Islamic Fiqh > Judgment and testimony > Judgment (qada) and its conditions > The licitness of testimony in fiqh
Contents
Updated on 26 September 2026 at 7:12 PM
This part belongs to the full section: All sections of this part.
This chapter gathers the general principles of judgment (qada) and testimony (shahada) from the encyclopedia of fiqh: the licitness of testimony, the difference between the plaintiff (mudda'i) and the defendant (mudda 'alayh), the benefit of that distinction, the licitness of the claim and of acknowledgment, the probative force of acknowledgment, the difference between judgment and fatwa, then the status of judgment and the five cases of holding it, school by school, with the takhrij of the hadiths and the classical references.
Testimony is legislated on the basis of the Book, the Sunna, the consensus and reason. As for the Book, Allah the Most High says:
"And take two witnesses from among your men."
Surah al-Baqara, 282
His saying likewise:
"And take two just persons from among you as witnesses."
Surah at-Talaq, 2
and His saying:
"And take witnesses when you deal with one another."
Surah al-Baqara, 282
and other verses besides. As for the Sunna, Abd al-Rahman ibn Abi Amra al-Ansari reported from Zayd ibn Khalid al-Juhani that the Prophet (peace and blessings of Allah be upon him) said:
Shall I not inform you of the best of witnesses? The one who brings his testimony before being asked.Reported by Muslim 1719
Imam al-Nawawi said: this hadith admits two interpretations, the sounder and more famous of which is that of Malik and the companions of al-Shafi'i: the hadith applies to the one who holds a testimony in favor of a person who has a right, without that person knowing that he is a witness over it; so he comes to him and informs him that he is a witness for him. The second interpretation: the hadith applies to the testimony of hisba, in matters other than the personal rights of human beings, in which the testimony of hisba is accepted: divorce, emancipation, the waqf, general bequests and the legal punishments (hudud). Whoever knows something of this kind must bring it to the judge, inform him and testify, for Allah the Most High said: "And establish the testimony for Allah" (Surah an-Nur, 8). The same applies to the first case: the one who holds a testimony for a person unaware of it must inform him of it, for it is a trust deposited with him.
A third interpretation was reported: the hadith would apply figuratively, by way of hyperbole, to hastening to give testimony after it is requested, not before it, as one says: "the generous horse gives before being asked," meaning that he gives quickly right after being asked, without delay. The scholars said: this hadith does not contradict the other hadith that criticizes the one who brings testimony before being asked, in the Prophet's words (peace and blessings of Allah be upon him): "they testify without being asked"; the scholars offered four interpretations, the soundest of which is that of our companions: the hadith applies to the one who holds a testimony for a human being who knows of it, and comes to testify with it before it is requested of him. The second: the false witness, who testifies to something with no basis without being asked. The third: one who takes a stand as a witness while not belonging to the people of testimony. The fourth: one who testifies for people that they are in Paradise or in Hell without hesitation, and this last one is weak, and Allah knows best ("Sharh al-Nawawi 'ala Sahih Muslim" 12/17).
Ibn Abbas said: the Prophet (peace and blessings of Allah be upon him) was asked about testimony. He said: "Do you see the sun?" He said: "Yes." He said: "Then testify to something like it, or else leave it." Reported by al-'Aqili in "al-Du'afa" (380), by Ibn Adi in "al-Kamil" (361/2), by Abu Ishaq al-Muzaki in "al-Fawa'id al-muntakhaba" (110/1), by al-Hakim (4/98-99), and al-Bayhaqi cited it from him (10/156).
