How is judgment secured against an absent defendant?
General Chapter
Al-Mughni
Book of Judiciary
Primary text
If the absent defendant is outside the judge's jurisdiction, the judge cannot summon him, but the right can be established against him through other means later. If the defendant is within the jurisdiction and has a deputy judge ('Khalifa'), the claimant establishes the right before the deputy if he has proof, and the ruling is sent there; if there is no proof, the claimant is sent to litigate before the deputy. If there is no deputy but someone qualified to judge exists, the judge permits them to rule. If no one qualified exists, the claimant must formalize the claim because the claim might involve matters not adjudicated upon in that locality, such as a neighbor's right of pre-emption or the price of a dog. If the claim is formalized, the judge sends for the defendant regardless of distance, which is the position of Al-Shafi'i. This is because separating the dispute requires action, even if it involves difficulty, similar to disciplining a refuser.
Supporting text
Abu Yusuf holds that the defendant should only be summoned if the distance allows him to attend and return to his location; otherwise, an arbiter should be found. Another view limits this to distances less than the travel distance permitting shortened prayers ('Masafat al-Qasr'). For a woman defendant who is Barizah, no male guardian is required for her travel in this context, as the right belongs to a human being, which is founded upon necessity and stringency.