Heavenly justice in Islam on the Day of Judgment misses nothing; it is aware of every detail, every intention, and every secret. It weighs with a precise scale, neither favouring nor faltering.
Allah Almighty says in Surah Ghafir: “This Day every soul will be recompensed for what it earned. No injustice today! Surely Allah is swift in reckoning. And warn them of the approaching Day when the hearts will reach the throats, choked with distress. The wrongdoers will have no intimate friend, nor any intercessor to be heeded. He knows the sly glances of the eyes and what the hearts conceal” (Ghafir: 17-19).
And in Surah Al-Zalzalah, He says: “On that Day, people will come forward in separate groups to be shown their deeds. So whoever does an atom’s weight of good will see it, and whoever does an atom’s weight of evil will see it” (Al-Zalzalah: 6-8).
In Surah Fussilat, He says: “And the Day when the enemies of Allah will be gathered to the Fire, while they are [driven], assembled in rows, until, when they reach it, their hearing and their eyes and their skins will testify against them of what they used to do. And they will say to their skins, ‘Why have you testified against us?’ They will say, ‘We were made to speak by Allah, who has made everything speak; and He created you the first time, and to Him you are returned'” (Fussilat: 19-21).
However, before transitioning to the Hereafter and reaching the threshold of absolute truth, Islam aims to nurture the believer in the standards of justice on this earth, taking into account that it is a realm of trials and deficiencies, not a realm of perfect justice.
No matter how advanced, Earthly justice remains relative, unable to perceive every detail or ascertain intentions with certainty, and it may be deceived or misled.
In Sahih al-Bukhari, it is narrated from Umm Salamah, the Mother of the Believers, that the Prophet said: “I am only human, and disputes are brought to me. Perhaps some of you are more eloquent in presenting their case than others, and I judge according to what I hear. So if I give someone something that is not their right, it is only a piece of fire; let them take it or leave it.”
The Relationship between Islamic Jurisprudence and Secular Law
Both Islamic jurisprudence (fiqh) and secular law regulate the rights and duties of individuals in society and outline the conditions, types, and methods of applying punishments in case of violations. However, fiqh differs in that it is a human interpretation of divine revelation, leading to the emergence of different schools of thought due to varying understandings of this revelation or the preference of one religious text over another.
According to Abu al-Hasan al-Ramli in his book Fadl Rabb al-Bariyyah fi Sharh al-Durar al-Bahiyyah (2014), “Understanding practical religious rulings based on detailed evidence, whether through deduction, imitation, or necessity, all fall under fiqh, which is broader than fiqh in its fundamental sense.”
Secular law, on the other hand, consists of legislation established by humans based on the experiences of nations and the prevailing values of each society. It may be influenced by a specific religious jurisprudence or entirely secular in nature.
Fiqh is distinguished by its broader scope, as it addresses not only the relationship between individuals but also between an individual and God, detailing the pillars and conditions of worship, for example.
In modern courts, judges operate within the framework of the legal statutes established by the legislative authority, whether they have a religious basis or not. Judges cannot deviate from these laws, even if they personally disagree with them. Dr. Mustafa Youssef notes in his book The Legitimacy of Evidence in Criminal Matters in Light of Fiqh and Jurisprudence (2010) that “One of the most significant aspects of impartiality in legislation is the prohibition of judges ruling based on their personal knowledge.”
Sometimes, the law may adopt a particular jurisprudential stance based on what has been agreed upon by the legislative authority, often through a parliamentary or public council majority, reflecting a broader societal debate that led to the adoption of this view. However, in authoritarian systems, the public’s stance is often secondary.
Judicial Principles in Islamic Jurisprudence
Judicial principles in Islamic jurisprudence rely on adopting circumstantial evidence and probabilistic proofs as the foundation for rulings, especially in cases where reaching absolute certainty is difficult.
According to Jamal Saliba in his book The Philosophical Lexicon (1994), perception is defined as “the acquisition of the image of a thing in the mind, whether the thing is abstract or material, partial or whole, present or absent, occurring in the perceiver or its instrument.”
Islamic jurists, therefore, view certainty and doubt on a spectrum, with “predominance of assumption” occupying a middle ground. This level of assumption is often acceptable as a basis for legal rulings in many Sharia contexts.
Examples include witness testimony, circumstantial evidence, and contextual details, which are considered strong enough to form a judgment based on the predominance of assumption, particularly in civil, commercial, and family cases. This flexible approach allows judges to widely use circumstantial evidence and assumptions to achieve justice.