Abu Wa'il said: Abdallah ibn Mas'ud, may Allah be pleased with him, said: whoever swears an oath by which he takes possession of wealth while he is a wrongdoer in it will meet Allah while He is angry with him. Allah then revealed what confirms that: "Those who exchange the covenant of Allah and their oaths for a small price..." down to "and they will have a painful punishment" (Surah Al 'Imran, 77). Then al-Ash'ath ibn Qays came to us and said: what is Abu Abd al-Rahman telling you? We told him the report. He said: it is true, by Allah the verse was revealed about me: there was a dispute between me and a man over a well, and we referred the matter to the Messenger of Allah (peace and blessings of Allah be upon him), who said: "Your two witnesses, or his oath." I said: in that case he will swear and not care. The Messenger of Allah said: "Whoever swears an oath by which he takes possession of wealth while he is a wrongdoer in it will meet Allah while He is angry with him," and Allah then revealed what confirms that, and he recited the verse: "Those who exchange the covenant of Allah and their oaths for a small price..." down to "and they will have a painful punishment" (Surah Al 'Imran, 77).Reported by al-Bukhari 2380 and Muslim 138
Finally, the witness to the licitness of testimony is the Prophet's saying (peace and blessings of Allah be upon him): "your two witnesses, or his oath," for he gave him the choice between testimony and the oath.
As for the consensus: Imam al-'Imrani, may Allah have mercy on him, said: there is no disagreement in the community over attaching the ruling to testimony ("al-Bayan" 13/268). Imam al-Damiri said: the Muslims do not disagree about it ("al-Najm al-Wahaj" 10/283). Imam Ibn Qudama said: the sources of testimonies are the Book, the Sunna and the consensus ("al-Mughni" 10/154). Imam al-Zarkashi said: there is no dispute over the licitness of testimony and of having someone testify ("Sharh al-Zarkashi" 3/389).
As for reason: need calls for testimony because of people's conflicting claims (tajahud); it therefore becomes necessary to have recourse to it, to revive people's rights, to protect contracts from such conflict and to preserve wealth in the hands of its owners. Shurayh said: "Judgment is a burning ember: keep it away from you with two pieces of wood, that is, the two witnesses. The litigant is a disease, and the witnesses are the remedy: pour the remedy, then, upon the disease" ("al-Mughni" 10/154 ; "al-Ikhtiyar" 2/166 ; "al-Najm al-Wahaj" 10/283).
The bayyina (proof) is a clear sign of its truthfulness: it is the two witnesses, the three, the four and other proofs of the kind. It derives from al-bayan, which is uncovering and manifesting: in the Law, the bayyina manifests the truthfulness of the plaintiff and brings the right to light. The witnesses were called bayyina because the right becomes evident through them ("al-Ikhtiyar" 2/131 ; "Mughni al-Muhtaj" 6/425 ; "Tuhfat al-Muhtaj" 12/428 ; "Nihayat al-Muhtaj" 8/391 ; "al-Dibaj" 4/534 ; "Manar al-Sabil" 3/482 ; "al-Matali'" p. 403).
The claim (da'wa) is only made by a plaintiff against a defendant; knowing the difference between the two is therefore among what the questions of the claim are built upon. The Prophet (peace and blessings of Allah be upon him) said: "The proof is upon the plaintiff, and the oath upon the one who denies." Both must therefore be known.
The Hanafis said: the plaintiff is the one who is not compelled into litigation if he abandons it; the defendant is the one who is compelled into it if he abandons it, and he is called the denier (munkir). It is also said: the plaintiff is the one who attributes to himself what is not established, and the defendant the one who holds to what is established by possession (al-yad). If a debt is claimed against a man and he claims repayment and his discharge, he becomes a plaintiff, for he claims what is not established: his discharge after the two agreed upon the disputed item.
It is also said: the plaintiff is the one who deserves nothing without proof, like the one outside possession, and the defendant the one who deserves by his word without proof, like the possessor. It is also said: the plaintiff is the one who attributes to himself what is with others, and the defendant the one who attributes to himself what is with him; all these formulations are close to one another.
Al-Mawsili said: this must be verified and known by the meaning, not by the outward form; the depositor who claims the delivery of the deposit is a plaintiff in form but a denier in meaning, to the point that if he abandoned it, he would not be left alone. The jurist who deepens his gaze and refines his thought perceives that, with the help of Allah ("al-Ikhtiyar" 3/131 ; "al-Hidaya" 3/155 ; "al-'Inaya" 11/253 ; "al-Jawhara al-nayyira" 6/87 ; "al-Lubab" 2/411 ; "Mukhtasar al-Wiqaya" 2/293).
