hadith that instructs that “there is no qisas except by the sword,” thus requiring that all executions be carried out by beheading, regardless of the method of the murder.

⁷⁴Peters (n 66) 7.

⁷⁵Ibid.

⁷⁶Ibid.

⁷⁷Ibid.

⁷⁸Ibid. 12.

⁷⁹Ibid.

⁸⁰Esmaeli (n 1) 158.

⁸¹Ibid.

⁸²Bonderman (n 3) 1173.

⁸³Esmaeli (n 1) 158. This prohibition extends to the judge's use of inferences from Al-Qrain (circumstantial evidence) where they are unfavorable to the accused. However, the Hanbali school does permit the use of such evidence in a murder trial to reach a verdict that would result in a non-capital punishment, such as the payment of bloodmoney (diya).

⁸⁴Ibid. citing the Quran (4:135).

⁸⁵Ibid. 158, 159.

⁸⁶Ibid. 159. For instance, in Iran, one of the main modern jurisdictions that practices Islamic criminal law, the judge's personal observation can support any criminal charge.

⁸⁷Peters (n 66) 13. An oath is when a witness or a party to the action swears before the judge that their position or claim is true.

⁸⁸Ibid.

⁸⁹Ibid. 13. This is accepted by all schools except the Hanafi school.

⁹⁰Ibid. 16.

⁹¹Ibid.

⁹²Ibid.

⁹³Ibid.

⁹⁴Ibid. For further discussion on hearsay, see below.

⁹⁵Ibid.

⁹⁶Ibid. 13, 14.

⁹⁷Ibid.

⁹⁸Ibid. 14.

⁹⁹Ibid. 15.

¹⁰⁴Peters (n 66) 15.

¹⁰⁰Ibid. 10.

¹⁰¹Ibid. 15.

¹⁰²Ibid. 6.

¹⁰³Abu Hanifa is one of the believers in Mohammed who lived during the time of the Prophet, known as a sahabi (friend of the Prophet), and transmitted prophetic sayings (hadith) that comprise the sunna.

¹⁰⁵Matthew Lippman, Sean McConville and Mordechai Yerushalmi, Islamic Criminal Law and Procedure (Greenwood, New York, NY 1988) 71. The 50 oaths required can either be sworn by 50 different people or 50 oaths from fewer than 50 people (i.e. one person giving multiple oaths).

¹⁰⁶Peters (n 66) 16. Capital punishment is rarely applied for a ta'zir offense, thus as a result the accused would get a relatively lenient punishment; Esmaeli (n 1) 161.

¹⁰⁷Lippman (n 105) 69.

¹⁰⁸Ibid. The mode of inquiring about a potential witness's character is called Tazkiya, which refers to an investigation about a witness's good character and probity; Anwarullah, Islamic Law of Evidence (Islamic Da'wa Centre, Brunai 1994) 111. This investigation is carried out before a trial by a court-appointed person known as a Muzakki who interviews the witness's neighbors and family; ibid. 112. Some jurists are of the opinion that tazkiya is only required when the other party to the claim challenges the credibility or the character of the witness, or if when the trial is for a Hadd offense; ibid. Other jurists however believe that tazkiya is always required; ibid. 113.

¹⁰⁹Weissenberger (n 5).

¹¹⁰Haleem (n 68) 118.

¹¹¹Ibid.

¹¹²Ibid.

¹¹³Ibid.

¹¹⁴Ibid. Caution itself is defined as a threat of punishment or reprimand in the hereafter; ibid.

¹¹⁵Ibid. 119.

¹¹⁶Ibid. quoting the Quran (4:31).

¹¹⁷Ibid.

¹¹⁸Ibid.

¹¹⁹Ibid.

¹²⁰Ibid.

¹²¹Anwarullah (n 108) 89.

¹²²Abdel Haleem et al. (n 59) 119.

¹²³Ibid. 120.

¹²⁴Lippman (n 105) 69.

¹²⁵Anwarullah (n 108) 75.

¹²⁶Lippman (n 105) 69. This view is based on the sayings of the Prophet stating that “the testimony of a deceitful man or woman is not admissible, not of a man on whom hadd of qazf (false accusation of adultery) has been implemented, not of a man who has enmity with his brother, not a slave who attributes his freedom to another person, not of the servant of a family for the members of that family”; Anwarullah (n 108) 75.

¹²⁷Anwarullah (n 108) 75.

