Editing Sharia (section)

=== Court procedures ===
{{Original research|section|Most of this section consisted of ahistorical generalizations made by WP editors from snippets describing various pre-modern and modern legal systems without distinguishing between them. The most serious misrepresentations have been corrected, but this material needs to be verified more carefully.|date=March 2019}}
{{anchor|Courts}}
[[File:Melaka State Syariah Court.jpg|thumb|Shariah court in [[Malacca]], Malaysia]]

Sharia courts traditionally do not rely on lawyers; [[plaintiffs]] and [[defendants]] represent themselves. In Saudi Arabia and Qatar, which have preserved traditional procedure in Sharia courts, trials are conducted solely by the judge, and there is no jury system. There is no pre-trial [[Discovery (law)|discovery]] process, and no [[cross-examination]] of witnesses. Unlike common law, judges' verdicts do not set binding [[precedents]]<ref>{{cite web |url=http://ddc.aub.edu.lb/projects/pspa/qatar.html |title=Qatar: The Duality of the Legal System |access-date=28 April 2010 |archive-url=https://web.archive.org/web/20100708060546/http://ddc.aub.edu.lb/projects/pspa/qatar.html |archive-date=8 July 2010 |url-status=live }}</ref> under the principle of ''[[stare decisis]]'',<ref>[https://caselaw.findlaw.com/data2/delawarestatecases/493-2003.pdf ''Saudi Arabia Basic Industries Corp. v. Mobil Yanbu Petrochemical Co.'', Supreme Court of Delaware, January 14, 2005 p. 52]. "The Saudi law system differs in critically important respects from the system of legal thought employed by the common law countries, including the United States. Perhaps most significant is that Islamic law does not embrace the common law system of binding precedent and ''stare decisis''. In Saudi Arabia, judicial decisions are not in themselves a source of law, and with minor exceptions, court decisions in Saudi Arabia are not published or even open to public inspection."</ref> and unlike civil law, Sharia is left to the interpretation in each case and has no formally [[Codification (law)|codified]] universal statutes.<ref>Tetley (1999), Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), La. Law Review, 60, 677</ref>

The [[rules of evidence]] in Sharia courts traditionally prioritize oral testimony, and witnesses must be Muslim.<ref name="av1">Antoinette Vlieger (2012), Domestic Workers in Saudi Arabia and the Emirates, {{ISBN|978-1610271288}}, Chapter 4{{page needed|date=April 2016}}</ref><ref>Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan, Brill Academic, {{ISBN|978-9004172258}}, pp. 126–27</ref><ref>Etannibi E. O. Alemika (2005), "Human Rights and Shariah Penal Code in Northern Nigeria", ''UN Human Rights Monitor'', pp. 110–27</ref><ref name="unicef2011" /><ref name="mfdl1" /> In criminal cases, women witnesses are unacceptable in stricter, traditional interpretations of Sharia, such as those found in [[Hanbali]] jurisprudence, which forms the basis of law in Saudi Arabia.<ref name="av1" />

====Evidences / testimonies====
'''In Criminal cases''': A confession, an oath, or the oral testimony of Muslim witnesses are the main evidence admissible in traditional sharia courts for hudud crimes, i.e., the religious crimes of adultery, fornication, rape, accusing someone of illicit sex but failing to prove it, [[Apostasy in Islam|apostasy]], drinking intoxicants and theft.<ref>Mohamed S. El-Awa (1993), Punishment In Islamic Law, American Trust Publications, {{ISBN|978-0892591428}}, pp. 1–68{{nonspecific|date=April 2016}}</ref><ref>Philip Reichel and Jay Albanese (2013), Handbook of Transnational Crime and Justice, Sage publications, {{ISBN|978-1452240350}}, pp. 36–37</ref>{{sfn|Otto|2008|p=663}}{{sfn|Otto|2008|p=31}}

According to classical jurisprudence, testimony must be from at least two free Muslim male witnesses, or one Muslim male and two Muslim females, who are not related parties and who are of sound mind and reliable character. Testimony to establish the crime of adultery, fornication or rape must be from four Muslim male witnesses, with some [[fiqh]]s allowing substitution of up to three male with six female witnesses; however, at least one must be a Muslim male.<ref>Ajijola, Alhaji A.D. (1989). ''Introduction to Islamic Law''. Karachi: International Islamic Publishers. p. 133.</ref>