Shaykhizade, may Allah have mercy on him, said: it is also said that the plaintiff is the one who has no proof against the other, and the defendant the opposite; that is why Musaylima the liar is called the "claimer of prophethood," and not our Messenger (peace and blessings of Allah be upon him).
It is said: the plaintiff is the one who deserves only by proof, and the defendant the one who deserves without proof; for by his word "it is mine," what is in his possession remains his as long as the plaintiff has not established his right. It is said: the plaintiff is the one who seeks to go against the apparent, namely the novel event, and the defendant the one who holds to the apparent, namely the original nonexistence. For no plaintiff's right presents itself to the possessor by his mere claim, just as existence does not present itself to original nonexistence; what some men of merit have said is therefore not binding.
Some of them said: the plaintiff is the one who seeks to go against the apparent, without it being necessary that it be a novel event, and the defendant the one who holds to the apparent, without it being necessary that it be original nonexistence. For what is meant by the "novel event" is its need for an indicator in order to appear and exist, and by "original nonexistence" the fact of having no need of it at all. Thus the depositary who claims to have returned the deposit to the depositor is not a plaintiff in reality; likewise the depositor who denies the return is not a denier in reality, for by his denial he claims, in meaning, a charge upon the depositary's liability; and likewise the depositary, by claiming the return, denies in meaning the charge, in order to free his liability from compensation. He is therefore compelled into litigation over what he denied in meaning of compensation, being a defendant, and his word is believed with the oath, for consideration is given to meanings rather than forms ("Majma' al-anhar" 3/344 ; "Hashiyat Ibn Abidin" 7/401).
The Malikis said: the plaintiff is the one whose claim is stripped of anything that confirms it, or who is the weaker of the two litigants in indicating truthfulness, or whose claim is accompanied by what customarily weakens it, such as one who departs from established practice or contradicts an established principle, and the like. Whichever of the two whose word is strengthened by any of these is the defendant. If one claims what contradicts custom and the other what accords with it, the first is the plaintiff. The same applies to whoever claims repayment of what weighs upon him, or the return of what is in his hand, without anything confirming his claim: he is a plaintiff, except the depositary when he claims the return of the deposit: his word is believed because his side is strengthened by the trust placed in him, he having been acknowledged as depositary ("'Aqd al-jawahir" 3/1075 ; "Sharh Mukhtasar Khalil" 7/155 ; "Tahbir al-Mukhtasar" 5/77).
Ibn Juzy, may Allah have mercy on him, treated the difference between the plaintiff and the defendant, and cited that Sa'id ibn al-Musayyib said: "Whoever knows the plaintiff and the defendant will not be confused about how to judge between them: the plaintiff is the one who says: it was so; the defendant is the one who says: it was not so." Others said: the plaintiff is the seeker, and the defendant the sought. It is said: the plaintiff is the one who summoned his companion to judgment, and the defendant the one who was summoned. The verifiers said: the plaintiff is the one whose word is weaker for departing from established practice or contradicting a principle; the defendant is the one whose word is strengthened by a custom, an accord with a principle or a presumption. The principle is discharge of liability: if the right is established and he says: "I repaid it," he becomes a plaintiff, for the principle is discharge from liability; and the principle is the continuance of what is in his hand, for the principle is that what was remains as it was, unless a custom requires otherwise, or a presumption, as when someone holds an item and another claims it: the word of the holder prevails and he is the defendant, while the word of the other is weakened and he is the plaintiff. On this basis, the proof is upon the one whose word is weak, and the oath upon the one whose word is strong ("al-Qawanin al-fiqhiyya" pp. 197-198).
The Shafi'is said, in the most apparent view: the plaintiff is the one whose word contradicts the apparent, namely discharge of liability; the defendant is the one whose word accords with the apparent. The opposite view: the plaintiff is the one who, if he fell silent, would be left alone and not pursued; the defendant is the one who would not be left alone and whose silence would not suffice. If Zayd claims a debt owed by Amr and Amr denies it, Zayd is the one whose word contradicts the apparent, namely Amr's discharge: were he silent, he would be left; and Amr is the one whose word accords with the apparent: were he silent, he would not be left. He is the defendant, and Zayd is the plaintiff under both views, and the grounds of the two views usually coincide.
