. G F (cont.)

Here in this hadith the word 'Muslim' has been stressed with a view to emphasizing the fact that, apart from other considerations, the person has no regard even for the brotherhood oflslam." 1 Cf., al-Bugha and Mistu, pp. 246-7. Commentary on the Forty Hadith of al-Nawawi to the one who was demanding his rights (the plaintiff). This hadith is recorded by al-Daaraqutni, al-Baihaqi and al-Haakim. However, its chain is weak1 However, the Hanafis argue that such is not the case. The plaintiff is not asked to make an oath in any of the hadith of the Prophet (peace be upon him), such as this one under discussion here.2 Evidence Presented After the Defendant Takes an Oath When the claimant does not present any proof, the case is dropped when the defendant takes an oath. On that point, there is no difference of opinion. However, there is a difference of opinion as to what should be done if the plaintiff offers proof after the defendant has already taken an oath. One opinion is that the oath is a weak method of proof and by itself it does not terminate the dispute. Therefore, if evidence is offered later, it may overturn an oath made by a defendant. It is narrated that Umar said, "A lying oath is more deserving ofrejection than trustworthy evidence." This is the view of the Hanafis, Shafiees and Hanbalis. Malik allows the entrance of new evidence after an oath by the defendant only if the plaintiff was not aware of that evidence at the time of the oath. But if the plaintiff was aware of that evidence but did not present it and, instead, preferred to put the defendant to an oath, he cannot later present that evidence. Al-Ghazzaali of the Shafiee school is also of this view. A third opinion is that the oath is decisive and no further evidence may be presented later. In other words, the case is over and decided. This is the view of the Dhaahiris. 3 It seems, Allah knows best, that the Maliki view, that only allows new evidence if the plaintiff was unaware of it previously, is the strongest in the light of the goals of the shareeah: justice and the fulfillment of rights. Deciding a Case Based on One Witness and an Oath by the Plaintiff It could be the case that the plaintiff only has one witness to support his case. However, the plaintiff may also be willing to swear an oath that what he is claiming is true. The question arises as to whether that one witness and oath would be enough to tilt the case in his favor. 1 That hadith was declared weak by ibn Hajr, al-Sanaani and al-Albaani. See Ahmad ibn Hajr, Talkhees al-Habeer fl Takhreej Ahadeeth al-Raa.fii al-Kabeer (Madinah: 1964), vol. 4, p. 209; al-Sanaani, vol. 4, p. 1948; al-Albaani, lrwa, vol. 8, pp. 267-268. Logically speaking, this author has a problem with the Shafiee view. If the defendant knows that the charges against him are not true-- implying that the plaintiff is either lying or deluded-- why would he possibly be willing to request the plaintiff to make an oath and have the decision made in his favor? Granted, this author is dealing with this issue at a theoretical level while the jurists were dealing with it at a rractical level. Hence, the logic behind such an act may have been clear to them. Cf., al-Bugha and Mistu, p. 246. 3 Cf., Mahmassani, pp. 190-192. , Hadith #33: "Were People to be Given . . . " According to the Hanafis, such is not sufficient. The plaintiff must have a "complete" evidence, meaning two witnesses. If he does not, the defendant is simply required to make an oath to clear himself. Their evidence for that position is the hadith from Sahih Muslim, "Your two witnesses or his oath." They also base it on the generality of the meaning of the hadith, "The oath is upon the defendant." (Recorded by al-Bukhari.) According to the Malikis, Shafiees and Hanbalis, a case may be decided on the basis of one witness and an oath by the plaintiff. They say that this is valid in cases related to money and wealth only. Their proof for their position is the hadith in Sahih Muslim that states that the Prophet (peace be upon him) decided a case based on one witness and an oath. This has also been reported from Abu Bakr, Ali ibn Abu Taalib and Umar ibn Abdul Azeez.1 There is no question that this hadith just referred to specifies the above hadith that seem to require two witnesses and requires an oath only on the part of the defendant. Hence, the Prophet's example must be accepted and followed in this case. 2 Furthermore, as was stated earlier, the bayyinah or evidence need not be restricted to witnesses. A person's oath may also be used to support his case.