Sharia judicial proceedings have significant differences from other legal traditions, including those in both common law and civil law. Sharia courts traditionally do not rely on lawyers; plaintiffs and defendants represent themselves. Trials are conducted solely by the judge, and there is no jury system. There is no pre-trial discovery process, and no cross-examination of witnesses. Unlike common law, judges' verdicts do not set binding precedents[146][147] under the principle of stare decisis,[148] and unlike civil law, sharia is left to the interpretation in each case and has no formally codified universal statutes.[149]
The rules of evidence in sharia courts also maintain a distinctive custom of prioritizing oral testimony.[150] Witnesses, in a sharia court system, must be faithful, that is Muslim.[151] Male Muslim witnesses are deemed more reliable than female Muslim witnesses, and non-Muslim witnesses considered unreliable and receive no priority in a sharia court.[152][153] In civil cases, a Muslim woman witness is considered half the worth and reliability than a Muslim man witness.[154][155] In criminal cases, women witnesses are unacceptable in stricter, traditional interpretations of sharia, such as those found in Hanbali madhhab.[151]
Criminal cases
A confession, an oath, or the oral testimony of Muslim witnesses are the main evidence admissible, in sharia courts, for hudud crimes, that is the religious crimes of adultery, fornication, rape, accusing someone of illicit sex but failing to prove it, apostasy, drinking intoxicants and theft.[156][157][158] Testimony must be from at least two free Muslim male witnesses, or one Muslim male and two Muslim females, who are not related parties and who are of sound mind and reliable character. Testimony to establish the crime of adultery, fornication or rape must be from four Muslim male witnesses, with some fiqhs allowing substitution of up to three male with six female witnesses; however, at least one must be a Muslim male.[159] Forensic evidence (i.e., fingerprints, ballistics, blood samples, DNA etc.) and other circumstantial evidence is likewise rejected in hudud cases in favor of eyewitnesses, a practice which can cause severe difficulties for women plaintiffs in rape cases.[160][161]
Muslim jurists have debated whether and when coerced confession and coerced witnesses are acceptable. The majority opinion of jurists in the Hanafi madhhab, for example, ruled that torture to get evidence is acceptable and such evidence is valid, but a 17th-century text by Hanafi jurist Muhammad Shaykhzade argued that coerced confession should be invalid; Shaykhzade acknowledged that beating to get confession has been authorized in fatwas by many Islamic jurists.[162]
Civil cases
Quran recommends written contracts in the case of debt-related transactions, and oral contracts for commercial and other civil contracts.[155][163] Marriage is solemnized as a written financial contract, in the presence of two Muslim male witnesses, and it includes a brideprice (Mahr) payable from a Muslim man to a Muslim woman. The brideprice is considered by a sharia court as a form of debt. Written contracts are paramount, in sharia courts, in the matters of dispute that are debt-related, which includes marriage contracts.[164] Written contracts in debt-related cases, when notarized by a judge, is deemed more reliable.[165]
In commercial and civil contracts, such as those relating to exchange of merchandise, agreement to supply or purchase goods or property, and others, oral contracts and the testimony of Muslim witnesses triumph over written contracts. Sharia system has held that written commercial contracts may be forged.[165][166] Timur Kuran states that the treatment of written evidence in religious courts in Islamic regions created an incentive for opaque transactions, and the avoidance of written contracts in economic relations. This led to a continuation of a "largely oral contracting culture" in Muslim nations and communities.[166][167]
In lieu of written evidence, oaths are accorded much greater weight; rather than being used simply to guarantee the truth of ensuing testimony, they are themselves used as evidence. Plaintiffs lacking other evidence to support their claims may demand that defendants take an oath swearing their innocence, refusal thereof can result in a verdict for the plaintiff.[168] Taking an oath for Muslims can be a grave act; one study of courts in Morocco found that lying litigants would often "maintain their testimony 'right up to the moment of oath-taking and then to stop, refuse the oath, and surrender the case."[169] Accordingly, defendants are not routinely required to swear before testifying, which would risk casually profaning the Quran should the defendant commit perjury;[169] instead oaths are a solemn procedure performed as a final part of the evidence process.
Sentencing
Main article: Diyya
Sharia courts treat women and men as unequal, with Muslim woman's life and blood-money compensation sentence (Diyya) as half as that of a Muslim man's life.[170][171] Sharia also treats Muslims and non-Muslims as unequal in the sentencing process.[172] Human Rights Watch and United States' Religious Freedom Report note that in sharia courts of Saudi Arabia, "The calculation of accidental death or injury compensation is discriminatory. In the event a court renders a judgment in favor of a plaintiff who is a Jewish or Christian male, the plaintiff is only entitled to receive 50 percent of the compensation a Muslim male would receive; all other non-Muslims [Buddhists, Hindus, Jains, Atheists] are only entitled to receive one-sixteenth of the amount a male Muslim would receive".[173][174][175]
Saudi Arabia follows Hanbali sharia, whose historic jurisprudence texts considered a Christian or Jew life as half the worth of a Muslim. Jurists of other schools of law in Islam have ruled differently. For example, Shafi'i sharia considers a Christian or Jew life as a third the worth of a Muslim, and Maliki's sharia considers it worth half.[172] The legal schools of Hanafi, Maliki and Shafi'i Sunni Islam as well as those of twelver Shia Islam have considered the life of polytheists and atheists as one-fifteenth the value of a Muslim during sentencing.[172]
a man and a woman from amongst them who have committed (adultery) illegal sexual intercourse. He ordered both of them to be stoned (to death), near the place of offering the funeral prayers beside the mosque."