[[Forensic identification|Forensic evidence]] (''i.e.'', fingerprints, ballistics, blood samples, DNA etc.) and other [[circumstantial evidence]] may likewise rejected in [[hudud]] cases in favor of eyewitnesses in some modern interpretations. In the case of regulations that were part of local Malaysian legislation that did not go into effect, this could cause severe difficulties for women plaintiffs in rape cases.<ref>{{cite journal |last1=Kamali |first1=Mohammad Hashim |author-link=Mohammad Hashim Kamali |year=1998 |title=Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan, Malaysia |jstor=3382008 |journal=[[Arab Law Quarterly]] |volume=13 |issue=3 |pages=203–34 |doi=10.1163/026805598125826102}}{{request quotation|date=April 2016}}</ref><ref>{{cite journal |last1=Mohd Noor |first1=Azman |last2=Ibrahim |first2=Ahmad Basri |year=2008 |title=The rights of a rape victim in Islamic Law |journal=IIUM Law Journal |volume=16 |issue=1 |pages=65–83 |url=http://irep.iium.edu.my/id/eprint/5699 |access-date=19 July 2016 |archive-date=27 December 2020 |archive-url=https://web.archive.org/web/20201227213728/http://irep.iium.edu.my/5699/ |url-status=live }}</ref> In Pakistan, DNA evidence is rejected in paternity cases on the basis of legislation that favors the presumption of children's legitimacy, while in sexual assault cases DNA evidence is regarded as equivalent to expert opinion and evaluated on a case-by-case basis.<ref>{{cite journal|title=DNA Evidence in Pakistani Courts: An Analysis|author=Shahbaz Ahmad Cheema|journal=Lums Law Journal|volume=3|url=https://sahsol.lums.edu.pk/law-journal/dna-evidence-pakistani-courts-analysis|date=30 January 2017|access-date=25 March 2019|archive-url=https://web.archive.org/web/20190325131327/https://sahsol.lums.edu.pk/law-journal/dna-evidence-pakistani-courts-analysis|archive-date=25 March 2019|url-status=live}}</ref>

'''In civil cases''';{{qref|2|282|b=y}} recommends written financial contracts with reliable witnesses, although there is dispute about equality of female testimony.<ref name="mfdl1">{{cite journal |last1=Fadel |first1=Mohammad |title=Two Women, One Man: Knowledge, Power, and Gender in Medieval Sunni Legal Thought |journal=International Journal of Middle East Studies |volume=29 |issue=2 |year=2009 |pages=185–204 |ssrn=1113891 |jstor=164016 |doi=10.1017/S0020743800064461|s2cid=143083939 }}</ref>

Marriage is solemnized as a written financial contract, in the presence of two Muslim male witnesses, and it includes a brideprice ([[Mahr]]) payable from a Muslim man to a Muslim woman. The brideprice is considered by a Sharia court as a form of debt. Written contracts were traditionally considered paramount in Sharia courts in the matters of dispute that are debt-related, which includes marriage contracts.<ref>{{cite book |last1=Paul Powers |date=2005 |title=Intent in Islamic Law: Motive and Meaning in Medieval Sunnī Fiqh |publisher=Brill Academic |isbn=978-9004145924 |pages=97–110, 125–41}}</ref> Written contracts in debt-related cases, when notarized by a judge, is deemed more reliable.<ref name="remes1" />

In commercial and civil contracts, such as those relating to exchange of merchandise, agreement to supply or purchase goods or property, and others, oral contracts and the testimony of Muslim witnesses historically triumphed over written contracts. Islamic jurists traditionally held that written commercial contracts may be forged.<ref name="remes1">Reem Meshal (2014), ''Sharia and the Making of the Modern Egyptian'', [[Oxford University Press]], {{ISBN|978-9774166174}}, pp. 96–101 and Chapter 4</ref><ref name="timku1">Timur Kuran (2012), The Long Divergence: How Islamic Law Held Back the Middle East, Princeton University Press, {{ISBN|978-0691156415}}, pp. 246–49 and Chapter 12</ref> [[Timur Kuran]] states that the treatment of written evidence in religious courts in Islamic regions created an incentive for opaque transactions, and the avoidance of written contracts in economic relations. This led to a continuation of a "largely oral contracting culture" in Muslim-majority nations and communities.<ref name="timku1" /><ref>[http://www.usc.edu/schools/college/crcc/private/ierc/conference_registration/papers/Kuran.pdf "Explaining the Economic Trajectories of Civilizations&nbsp;– Musings on the Systemic Approach"] {{webarchive|url=https://web.archive.org/web/20141020235639/http://www.usc.edu/schools/college/crcc/private/ierc/conference_registration/papers/Kuran.pdf |date=20 October 2014 }} pp. 7, 10.</ref>

In lieu of written evidence, oaths are traditionally accorded much greater weight; rather than being used simply to guarantee the truth of ensuing testimony, they are themselves used as evidence. Plaintiffs lacking other evidence to support their claims may demand that defendants take an oath swearing their innocence, refusal thereof can result in a verdict for the plaintiff.<ref>Lippman, Matthew Ross; McConville, Seán; Yerushalmi, Mordechai (1988). ''Islamic Criminal Law and Procedure&nbsp;– An Introduction''. New York City: [[Praeger Publishers]]. p. 71. {{ISBN|978-0275930097}}.</ref> Taking an oath for Muslims can be a grave act; one study of courts in Morocco found that lying litigants would often "maintain their testimony right up to the moment of oath-taking and then to stop, refuse the oath, and surrender the case."<ref name="frank">Frank, Michael J. (April 2006). "Trying Times&nbsp;– The Prosecution of Terrorists in the Central Criminal Court of Iraq". ''[[Florida Journal of International Law]]''.{{page needed|date=April 2016}}</ref> Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury.<ref name="frank" />

