Nizam al-Ithbat fi al-Fiqh al-Islami
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- Editions
- Majallat al-Jāmi'ah al-Islāmīyah bi-al-Madīnah al-Munawwarah
Nizam al-Ithbat fi al-Fiqh al-Islami (The System of Evidence in Islamic Jurisprudence) is a comparative legal treatise by the contemporary scholar Dr. Awad Abd Allah Abu Bakr, an assistant professor at the Faculty of Sharia, examining the principles, categories, and mechanisms of judicial proof in Islamic jurisprudence alongside statutory legal systems .
Scope and Core Themes
The work investigates the judicial system in Islamic law, emphasizing that adjudication was instituted with the foundation of the Islamic state following the Prophet's emigration to Medina, where disputes were referred to the Prophet Muhammad ﷺ as the supreme judicial authority .
The author characterizes the Islamic system of evidence as a balanced model: while the majority of jurists defined specific legal proofs, the law neither stripped judges of their discretionary power in assessing evidence—which would reduce their role to a mechanical function—nor granted them unconstrained freedom to admit any proof, which could risk judicial arbitrariness .
Classification of Evidentiary Means
The treatise divides the means of proof in Islamic jurisprudence into two main categories:
- Consensually Accepted Evidence (al-muttafaq alayh): Proofs whose validity and authority are agreed upon by the jurists as binding grounds for judgment, primarily represented by confession (al-iqrar) and witness testimony (al-shahada) .
- Disputed Evidence (al-mukhtalaf fih): Proofs over which juristic schools differed, either due to varying assessments of their probative strength or out of strict procedural caution to prevent reliance on speculative grounds . These include:
- The judicial oath and refusal to swear it (al-yamin wa-al-nukul anhu) .
- The personal knowledge of the judge (ilm al-qadi) .
- Judicial discernment and circumstantial indicators (al-firasa wa-al-qarain) .
- Written documentation (al-kitaba) .
Comparative Legal Analysis
Throughout the study, Abu Bakr compares Islamic juristic doctrines with modern statutory legislation (al-qawanin al-wadiyya) . He observes that statutory codes align with the majority of Muslim jurists in enumerating and limiting admissible proofs in civil and commercial litigation, though they diverge in the specific evidentiary weight assigned to each proof . In criminal proceedings, he notes that modern legal codes tend toward the unrestricted approach articulated by Ibn Qayyim al-Jawziyya, granting the judge broad freedom to form conviction on the basis of any presented evidence .
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