Fundamentals of the legitimacy of the ruling in absentia in Imami jurisprudence with a look at Sunni jurisprudence

Subject Areas : فصلنامه مطالعات میان رشته ای فقه

mostafa  ghafoorian nejad ¹ (Director of the Department of Jurisprudence and Fundamentals of Islamic Law, Hakim Toos Institute of Higher Education, Mashhad)
malihe  gholami ² (private law azad university torbat heydariye)

Received: 2021-04-24 Accepted : 2021-06-11 Published : 2021-05-22

Keywords: Imami jurisprudence, Sunni Jurisprudence, Fundamentals of legitimacy, Sentence in absentia,

Abstract :

Attendance of litigants in trial is a principle for settling a lawsuit among parties because in divine Sharia of Islam and Islamic law, the presence of parties in the hearing validates the authority of the judge over trial, i.e. summoned party or his trustee (agent) must attend the trial and submit his defenses of the claim to the court or submit a bill to the court in the case of absence to prevent violation of his rights. However in some cases, the trial proceeds in the absence of a litigant of the lawsuit. This is an important issue in judgment and trail. Like other issues in jurisprudence, judgment by default needs to depend on authenticated sources and bases. The most fundamental and legitimate sources and bases for absent verdict include Quranic verses, tradition of immaculate Imams, consensus of jurist and reason. Therefore, we have studied and analyzed each of this sources while briefly considering Sunni jurisprudence in all aspects of the issue. The Current study has been a descriptive analytic research which has employed library method through note-taking instrument. In sum, it was concluded that in trial by default, considering some foundations, it can be said that in any condition, it is incumbent on the judge to summon the defendant to trail before issuing any verdict but in the case of the defendant’s absence, he is permitted to proceed a default judgment and issue the verdict in absence.