They may differ, as when two spouses embrace Islam before consummation: the husband says: "we embraced Islam together, so the marriage remains between us"; the wife says: "we embraced Islam separately, so there is no marriage between us." Under the most apparent view, he is the plaintiff, for the occurrence of the two conversions together contradicts the apparent, and she is the defendant because her word accords with the apparent: her word is believed with her oath. Under the second view, she is the plaintiff and he is the defendant, for were she silent she would be left, whereas he would not be left silent, given her claim that the marriage is dissolved. Under the first view, the wife swears and the marriage is dissolved; under the second, the husband swears and the marriage continues.
It is said: the oath was placed on the husband's side under the first view because the principle is the preservation of chastity ('isma), which strengthens his side, so he is believed with his oath, just as the defendant, whose side is strengthened by the principle of discharge of his liability, is believed with his oath.
If the husband says to the wife: "you embraced Islam before me: so there is neither marriage between us nor dower for you," and she says: "rather we embraced Islam together," his word is believed on the separation without an oath, and on the dower with his oath, under the most apparent view, for the apparent is with him; and her word is believed with her oath under the second view, because she is not left to be silent, the husband claiming the forfeiture of the dower: if she is silent without proof, she is made to swear (nakila), he swears and the dower falls away.
The trusted one (amin) in a claim of return is a plaintiff under the most apparent view, for he claims a return that contradicts the apparent; yet his word is believed with his oath, for he established his possession for the owner's purpose and was entrusted by him, so it is not proper to require him proof of the return. Under the second view he is the defendant, for the owner is the one who, were he silent, would be left alone. In an alliance (tahaluf), each of the two litigants is both plaintiff and defendant, given their equality ("al-Najm al-Wahaj" 10/396-397 ; "Mughni al-Muhtaj" 6/429-430 ; "Nihayat al-Muhtaj" 8/398).
The Hanbalis said: the plaintiff is the one who demands a right from another; the defendant is the one demanded of, that is, the one whom another demands from for a right whose title he mentions. It is also said: the plaintiff is the one who, if he abandons, is left alone; the defendant the one who, if he abandons, is not left alone, but is told: "either you comply, otherwise I will make you swear and rule against you." Each of the two may be both plaintiff and defendant when they differ over the contract, each claiming that the price is other than what his companion mentioned ("al-Mughni" 10/241 ; "al-Mubdi'" 10/145 ; "Kashshaf al-Qina'" 6/488 ; "Sharh Muntaha al-iradat" 6/600 ; "Mutalib uli al-nuha" 6/566 ; "Manar al-Sabil" 3/482).
The benefit of knowing the plaintiff and the defendant lies in determining the party upon whom falls the burden of establishing the proof, and the party upon whom falls only the oath in the absence of proof favoring the first. When the judge knows the plaintiff from the defendant, the matter becomes clear to him and nothing remains but to apply the known legal rules concerning proofs and preference. That is why it is reported from Sa'id ibn al-Musayyib that he said: "Any man who knows the plaintiff from the defendant will not be confused about how to judge between them: the plaintiff is for the man to say: it was so; and the defendant to say: it was not so."
Imam Ibn Rushd, may Allah have mercy on him, said: the way to know the decisive criterion in judging between the two litigants is to distinguish the plaintiff, charged with establishing proof for his claim and not allowed the oath, from the defendant, who is allowed the oath and not charged with establishing proof, by identifying the efficient cause ('illa) that separates them and grounds opening the oath to the defendant rather than to the plaintiff. For a word may be the plaintiff's while he stands in the position of the defendant, and establishing proof may fall upon the defendant while he stands in the position of the plaintiff: the word was not the defendant's because he is a defendant, nor was the plaintiff charged with establishing proof because he is a plaintiff, for rulings are not attached to names but to meanings.
