By Ari Schriber
Introduction: Centering Evidence, Proof, and Procedure in Islamic Law
What counts as proof in an Islamic court? How does technological advancement impact notions of evidence? How does a judge rule between competing claims to truth? And what constitutes an "Islamic" court or judge in the first place? The essays of this roundtable seek to address these questions through five respective case studies. The roundtable arises out of a symposium co-organized by Nurul Hoda Mohd. Razif and me in May 2025 entitled, "Knowledge in the Islamic Court: Evidence, Proof, Procedure" (Netherlands Institute of Morocco, Rabat).[1] The symposium proposed that attention to evidence, proof, and procedure will help us better understand both the adjudicative process and juristic intent of Islamic legal rules. It further asked participants to consider how our understanding of Islamic law writ large can change if we center its rules of adjudication. Our call for papers yielded a selection of thirteen participants who examined these themes in Islamic legal contexts across time and place. In this introduction, I elaborate on why proof and procedure are such fruitful areas of research and how the contributors to this roundtable illuminate these oft-marginalized aspects of Islamic law.
Evidence and Courts in Islamic Law
Scholars of Islamic legal history have focused extensively on so-called "primary rules" of law—rules that command or forbid certain actions or confer rights and duties. Despite manifest advancements in Islamic legal historiography over the past decades, concern with primary rules (e.g., marriage and divorce, commerce, or crime) often obscures the "secondary" rules by which judges adjudicate: evidence, proof, and procedure (i.e., "rules of adjudication").[2] To the extent that scholars have treated rules of evidence specifically, they have focused intently on the Qur'anic paradigm of two "reliable" (ʿadl) male witnesses (or two women as the equivalent of one man) to establish most legal acts[3] or four male witnesses for the most severe category of crimes (ḥudūd).[4]
Despite its prominent Qur'anic stipulation, the paradigm of two reliable male witnesses proves insufficient to understanding evidence in Islamic courts. In his classic book The Calligraphic State (1993), Brinkley Messick notes that witness "reliability" (ʿadāla) could not be established based on fixed universal criteria. Instead, "the concern is not so much with absolutes as with deviations from local societal or even personal norms, which are taken as indicative of an instability of character thought to bear on one's capacity as a truthful witness."[5] In other words, a judge's task necessitated assessing the witness's social conformity, a discretionary task contingent on local context. Islamic legal practitioners indeed made extensive use of proof that did not depend on two reliable men: female experts and midwives,[6] large groups of non-reliable witnesses,[7] and litigant oaths.[8]
The question of evidence also necessitates attention to the material means of establishing knowledge. Paper instruments—not merely oral testimony—have been central to both premodern and modern Islamic legal practice.[9] The proper composition of contracts, testimonies, and court proceedings constituted a voluminous legal tradition of documentary practice (fiqh al-wathāʾiq or shurūṭ) in itself.[10] Beyond technologies of writing, advancements of modern science have drastically challenged what may constitute proof in Islamic judicial contexts. In his book In Quest of Justice (2018), Khaled Fahmy demonstrates the impact of modern medicine and bureaucracy in the courts of nineteenth-century Egypt.[11] He argues, inter alia, that scientific testing and public health knowledge caused the "demise" of ḥisba, the traditional Islamic institution of legal enforcement.[12] In contemporary courts, DNA testing remains hotly debated as a means to establish paternity. As recently as 2017, a Moroccan appeals court rejected a lower court's use of DNA to establish paternity, citing Islamic legal sources and the nation's Family Code.[13] Egyptian courts similarly have hesitated to include DNA to establish paternity, whereas some Indonesian courts recently have admitted it.[14]
Finally, the social contingency of proof points to a larger debate about the nature of Islamic courts. Scholars have differed starkly in how they characterize what an Islamic court is and what its judge does. One of the most vexing axes of this debate concerns whether and how judges weigh local social norms versus Islamic textual tradition. Whereas some scholars have emphasized the primacy of "social equity," others have emphasized judges' attachment to textual tradition.[15] As I wrote recently, it is time for scholars to stop trying to characterize "Islamic judges"—as though such a vast cadre could be essentialized—as acting in a particular "way." As in any other legal context, Islamic judges may varyingly emphasize social discretion and written legal tradition, depending on the context (or indeed the individual judge) under study.[16]
Uniting "Substance" and "Evidence"