¹²⁸Generally, see Anwarullah (n 108). Also Lippmann (n 105).

¹²⁹Quran (4:135).

¹³⁰Quran (2:283).

¹³¹Anwarullah (n 108) 117. Also Lippman et al. (n 105) 110.

¹³²Anwarullah (n 108) 117.

¹³³Peters (n 66) 12.

¹³⁴Anwarullah (n 108) 117. On the qualifications of witnesses, see the second main section.

¹³⁵Ibid. 118. This allows the opposing party to raise the objection of the credibility of the original witness if they deem is necessary. For a discussion on the definition of these terms, see above.

¹³⁶Ibid.

¹³⁷Ibid. An example of this would be information that is in a public record accessible to everyone.

¹³⁸It is suggested by some evidence scholars that the federal rules of evidence are a codification of the common law rules of evidence and that reading the Advisory Notes reveals that they rely heavily upon antecedent common law. For an in-depth discussion, see Glen Weissenberger, ‘Evidence Myopia: The Failure to See the Federal Rules of Evidence as a Codification of the Common law’ (1999) 40 Wm Mary L Rev 1539.

¹³⁹Generally, see Mohammed Burhan Arbouna, Islamic Law of Evidence: The Function of Official Documents in Evidence (A Comparative Study with Common Law) (Syarikat Nurulhas Kuala Lumpur 1999).

¹⁴⁰Ibid. 10.

¹⁴¹Fed. R. Ev. 601.

¹⁴²Ibid.

¹⁴³Ibid.

¹⁴⁴Ibid. 602, 603.

¹⁴⁵Ibid. 610; Paul W Kaufman, ‘Disbelieving Nonbelievers: Atheism, Competence, and Credibility in the Turn of the Century American Courtroom’ (2003) 15 Yale J L Human 395. Traditionally in English courtrooms, and some American courtrooms, the view was one could not take an oath before testimony if he or she does not believe in a deity that would punish them for taking a false oath; ibid. However, of the 48 states in the Union before 1950, approximately 19 rendered atheists neither incompetent nor allowed questioning to affect their credibility; ibid. 407. Furthermore, in Torcaso v. Watkins, 367 U.S. 488 (U.S. 1961), the United States Supreme Court held that Maryland's Declaration of Rights, which contains an express provision precluding atheists from testifying, violated the establishment clause and the constitutional guarantee of freedom of religion, and that U.S. Const. amend. I, applied to the states through U.S. Const. amend. XIV; ibid.

¹⁴⁶Generally the FRE.

¹⁴⁷Ibid. Also Arbouna (n 139).

¹⁴⁸Fed. R. Ev. 607.

¹⁴⁹Ibid.

¹⁵⁰Ibid. 609. The rationale behind this rule is that someone who would disregard social norms by committing crimes might also be more likely to lie; the same antisocial tendency that led to felonious conduct could lead to perjury; Aviva Orenstein, ‘Honoring Margaret Berger with a Sensible Idea: Insisting that Judges Employ a Balancing Test Before Admitting the Accused's Conviction Under Federal Rules of Evidence’ (2010) 75 Brooklyn L Rev 1291, 1294.

¹⁵¹Fed. R. Ev. 609(a)–(b).

¹⁵²Ibid. 609(a).

¹⁵³Ibid. 609(a)(2).

¹⁵⁴Ibid. 608.

¹⁵⁵Ibid.

¹⁵⁶Ibid.

¹⁵⁷Ibid. 608(b).

¹⁵⁸Ibid. 501.

¹⁵⁹Ibid.

¹⁶⁰M. Leigh Svetanics, ‘Beyond “Reason and Experience”: the Supreme Court Adopts a Broad Psychotherapist-Patient Privilege in Jaffe v. Redmond’, 41 St. Louis L.J 719, 730 (1197).

¹⁶¹Steven N Goffman, ‘“Honey the Judge Says We're History”: Abrogating the Marital Privileges Via “Honey The Judge Says We're History”: Modern Doctrines of Marital Worthiness’ (1992) 77 Cornell L Rev 843, 846.

¹⁶²Ibid. 846.

¹⁶³Ibid. 847.

¹⁶⁴Ibid.

¹⁶⁵Ibid.

¹⁶⁶Ibid.

¹⁶⁷Ibid.

¹⁶⁸Ibid.

¹⁶⁹Ibid. 848.

¹⁷⁰Ibid.

¹⁷¹Ibid.