The meaning for which the ruling is the defendant's is that he has a cause indicating his truthfulness rather than the plaintiff in his bare claim: namely, the goods being in his hand, if the claim concerns a specific item, or his liability being discharged by principle, according to the principle of discharge of liabilities, if the claim concerns what weighs upon him. The meaning for which establishing proof falls upon the plaintiff for his claim is his bare claim, without a cause indicating his truthfulness in what he claims. If he has a cause indicating the truthfulness of his word stronger than the defendant's cause, such as a single witness, or a pledge (rahn), or the like of that such as the lowering of the screen of discretion (irha' al-sitr), then the oath is opened to him rather than to the defendant. If neither party has a cause indicating his truthfulness, as with goods they litigate over that are in neither's hand, or if each has a cause equivalent to his companion's, without preeminence, such as equal proofs while the goods are in neither's hand, the oath is not opened to either before his companion; both must swear together and divide the goods between them.
The principle is that the one of the two litigants to whom the oath is opened is the one more resembling the claimant by a cause indicating his truthfulness, whether plaintiff or defendant, for plaintiff and defendant are in reality both litigants. Example: one who claims a house in a man's hand: both litigate over it, for each claims the house for himself against his companion; they are equal in the claim, and the holder's advantage is having the house in his hand: he thus most resembles the claimant, and the ruling was made his for this meaning, not because he is the defendant.
Sa'id ibn al-Musayyib's saying, may Allah be pleased with him: "any man who knows the plaintiff from the defendant will not be confused about how to judge between them: the plaintiff is for the man to say: it was so, and the defendant to say: it was not so," is not universal in every case; it is valid only if the plaintiff's claim in his word "it was so" is stripped of a cause indicating the truthfulness of his claim. If he has a cause indicating the truthfulness of his claim stronger than that of the defendant who says "it was not so," the latter is discharged by the oath.
Example: one who holds an item for a period in which possession is an argument (hujja) against the claimant, and claims he bought it: the ruling is his, with his oath, while he is a plaintiff saying "it was so," and the defendant says: it was not so. Likewise the depositary who claims the return of the deposit: the ruling is his and he is the plaintiff, saying "it was so," and the depositor says: "it was not so." Cases of this kind are many.
It follows from the foregoing that the Prophet's saying (peace and blessings of Allah be upon him): "The proof is upon the one who claims, and the oath upon the one who denies" is general for all claims, of wealth, blood and other matters, and specific to the case where the claim of one of the two litigants is stripped of a cause indicating the truthfulness of his word. And Allah knows best. There is no disagreement among the people of knowledge in this; whatever disagreement is found among them in litigation does not fall outside this principle: it is their disagreement over the strength of the cause indicating the truthfulness of one of the two litigants, or its weakness, according to what ijtihad leads each of them to ("al-Muqaddimat al-mumahhadat" 2/190-192 ; "al-Bayan wa-t-tahsil" 12/78).
The basis of litigation comes from the Book of Allah. Allah the Most High says:
"And whoever invokes with Allah another deity for which he has no proof, his reckoning is with his Lord: indeed, the disbelievers will not succeed."
Surah al-Mu'minun, 117
"Is there a deity with Allah? Say: Produce your proof, if you are truthful."
Surah an-Naml, 64
"And those who accuse chaste women and then do not bring four witnesses: flog them with eighty stripes and never accept their testimony; those are the defiantly disobedient."
Surah an-Nur, 4
By these verses, whoever initiates a saying and innovates a doctrine must bring the indicator of the truthfulness of his word and the proof of the validity of his doctrine; and whoever brings a claim against another, in wealth, blood, honor or otherwise, must bring the proof of his claim. The Prophet (peace and blessings of Allah be upon him) made this clear by the generality of his saying:
The proof is upon the plaintiff, and the oath upon the defendant.Reported by Tirmidhi 1341
In the hadith of Ibn Abbas, may Allah be pleased with them both, the Prophet (peace and blessings of Allah be upon him) said:
Were people given according to their claims, some people would claim the lives of men and their wealth; but the oath is upon the defendant.Reported by Muslim 1711
It is reported that two men had a dispute before the Prophet (peace and blessings of Allah be upon him), a Hadramite and a Kindite. The Hadramite said: Messenger of Allah, this man overpowered me over land that is mine. The Kindite said: it is my land and it is in my hand; he has no right over it. The Prophet said to the Hadramite: "Do you have proof?" He said: no. He said: "Then the oath is upon him."
