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Holding: Witness oaths in court must be administered according to their opinions, as it most affects their consciences. Swearing a witness by an uplifted hand, without a bible, is valid and legal.

Procedural Posture: Plaintiff sued defendant for slander in the lower court of Crawford, IL, for defendant’s claim that plaintiff swore falsely in a judicial proceeding before a justice of the peace. The lower court sustained defendant’s motion to exclude the justice of the peace’s testimony about how plaintiff was sworn in on grounds that it did not prove that a legal oath was administered. Plaintiff appealed to the Supreme Court of Illinois to determine whether plaintiff’s oath was legally cognizable. Islamic law is not directly relevant, except that the court notes that “a Turk [is sworn] upon the Koran” when taking an oath in court.

Judgment: Reversed and remanded in an opinion authored by Chief Justice Reynolds.

Facts: Gill sued Caldwell for slander after Caldwell charged that Gill swore falsely in a certain judicial proceeding. In the lower court, the justice of the peace in that proceeding, Thomas Kennedy, testified that Gill was administered “what he conceived to be an oath,” which consisted of swearing by an uplifted hand with no Bible. The lower court excluded this testimony on the grounds that it did not prove a legal oath was administered. The Supreme Court of Illinois found that, at common law, “oaths are to be administered to all persons according to their own opinions, and as it most affects their consciences.” The legislature codified this principle in an 1807 statute. Therefore, the Court concluded that an oath by an uplifted hand, but without scripture, is valid and legal. In a footnote, the Court further noted that at common law, witnesses are sworn “according to the form which [they hold] to be the most solemn, and which is sanctified by the usage of the country or the sect to which [they belong].” This includes, for example, “[a] Jew [swearing] upon the Pentateuch, and a Turk [swearing] upon the Koran.”

Holding: For an oath to be legally valid, the person who is sworn must be aware that his statement is a solemn appeal to a Supreme Being, believe that what he declares is true, and include some corporal act, such as an uplifted hand or a hand placed upon scripture.

Procedural posture: Defendant moved to quash the return of Magistrate Robert Carson. Islamic law is not directly relevant, except the Court notes that “a Mohammedan [is sworn] upon the Koran” when taking an oath in court.

Judgment: Motion to quash the return of the magistrate denied in an opinion authored by Judge Staake.

Facts: Magistrate Robert Carson left his own district and entered another for the purpose of holding a bail hearing for the defendant, who was charged with a violation of the act of assembly. The defendant contended that state law prohibited the magistrate from acting outside of his own district, and that he had no authority to hold a hearing there. The defendant also argued that the oath administered to the complainant, upon which the arrest warrant was based, was not properly administered because it was not sworn upon the Bible and was not repeated verbatim with an upraised hand. The Philadelphia County Court of Quarter Sessions found that the magistrate performed a “purely ministerial act” in holding a hearing simply to fix bail, and that such ministerial functions could be performed outside of his district. With regard to the oath, the Court found that an oath need not be recited verbatim for it to be valid. Rather, the witness must recognize that he is solemnly being sworn and do some corporal act in appealing to God about the truth of his testimony. It may be administered “in any mode peculiar to the belief of the person sworn, or in any form binding on his conscience.” The Court notes that Jews can be sworn upon the Pentateuch and Muslims upon the Qurʾān, and that there is even a special procedure for “the Chinaman.” Therefore, the Court concluded, because the complainant’s oath was administered solemnly with a corporal act, the oath was valid.

Holding: Any religious belief, whether Christian or not, that recognizes the existence of a God who rewards truth and avenges falsehood, either in this or a future life, is sufficient as a basis on which to swear a witness in court.

Procedural posture: Objection to competency of a witness. Islamic law is not directly relevant, except that the court notes that “a Mohammedan [may be sworn] on the Koran” and considers Muslims to be acceptable sworn witnesses based on beliefs akin to those of Christianity and cognate religious traditions.

Judgment: Objection sustained in an opinion authored by Judge Neterer.