Examining Islamic law without evidentiary and procedural law reproduces a colonial paradigm in which Islamic law can be perpetuated without core components of its internal logic. European colonial powers often viewed evidentiary and procedural matters as mere "administrative" law that was not part of Islamic "doctrine" per se. In my own research on French Protectorate Morocco, I have shown that French administrators forged a distinction between Islamic legal "substance," which they vowed to leave untouched, and evidentiary procedures like documentation, which they heavily legislated and policed.[17] In the context of British colonial India, Sohaira Siddiqui likewise has shown that so-called "Anglo-Mohammadan" law was characterized by codified Islamic "substantive" law applied through English procedural law.[18] Beyond a technique of governance, the construction of Islamic law without its secondary rules reflects a European-Christian notion of "religious law" that obfuscates Islamic legal traditions on their own terms.[19]
How, then, can our understanding of Islamic legal rules change when we understand them as inseparable from rules of evidence and procedure? Perhaps the most prominent example in Islamic legal historiography concerns the crime of illicit sex (zinā), for which classical Islamic legal tradition prescribes either death or lashes.[20] The severity of these punishments often gives the impression that Islamic law is inherently draconian to those transgressing its moral boundaries. However, this image changes dramatically in light of the evidentiary standards required to prove illicit sex (absent a confession): testimony of four reliable male witnesses who must have observed the sexual act. Such a high threshold does not negate the criminality of illicit sex, rather it "render[s] the implementation of the established punishments almost impossible."[21]
Multiple other well-known Islamic legal norms take on particular valences when viewed in light of their respective thresholds of proof. For example, the Mālikī school of Islamic law considers paternal lineage (nasab) so important that it accepts virtually any circumstantial evidence to establish paternity of children with unknown lineage.[22] Mālikī jurists similarly convey the importance of maintaining property possession by permitting low thresholds to establish it: only one witness accompanied by an oath or testimony by "widespread knowledge" (samāʿ fāshī). By contrast, they refuse "weak" testimony like widespread knowledge to claim someone else's property (istiḥqāq, "slander of title"). Centering evidence thereby provides far more than simply a glimpse into court practice. It demonstrates how jurists assessed a legal rule's social position vis-à-vis the degree of certainty needed to establish it. Constant shifts in social norms and concepts of knowledge make proof a compelling lens to understand Islamic legal traditions past, present, and future.
This Roundtable
The five contributions of this roundtable take up notions of evidence, legal tradition, and knowledge itself in Islamic judicial contexts. Focusing primarily on the modern and contemporary world, they center varying conceptions of proof amidst rapid social and technological change. Mashal Saif interrogates the bounds of what constitutes knowledge through the example of a murder trial in contemporary Pakistan. In that case, it was neither eyewitness accounts nor forensic evidence at play—rather, it was invoking dreams to support acquitting the murderer. Irene Schneider analyzes criminal law as applied to minors in British Mandate Palestine. She traces a murder case as a lens into how colonial-era courts disputed imposing the death penalty. Léon Buskens reflects on the central role of paper instruments as intergenerational material objects in Morocco. He especially calls for understanding the social function of documents as a lens into their function in situ—and as an object of study. Dominik Krell illuminates the role of circumstantial and forensic evidence in contemporary Saudi criminal law. Through the examples of alcohol consumption and extramarital sex, he shows that Saudi religious authorities have embraced new technology—from breathalyzers to WhatsApp messages—to apply the most severe category of Islamic criminal punishments (ḥudūd). Finally, Aya Bejermi examines the rise of medical expertise to assess mental illness in early-twentieth-century Egyptian courts. Focusing on the High Probate Council, she shows that medical reports played a pivotal role in assessing norms of legal capacity in Islamic legal tradition.
Notes:
[1] For the symposium program, see Nurul Hoda Mohd. Razif, "Knowledge in Islamic Courts: Evidence; Proof; Procedure—Islamic Law Workshop in Rabat (14–15 May 2025)," June 2, 2025, https://nhmraz.com/2025/06/02/knowledge-in-islamic-courts-evidence-proof-procedure-islamic-law-workshop-in-rabat-14-15-may-2025/.
[2] HLA Hart, The Concept of Law (Clarendon Press, 1961), 78–96. I thank Mohammad Fadel for bringing this distinction to my attention.
[3] Qur'ān 2:282. Classical jurists acknowledged other narrow exceptions based on necessity. For example, children may testify against other children in cases of assault, while women may testify about woman-specific issues.
[4] Qur'ān 24:4.
[5] Brinkley Messick, The Calligraphic State: Textual Domination and History in a Muslim Society (University of California Press, 1993), 161. See also Brinkley Messick, "Evidence: From Memory to Archive," Islamic Law and Society 9, no. 2 (2002).