Two men had a dispute before the Prophet (peace and blessings of Allah be upon him): a Hadramite and a Kindite. The Hadramite said: Messenger of Allah, this man overpowered me over land that is mine. The Kindite said: it is my land and it is in my hand; he has no right over it. The Prophet said to the Hadramite: Do you have proof? He said: no. He said: then the oath is upon him.Reported by Muslim 139
Abdallah ibn Mas'ud, may Allah be pleased with him, said: the Messenger of Allah (peace and blessings of Allah be upon him) said: "Whoever swears an oath while a wrongdoer in it, in order to take the wealth of a Muslim, will meet Allah while He is angry with him." Al-Ash'ath ibn Qays said: by Allah, it was about me: there was land between me and a man of the Jews, and he denied it to me; I brought him before the Prophet (peace and blessings of Allah be upon him), who said to me: "Do you have proof?" I said: no. He said to the Jew: "Swear." I said: Messenger of Allah, he will then swear and take my wealth. Allah then revealed: "Those who exchange the covenant of Allah and their oaths for a small price..." (Surah Al 'Imran, 77).Reported by al-Bukhari 2523
Abu Bakr Ibn al-Mundhir, may Allah have mercy on him, said: the people of knowledge are unanimous that the proof is upon the plaintiff and the oath upon the defendant. His saying "the proof is upon the plaintiff" means that he obtains the right by it, but it is obligatory upon him and demanded of him; and his saying "the oath is upon the defendant" means that he is discharged by it, but it is obligatory and demanded in all cases, contrary to the view of the one who made detention incumbent upon the one who does not swear when the oath is due from him. This report contains an indication: the judge begins by asking the plaintiff for proof. His saying to the plaintiff: "you have nothing of it but that" is proof that discharge takes place from his companion's claim when the latter swears.
Acknowledgment is a report of the establishment of another's right upon oneself; when the report concerns a tangible matter, it is narration (rivaya), and when it concerns a legal ruling, it is the fatwa. Such is the gist of the jurists' definitions.
The Hanafis defined it as the expression of a report of the establishment of another's right upon oneself ("Mukhtasar al-Wiqaya" 2/286). The Malikis said: acknowledgment is the confession of what establishes a right against the speaker, according to its conditions ("Hashiyat al-Sawi 'ala al-Sharh al-Saghir" 8/104). The Shafi'is said: a specific report of the obligation of a pre-existing right against the reporter ("al-Najm al-Wahaj" 5/79 ; "Mughni al-Muhtaj" 3/226 ; "al-Dibaj" 2/333). The Hanbalis said: acknowledgment, in the Law, is the manifestation by a legally responsible person acting by choice of a right against himself, by word, writing or the gesture of a mute, or the manifestation by a responsible, willing person of what is against his principal in what he was commissioned for, or against his testator in what his truthfulness is possible ("Kashshaf al-Qina'" 6/573 ; "Sharh Muntaha al-iradat" 6/717 ; "al-Insaf" 12/125). Acknowledgment is neither a creative act (insha') nor an initiating offer of transfer, but a report of the reality of the matter, namely the existence of a pre-existing right.
Acknowledgment is legislated on the basis of the Book, the Sunna, the consensus and analogy. As for the Book, His saying:
"And when Allah took the covenant of the prophets: whatever I have given you of Book and wisdom, then a messenger comes to you confirming what is with you, you must believe in him and support him. He said: Do you affirm and accept My covenant upon that? They said: We affirm."
Surah Al 'Imran, 81
"And others who have acknowledged their sins..."
Surah at-Tawba, 102
"Am I not your Lord? They said: Yes indeed."
Surah al-A'raf, 172
"O you who believe! Be steadfast in justice, witnesses for Allah, even if against yourselves..."
