Testifying against a Muslim: the case of the traveler's bequest

This part belongs to the full section: All sections of this part.

In Islamic law of evidence (bayyinah), a witness must meet several conditions of competence before his testimony can be admitted before a judge. This chapter first examines the condition of being a Muslim when testifying against a Muslim, then the admissibility of non-Muslims' testimony among themselves, and then the conditions of free status, puberty, attentiveness and good memory, uprightness ('adalah) and speech. For each condition, the positions of the four schools are set out with their proofs from the Quran, the Sunnah and reason, along with references to the classical authorities.

Testifying against a Muslim: the case of the traveler's bequest

The first requirement is Islam: "He is not one of us, nor one of our men," says the reported statement, for if the testimony of sinners among Muslims is not accepted, it is even more fitting that the testimony of disbelievers against anyone be not admitted (Mukhtasar Ikhtilaf al-'Ulama, 3/339-340 ; Ahkam al-Qur'an, 4/159-160 ; Al-Mudawwana al-Kubra, 13/156-157 ; Sharh Sahih al-Bukhari, 8/73 ; Al-Kafi, p. 476 ; Bidayat al-Mujtahid, 2/347 ; Al-Sharh al-Kabir with ad-Dasuqi's gloss, 6/60 ; Tahbir al-Mukhtasar, 5/109 ; Al-Umm, 6/141-142 ; Al-Hawi al-Kabir, 17/61 ; Al-Bayan, 13/277-278 ; An-Najm al-Wahhaj, 10/283-284 ; Mughni al-Muhtaj, 6/370 ; Al-Mughni, 10/181 ; Manar al-Sabil, 3/449). Imam al-Imrani reports consensus: their testimony is not accepted against a Muslim (Al-Bayan, 13/277). Ibn Rushd states that Islam is agreed upon as a condition of acceptance and that the disbeliever's testimony is not permitted (Bidayat al-Mujtahid, 2/347), while ad-Damiri adds that the disbeliever's testimony against a Muslim is not permitted by consensus (Tahbir al-Mukhtasar, 5/109).

Then comes the second case: the testimony of disbelievers concerning the bequest of a traveler who died along the way. The Hanbalis hold that if two covenant people (dhimmis) testify to the bequest of a traveler who died during his journey, their testimony is accepted when no Muslim is found in their place. They are made to swear after the afternoon prayer that they concealed nothing, falsified nothing, and bought nothing with his property, not even from a close relative, and that they do not hide the testimony of Allah, for then they would be among the sinners:

"O you who believe! Let testimony be established between you when death approaches one of you at the time of bequest: two just men from among you, or two others from other than you, if you are traveling through the land and the calamity of death befalls you"

Surah Al-Ma'idah, 106

This explicit text of the Book was applied by the Messenger of Allah (peace be upon him) and his Companions:

A man of the Banu Sahm went out with Tamim ad-Dari and 'Adi ibn Badda'. The Sahmite died in a land with no Muslim. When they returned with his estate, a silver jug inlaid with gold was found missing; the Messenger of Allah (peace be upon him) made them swear, and later the jug was found in Mecca. They said they had bought it from Tamim and 'Adi, and two of the heirs stood up and swore: "Our testimony is truer than theirs," the jug indeed belonging to those two; it was concerning them that the verse just cited was revealed.Reported by al-Bukhari (2628) and Abu Dawud (3606)

Ash-Sha'bi reports that a Muslim near death in Daquqa, finding no Muslim to witness his will, took two People of the Book as witnesses:

A Muslim whom death overtook in Daquqa found no Muslim to witness to his will, so he had two men of the Book bear witness. When they reached Kufa they came to inform al-Ash'ari, bringing his estate and his will. Al-Ash'ari said: "This is an unprecedented matter since what happened in the time of the Messenger of Allah (peace be upon him)"; he made them swear after the afternoon prayer that they had neither concealed, nor lied, nor altered, nor hidden, nor changed anything, that it was indeed the man's will and estate, and he upheld their testimony.Reported by Abu Dawud (3605), authentic hadith

Interpreting the verse as "other than your tribe" does not stand: the verse was revealed concerning 'Adi and Tamim with no disagreement among the exegetes, who explained it as we have said: Sa'id ibn al-Musayyab, al-Hasan, Ibn Sirin, 'Ubaydah, Sa'id ibn Jubayr, ash-Sha'bi, Salman at-Taymi and others; the hadiths already cited confirm this. Were their interpretation correct, the oath would not be prescribed, for the two Muslim witnesses bear no liability to the purgatory oath (qasamah). The verse cannot refer to the mere reception of testimony since it orders that they be made to swear, and there is no oath in reception; nor can it refer to the oath itself, Allah saying: "so that they both swear by Allah: we purchased nothing with it, not even at the price of a near relative, and we do not conceal the testimony of Allah," and He attaches this clause to the just among the believers, whereas these are two witnesses.