¹⁷²Ibid.

¹⁷³Ibid.

¹⁷⁴Fed. R. Ev. 802, 803, 804. For definitional non-hearsay, see ibid. 801. “The rule against hearsay is based on the theory that a statement made out of court and repeated in court by a second person is subject to many possible deficiencies including suppression of part of the truth, errors in recollection and purposeful misstatements. Three common justifications for the exclusion of hearsay testimony exist. First, there is no opportunity to cross-examine the declarant on the substance of the statement. Second, the trier of fact has no opportunity to judge the demeanor of the declarant. Finally, the declarant's statement was not made under oath”; Kenneth E Kraus, ‘The Recent Perception Exception to the Hearsay Rule: A Justifiable Track Record’ (1985) 1985 Wis L Rev 1525, 1528–9 (discussing the history of the Hearsay Rule).

¹⁷⁵Fed. R. Ev. 801(c). Also relevant to this discussion, the rules of evidence take the position that a statement by a party opponent is, by definition, non-hearsay; ibid. 801(d)(2).

¹⁷⁶Ibid. 803.

¹⁷⁷Ibid. 803(1). Present sense impression is defined as “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”

¹⁷⁸Ibid. 803(2). Excited utterance is defined as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

¹⁷⁹Kraus (n 174) 1532.

¹⁸⁰Ibid.

¹⁸¹Ibid.

¹⁸²Ibid.

¹⁸³Ibid.

¹⁸⁴Fed. R. Ev. 803(2) Advisory Committee's Note: “[w]hile the theory of [this] exception has been criticized on the ground that excitement impairs accuracy of observation as well as eliminating conscious fabrication. Hutchins and Slesinger … [state that] it finds support in cases without number”; ibid. citing Robert M Hutchins and Donald Slesinger, ‘Some Observations on the Law of Evidence: Spontaneous Exclamations’ (1928) 28 Colum L Rev 432.

¹⁸⁵Fed. R. Ev. 804. Unavailability is defined as instances where the declarant is exemoted from testimony, physically unavailable due to death or illness, refuses to testify, or testifies to a lack of memory; ibid.

¹⁸⁶Ibid. 804(b)(2).

¹⁸⁷Ibid.

¹⁸⁸Ibid.

¹⁸⁹Ibid.

¹⁹⁰Stephen F Rose, ‘Can a Suicide Victim Be Taken at Her Word?: The Louisiana Supreme Court Declares a Suicide Note Inadmissible Hearsay in Garza v. Delta Tau Delta Fraternity National’ (2007) 81 Tul L Rev 1715, 1717. “Additionally, courts have theorized that a statement made just prior to death is unrehearsed and spontaneous, adding reliability to the statement.”

¹⁹¹Ibid. 1717.

¹⁹²Ibid.

¹⁹³Fed. R. Ev. 804(b)(3).

¹⁹⁴Ibid.

¹⁹⁵Ibid. 804(b)(3) Advisory Committee's Note.

¹⁹⁶Tarek Badawy, ‘Towards a Contemporary View of Islamic Criminal Procedure’ (2009) 23 Arab L Q 268, 288.

¹⁹⁷Generally, see Schacht (n 2). Also Hallaq (n 3); Frank E Vogel, Islamic Law and Legal System: Studies of Saudi Arabia (E.J. Brill, Leiden 2000).

¹⁹⁸Ibid.

¹⁹⁹Vogel (n 197) 35: “And on whatever you may differ, [O believers,] the verdict thereon rests with God” (quoting the Quran 42:10); “They do not really believe unless they make thee (the Prophet) a judge of all on which they disagree among themselves” (quoting the Quran 4:65); and “Does man, then, think that he is to be left to himself, to go about al will?” (quoting the Quran 75:36).

²⁰⁰Vogel (n 197) 35, 36.

²⁰¹Ibid.

²⁰²Ibid.

²⁰³Ibid.

²⁰⁴Ibid.

²⁰⁵See the second main section above.

²⁰⁶Schacht (n 2) 84.

²⁰⁷Ibid.

²⁰⁸Ibid.

²⁰⁹Ibid.