Surah an-Nisa, 135
Testimony against oneself is an acknowledgment; were acknowledgment not a proof, it would not have been commanded. Allah also says: "Let the one upon whom the right is owed give it" (Surah al-Baqara, 282), and it is an acknowledgment against oneself. As for the Sunna: the Prophet's saying (peace and blessings of Allah be upon him) in the hadith of al-Asif:
Go in the morning, O Unays, to this man's wife: if she confesses, stone her.Reported by al-Bukhari 6842 and Muslim 1697
The Prophet (peace and blessings of Allah be upon him) stoned Ma'iz, al-Ghamidiyya and al-Juhaniyya on the basis of their acknowledgments, and cut off the hand of the thief of Safwan's cloak on the basis of his acknowledgment. If the legal punishment becomes due by acknowledgment against oneself, wealth is all the more entitled. The rightly guided caliphs ruled by acknowledgment in their cases, and judges have never ceased to act upon it and take it.
As for the consensus: the community agreed on the licitness of acknowledgment and on attaching the ruling to it. Imam al-Zayla'i said: acknowledgment is a legal proof whose probative force is established by the Book, the Sunna, the consensus of the community and reason; as for the consensus, it is because the community agreed that acknowledgment is a proof against oneself, to the point of establishing the legal punishments and retribution by it; even if it is not a proof against another, for lack of authority over him, wealth is all the more entitled ("Tabyin al-haqa'iq" 5/3). Imam al-'Imrani said: as for the consensus, there is no disagreement in the community over attaching the ruling to acknowledgment ("al-Bayan" 13/417). Imam Ibn Qudama said: the imams agreed on the validity of acknowledgment ("al-Mughni" 5/87). Imam al-Zarkashi said: the Muslims agreed, in general terms, on the validity of acknowledgment ("Sharh al-Zarkashi" 2/153). Imam al-Damiri said: the community agreed on acting upon a valid acknowledgment ("al-Najm al-Wahaj" 5/79).
As for analogy: acknowledgment is a report worded in a way that excludes suspicion and doubt, for a rational person does not lie against himself with a lie that harms him. That is why it is stronger than testimony: when the defendant acknowledges, testimony is not heard against him; it is heard only if he denies, even if he declares the plaintiff's proof false; and if the acknowledgment is denied and then confirmed, it is heard ("al-Bayan" 13/417 ; "al-Mughni" 5/87 ; "al-Najm al-Wahaj" 5/80).
The rights admitted by acknowledgment are of two kinds. The first: a right belonging to human beings, or a right of Allah that is not waived by doubt, such as zakat and expiations. Need called for acknowledgment of them, so acknowledgment binds, according to the generality of jurists, by Allah's saying: "even if against yourselves" (Surah an-Nisa, 135), for one is a witness against oneself only by acknowledgment.
This right does not allow retraction from the acknowledgment, for the right of the one acknowledged in favor of is bound to the acknowledged right; unless the one acknowledged in favor of declares him a liar: retraction then becomes valid. If someone acknowledges a debt to Zayd, or damage, or slander, retraction is therefore not valid and the acknowledgment binds him, unless the one acknowledged in favor of calls him a liar, as stated above.
The second kind: a right of Allah waived by doubt, such as fornication, theft and drinking. If it is not made manifest, its doer is not obliged to acknowledge it; rather it is recommended for him to conceal it, for these rights were only legislated to uphold the religion and secure the interests of society. The status of Allah's right is that repentance benefits in it between the servant and his Lord, and retraction after acknowledgment is valid in it, for Allah's right is founded on warding off and concealment.