Facts: The government offered a Mr. Kirkland as a witness in a criminal case being heard in the U.S. District Court for the Western District of Washington. The defendant objected, on the grounds that Kirkland could not be sworn because he did “not believe in the existence of a God, who is the rewarder of truth and the avenger of falsehood,” having admitted as much when questioned. Judge Neterer found the common law rule to be that a witness may only be sworn if he believes in a God who rewards truth and avenges falsehood. This need not be a Christian belief; Jews, Muslims, Hindus, and Chinese may similarly be sworn, because they fulfill these criteria. Because Kirkland does not believe in a God who rewards truth and avenges falsehood, the Court concluded that he may not be sworn and the objection was sustained.

Holding: A witness must believe in a God in order to be sworn in court. A court may hear testimony about a witness’ belief or disbelief to determine whether the witness may be sworn. Whether a witness believes or disbelieves in a future state of rewards and punishments goes only to his credibility as a witness, not to his ability to testify.

Procedural posture: Plaintiff objected to the competency of a witness in a case before a Massachusetts court of common pleas, and the Court overruled the objection. The jury found for defendants, and plaintiff appealed. Islamic law is not directly relevant, except that the court notes that a “mahometan” belief suffices for swearing an oath.

Judgment: Reversed and objection sustained in an opinion authored by Justice Wilde.

Facts: The plaintiff objected to the competency of a witness on the grounds that the witness did not believe in God. The plaintiff offered testimony from other witnesses to prove this assertion. The lower court declined to hear the testimony and overruled the objection. On appeal, the Supreme Judicial Court of Massachusetts noted that the general rule of evidence does not allow a witness to disqualify himself by declarations not made under oath. However, there is an exception for cases such as this one to prove the witness’ belief or disbelief in God, as only those who believe in God may testify in court. Article 2 of the Massachusetts Constitution—which protects citizens from being “hurt, molested, or restrained, in [their] person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of [their] own conscience”—does not apply to atheists, and even if it did, rejecting a witness for being an atheist would not violate the statute. Therefore, the Court concluded, the plaintiff should have been allowed to introduce testimony showing that the witness did not believe in God and therefore could not be sworn.

This statute regulates the Indonesian legal profession, covering such areas as:

1. the appointment, status, conduct, disbarring/retirement, and monitoring of advocates;
2. the swearing of the oath;
3. lawyers' code of ethics, and bar council;
4. lawyers' rights and obligations;
5. the provision of legal aid; and
6. the employment of foreign legal advocates.

This source comes from a compendium of model shurūṭ, or legal formulae, by ʿAlī b. Yaḥyā (d. 585/1189), who originated from the Rif region of northern Morocco and served as judge in Algeciras. In her chapter on imprecatory oaths in Justice and Leadership in Early Islamic Courts, Delfina Serrano uses this source as one of the three foci of her study.

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 sources and other material used in and related to the book.

This source comes from a compendium of model shurūṭ, or legal formulae, by Ibn Salmūn (d. 767/1366), who belonged to an important scholarly family and served briefly as chief judge of Granada. In her chapter on imprecatory oaths in Justice and Leadership in Early Islamic Courts, Delfina Serrano uses this source as one of the three foci of her study.

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 sources and other material used in and related to the book.

This source comes from a compendium of model shurūṭ, or legal formulae, by Aḥmad b. Mughīth of Toledo (d. 459/1067). In her chapter on imprecatory oaths in Justice and Leadership in Early Islamic Courts, Delfina Serrano uses this source as one of the three foci of her study.

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 sources and other material used in and related to the book.

This status update derives from Indonesian Constitutional Court decision MK Nomor 101/PUU-VII/2009 (30 December 2009), where the Court found that art 4(1) of Law No. 18 of 2003 conflicted with the 1945 Constitution (Undang-Undang Dasar Negara Republik Indonesia Tahun 1945). Specifically, the Court found that the section had no legally binding authority if the phrase 'in an open session of a High Court in a legal jurisdiction' ('di sidang terbuka Pengadilan Tinggi di wilayah didomisili hukumnya') was not met. Moreover, this phrase was not to be interpreted as 'a High Court, pursuant to a legal order, shall swear an oath for advocates before they join the profession, without associating with the membership of the Organisation of Advocates which, de facto, exists at this moment, in the two years from when these findings are pronounced.'

