Is a person obligated to summon their adversary to the judge when filing a claim?

General Chapter

Al-Mughni

Book of Judiciary

Book 62 · Issue 1 · Bab 1

Open in Qurani

Primary text

The obligation exists for the claimant to summon the adversary to the judge, regardless of whether a prior dealing between them is known or not, and irrespective of social standing, such as a poor person suing a wealthy and prominent one. This view is held according to one narration, adopted by Abu Bakr, and is the position of the Madhab of Abu Hanifa and Al-Shafi'i. The evidence for this is that failing to summon results in the loss of rights and the allowance of injustice, as the right may stem from wrongful seizure, unpaid debt, or unreturned deposit or loan, even without prior dealings. This harm of losing a right is greater than the harm of appearing before the judge, which carries no disgrace. Historical precedents include Umar and Abi appearing before Zayd, the claimant and another appearing before Shurayh, and Ali appearing before Shurayh, and Al-Mansur appearing before a man who was the son of Talha ibn Ubayd Allah.

Supporting text

A second narration states that the adversary should only be summoned if there is known prior dealing between them, and the claim appears to have a foundation. This is related from Ali (may Allah be pleased with him) and is the Madhab of Malik, as summoning everyone indiscriminately is seen as debasing honorable people and disrespecting those of high status, potentially enabling those without right to extort money from the defendant to avoid court.