Researcher Abdulrahman Mohammed Janahi, who completed his master’s degree in Islamic Jurisprudence and its Principles at Qatar University, titled his thesis Building Judicial Rulings on Assumption: A Comparative Study between Islamic Jurisprudence and Secular Law with a Focus on Qatari Law (2020). In his study, he states that Islamic jurists generally agreed on the necessity or permissibility of acting on probabilistic evidence in practical legal rulings, including judicial proof.
In contrast, common law systems, such as those in the UK and the US, require proof “beyond a reasonable doubt” in criminal cases, necessitating a high level of certainty for conviction. This principle reflects a cautious approach to judicial errors, demanding a rigorous standard of proof.
However, civil cases in common law do not require the same level of certainty. Judgments can be made based on the balance of probabilities, where evidence needs to be more convincing than the opposing evidence.
In the civil law tradition predominant in Europe and many other countries, proof by predominance of assumption is more widely accepted in civil cases. Here, it suffices for the judge to be persuaded that the presented evidence most likely reflects reality, making this system less stringent than the common law in terms of requiring high levels of certainty, especially in non-criminal matters.
Qatari law, influenced by both Islamic jurisprudence and Western legal traditions, represents a hybrid system that incorporates principles derived from Islamic law alongside modern legal elements. It recognizes the predominance of assumption as proof, particularly in civil cases, allowing judgments based on evidence and witness testimony.
However, Qatari law mandates a high level of certainty in criminal cases, aligning with both Islamic Sharia and common law principles.
The primary challenge lies in harmonizing these diverse systems. Judges in Qatar must navigate the nuances between the standards of proof required in Islamic jurisprudence and secular legal systems to ensure justice is upheld within the Qatari context. This necessitates a deep understanding of the various levels of assumption accepted in each system and how to apply them judicially in a manner consistent with justice and rights protection.
Overall, different legal systems can benefit from Islamic concepts of probabilistic evidence. This comparative approach can contribute to developing a more integrated and balanced judicial system that leverages the flexibility and precision of Islamic jurisprudence while keeping pace with modern legal advancements globally.
The Islamic Jurisprudence Perspective on Preponderance of Assumption and Certainty
Islamic jurisprudence (Fiqh) emphasizes the importance of distinguishing between degrees of assumption and certainty when building judicial rulings. In Islamic jurisprudence, certainty is considered the fundamental basis upon which rulings should be constructed. However, reaching absolute certainty can be challenging or even impossible in many cases, so the concept of “preponderance of assumption” (Ghalabat al-Zann) is often used as an acceptable tool for issuing judgments.
Certainty is defined as a firm belief without doubt and is the foundation for constructing Sharia rulings. It is primarily applied in cases requiring conclusive evidence, such as in Hudud (fixed punishments) and criminal penalties, where any doubt is interpreted in favor of the accused.
For example, the Prophet Muhammad (peace be upon him) said, as narrated in Sunan al-Tirmidhi by Aisha, Mother of the Believers: “Avoid imposing Hudud punishments on Muslims as much as you can, and if there is any way out for the accused, let him go. For it is better for an Imam to err in pardon than to err in punishment.”
Preponderance of assumption refers to a situation where the judge reaches a strong conviction based on available evidence, even if it does not reach the level of certainty. This is often used in judicial contexts, particularly when certainty is unattainable.
Islamic scholars differentiate between simple (lesser) preponderance of assumption and stronger preponderance. The former is accepted in matters that do not involve serious rights, such as certain civil transactions, while the latter is acceptable in family and inheritance cases.
Islamic jurisprudence applies preponderance of assumption broadly in family-related issues such as alimony, lineage, and divorce. For instance, in lineage cases, strong circumstantial evidence and witnesses’ testimonies can be used to establish assumption, such as witness statements and medical test results.
Preponderance of assumption is also a foundational principle in financial and civil transactions in Islamic jurisprudence. It helps resolve civil disputes and determine financial rights and obligations, such as debt estimation or contract validity.
Despite Islamic jurisprudence’s reliance on certainty in criminal cases, it does not completely disregard preponderance of assumption. In some cases involving felonies that do not involve Hudud, such as Qisas (retaliation), strong assumption can be accepted if the available evidence is compelling enough to establish guilt beyond reasonable doubt.
Islamic jurisprudence employs a balanced approach in dealing with evidence, starting with certainty, then moving to preponderance of assumption, and when certain evidence is unavailable, it resorts to ijtihad (juridical reasoning) and analogy (Qiyas). This approach reflects the flexibility of Islamic jurisprudence in adapting to changing circumstances and various contexts.
