I. J (cont.)

Selected Vocabulary u1...: - "given," 1'4l_ic.i,i - "according with their claim," the Y signifies, "in accordance, with," while the rA means, "their" J\,..-> - "men," plural ofט-> Jl_,..I - "wealth" ?j - "people" rAȁl...J - literally, "their blood," in such context it refers to life יI - "proof' ef..i.JI - "plaintiff, claimant" ෉I - "oath" fal - "denies" Iך - "like that, in that way," ஛ - "part of it" Commentary on the Forty Hadith of al-Nawawi Takhreej This hadith was recorded by al-Baihaqi in Sunan al-Kubra with a sahih chain. 1 It has been recorded by others with slightly different wordings. Al­ al-Bukhari, Muslim, ibn Maajah, ibn Hibbaan and others record a hadith from ibn Abbaas with the words, "Were the people to be given according to their claims, people would claim the blood and wealth of men. However, the defendant 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-Baihaqi and others also recorded from ibn Abbaas that the Prophet (peace be upon him) decided a case based on an oath by the defendant. General Comments About the Hadith This hadith is of extreme importance in that it states a founding principle of judgment and claims in Islam. Ibn Daqeeq said that this hadith is the greatest reference to tum to in the face of claims and disputes. 3 The shareeah seeks to protect religion, life, wealth, mental capacity and familial ties and honor. In particular, wealth, life and honor need to be protected from false claims and accusations. The shareeah has laid down the principle that a person is presumed innocent unless proven otherwise. If no such evidence is brought forth, the accusations will be dropped and the person's wealth, life or honor will be protected. The principles stated in this hadith are general and widely applicable. However, there are some exceptions that are mentioned in the books of fiqh.4 The Shafiees and the majority of the scholars state that the principle of taking an oath from the defendant is used in cases related to wealth, property, prescribed punishments, marriage and divorce. Malik does not apply it to cases 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 this hadith, claiming that it is a statement of ibn Abbaas 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 sahih, vol. 1 2, pp. 2-3; ibn Daqeeq al-Eid, Sharh, p. 85. 3 Ibn Daqeeq al-Eid, Sharh, p. 85. 4 See, for example, al-Nawawi, Sharh Matn, pp. 126-7; ibn Raj ab, Jaami, vol. 2, p. 23 1; al­ Haitami, Fath, pp. 242. Hadith #33: "Were People to be Given . . . " of marriage, divorce and freeing of slaves. He says that in those cases, the defendant is not asked to make an oath until the plaintiff offers some sort of evidence, even if it is just one witness. The Hanafis only apply it to cases related to wealth and property.1 About the Narrator: ibn Abbaas Ibo Abbaas was discussed in the commentary to Hadith Number 19. "Were people to be given according to their claims, men would claim the people's wealth and blood." Making a claim against somebody else is, practically not morally speaking, a very easy matter. If that were all it took to take other people's wealth and blood, there would be a great deal of evil on the earth. Mankind, save those who have been protected and guided by Allah, is wont to be greedy and overbearing. If they had the chance to take others' wealth and even ask for their lives, they would do so. This is a fact that is proven by this hadith of the Prophet (peace be upon him). Therefore, steps must be taken to protect society from such behavior. These "steps" are the laws or judicial process that have been enacted that protect everyone's rights, life and property. The Prophet (peace be upon him) specifically mentioned "men" in this hadith. Al-Haitami points out that the reason "men" is specifically mentioned is that, in general, they are the ones involved in such claims against other men. Another narration of this hadith mentions, "people," instead of men.2 It is confirmed in the sunnah, that women have the right to bring cases against others, even on their own behalf or on the behalf of others. The goal of the shareeah is to bring about justice and to put an end to any form of wrongdoing.