Question 17. “When a judge gives a judicial ruling based on a controversial rule of evidence, like the testimony of a group of children, or one witness and the oath of the claimant, or based on customs whose legal relevance is controversial, like the habit of husbands with respect to the maintenance of their wives—‘Is this a custom that places the burden of proof on the wife or not?’1—does the judicial ruling encompass the controversial rule of evidence or not? Does someone who rejects the rule of evidence have the right to reject a judicial ruling because of his belief in the invalidity of the rule of evidence used by the judge and say, ‘This judicial ruling in my opinion lacks sufficient evidence, because the testimony of a group of children is tantamount to no testimony, and there is a consensus that a judicial ruling that lacks evidence must be rejected, so I reject that ruling,’ or is that not permitted?”

The Answer

Rules based on controversial sources, whether textual or empirical, are of two types. The first is if the rule is poorly attested. A judge’s ruling, if based on such a rule, must be rejected, because it is too weak to act as a valid countervailing consideration to universal legal rules. Such a ruling, then, would be contrary to universal legal rules, and whatever contradicts universal legal rules but is not supported by a valid countervailing consideration justifying its exceptional character must, as a matter of consensus, be rejected [69].

If the rule at issue, however, has a comparable basis in the revealed law to the contrary position, then in this case there are two controversies: the first with regard to the controversial rule of evidence used by the judge, and the second with regard to the substantive ruling that is a consequence of the evidence underlying the judicial ruling. In this case, if the judge gives the ruling in accordance with what the controversial rule of evidence entails, it becomes impossible to overturn the ruling because the evidentiary ruling merges with his substantive ruling on the case’s merits. His judicial ruling based on one of the controversial substantive legal views, however, is not a judicial ruling with respect to which of the views regarding the rule of evidence is valid. Had it been so, further controversy regarding, for example, the permissibility of ruling on the basis of one witness and the oath of the claimant would be impossible on account of a judge having adopted it in his ruling. Nothing, however, can resolve the legal controversy regarding controversial rules of evidence other than a subsequent consensus which settles on one of the opinions. Accordingly, it has become manifest that a judicial ruling based on a controversial rule of evidence is not a ruling with respect to the controversial rule of evidence, but only a ruling in accordance with what it entails with respect to that particular case.

What clarifies this is that the judge did not intend to originate in his mind anything other than the consequence of the rule of evidence, not the rule of evidence itself. Indeed, a judicial resolution of the controversies regarding the rules of evidence is inconceivable, because resolution of such a dispute belongs to the affairs of the next life, not the affairs of this world.

Establishment of all the rules of the revealed law and theoretical jurisprudence all follow this rule: God, sublime is He, did not give anyone the authority to make a ruling based on one view of the law and thereby specify it as the one correct answer by means of a judicial ruling [70]. Instead, He gave judges the authority to give a legal opinion only with respect to the correctness of one of the views, but legal opinions do not preclude his opponent from giving a legal opinion in accordance with his dissenting view. This is in contrast to a judicial ruling, whose effect is to preclude his opponent from adhering to his own view of the law with respect to that case and compels him to accept the view adopted by the judge for his ruling.

As for the statement, “The judge has ruled without valid evidence,” it is rejected. It is instead the case that controversial rules of evidence, if the rules are comparable to one other in strength, continue to be legally valid with respect to those who accept their validity, whether a judge or a mufti. Accordingly, the statement “He ruled without evidence” lacks meaning. That is the case only if he ruled on the basis of a rule that is poorly attested, as has been explained previously. If the controversial rule of evidence is comparable in strength to the contrary views, then no, it cannot be rejected [71].