Compelling Defendant's Appearance at Court in Islamic Law

in Islamic Law and Society
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Abstract

Different legal systems have employed a variety of measures to insure the appearance of the defendant in court. The earliest conception of an action in Rome and in pre-Islamic Arabia was the voluntary appearance of both parties before a recognized or prestigious authority. Thus, early Roman law could not pass judgment against a defendant who failed to appear, either voluntarily or involuntarily. The idea that the court could give a judgment in the plaintiff's absence—the so-called judgment by default—took a long time to materialize in the West. Classical Islamic law requires that the defendant or his legal representative (wakīl) be present for a judgment to be given. This requirement is predicated on the assumption that the primary function of the judge is conciliation of the parties and not necessarily the vindication of rights. The law describes various measures that may be employed to force the defendant to appear in court. Failing that, it provides for the appointment of a legal representative for the defendant. Judgment by default was introduced into Muslim countries only in modern times under the influence of Western codes of procedure.

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