Abu 'Ubayd reports in An-Nasikh wal-Mansukh that Ibn Mas'ud judged accordingly in the time of 'Uthman. Ahmad said: the people of Medina do not have the hadith of Abu Musa, so how would they know it? This ruling rests on the Book of Allah, the judgment of the Messenger of Allah (peace be upon him), that of the Companions, and their practice of what is established in the Book and the Sunnah: it is therefore binding, whether it agrees with analogy or contradicts it (Al-Mughni, 10/180-181 ; Al-Kafi, 4/521-522 ; Majmu' al-Fatawa, 15/299 ; I'lam al-Muwaqqi'in, 1/91-92 ; Sharh az-Zarkashi, 3/401 ; Manar al-Sabil, 3/500).

The majority of jurists, Hanafis, Malikis and Shafi'is, reject on the contrary the testimony of a disbeliever against a Muslim, in travel and residence alike, in bequest and otherwise. To the verse just cited they answer in two ways: either it was abrogated by "And take for witness two just persons from among you" (Surah At-Talaq, 2), or "two others from other than you" means other than your tribe: enmity between tribes was conspicuous in the pre-Islamic era, and Allah showed that it is no longer to be taken into account after Islam, their testimony concerning one another being accepted. See indeed that Allah says: "that they be detained after the prayer and both swear by Allah": this applies only to Muslims who pray. The authentic hadith reports from the Prophet (peace be upon him): "The testimony of the people of one religion against the people of another religion is not accepted, except the Muslims': their testimony is accepted against the followers of all religions." The reason for rejecting their testimony against us, in all rights, is the severance of their guardianship over us; that reason exists in the bequest as well, and what bars their testimony concerning a Muslim's bequest outside travel bars it equally during travel (Al-Mabsut, 30/152-153 ; Mukhtasar Ikhtilaf al-'Ulama, 3/339-340 ; Ahkam al-Qur'an, 4/159-160 ; Al-Mudawwana al-Kubra, 13/156-157 ; Sharh Sahih al-Bukhari, 8/73 ; Bidayat al-Mujtahid, 2/347 ; Al-Umm, 6/141-142 ; Al-Hawi al-Kabir, 17/61 ; Al-Bayan, 13/277-278).

The testimony of disbelievers among themselves

Second case: disbelievers testifying against one another. The jurists discussed the admissibility of the People of the Book's testimony among themselves. The majority of jurists, Malikis, Shafi'is and Hanbalis, prohibit it based on the verse "And take for witness two just persons from among you" (Surah At-Talaq, 2), which bars their testimony for two reasons: they are not just men ('udul), and they are not of us. Allah also says: "If a fasiq comes to you with a report, verify it" (Surah Al-Hijr, 6): the disbeliever is a fasiq, his report requires verification, and testimony being weightier than a report, suspension is required. And Allah says: "Allah will never grant the disbelievers a way over the believers" (Surah An-Nisa, 141): accepting their mutual testimony would establish such a way, for the judge would be bound to rule by it. Uprightness is a condition of testimony, sin is a bar, and disbelief is the head of sin: it therefore deserves rejection all the more.

The testimony of one religion against another is not permissible, except the testimony of the Muslims: it is valid against all religions.Reported by al-Bayhaqi (20404), weak hadith

The sinful Muslim is more complete than a just disbeliever: his acts of worship are valid and he inherits, which is impossible for the disbeliever, who does not inherit from a Muslim; sin being already a bar, disbelief is all the more so. Two analogies follow from this argument: the one whose testimony is not accepted against a Muslim, like the sinner, is not accepted against another disbeliever; and the one whose testimony is rejected for sin is rejected for disbelief, as in testimony against a Muslim. Lying blocks the acceptance of testimony, and lying against Allah is graver than lying against His servants; the testimony of the Muslim who lies against people being already rejected, that of the disbeliever who lies against Allah is rejected all the more: Allah described their lying: "they distort the words from their places" (Surah Al-Ma'idah, 5) and "they fabricate a lie against Allah while they know" (Surah Al 'Imran, 75). Two further analogies follow from this argument on lying: the one marked by lying, like the Muslim, has his testimony rejected; and if lying rejects the Muslim's testimony toward people, it rejects the disbeliever's testimony all the more.