Witness testimonies are among the strongest forms of evidence in Islam. However, if testimonies do not suffice to achieve certainty, they can be reinforced with circumstantial evidence—indirect evidence that strengthens the testimony and brings it to an acceptable level of preponderance of assumption.
Ijtihad is also employed when the evidence is insufficient for a definitive ruling, with analogy being used to apply rulings to similar cases where conclusive evidence exists.
Islamic jurisprudence considers the nature of the case when determining the acceptable degree of assumption. In financial and family cases, a strong preponderance of assumption based on credible evidence is accepted. In criminal cases, however, a higher degree of certainty is required, though strong assumption may be employed in cases that do not demand absolute limits.
Islamic jurisprudence’s evidence system is characterized by flexibility and balance, aiming to achieve justice by considering the nature of available evidence and adapting it to the level of assumption suitable for the judicial context. This enhances the effectiveness of the Islamic judicial system in handling complex and variable realities.
In his thesis, Janahi argues that this variance in the importance of assumption impacts “the degree of protection afforded to the initial presumptions in favor of the defendant in these systems. While the slightest tilt towards the plaintiff’s side may suffice to strip this protection in the Anglo-Saxon school, the defendant in the Latin school and Islamic jurisprudence enjoys greater protection for his legal position, which cannot be altered without strong assumption.”
He also notes that the judge’s approach changes from one perspective to another: “While the Anglo-Saxon judge is satisfied with any minor inclination, the Latin and Islamic judges strive to eliminate any hesitancy that may accompany that inclination through available means of evidence, such as directing an oath of manifestation or requiring witness testimony. If doubt remains and reassurance is not achieved, the plaintiff’s claim will not be accepted, even if their side appears stronger.”
The Influence of Islamic Jurisprudence on Secular Laws
There is a significant overlap between Islamic jurisprudence and modern legal systems regarding the level of certainty required in criminal cases. However, this overlap does not imply complete conformity; rather, it highlights areas of convergence and divergence that vary depending on the type of case and standards of evidence.
In criminal cases, both Islamic jurisprudence and modern legal systems, particularly common law, require a high degree of certainty to convict an accused. Islamic criminal law traditionally demands “absolute certainty” in cases of hudud (fixed punishments) and qisas (retaliation), aligning closely with the concept of “beyond reasonable doubt” in common law, where evidence must be so strong that no doubt remains about the accused’s guilt.
Islamic jurisprudence relies on testimonies, evidence, confessions, and oaths as primary means of proof, emphasizing the need to ensure the credibility and accuracy of testimonies. Modern legal systems also focus on scientific evidence and testimonies, but the ultimate standard in both systems remains the level of confidence in the evidence and its ability to establish guilt without doubt.
Despite this overlap in criminal cases, there are clear differences in civil cases between Islamic jurisprudence, common law, and civil law. Islamic jurisprudence permits decisions based on preponderance of assumption (ghalabat al-zann) in many civil matters, especially those not involving severe penalties or significant rights, such as financial transactions and personal status issues. This approach relies on the discretion of jurists and their interpretation of religious texts, balancing public interest and removing hardship.
In contrast, common law requires a different standard of proof based on “preponderance of evidence,” where it suffices that the evidence leans in favor of one party over another without needing absolute certainty. Civil law generally sets the standard of proof by requiring sufficient and objective evidence, emphasizing documentary evidence and witness testimonies.
Qatari law shows a mixed influence of Islamic jurisprudence and Western legal systems, particularly in civil matters. On one hand, Qatari law derives many principles from Islamic Sharia, making it closely aligned with Islamic jurisprudence, especially in personal status and other civil matters. On the other hand, it is also influenced by modern civil laws that emphasize documents and witness testimonies.
In criminal cases, Qatari law closely mirrors Islamic jurisprudence by requiring a high level of certainty to prove guilt, but it also incorporates modern practices like the use of scientific and technological evidence.
In civil cases, there is some ambiguity in how evidence is handled and the extent to which assumption suffices to favor one judgment over another. This variation arises from the need to balance traditional jurisprudence with modern life requirements, which sometimes necessitate reliance on more technical and specialized evidence.
One of the main challenges in Qatari law is striking a balance between preserving Islamic jurisprudential heritage and adopting modern legal practices. Achieving this balance is particularly challenging in civil matters that demand flexible procedures and rely on less stringent standards of proof compared to criminal cases.
Overall, a deeper exploration of how Islamic jurisprudence interacts with modern legal systems is essential, focusing on the points of overlap and divergence in the levels of certainty required. This understanding is crucial to enhancing legal practice in Qatar in a manner that aligns with Islamic Sharia and contemporary legal development needs.
