In this excerpt, Ibn al-Jawzī (d. 597/1201) relays cases in which a presiding judge revealed the falsity of the petitioner’s or defendant’s claim by employing shrewd investigative techniques to detect their guilt. For example, in one case the petitioner accused the defendant of failing to return money he had entrusted to him. The judge bade the petitioner to go to the mosque in Karkh where he claimed the money had been transferred and fetch a page of the Qurʾānic muṣḥaf kept there, so the defendant might swear his innocence on it. Once the petitioner was on his way, the judge asked the defendant whether he thought the petitioner had already reached the mosque. Although the defendant had claimed that he was not familiar with the site in question, he answered, “Not yet.” Having caught the defendant in a lie, the judge decided the defendant was deceitful and must return the money to the petitioner. In a second case, the judge of Hamadān discerned the dishonesty of a man who was called to give testimony by noting a difference in his stride. The man usually walked with a measured stride, taking a certain number of steps through the courtyard when he was called as a witness, but this time the judge noticed that the crossing took him several additional steps, “indicating that he walked slower to feign dignity.” The judge thus drew on his individual knowledge of the witness’s behavior to reject the latter’s credibility on the basis of subtle evidence. In his chapter on circumstantial evidence in Justice and Leadership in Early Islamic Courts, Hossein Modarressi cites these cases to illustrate how the judge might employ various forms of evidence, including his own knowledge, in order to resolve a case and achieve justice. However, he notes that both instances occurred before the stage of the case at which procedural due process begins, and thus they do not prove that the judge can employ personal knowledge later.
This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale (ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.