Originally from The MENA Leading Arbitrators’ Guide to International Arbitration

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I. INTRODUCTION

The first codification of the Shari’a, the Majalla, established under the rule of the Ottoman Empire, describes evidence as follows: “[n]o action may be taken based on writing or a seal alone”.  If construed as a generalization of the Islamic perspective on evidence, this conception could be misleading, as it suggests that written evidence has little value in the eyes of a judge in the absence of supporting oral testimony or an oath.  True, historically, under Islamic law, oral evidence remained the primary form of evidence and was largely admitted, while written evidence was merely intended to support the testimony.  This principle of the preeminence of oral testimony, both before and at the time of the codification of the Majalla, is explained by a general distrust of writings, given how few Arabic alphabets could be found and because of the ease with which documents could be forged.  Traditionally, Islamic principles favour oral testimony over documentary evidence, as “the words of an upright citizen were [considered] worthier than an abstract piece of a paper or a piece of information subject to doubt and falsification.”  As such, the Shari’a has developed intricate rules regarding the number of witnesses that are required and the qualities that the witnesses must possess in order to meet “the standard of proof” necessary to prove certain allegations.