Proof in litigation (ithbat)

Ithbat in the lexicon means treating a thing as lasting, settled or sound. In the jurists' usage it is the establishment, before the judge in his session, of a lawful proof of a right or a fact. ¹

The aim is that the claimant obtains his right or is protected from interference. Where a claim is properly established and the defendant withholds the right or interferes with it without right, the judge stops him and returns the right to the claimant. ¹

The four schools agree that proof lies on the claimant, on the saying: the proof is for the claimant and the oath is for the one who denies. ¹ The jurists explain that proof belongs to the claimant because he asserts a hidden matter, while the oath belongs to the defendant because he holds to the apparent state. ⁹

Confession is the strongest proof, since a sane person is unlikely to lie against himself. The Hanafis rank it above testimony and the Malikis hold it more eloquent. ² Testimony binds all people and is a collective duty to bear, and a personal duty to give when called. ¹⁰

Malik, al-Shafi'i and Ahmad allow judgement on one witness with an oath in property and what leads to property. The Hanafis, al-Thawri, al-Awza'i and most Iraqi jurists refuse it. ³ Those who refuse argue that accepting one witness with an oath adds to the text, and that addition to the text is abrogation. ¹¹

The judge administers the oath at the claimant's request. Abu Yusuf excepts several cases where the oath is given without request. ¹² An oath about one's own act is sworn outright, while an oath about another's act is sworn to knowledge. ⁴ The oath may be strengthened by naming divine attributes, according to those who allow it. ¹³

The denier's oath ends the dispute at once according to the Hanafis, Shafi'is and Hanbalis; if the claimant later produces proof, it is judged. The Malikis treat it as ending the dispute outright. ⁴ The defendant may ransom the oath or settle over it. ¹⁴ The jurists also discuss mutual oaths between parties who disagree about price or goods, the return of the oath, and refusal to swear. ^{13 15}

According to the Hanafis, a judge may rule on his own knowledge in rights of people, but only within the time and place of his judgeship. Their settled view for later times is that this is not followed, because of the corruption of judges. ^{16 5} A judge may also rule on decisive circumstantial evidence; the commentator Ibn al-Qayyim cites cases in which the Companions ruled on such evidence. ^{5 17}

A letter from one judge to another is accepted by the Malikis and Shafi'is in property, in punishments for crimes and in retaliation, and by the Hanbalis in property and what aims at property, but not in a fixed penalty owed to God. ⁶ Handwriting and seal are accepted once their authenticity is secure and no doubt attaches to them. ⁷

The three imams rule on lineage by the opinion of trackers (qafa), while the Hanafis do not. ⁷ Judgement may follow the opinion of skilled experts. ⁸ Continuity of an earlier state (istishab) is accepted by most Malikis, Hanbalis and Shafi'is in both denial and affirmation, while the Hanafi view is divided. ⁸ Homicide oaths (qasama), custom, lots and physiognomy are treated in their own entries. ^{7 18}