Between a Witness, a Reporter, and a Judge: The Probative Status of the Expert

in The Expert Witness in Islamic Courts

Published by University of Chicago Press

Published in print April 2010 | ISBN: 9780226749334
Published online March 2013 | e-ISBN: 9780226749358 | DOI:
Between a Witness, a Reporter, and a Judge: The Probative Status of the Expert

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Because of its casuistic nature, Islamic fiqh does not have a general theory of evidence in general and of expert witnessing in particular. However, there are discussions on the rules of expert witnessing and reporting in treaties of jurisprudence and applied law. This article analyzes the juristic discourse with regard to the probative value of expert testimony. It focuses on the “inner” world of the law, that is, the discourse of jurists by which they create significance for social experiences. Drawing on classical legal sources, the article follows the discourse of the ulama on the probative value of expert testimony. Jurists disagree on whether expert opinion is a standard testimony or a report. This question has important implications for the qualifications required of expert witnesses, their position in relation to the judge and the litigants, the procedures by which experts deliver their opinion in court, the number of experts required for each legal case, and the probative value of the expert's opinion. The article also looks at female experts such as midwives, who testify without corresponding male testimony.

Keywords: expert witnesses; fiqh; evidence; probative value; ulama; female experts; report; juristic discourse

Chapter.  13128 words. 

Subjects: Comparative Law

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