SHARIAsource

Appellant Ila Alkamawa was the next door neighbor of appellee Hassan Bello’s father. When his father died, Bello offered to sell Alkamawa the late man’s house for 30,000 naira. Alkamawa told Bello that the price was too high, prompting the latter to search for an alternate buyer. A third man, Malami Yaro, agreed to purchase the home from Bello for 26,000 naira. Alkamawa brought suit in an Area Court under Islamic Law. He argued that the sale should be set aside so that he might be able to exercise his right of Shuf’ah (first refusal), which, he argued, would allow him to purchase his neighbor's home at the price Yaro had paid. On appeal, the Supreme Court ruled in favor of Bello, finding that Alkamawa did not enjoy the right of Shuf’ah as applied to his neighbor's home. Such a right is not recognized by the Maliki School, the madhhab "which is applicable generally to [the] Northern States of Nigeria," the Court concluded.  

Two accused persons, both previously married to other persons, were charged with the crime of committing zinā (fornication), which is prohibited in the Islamic Penal Code of Sokoto State, Nigeria. The man denied the charge and declared his innocence in court. The woman admitted to having sexual intercourse with the accused man and to being pregnant as a result. The Court held that the crime of zinā (fornication) is proved by a valid confession, the evidence of four witnesses, or by pregnancy outside of marriage. Because the first accused person denied that he had made an earlier confession, a confession could only be verified by the testimony of four witnesses. Because only two witnesses had given such testimony, the confession was not valid. The Court also held that retraction of a confession is permissible. Therefore, even if the first accused, the man, had earlier confessed, his denial of the charge in court amounted to a valid retraction of the confession. The Court convicted the second accused person, the woman, on the basis of her in-court confession and sentenced her to death by stoning after childbirth and weaning. The woman successfully appealed her conviction.

A Maryland court ruled that Sharīʿa Court lacked jurisdiction in a custody case since the couple never resided in the jurisdiction of the Sharīʿa Court. 

Ibn Wahb (d. 197/812), an Egyptian student of Mālik (d. 179/795), probes the legal implications of communal bias among Christians and Jews in the commentary. He writes that the presence of enmity between Jews and Christians results in a prohibition of the sale of slaves from one group to the other, as well as the prohibition of members of one group testifying against individuals from the other. In 8:425, Ibn Abī Zayd (d. 386/996) examines the positions of jurists on the admissibility of non-Muslim testimony in court. He relays the strict view of Mālikī jurist Ibn al-Qāsim (d. 191/806), which affirms the view of Ibrāhīm al-Nakhaʿī (d. 96/715), that non-Muslim testimony is wholly barred on the basis of Quranic verse 65:2. Ibn al-Qāsim indicates that the earlier Quranic verse 5:106—which allowed non-Muslims to serve as witnesses for a Muslim’s last will—has been abrogated by the verse 65:2. Ahmed El Shamsy employs this source in Justice and Leadership in Early Islamic Courts to address the broader legal implications of individual or communal biases' influence on the admissibility of courtroom testimony.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.  

This case is an appeal of a zinā (fornication) conviction by the Upper Sharīʿa Court of Gwadabawa, Nigeria, on several grounds, including: the trial court's lack of jurisdiction on the grounds that the Sharīʿa Penal Code upon which the appellant's trial and conviction was based came into existence after the alleged commission of the offense, and the failure of the trial court to explain the nature of the crime to the accused person. During the proceedings, the Appellant's counsel retracted the confession that the appellant had made to the trial court. The Court held that a person cannot be punished for an offense not known to law at the time of commission. The Court further determined that, because the Sharīʿa Penal Law of Sokoto State had not been enacted at the time the offense was committed, the conviction was invalid. Furthermore, it determined that the confession of the Appellant before the trial court was invalid due to the defects in the charge and the failure to explain the offense to the Appellant. Even if the confession had been valid, its retraction upon appeal was valid because retraction of confession is valid at any time before judgment. Pregnancy by a divorced or widowed woman is not conclusive proof of zinā where such pregnancy occurs within 5-6 years of the previous marriage. It is an overriding principle (according to the doubt canon) that where doubt exists, fixed criminal penalties (ḥadd penalties) should be avoided. The Court quashed the conviction.