²¹⁰Arbouna (n 139) 40. A prime example of the use of these concepts to justify evolving what may be acceptable evidence is the use of documentary evidence. The modern view among scholars is that documents are admissible evidence; ibid. 44. This view is supported by the concepts of istihsan (public interest) and darura (necessity), two principles invoked by Muslim scholars to rationalize decisions that are otherwise unacceptable; ibid. A certain scholar notes that documentary evidence has become the most important method of proof, particularly in commercial matters; ibid. 47. This is due to that fact that individuals have in modern times become accustomed to transact by duly certified documents, the authentication (such as a stamp) instrument of which is rarely tampered with; ibid. Furthermore, two legal codes derived from Islamic law, namely the Majallat Al Ahkam Al Adliya (the Ottoman civil code of 1877) and Majallat Al Ahkam Al Shar'yyia (Code of the Hanbali School mainly followed in Saudi Arabia) which illustrate the modern trend towards the admissibility of documentary evidence; ibid. They do so by stating that documents are an acceptable method of proof, and the former also requires they be free from suspicion of forgery; ibid. 47, 48. Interestingly, the admissibility of documentary evidence is a peculiar case of deviation and evolution in Islamic law. Originally, although scholars agreed that it is prohibited neither by text nor by sunna, they denied the acceptability of their use, making it a unique case in which the denial of its validity was a divergence from the two main sources of law; Schacht (n 2) 82. The reason for that divergence is because the use of documents as evidence proved indispensible in practice, thus they remained in constant use despite opposition; ibid. Additionally, theoreticians continued to reason as if there were no documents but oral testimony, but in practice documents were valid, in fact essential, and witnessing was a mere formality to prove their validity; ibid. Finally, theory deigned in the face of practice to concede to the use of documents; ibid. The Malikis did so to the widest extent, the Hanbalis and Hanafis did so hesitantly, and the Shafi's continue to view them as accessories; ibid. 82, 83. Yet in practice, the use of written documents was equally extensive among all the schools; ibid.

²¹¹Aharon Layish, ‘Saudi Arabia Legal Reform as a Mechanism to Moderate Wahabi Doctrine’ (1987) 107 J Am Orient Soc 279, 280, 281, 285. Modernizing Shari'a by adopting concepts that are foreign to Islamic law is not a new practice. In Saudi Arabia – the only country that strictly observes Shari'a law – Islamic law witnessed a series of modernization trends in the 1980s. For instance, commercial law reform was inspired by Ottoman, Arab, and Western Legislation. Specifically, the Saudi Chamber of Commerce adopted regulations based on the Ottoman Commercial Code of 1805, which is essentially inspired by French law and has no traces of Islamic law in it. They adopted the concept of interest-based banking, which is a concept that is explicitly forbidden in the Quran; see also the Quran (2:278) (indicating specifically a ban on interest-based transaction). Moreover, one of the mechanisms that justified reforms in Saudi Arabia was the concept of Maslaha. This concept also justified some reform to criminal procedure. For example, courts began to favor detention of offenders instead of punishment. This was done by taking trials for murder and assault out of the hands of the family of the victim (termed private law in Shari'a) and put in the hands of the state and the prosecutor. The rationale for this change was that that the prevention of blood vengeance is preferable from the standpoint of society to long, drawn-out blood feuds.

²¹²See the second main section above.

²¹³Haleem (n 68) 118, 119.

²¹⁴Quran (24:27).

²¹⁵Telephone interview with a retired Shari'a judge, 2011. The interviewee requested that his identity remain anonymous and further requested that no mention of any specifics as to the particular jurisdiction where he served or cases heard before him be indicated in this paper. The minutes of the interview are on file with the author.

²¹⁶Ibid.

²¹⁷Ibid.

²¹⁸Ibid.

²¹⁹Ibid.

²²⁰Ibid.

²²¹See the second main section above.

²²²Quran (25:69–70).

²²³See <https://www.cia.gov/library/publications/the-world-factbook/geos/eg.html>.

²²⁴See <https://www.cia.gov/library/publications/the-world-factbook/geos/jo.html>.

²²⁵See <https://www.cia.gov/library/publications/the-world-factbook/geos/sa.html>.

²²⁶Quran (2:256).

²²⁷Ibid. (10:99).

²²⁸See the second main section above.

²²⁹Anwarullah (n 108) 112.

²³⁰See the second main section above.

²³¹Ibid.

²³²Ibid.

²³³Ibid.

²³⁴Ibid.

²³⁵Quran (30:21).

²³⁶See the second main section above.

²³⁷Vogel (n 197) 35, 36.

²³⁸Ibid.

²³⁹See the third main section above.

²⁴⁰Anwarullah (n 108).