“It was above all the very high ethical standard of Islamic law that impressed the medieval West and provoked the development of a more refined legal thinking. This aspect is undoubtedly the most durable merit of Muslim influence, as illustrated by the administration of justice. Until the Crusades, legal procedure in the West consisted of “God’s judgments” by boiling water or by duel, or by “ordeal” during which people were burnt with red-hot irons or boiling oil and, if they survived, declared “not guilty.” In contrast, we have only to quote the instructions given by Omar in the seventh century to the Muslim judges to show what a chasm separated the two conceptions:
“Only decide on the basis of proof, be kind to the weak so that they can express themselves freely and without fear, deal on an equal footing with litigants by trying to reconcile them.”
الحمد لله والصلاة والسلام على رسول الله
All praise is due to ALLAH and peace and blessing upon His Messenger
بسم الله الرحمن الرحيم
In the Name of Allah, The Most Gracious, The Most Merciful
[Continued…] From Islam’s beginnings the suspect was presumed innocent until it could be proved otherwise. It is certainly not a coincidence that Louis IX was the monarch who created the French legal administration by appointing “royal inquirers,” by instituting testimonial proof, and by permitting the recourse of “making a plea to the King.” The legislation he introduced marked a turning point in the history of law in Europe. Popular imagery was not mistaken on this point, since it is that above all which was remembered. Louis IX had frequented the philosophic theologians of his time; he had received St. Thomas Aquinas at his table. The influence of Islam was, however, even more direct. We can make this presumption since it was on his return from Palestine that the King undertook his major legal reforms. Joinville (Jean de Joinville, chronicler of St Louis) gives us fairly clear proof in his writings.”
Other Statements from Qur’an, Sunnah and Companions:
- On the authority of Ibn Abbas (may Allah be pleased with him) that the Messenger of Allah (peace be upon him) said: “Were people to be given in accordance with their claim, men would claim the fortunes and lives of [other] people, but the onus of proof is on the claimant, and the taking of an oath is incumbent upon him who denies.”[ii]
- Allah, the Exalted, says: “O you who believe! Avoid much suspicions, indeed some suspicions are sins!” (Qur’an 49:12)
- Abu Hurairah (may Allah be pleased with him) said: “The Messenger of Allah (peace be upon him), “Beware of suspicion, for suspicion is the worst of false tales; and do not look for the others’ faults and do not spy, and do not be jealous of one another, and do not desert (cut your relation with) one another, and do not hate one another; and O Allah’s worshipers! Be brothers (as Allah has ordered you!”).” (Bukhari, Muslim)[iii]
- Caliph Ali may Allah be pleased with him) said: “Avert the prescribed punishment by rejecting doubtful evidence.”[iv]
Now, it must be stated that in the sixth century, CE, in the Digest of Justinian I (22.3.2) there is a citation to a general rule: Ei incumbit probatio qui dicit, non qui negat, meaning: “Proof lies on him who asserts, not on him who denies”. This was apparently introduced in Roman criminal law by emperor Antoninus Pius, who reigned till 161 CE, but I was trying to find the source for this assertion. It is clear from a reading of Victor Aurelius’ Epitome and the Historia Augusta (which contains pseudohistorical elements) that he was a moral man of his time – especially when compared to the general motif of Roman emperors as severe. In J.B. Bury’s ‘A History of the Roman Empire…’ (1893), we get the idea that he ‘laid special stress on equity’ (pg 526) and “In criminal law, Antoninus introduced the important principle… that accused persons are not to be treated as guilty before trial.” (Pg 527) but there is no source to this assertion. See A History of the Roman Empire.
Whatever the case, the practice of justice by the Germanic tribes with the decline of the Romans were as severe as outlined, above. The introduction of the presumption of Innocence rule, some others have suggested, could have also come from the acquisition of Justinian’s Digest – that seems to have been lost – but was discovered (or re-discovered) in Amalfi in 1135 apparently prompting the revival of Roman Law in Europe. Some suggest 1070 CE. (But there is no references to either assertion). See this.
We therefore have a couple of scenarios:
- It became a late Roman practice. But not a Germanic one.
- The Germanic tribes began to implement the rule on the presumption of innocence a) with the finding of the Digest in the medieval period… which incidentally happens to be during the height of Muslim power. And/or b) as outlined above, via the interaction with Muslims during the same period.
We will never know for sure. Especially as indicated in page 407 of Jean Allains’ ‘Islamic Law of Nations…’ (source) that because of Western dominance in international law for last 500 years, there is very little motivation to research prior to the Age of Discovery in this field. As such, this period remains one shrouded in mystery. But given the hegemony prior to this period to the Islamic, its role in the field of law is likely to be proved to be as impressive as those already agreed upon in mathematics, science and medicine. There is certainly no interest in researching that narrative in our current neo-liberal, anti Islamic weltanshaung.
Did the Muslims acquire their law from the Romans? There is certainly an idea of a continuum. But there is – it seems – a revelatory dimension lost on the Roman experience. In fact, what if this rule itself was inspired by a sacred order in the Roman world – ie a revealed truth sent down, and therefore still Islamic in origin? But we only have but this meagre note of the existence of this rule in the historical record via the Digest. The fact is, Prophet Muhammad, peace be upon him, is ordained by God, Most High. His words have authoritative weight. That he agreed with it, given that he only agrees with whatever is only good, means that the Islamic tradition is clear on the notion of the presumption of innocence; this is a sufficient warrant to its being Islamic.
What is certainly beyond any reasonable doubt is the fact that the modern West acquired it only after the Muslims already had it. (This point matters only when attempting to talk-with-facts to Islamophobic, Eurocentric (and probably racist) cultural supremacists.)
[i] Marcel A. Boisard (1980). On the Probable Influence of Islam on Western Public and International Law. International Journal of Middle East Studies, 11, pp 429-450. doi:10.1017/S0020743800054805.
[ii] A fine hadith related by Al-Baihaqi and others. Imam Nawawi. 1977. An-Nawawi’s Forty Hadith (Second Edition English Translation by Ezzedin Ibrahim). Damascus: Holy Koran Pub. House, Hadith No. 33. Source: http://www.iium.edu.my/deed/hadith/other/hadithnawawi.html#hadith33
[iii] Riyaadus Shaaliheen, Hadith No. 1573. And Sahih Al-Bukhari (English Version), Vol. 8, Book 73, Hadith 90: http://www.sahih-bukhari.com/Pages/Bukhari_8_73.php . And Sahih Muslim (English Version), Book 32, Hadith 6214: http://sunnah.com/muslim/45
[iv] Imam ibn Hajar’s Bulugh al-Maram (English Version), Book 10, Hadith 1260
سبحان ربك رب العزة عما يصفون وسلام على المرسلين والحمد لله رب العالمين والصلاة والسلام على رسول الله محمد وعلى اله وصحبه أجمعين
Exalted be your Lord, the Lord of Glory, above what they attribute to Him, and peace be upon the Messengers, and all praise be to Allah, the Lord of the Universe. And the peace and blessing upon prophet Mohammed and his relatives and all his companions.