==== Diya ====
{{main|Diya (Islam)}}

In classical jurisprudence monetary compensation for bodily harm (''[[Diya (Islam)|diya]]'' or blood money) is assessed differently for different classes of victims. For example, for Muslim women the amount was half that assessed for a Muslim man.<ref>{{cite journal |first1=Arsani |last1=William |title=An Unjust Doctrine of Civil Arbitration: Sharia Courts in Canada and England |journal=Stanford Journal of International Relations |date=Spring 2010 |volume=11 |issue=2 |pages=40–47 |url=https://web.stanford.edu/group/sjir/pdf/Sharia_11.2.pdf |access-date=18 July 2016 |archive-url=https://web.archive.org/web/20160818210814/https://web.stanford.edu/group/sjir/pdf/Sharia_11.2.pdf |archive-date=18 August 2016 |url-status=live }}</ref><ref>M Kar (2005), Encyclopedia of Women and Islamic Cultures: Family, Law and Politics (Ed: Suad Joseph, Afsāna Naǧmābādī), Brill, {{ISBN|978-9004128187}}, pp. 406–07</ref> ''Diya'' for the death of a free Muslim man is twice as high as for Jewish and Christian victims according to the Maliki and Hanbali madhhabs and three times as high according to Shafi'i rules.<ref name="ame1" /> Several legal schools assessed ''diya'' for [[Magians]] (''[[majus]]'') at one-fifteenth the value of a free Muslim male.<ref name="ame1">Anver M. Emon (2012), ''Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law'', Oxford University Press, {{ISBN|978-0199661633}}, pp. 234–35</ref>

Modern countries which incorporate classical ''diya'' rules into their legal system treat them in different ways. The Pakistan Penal Code modernized the Hanafi doctrine by eliminating distinctions between Muslims and non-Muslims.<ref>{{cite book |title=The Application of Islamic Criminal Law in Pakistan |author=Tahir Wasti |publisher=Brill |url=https://books.google.com/books?id=88-XutlkJAQC&pg=PA49 |page=49 |year=2009 |isbn=978-9004172258 |access-date=17 June 2017 |archive-url=https://web.archive.org/web/20171011033255/https://books.google.com/books?id=88-XutlkJAQC&pg=PA49 |archive-date=11 October 2017 |url-status=live }}</ref> In Iran, ''diya'' for non-Muslim victims professing one of the faiths protected under the constitution (Jews, Christians, and Zoroastrians) was made equal to ''diya'' for Muslims in 2004,<ref>{{cite book |title=The Oxford Handbook of Criminal Law |editor=Markus D. Dubber |editor2=Tatjana Hörnle |author=Silvia Tellenbach |chapter=Islamic Criminal Law |page=261 |year=2014 |doi=10.1093/oxfordhb/9780199673599.001.0001|isbn=978-0199673599 }}</ref> though according to a 2006 US State Department report, the penal code still discriminates against other religious minorities and women.<ref>{{cite web |author=U.S. State Department |url=https://2001-2009.state.gov/g/drl/rls/irf/2006/71421.htm |title=International Religious Freedom Report 2006, U.S. State Department |date=17 October 2008 |access-date=22 May 2019 |archive-url=https://web.archive.org/web/20190525202703/https://2001-2009.state.gov/g/drl/rls/irf/2006/71421.htm |archive-date=25 May 2019 |url-status=live }}</ref> According to Human Rights Watch and the US State Department, in Saudi Arabia Jewish or Christian male plaintiffs are entitled to half the amount a Muslim male would receive, while for all other non-Muslim males the proportion is one-sixteenth.<ref>State Department of the U.S. Government (2012), [https://2009-2017.state.gov/documents/organization/208622.pdf Saudi Arabia 2012, International Religious Freedom Report, p. 4] {{Webarchive|url=https://web.archive.org/web/20170328183313/https://2009-2017.state.gov/documents/organization/208622.pdf |date=28 March 2017 }}</ref><ref>Human Rights Watch (2004), [https://www.hrw.org/reports/2004/saudi0704/4.htm#_ftn54 Migrant Communities in Saudi Arabia] {{Webarchive|url=https://web.archive.org/web/20171010065345/https://www.hrw.org/reports/2004/saudi0704/4.htm#_ftn54 |date=10 October 2017 }}</ref><ref>[https://2009-2017.state.gov/j/drl/rls/irf/2011/nea/192905.htm Saudi Arabia] {{Webarchive|url=https://web.archive.org/web/20201227213724/https://2009-2017.state.gov/j/drl/rls/irf/2011/nea/192905.htm |date=27 December 2020 }} Bureau of Democracy, Human Rights, and Labor, US State Department, 2011 Report on International Religious Freedom Report (2011)</ref>