I. J (cont.)

Hence, it would not make any sense to bar anyone from bringing a case to court if he or she was wronged in any way.3 Incidentally, the word qaum or "people," in the portion, "would claim the people's blood," is also often used just for men. However, it can be inclusive of women also. Here, it is understood to include both.4 1 See ibn Hajr, Fath (Maktaba Dar al-Baaz), vol. 5, p. 352. 2 Al-Haitami, Fath, p. 241 . 3 Cf., Abdullah al-Mutlaq, Shahaadah al-Marah fl al-Fiqh al-Islaami (Riyadh: Daar al-Muslim, 1413 A.H.), pp. 1 8-25. He presents many examples of women initiating legal cases during the time of the Prophet (peace be upon him). 4 See al-Azhaari, p. 70. Commentary on the Forty Hadith of al-Nawawi "But the burden of proof is upon the plaintiff' The Definition of "Plaintiff' and "Defendant" In general, in every dispute, there are two parties. There is the claimant or plaintiff and the defendant. These are known as the al-muddaee (.rill ) and al-muddaa alaihi (-.,.le Äill ), respectively. There is some difference of opinion among the jurists as to the exact definition of these two terms. There are basically three views on this question. The first view is that the plaintiff is the one who is not charged with anything or can remain silent of the two disputants. In other words, he is the person who could give up his claims and not press charges, for example. The defendant is the one who cannot remain silent or unaffected once the charges have been pressed. He is the one being sought after. 1 A second view, which seems to be the stronger view in this author's opinion2, is that 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 according to what is apparent. 3 This difference of opinion has a number of fiqh ramifications. For example, suppose a polytheistic husband and wife embrace Islam and then they differ in their claims about when they embraced Islam. The wife claims that they became Muslim at different times while the man claims they became Muslim at the same time. If the wife's claim is upheld, the marriage is dissolved; but the marriage remains intact if the man's claim is upheld. According to the first definition given above, ibn Raj ab says that the wife is the "plaintiff' while the husband is the "defendant."4 Hence, the wife must bring forth evidence for her claim that her marriage should be dissolved. However, according to the second definition, the husband is the "plaintiff' because he is claiming something that is not the norm. Usually, people embrace Islam at different times. Therefore, the burden of proof will be upon him. Ifhe does not present any proof, the wife's claim will be accepted.5 1 Wahbah al-Zuhaili, al-Fiqh al-lslaami wa Adillatuhu (Beirut: Daar al-Fikr, 1985), vol. 6, p. 5 14. With respect to individual rights, the plaintiff is the one who has the need or right to press charges. He is also free to give up those rights and not press charges. Ifhe does not press charges, the judge does not have the right to bring up the case even if he personally knows what has occurred. See Muhammad al-Bakr, al-Sultah al-Qudhaaiyah wa Shakhsiyyah al-Qaadhi fl al­ Nidhaam al-lslaami (Cairo: al-Zuhraa li-1-Alaam al-Arabi, 1988), p. 275. 2 It is the only definition that al-Haitami (Fath, p. 241 ) offers. 3 See ibn Rajah, Jaami, vol. 2, p. 230. 4 This is because she could remain silent and accept matters as they are, returning to her husband from before the time they were Muslims. If she became Muslim first, her marriage would have been automatically annulled since her husband was a non-Muslim. In that case, when he became Muslim, she could not be forced to go back to him as his wife. However, if she wanted to go back to him, she would be free to do so. 5 Ibn Rajab, Jaami, vol. 2, pp. 230-23 1 . Hadith #33: "Were People to be Given . . . " A third view is that the defendant is the one rejecting a claim while the plaintiff is the one making a claim.1 The "Burden of Proof' This hadith makes it clear that the burden of proof is upon the plaintiff or claimant. This is because he is the one making a claim that is not apparent or obviously true. Therefore, he must present his proof for his claim. The other party is considered free of guilt or responsibility unless proven otherwise. This is a fundamental legal maxim in Islam. The Majallah states, Freedom from liability is a fundamental principle.