Two people were accused of jointly committing the offense of zinā (fornication). The Court determined that zinā is established through a confession, the evidence of witnesses, or pregnancy in the case of an unmarried woman or a woman without a husband. As a divorcee, the woman’s confession, pregnancy, and birth of a child constituted sufficient proof of the commission of zinā. The Court convicted her and sentenced her to death by stoning. The Court further determined that the accused man’s declaration of innocence backed by an oath on the Qurʾān was sufficient to exculpate him. The Court discharged him. The woman appealed her conviction.

Amina Lawal appealed her zinā (fornication) conviction by the lower court on several grounds, including: the inconclusive proof of zinā by the appellant's pregnancy because she had been married within the previous five years; the improper constitution of the Court as the kadi (qāḍī) had sat alone, without two other members, as required by law; and the invalidity of the appellant's confession by the failure of the Court to explain the meaning of zinā. Along with the grounds of appeal, the appellant’s counsel tendered a retraction of the confession that was made before the lower court. All grounds of the appeal failed. The Court held that the appellant’s confession before the lower court was valid as her testimony there indicated that she understood the meaning of zinā. This valid confession coupled with her failure to assert that her divorced husband fathered the child constituted proof of commission of zinā. The Court determined that sharīʿa (based on its understanding of Qurʾān, ḥadīth [prophetic reports], ijmāʿ [consensus], ijtihād [interpretation], and ʿurf [custom]) is supreme and overrides legislative enactments on the composition of the court. Therefore, the failure of the trial court to be constituted as required by legislation does not invalidate the decision, because the decision was issued in compliance with the dictates of sharīʿa. Amina Lawal successfully appealed this decision to the Sharia Court of Appeal.

Amina Lawal appealed the decision of the Upper Sharīʿa Court, Funtua, upholding her conviction of the capital crime of zinā (fornication) by the Sharīʿa Court of Bakori. As she had done in the appeals court, the Appellant retracted the confession made before the trial court. The Court held that a single confession is not a sufficient ground for a zinā conviction. Therefore, it determined that the Appellant's confession before the trial court was not a sufficient basis for conviction. Further, it determined that retraction of a confession for an offense that impinged on the “rights of God” [ḥuqūq Allāh] (such as zinā or alcohol consumption) is permissible and valid even after judgment, if made before the execution of a sentence. The Court also held that a child born by an unmarried woman within seven years of a former marriage is affiliated with the former husband [following the paternity canon in Islamic law], and under such circumstances, childbirth does not constitute proof of zinā. The Court allowed the appeal and quashed the conviction.

This is a reference to how Mālik b. Anas (the eponym of the Mālikī school of law) remembered Jaʿfar al-Ṣādiq: exceptional in his manners and religious devotion.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to how Mālik b. Anas (the eponym of the Mālikī school of law) remembered Jaʿfar al-Ṣādiq: exceptional in his manners and religious devotion.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to how Mālik b. Anas (the eponym of the Mālikī school of law) remembered Jaʿfar al-Ṣādiq: exceptional in his manners and religious devotion.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

Biography of Mālikī jurist, theologian, and judge ʿIyāḍ b. Mūsā (476/1088–544/1149), known as al-Qāḍī ʿIyāḍ.

This source is part of the Online Companion to the print edition al-Muwaṭṭaʾ, the Royal Moroccan Edition: The Recension of Yaḥyā Ibn Yaḥyā al-Laythī (Harvard Series in Islamic Law), edited and translated by Mohammad Fadel and Connell Monette (PIL/HUP, 2019).

Represents the territory of the Umayyads and the Emirate in Spain, the time when the Mālikī school flourished and came to dominate in the region.

This source is part of the Online Companion to the print edition al-Muwaṭṭaʾ, the Royal Moroccan Edition: The Recension of Yaḥyā Ibn Yaḥyā al-Laythī (Harvard Series in Islamic Law), edited and translated by Mohammad Fadel and Connell Monette (PIL/HUP, 2019).

Represents North Africa under Muslim rule in the 10th century CE, where the Mālikī school proliferated.