The defect of disbelief is weightier than the defect of servitude, for two reasons: disbelief invalidates worship, servitude does not; disbelief blocks the acceptance of reports, servitude does not. Yet it is established, by our consensus and that of Abu Hanifah, that the defect of servitude blocks the acceptance of testimony: the defect of disbelief blocks it all the more. For these meanings Abu Hanifah rejects the idol-worshipper's testimony on account of the defect of disbelief, and the same applies to the People of the Book: testimony barred by servitude must be barred by disbelief, by analogy with the idolater's; and testimony barred by the idolater's disbelief must be barred by that of the People of the Book, as in testimony against a Muslim (Al-Mudawwana al-Kubra, 13/157 ; Al-Sharh al-Kabir with ad-Dasuqi's gloss, 6/60 ; Tahbir al-Mukhtasar, 5/109 ; Al-Umm, 6/141-142 ; Al-Hawi al-Kabir, 17/61 ; Al-Bayan, 13/277-278 ; An-Najm al-Wahhaj, 10/283-284 ; Mughni al-Muhtaj, 6/370 ; Al-Mughni, 10/181-182 ; Sharh az-Zarkashi, 3/110 ; Kashshaf al-Qina', 6/528 ; Sharh Muntaha al-Iradat, 6/659 ; Matalib Uli an-Nuha, 6/610 ; Manar al-Sabil, 3/499-500).

The Hanafis, along with Imam Ahmad in one narration, which is also the choice of the shaykh of Islam Ibn Taymiyyah and Ibn al-Qayyim, accept the testimony of covenant people among themselves if they are upright in their religion, even if their religions differ: Jews, Christians and Magians paying the jizyah and granted the covenant. Their testimony is not accepted against a Muslim. The verse of the bequest indicates the permissibility of their mutual testimony: it first implied their testimony against Muslims, which is graver, hence all the more among themselves in the bequest during travel; when this latter was abrogated by "take two witnesses from among your men" (Surah Al-Baqarah, 282), the clause "or two others from other than you" was abrogated with it, yet the permission among covenant people in the bequest during travel remains, and this remainder entails permissibility in all their mutual rights.

The Messenger of Allah (peace be upon him) permitted the testimony of the People of the Book among themselves.Reported by Ibn Majah (2374), weak hadith

Abu Dawud reports through his chain from Jabir the account of the two Jewish culprits:

The Jews brought before the Prophet (peace be upon him) a man and a woman of theirs convicted of fornication. He said: "Bring me the two most knowledgeable men among you." They brought him the two sons of Surayyah, and he asked them: "How do you find the case of these two in the Torah?" They said: "We find in the Torah that if four witnesses testify that they saw his member in her private part like a kohl stick in its container, he is to be stoned." He said: "What then prevents you from stoning them?" "Our authority has vanished and we detest killing." The Messenger of Allah (peace be upon him) then called for witnesses: four came and testified that they had seen his member in her private part like a kohl stick in its container, and the Prophet (peace be upon him) ordered that the two be stoned.Reported by Abu Dawud (4452), authentic hadith

This account proves the acceptance of the covenant people's testimony among themselves: the two adulterers did not confess and no Muslim testified against them, for no one was present at their fornication; yet the Prophet called for witnesses, and they were four. In some chains of this hadith it says: "four of them came"; in others: "Bring me four of you." Moreover, by concluding the covenant the People of the Pact acquired what Muslims have and owe what Muslims owe; just as a Muslim testifies against a Muslim, a dhimmi testifies against a dhimmi. And the protection of their rights requires it: their dealings among themselves are numerous, Muslims do not attend their contracts; without mutual testimony their rights would perish upon denial, and the need to protect them is permanent, for they concluded the covenant only so that their blood would be as our blood and their property as our property.

