The understanding of facts in judicial process: An analysis from the Islamic perspective

Mohd Badrol, Awang and Aminuddin, Mustaffa and Nazli, Ismail@Nawang and Naziree, Md Yusof (2019) The understanding of facts in judicial process: An analysis from the Islamic perspective. International Journal of Law, Government and Communication, 4 (15). pp. 71-83. ISSN 0128-1763

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Abstract

The importance of understanding the factual reality (fahm al-waqi‘) has been extensively discussed by Muslim jurists in their discussion pertaining to Islamic legal theory. It has been accepted as an important component for the practice of ijtihad and recognized as a valid justification for renewal of ijtihad. In light of the above, yet in a different setting, the paper discusses the concept of al-da ‘wa and the significance of understanding the fact of a legal dispute (fahm al-da‘wa) in Islamic trial process. It examines the significance of fahm alda‘wa by the trial judge in the trial process. The study proves that the understanding of the facts of the cases assumes a very critical position in the trial process, the laxity of which will affect the propriety of judicial decisions and thus leading to injustice. Further, the paper argues that the kind of facts that need to be ascertained and understood by the trial judges are not limited to the specific occasions of the cases, rather the general circumstances and the reality of the living conditions of the times need also to be taken into consideration. Finally, the paper avers that the requirement to understand the facts of the cases necessitates a kind of undertaking in the nature of ijtihad which is to be carried out by all judges regardless of their status whether they are mujtahid (jurist) or muqallid (imitator).

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