This source is part of the Online Companion to the print edition al-Muwaṭṭaʾ, the Royal Moroccan Edition: The Recension of Yaḥyā Ibn Yaḥyā al-Laythī (Harvard Series in Islamic Law), edited and translated by Mohammad Fadel and Connell Monette (PIL/HUP, 2019).

Represents the extent of the Umayyads in Spain, under whom the Mālikī school came to flourish and dominate in the region.

This source is part of the Online Companion to the print edition al-Muwaṭṭaʾ, the Royal Moroccan Edition: The Recension of Yaḥyā Ibn Yaḥyā al-Laythī (Harvard Series in Islamic Law), edited and translated by Mohammad Fadel and Connell Monette (PIL/HUP, 2019).

Biography of Mālikī jurist Yaḥyā b. Yaḥyā al-Laythī (152/769–234/848).

This source is part of the Online Companion to the print edition al-Muwaṭṭaʾ, the Royal Moroccan Edition: The Recension of Yaḥyā Ibn Yaḥyā al-Laythī (Harvard Series in Islamic Law), edited and translated by Mohammad Fadel and Connell Monette (PIL/HUP, 2019).

Biography of Mālikī jurist and theologian Abū ʿUmar Yūsuf b. ʿAbd Allāh b. Muḥammad b. ʿAbd al-Barr (368/978–463/1071), known as Ibn ʿAbd al-Barr.

This source is part of the Online Companion to the print edition al-Muwaṭṭaʾ, the Royal Moroccan Edition: The Recension of Yaḥyā Ibn Yaḥyā al-Laythī (Harvard Series in Islamic Law), edited and translated by Mohammad Fadel and Connell Monette (PIL/HUP, 2019).

In this excerpt, ʿAbd al-Karīm Zaydān (d. 2014), an Iraqi scholar, gives a summary of the Ẓāhirī, Shāfiʿī, Ḥanbalī, Ḥanafī, and Mālikī viewpoints on the question of judicial knowledge—that is, whether it is permissible for a judge to rule according to his own knowledge in court—and evaluates their merits. In his chapter on circumstantial evidence in Justice and Leadership in Early Islamic Courts, Hossein Modarressi cites this source to demonstrate the range of opinions held by Sunnī jurists on this issue.

These excerpts from Kindī’s book on governors and judges demonstrate that the appointment of a Ḥanafī judge in a traditionally Mālikī region such as Egypt could have serious repercussions on social life. In the case described by Kindī, Ismāʿīl b. al-Yasaʿ al-Kindī, a Ḥanafī of Iraqi origin, was appointed as judge in Egypt, where the population was not accustomed to this school of law and disliked it. Ismāʿīl al-Kindī adopted an oppressive attitude toward the population and abolished endowments (aḥbās). According to Kindī, the jurist Layth b. Saʿd confronted the judge about this decision and informed the caliph al-Mahdī, who promptly removed the qāḍīin response to Layth’s accusation that Ismāʿīl al-Kindī was harming the Sunna of the Prophet. In her chapter in Justice and Leadership in Early Islamic Courts, Nahed Samour uses this source to illustrate the tensions between judges and jurisconsults belonging to different legal schools.

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.

These excerpts from Kindī’s book on governors and judges demonstrate that the appointment of a Ḥanafī judge in a traditionally Mālikī region such as Egypt could have serious repercussions on social life. In the case described by Kindī, Ismāʿīl b. al-Yasaʿ al-Kindī, a Ḥanafī of Iraqi origin, was appointed as judge in Egypt, where the population was not accustomed to this school of law and disliked it. Ismāʿīl al-Kindī adopted an oppressive attitude toward the population and abolished endowments (aḥbās). According to Kindī, the jurist Layth b. Saʿd confronted the judge about this decision and informed the caliph al-Mahdī, who promptly removed the qāḍīin response to Layth’s accusation that Ismāʿīl al-Kindī was harming the Sunna of the Prophet. In her chapter in Justice and Leadership in Early Islamic Courts, Nahed Samour uses this source to illustrate the tensions between judges and jurisconsults belonging to different legal schools.

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.