Against whom may the judge issue a ruling? They are unanimous that he may judge against a Muslim who is present. They disagree, however, regarding an absentee defendant and with respect to judgment over the People of the Book.

With an absentee, Mālik and al-Shāfiʿī maintained that the judge may rule against one whose absence is distant and prolonged. Abū Ḥanīfah, followed by Ibn al-Mājishūn, held that no judgment at all may be delivered in the absence of the defendant. Another report from Mālik states that the judge may not adjudicate in cases of contested real estate.

Those who allow judgment in absentia adduce as their principal proof the aforementioned ḥadīth of Hind, but it is not decisive, for Abū Sufyān was not absent from the city. Those who disallow it rely on the Prophet’s—peace and blessings be upon him—word, “I only decide for him according to what I hear,” together with the report in Abū Dāwūd and others that, when the Prophet – peace and blessings be upon him – sent ʿAlī to Yemen, he said to him, “Do not judge for either of the two litigants until you have heard from the other.”

As for judging between the protected non-Muslims (dhimmīs), three opinions are reported:

1. The judge rules between them according to the Muslims’ law whenever they bring their case before him; this is the school of Abū Ḥanīfah.
2. The judge has the option to accept or refuse; this is Mālik’s view, and both positions are related from al-Shāfiʿī.
3. It is obligatory for the ruler to judge between them even if they do not submit their dispute to him.

Those who require that they first appear before the judge cite the verse, “If they come to you, then judge between them or turn away from them” (5:42), which is likewise the evidence for those who give the judge a choice. Those who deem judgment obligatory rely on His saying, “And judge between them” (5:49), holding it to abrogate the verse of choice. The scholars who make judgment compulsory even when the dhimmīs do not litigate argue from the consensus that if a dhimmī steals, his hand is cut off.

Chapter Five: The Procedure of Judgment

Concerning the manner in which the judge is to rule, they agree that he must seat the two litigants equally, must not listen to one of them in the absence of the other, and must begin with the plaintiff, asking him for evidence if the defendant denies the claim. If the plaintiff has no proof and the case concerns property, the defendant is—by consensus—required to swear an oath. If the claim relates to divorce, marriage, or homicide, al-Shāfiʿī obliges the defendant’s oath merely on the basis of the allegation, whereas Mālik makes it contingent on the presence of a supporting witness.

When the matter involves property, should the defendant be put under oath solely on account of the claim, or only after the plaintiff establishes prior dealings between them? On this they differed. The majority of jurists in the provincial centers said that the oath is incumbent upon the defendant simply by virtue of the plaintiff’s claim, invoking the general sense of the Prophet’s—may blessings and peace be upon him—statement, “From…"