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.

In this text,Ibn al-ʿAṭṭār (d. 339/1009) records the legal practices of Cordoban judges, drawing on a range of oriental sources including al-Ṭaḥāwī’s Kitāb al-Shurūṭ al-kabīr. In her chapter on imprecatory oaths in Justice and Leadership in Early Islamic Courts, DelfinaSerrano notes that the chapters on marriage and repudiation are missing from the preserved manuscripts of this important early work, making it difficult to contrast the treatment of liʿānin Cordoban legal texts with that in sources from Toledo.

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 sources and other material used in and related to the book.

In this excerpt, the eminent Granadan jurist and chief qāḍī of the Nasrid capital Ibn ʿĀṣim (d. 829/1426) dictates that a husband who accuses his wife of adultery must be imprisoned until he swears the liʿānoath. This position harks back to an earlier negative judgment of the accusing husband by al-Bājī and Abū ʿUmar Ibn ʿAbd al-Malik, who argued that “he is a slanderer.” This precaution prevents the husband from abandoning his wife and leaving her with the burden of caring for the child. In her chapter on imprecatory oaths in Justice and Leadership in Early Islamic Courts, DelfinaSerrano uses this source to demonstrate the potential of the liʿānprocedure to deter accusations of infidelity.

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 sources and other material used in and related to the book.

In this excerpt, Jalāl al-Dīn al-Dawānī (d. 908/1502–3), philosopher and chief judge of the southern Iranian province of Fars in the late fifteenth century CE, reports that the maẓālim courts were able to resolve many cases because of their ability to consider diverse forms of evidence. In contrast, he says that the traditional Islamic courts’ admission of only oral testimony could hamper Muslim judges’ ability to administer justice. In his chapter on circumstantial evidence in Justice and Leadership in Early Islamic Courts, Hossein Modarressi draws on Dawānī’s treatise and its illustration of how justice was obstructed in the traditional courts of his day through bureaucratic maneuvers orchestrated by the ʿudūl, or court clerks. The ʿudūl nitpicked at the specific wording of the petitions and various types of testimony, and they oversaw a lengthy process of determining the credibility of witnesses by bringing in further witnesses to testify for or against the main witnesses. Modarressi quotes Dawānī’s lament that as a consequence, “a small petition [lingered] around in the court for such a long time that the parties [got] fed up with the process. When the case is a criminal case, the purpose is completely lost” (115). Modarressi argues that these difficulties in traditional courts were exacerbated by the fact that Islamic legal procedure restricted judges to using testimony or oaths, and that these procedural rules were not open to modification.

In this text, the Cordoban Ibn Abī Zamanīn (d. 399/1009) discusses the legal predicament in which a man denies his paternity of a child still in embryo after having already (either implicitly or explicitly) conceded it. Ibn Abī Zamanīn’s opinion is that such a denial is possible only if the man claims to have seen his wife in flagrante delicto with his own eyes (ruʾya) and if the resulting child is born more than six months after the accusation. In her chapter on imprecatory oaths in Justice and Leadership in Early Islamic Courts, Delfina Serrano uses this source to contrasts Ibn Abī Zamanīn’s opinion with that of Ibn Mughīth, who believed that rejecting a previously acknowledged child under any circumstances would constitute slander.

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 sources and other material used in and related to the book

In this excerpt, Jalāl al-Dīn al-Dawānī (d. 908/1502–3), philosopher and chief judge of the southern Iranian province of Fars in the late fifteenth century CE, reports that the maẓālim courts were able to resolve many cases because of their ability to consider diverse forms of evidence. In contrast, he says that the traditional Islamic courts’ admission of only oral testimony could hamper Muslim judges’ ability to administer justice. In his chapter on circumstantial evidence in Justice and Leadership in Early Islamic Courts, Hossein Modarressi draws on Dawānī’s treatise and its illustration of how justice was obstructed in the traditional courts of his day through bureaucratic maneuvers orchestrated by the ʿudūl, or court clerks. The ʿudūl nitpicked at the specific wording of the petitions and various types of testimony, and they oversaw a lengthy process of determining the credibility of witnesses by bringing in further witnesses to testify for or against the main witnesses. Modarressi quotes Dawānī’s lament that as a consequence, “a small petition [lingered] around in the court for such a long time that the parties [got] fed up with the process. When the case is a criminal case, the purpose is completely lost” (115). Modarressi argues that these difficulties in traditional courts were exacerbated by the fact that Islamic legal procedure restricted judges to using testimony or oaths, and that these procedural rules were not open to modification.

