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Volume :15 Issue : 40 2000      Add To Cart                                                                    Download

Judging the Absentee

Auther : Dr. Hasan Abd Al-Ghani Abu Ghuddah

This paper aims at defining the meaning of the absent as a juristic term, the criteria of absence to jurists, reviewing and discussing their opinions, trends and evidences relating to this issue and classifying them into clear categories.

There appeared the studying two main trends among the jurists:

  1. Absolute refusal of judging the absent both in cases of Allahs rights and peoples rights. He must be present or an authorized agent on his behalf. This opinion of Hanafi juristic school, some of the jurists and judges of the Salaf era.
  2. Allowing to pass a judgement on the absent. The jurists of this trend can be classified into three opinions:

  1. Permitting to judge the absent concerning peoples rights only. This opinion is adhered by the majority of the jurists among Sahaba and their following generation, Maliki and Hanafi schools and the more authenticated to Shafii School. It is known as the opinion of the Majority.
  2. Permitting such judgement in all rights, of Allah or of people. Some ShafiI jurists in addition to Ibn Hazm are the supportrers of this opinion.
  3. Permitting that except in the punishments whether relating to Allahs right or to peoples right. Some Shafiis.

The paper through various discussions, investigations and external supporting factors adopted the opinion of the Majority (2,a).

The paper included some elaboration concerning the types of lawsuits (financial, criminal…) that could be brought against the absent, duties and rights (procedural and objective) pertaining to the (absent) suitor and defendant, particularly when the latter arrives and demur or appeal at the lawsuit or the witnesses.

All jurists, as this study assured, were concerned with protecting all rights, establishing justice and equality of chances for all litigants, suitor or defendants, present or absent.

Also, it was clear, through the study, that modern judicial systems and opinions agree in many areas with what Muslims had long ago reached and put into application in regard to the procedural and objective regulations of judging the absent.

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Nov 04, 2019

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