Chapter

If this is so, then when a claim is brought before the official overseeing grievances, it must fall into one of three categories: it is either accompanied by something that strengthens it, by something that weakens it, or by neither of the two. If it is accompanied by something that strengthens it, there are six circumstances constituting such strength, by which the strength of the claim varies progressively.

The first is that the claim is accompanied by a document bearing the names of witnesses whose uprightness has been formally established and who are present. When the witnesses appear, then, if the official overseeing grievances is one whose rank commands great respect—such as the caliph, a minister with delegated authority, or the governor of a province—he takes the status of the litigants into consideration and proceeds according to what political judgment requires in dealing with them. If they are eminent, he handles the matter himself; if they are of middling status, he refers it to his judge in his presence; and if they are obscure, he refers it to him at a distance from himself.

The second circumstance concerning the strength of a claim is that it is accompanied by a document containing among its witnesses one or more whose uprightness has been formally established but who are absent. In such a case, the official overseeing grievances has four particular courses of action.

First, he may intimidate the defendant. The force of the awe he inspires may induce the defendant to confess, making it unnecessary to hear the testimony or proceed to summon the witnesses—provided he knows where they are and summoning them would not cause them serious hardship.

Second, he may order the defendant to remain in attendance for three days, and may use his discretion to extend that period.

Third, he may examine the claim. If it concerns a debt owed as a liability, he may require the defendant to provide a surety. If it concerns an existing specific property, such as real estate, he may place it under restriction without thereby nullifying the legal effect of the defendant’s possession, and entrust its income to a trustee who will preserve it for whichever of the two litigants is ultimately entitled to it.

If the period becomes prolonged and hope of the witnesses’ appearance is lost, the official overseeing grievances may ask the defendant how the property came into his possession, while renewing the intimidation. Mālik ibn Anas held that, in such circumstances, the defendant should be asked about the basis of his possession, although other jurists did not hold this view. The official overseeing grievances may therefore employ either course. If the defendant gives an answer that definitively resolves the dispute, it shall be upheld; otherwise, he shall decide between the two parties in accordance with the requirements of Islamic law and their implications.