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.

This Country Profile provides a basic overview of the legal history and institutional structures of the Islamic Republic of Afghanistan (Jamhuri-ye Islami-ye Afghanistan), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Afghanistan’s Constitution, Islamic law (sharīʿa or fiqh) is the principal source for legislation.

This Country Profile provides a basic overview of the legal history and institutional structures of the Republic of Djibouti (Republique de Djibouti/Jumhuriyat Jibuti), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Djibouti's Constitution, Islamic law (sharīʿa or fiqh) has legal status. 

This fatwa was issued in response to the following questions from the Attorney-General of the Republic of Indonesia:

1. Jamaah Muslimin Hizbullah is of the opinion that pledging an allegiance (berbai'at) to the Imam of Jamaah Muslimin Hizbullah is obligatory (wajib). What is the opinion of the Council?
2. Can the Council provide to the Attorney-General Qur'anic verses or Hadith regarding Islamic government/Caliphate (Jama'at Imamah/Khalifah) and swearing an oath (Bai'at) apart from that produced by Jemaat Muslimin Hizbullah?
3. What is the Council's opinion on the formation of Jamaat Muslimin Hizbullah under the leadership of Syeh Wall Al Fatah in 1953 which, until now, has continued under the leadersihp of Imam Haji Muhyiddin Hamdi?
4. Can the Council provide any further information in relation to Jamaah Muslimin Hizbullah?

In the fatwa, the Council provided, among other information, the following in response:

1. Jama'ah means more than two people, which, in this case, means at least two people who pray five times a day. Regular prayers are encouraged but are not obligatory (sunat mu' akkad), however, Friday prayers (shalat Juma'at) are considered a pillar of a Muslim's Friday (rukun Jum'at). There are even those who believe that congregating to pray fives times a day is obligatory for some Muslims (fardhu kifayah); that praying together reaps twice the rewards of praying on one's own, and is advocated by Islam. The Council also states that jama'ah in a societal context means working together for good against evil (amar ma'ruf nahi munkar), helping one another socially, and avoiding disunity.
2. Khalifah means representative (wakil), meaning the person elected by the jama'ah to become their leader. Historically, khalifah referred to the head of Islamic government at the time of the companions of the Prophet (sahabat).
3. Bai'at literally implies a handshake as a sign of an agreement. More specifically, however, it is an acknowledgment by the people of their leader's authority.
4. Jama'ah Muslimin Hizbullah is an Islamic people's organisation with its own interpretation of Islam. The Council acknowledges that there exist groups among Indonesia's Muslim population with differing views and beliefs on Islam, some of which diverge from the Qur'an and Hadith. Usually such divergent followings are limited in numbers and, over time, struggle to acquire more followers. That said, proselytisation (da'wah) efforts are indeed necessary to correct these incorrect interpretations of Islam.

Chapters on nominate contracts (endowment, sales, options, barter/ mu‘āwaḍa, hire and lease, partnerships -shirka, muzāra‘a, musāqāt, muḍāraba-, reward/ju‘āla, deposit, fungible and non-fungible loan, agency, financial and personal guaranty, assignment, settlement, pledge, gift), shuf‘a, wills, inheritance, marriage and divorce, mahr, and alimony took almost all of its substance from prominent Shi’i fiqh treatises. Other chapters (classification of properties, easement, usufruct, general rules of obligations and contracts, nationality, registration of civil status, domicile, engagement, guardianship, and evidence) are mainly influenced by Swiss and French Civil Codes and Swiss Code of Obligations.