[6] On female "expert" witnesses or midwives, see Ron Shaham, The Expert Witness in Islamic Courts: Medicine and Crafts in the Service of Law (University of Chicago Press, 2010), 83–98.
[7] For example, see Ari Schriber, "Is There a Jury in Islamic Law? The Twelve-Witness Lafīfiyya Testimony and the Limits of Judicial Discretion," Studia Islamica 120 (2025), 65–108.
[8] See Guy Bechor, God in the Courtroom: The Transformation of Courtroom Oath and Perjury between Islamic and Franco-Egyptian Law (Brill, 2012).
[9] Recent scholarship that centers documentary practice includes: Léon Buskens, "Writers and Keepers: Notes on the Culture of Legal Documents in Morocco," in The Vellum Contract Documents in Morocco in the Sixteenth to Nineteenth Centuries Part II, ed. Toru Miura and Kentaro Sato (Toyo Bunko, 2020), 98–125; and Christian Müller, "Les actes notariés en droit musulman (VIIIe-XVIe siècles)," Studia Islamica 118 (2023), 263–85.
[10] In the Mālikī West, for example, this tradition stretches back to at least fourth/tenth-century CE, including manuals of documentary practice composed by Ibn al-Hindī (Qayrawān, d. 399/1008-9) and Ibn al-ʿAṭṭār (Cordoba, d. 399/1008–9).
[11] Khaled Fahmy, In Quest of Justice: Islamic Law and Forensic Medicine in Modern Egypt (University of California Press, 2018), 131.
[12] Fahmy, In Quest of Justice, 180–81.
[13] Zaynab El Bernoussi, "DNA Testing and Paternity Lawsuits in Morocco: The Tangier's Court Case," Yearbook of Islamic and Middle Eastern Law Online 21, no. 1 (2022), 28–35.
[14] Baudouin Dupret, Adam Belkadi, Monika Lindbekk, and Ayang Utriza Yakin, "Paternal Filiation in Muslim-Majority Environments: A Comparative Look at the Interpretive Practice of Positive Islamic Law in Indonesia, Egypt, and Morocco," Journal of Law, Religion, and State 10, no. 2–3 (2022), 167–217.
[15] The classic former opinion belongs to Lawrence Rosen, "Equity and Discretion in a Modern Islamic Legal System," Law & Society Review 15, No. 2 (1980–81), 217–46. Among many retorts to Rosen's approach, see Muhammad Khalid Masud, Rudolph Peters, and David S. Powers, "Qāḍīs and their Courts," in Dispensing Justice in Islam: Qadis and their Judgements, ed. Muhammad Khalid Masud, Rudolph Peters, and David S. Powers (Brill, 2006), 1–44.
[16] Schriber, "Is There a Jury," 107–8.
[17] Ari Schriber, "The Transformation of Islamic Property and Evidentiary Law in Colonial-Era Morocco: The Case of Shufʿa as Préemption," Die Welt des Islams 65 (2025), 280–313.
[18] Sohaira Siddiqui, "Navigating Colonial Power: Challenging Precedents and the Limitation of Local Elites," Islamic Law and Society 26 (2019), especially 307–12.
[19] On the colonial construction of "religious law" in distinction from Islamic legal tradition, see Lena Salaymeh, "Decolonial Translation: Destabilizing Coloniality in Secular Translations of Islamic Law," Journal of Islamic Ethics 5 (2021), 262–64.
[20] Death by stoning is prescribed only for the free sane Muslim who is or has been in a consummated marriage (i.e., the muḥṣan).
[21] Delfina Serrano-Ruano, "Chief Qadi (Qadi l-Jamaʻa), Non-Qadi Judges, Almoravid Rulers and the Limits of Adjudication in Matters of Hudud Punishments," Annals of Japan Association for Middle East Studies 27, no. 1 (2011), 210.
[22] In distinction from the aforementioned DNA discussion, this norm refers to children where licit sex was plausible but the father unestablished—namely, the children of enslaved mothers.
Suggested Bluebook citation: Ari Schriber, Knowledge in the Islamic Court, Islamic Law Blog (Feb. 12, 2026), https://islamiclaw.blog/2026/02/12/roundtable-knowledge-in-the-islamic-court/.
Suggested Chicago citation: Ari Schriber, "Knowledge in the Islamic Court," Islamic Law Blog, February 12, 2026, https://islamiclaw.blog/2026/02/12/roundtable-knowledge-in-the-islamic-court/.
