Friday, August 31, 2007

Thought of the Day

In Islamic jurisprudence, or Fiqh, the onus of proof is on the accuser while the accused is requested to swear his innocence. English law also demands that an accuser produce proof. I am now told that the First Amendment of the U.S. Constitution and laws of the country are not as clear cut. Is this true? And if it is, does it not mean that an innocent man can suffer unimaginable, or irreparable, damage before he can prove his innocence? A bank manager is accused by a disgruntled customer of being a paedophile. Should it not be the responsibility of the accuser to produce the molested children? I think this easier and more practical than expecting the bank manager to produce statements from all children of the city, or country, that he has never molested them.
I am inclined to support English law on this point but would also like to read the views of other people on the subject, especially Americans.

7 Comments:

Blogger EmmaJohnson said...

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10:07 PM  
Blogger tammyswofford said...

You mention Usool al-Fiqh, which includes Qiyaas and Ijmaa. But I am not quite sure which school of juriprudence you are using for reference?

Which school? Which Ahadith?

Tammy

9:05 PM  
Blogger Khazen said...

This is for Tammyswofford:
I have now checked with a Saudi religious judge who says that all four Sunni sects accept the instruction that on the accuser the onus of proof. He says it is a cornerstone of Fiqh. He was not sure about Shiia but said he had not heard a differing view.The accused needs to swear on the Koran that he is innocent and the accuser is let with the task of proving his allegations or face punishment, more public flogging than fines.

4:46 AM  
Blogger Lurk said...

Speaking as an American citizen, I would say that our standard IS clear cut -- we're all taught about the "burden of proof" in our judicial system.

For some good information on how our system works, try the U.S. Department of State website, in particular the page on the U.S. Legal System -- http://usinfo.state.gov/dhr/democracy/u.s._legal_system.html

Follow the links to Criminal Trials. (The burden of proof always rests with the prosecution; the defendant is presumed innocent unless the prosecution establishes the defendant's guilt "beyond a reasonable doubt.")

And then also the link to Civil Cases, which are different. (The burden of proof in a civil case is lower than in a criminal trial. Instead of "guilty beyond a reasonable doubt" — the criminal standard — jurors or judges render a verdict on the basis of the "preponderance of the evidence.")

You might also read how the burden of proof standard has been applied in a case of international interest in 2001, in this article: http://usinfo.state.gov/is/Archive_Index/U.S._Embassy_Bombing_Trial_The_Prosecution.html

I think it's very interesting that Fiqh uses the same standard -- thanks for raising this topic!

7:27 AM  
Blogger Lurk said...

Sorry about that -- I should have inserted the hyperlinks. Try these:
USInfo
U.S. Embassy Bombing Trial

7:38 AM  
Anonymous Washington said...

This is for Tammyswofford: I have now checked with a Saudi religious judge who says that all four Sunni sects accept the instruction that on the accuser the onus of proof. He says it is a cornerstone of Fiqh. He was not sure about Shiia but said he had not heard a differing view.The accused needs to swear on the Koran that he is innocent and the accuser is let with the task of proving his allegations or face punishment, more public flogging than fines.

11:21 PM  
Anonymous Joneshwoe said...

This is for Tammyswofford: I have now checked with a Saudi religious judge who says that all four Sunni sects accept the instruction that on the accuser the onus of proof. He says it is a cornerstone of Fiqh. He was not sure about Shiia but said he had not heard a differing view.The accused needs to swear on the Koran that he is innocent and the accuser is let with the task of proving his allegations or face punishment, more public flogging than fines.

9:16 AM  

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