Proof of this: the Prophet (peace and blessings of Allah be upon him) hinted at retraction to Ma'iz ibn Malik when he acknowledged fornication against himself, and said to him: "Perhaps you only kissed, or touched, or looked?" The meaning of these words is to hint to him at retracting the acknowledgment and to provide him with a doubt to take hold of. The Messenger of Allah said:
Ward off the legal punishments from the Muslims as much as you can; if there is a way out for him, leave it open, for it is better for the ruler to err in forgiving than to err in punishing.Reported by Tirmidhi 1424
There is no doubt that retraction from an acknowledgment is a doubt that drops the legal punishments. The judge is recommended to hint to the acknowledging person at retraction, without saying to him "retract," which would be ordering him to lie. If the acknowledger retracts after acknowledging one of Allah's rights, his retraction is valid and the ruling of what he had acknowledged falls away ("al-Bayan" 13/418 ; "al-Jawhara al-nayyira" 3/274 ; "al-Lubab" 1/455 ; "Mukhtasar al-Wiqaya" 2/286 ; "Sharh Mukhtasar Khalil" 6/87 ; "al-Sharh al-kabir with the hashiya of al-Dasuqi" 5/85).
Imam Ibn Qudama said: retraction of the acknowledger is accepted only in what is a legal punishment of Allah, warded off by doubts and guarded by its being dropped. As for the rights of human beings, and the rights of Allah that are not warded off by doubts, such as zakat and expiations, retraction in them is not accepted, and we know of no disagreement on this ("al-Mughni" 5/95). The vizier Ibn Hubayra said: they agreed that the free adult, when he acknowledges a right of human beings, is bound by his acknowledgment and has no retraction ("al-Ifsah" 1/457). This was covered in the book of legal punishments, and further explanation will come, Allah willing, in this book.
There is no disagreement among the jurists that ruling by acknowledgment requires accepting it, based on the preceding proofs and because most rights are reached only by acknowledgment: necessity thus called for taking it, and need touches acting upon it ("al-Hawi al-kabir" 7/4 ; "al-Muhadhdhab" 2/343). Imam Ibn Rushd said: acknowledgment, when it is clear, admits no disagreement over the obligation to rule by it ("Bidayat al-mujtahid" 2/352).
Imam Ibn al-Qayyim said: ruling by acknowledgment: Allah the Most High said: "Be steadfast for Allah, witnesses with justice" (Surah al-Ma'ida, 8), and in the other verse: "be steadfast in justice, witnesses for Allah, even if against yourselves" (Surah an-Nisa, 135). There is no disagreement that the acknowledgment being made in the judge's session is not taken into account for its validity, except for one case related by Muhammad ibn al-Hasan al-Jawzi in his book "al-Nawadir": Ibn Abi Layla said: I do not accept an acknowledgment of a right that the litigant denied in my presence, except an acknowledgment before me. He may have held this because acknowledgment being a person's testimony against himself, the judge's session was taken into account, as in ruling by proof; the difference is evident, without concealment.
Ruling by the litigant's acknowledgment in the judge's session is established when two witnesses hear it with him, without disagreement. If no one else hears it with him, Ahmad stated that it is ruled by, even if we do not say it is ruled by his own knowledge, for the judge's session is the place for separating disputes and he sat for that purpose; the litigant acknowledged in his session, so it is incumbent to rule by it, as if the proof had stood before him and there was no one else to hear their two testimonies: this is a case of concurrence. The Qadi said: he does not rule by acknowledgment in his session until two witnesses hear it with him, to ward off suspicion from him, unless he rules by his own knowledge: ruling is then permitted to him in that case.
This resembles, in one respect, the question of ruling by one's own knowledge and differs from it in another respect: the resemblance is that there is no proof there and he stands in a position of suspicion; the difference is that acknowledgment is a proof that stood in his session, for proof is the name of that by which the right is made evident: he thus knew the right in the session of judgment, the one in which he stood to judge. It is not a condition of the ruling's validity that it be in the presence of two witnesses; likewise it is not taken into account for his course that it be in the presence of two witnesses; and this is not like what he saw or heard outside his session ("al-Turuq al-hukmiyya" pp. 282-283).
Ibn Qudama, may Allah have mercy on him, said: there is no disagreement that the judge may rule by proof and acknowledgment in his session of judgment when two witnesses hear them with him; if no one hears it with him, or one witness does, Ahmad stated that it is ruled by. The Qadi said: it is not ruled by until two witnesses hear it with him, for he would then be ruling by his own knowledge ("al-Mughni" 10/103).