Procedural law between traditionists, jurists and judges: The problem of Yamīn Ma' al-Shahid

Abstract

Modern critical studies of Islamic law have noted the need for the study of the procedural law in Islam and the role of the judicial practice in its formation. Generally, it is believed that qadis had freer hand regarding witness and method of proof in the early period, but gradually it became more restrictive and rigid. Scholars have suggested various dates ranging from the second half of the seventh century (Tyan) to the eighth (Schacht, Dannhauer), to the eleventh century (Coulson) for this development. These scholars have treated the doctrine of yamln ma' al-shahid (oath with one witness) as an exception to the Shariah procedure which, according to them, strictly and mechanically adhered to the doctrine of two witnesses. According to them, this doctrine emerged under local [Schacht (Egypt) and Dannhauer (Madina)] or Jewish (Patricia Crone) influence. The present paper argues that the doctrine must have grown against the historical setting of the Civil War (Tahldm period) when the questions relating qisas, qawad, qasama and hakam were discussed frequently with reference to the role of the Qur'an and the common sunna and the need for reforming the institution of hakam was felt. On the basis of scattered statements of scholars close to that period supported by WakT's remarks and we conclude that Mu'awiya introduced this method to reform the institution of hakam. The judicial practice of this doctrine also confirms that it was too widespread to call it a Medinese or local practice as claimed by the classical jurists, traditionists and some modern scholars.