Evidence Laws in Sharia and the Impact of Modern Technology and DNA Testing

Abstract

Sharia has continuously developed since Islam’s inception in the seventh century CE. This article focuses on hudud criminal law evidentiary requirements, particularly adultery, and critically assesses the impact of modern technology on these laws. Many modern Muslim states implementing Sharia or a part of it are struggling to incorporate technological advancements into their criminal evidence rules. In assessing the desirability of updating Sharia proofs, it is established that modern technology can be comfortably incorporated as circumstantial proof in Sharia under the legal concept of ijtihad. Such proof, however, means it cannot be used to prove hudud crimes, such as adultery, which would contravene objectives of Sharia, hudud, and Sharia privacy principles. Consequently, while modern technology can be incorporated within Sharia evidence laws, there are restrictions on its use due to the unique aspects of hudud and its Sharia objectives. Modern technology, such as DNA testing, may be used as paternity verification at a wife’s request to establish her innocence in li’an cases or to prove paternity under family and civil laws to provide maternal and child welfare rights. A number of modern Muslim jurisdictions are currently grappling with these issues, using creative approaches in combining modern legislation with Sharia principles. This article argues there is no discrepancy between retaining immutable Sharia laws while simultaneously updating other laws and procedures, including the integration of modern technology.