Disbelief does not preclude guardianship: the disbeliever is guardian over his children and over the marriage of his daughters, all the more over testimony, whose conditions are lighter than guardianship. The one upright according to his religion has his testimony accepted, as among Muslims. Sin by interpretation does not block the acceptance of testimony, as with the rebels (ahl al-baghy). 'Umar and 'Ali (may Allah be pleased with them) said concerning two dhimmis of different religions: "They are referred to the people of their religion to judge between them," a necessary corollary of permitting their mutual judgment. The early generations (salaf) were unanimous on this, to the point that Yahya ibn Aktham said: "I sifted through the statements of the early generations and found none who did not permit the testimony of covenant people among themselves, except that I found two opinions attributed to Rabi'ah." The meaning is that the disbeliever belongs to the people of guardianship, hence to the people of testimony like the Muslim. Allah's description: "the disbelievers are allies of one another" (Surah Al-Anfal, 73) refers to guardianship without alliance, the verse being conjoined with "you have nothing to do with their guardianship" (Surah Al-Anfal, 72).

Further proof: marriages among them are valid, and there is no marriage without a guardian; if a Muslim seeks to marry the young daughter of a Person of the Book and he marries her to him, the marriage is valid. The disbeliever has guardianship over himself and his property absolutely, hence over others once his guardianship extends; testimony is a kind of guardianship: capacity established for the one is established for the other. The accepted testimony inclines toward truthfulness: the witness abstains from what his religion deems unlawful, and the disbeliever abstains likewise. The name of uprightness and approval is established for the disbeliever in transactions as a matter of trustworthiness: Allah described him thus: "among the People of the Book is he who, if you entrust him with a qintar, returns it to you" (Surah Al 'Imran, 75). It cannot be said that they displayed disbelief out of obstinacy as suggested by "they denied it while their souls were convinced of it, out of injustice and arrogance" (Surah An-Naml, 14): that concerned the rabbis contemporary with the Messenger of Allah (peace be upon him), who conspired to conceal his mission and prophethood, and those have no testimony with us. The others sincerely believe in their disbelief: "among them are unlettered who know the Scripture only through conjecture" (Surah Al-Baqarah, 78) and "a party of them conceals the truth" (Surah Al-Baqarah, 146). Their sin is a sin of belief, which does not permit suspicion of lying in testimony; their testimony against Muslims is not accepted because of the severance of their guardianship, as that of the slave and the child for lack of capacity; and they take the Muslims as enemies on a false basis, which drives them to seek dominance over them: this is why their testimony against Muslims is not accepted. As for the apostate, he has guardianship over no one.

As-Sarakhsi reports that some of our companions say the acceptance of their mutual testimony is a matter of necessity: Muslims rarely attend the transactions of covenant people, especially marriages and bequests; if their mutual testimony were invalid therein, their rights would be annulled, whereas we are commanded to safeguard their rights and repel injustice among them. We therefore accept their mutual testimony as we accept women's testimony concerning what men do not see. This necessity exists neither in their testimony against Muslims, nor against a Muslim's testimony, nor against a Muslim judge's ruling (Al-Mabsut, 16/135-136 ; Ahkam al-Qur'an, 4/163 ; Bada'i' al-Sana'i', 6/280-281 ; Al-Hidayah, 3/124 ; Sharh Fath al-Qadir, 7/416 ; Al-Ikhtiyar, 2/179 ; Al-Jawharah al-Nayyirah, 6/168 ; Al-Lubab, 2/458 ; Al-'Inayah, 10/454 ; Al-Mughni, 10/181 ; Al-Muharrar fi al-Fiqh, 2/281 ; Al-Mubdi', 10/217).

The shaykh of Islam Ibn Taymiyyah reports that whoever permits this mutual testimony argues from the verse of Surah Al-Ma'idah just cited. Those of Kufa who took its apparent meaning concluded that it permits the testimony of covenant people against Muslims, which all the more indicates testimony among themselves (Majmu' al-Fatawa, 15/299 ; Zad al-Ma'ad, 5/36).

Second condition: free status

Ibn Taymiyyah continues: the abrogation of the apparent meaning does not entail the abrogation of the implication and indication of the text; this verse is the proof in Ahmad's texts and those of the other hadith imams faithful to the early generations; the soundest and strongest view is that his school accepts the testimony of covenant people against Muslims in the bequest during travel, a case of necessity: if their testimony is permitted concerning others, it is all the more permitted among themselves. In testimony, necessity permits what is otherwise not permitted, as with women's testimony concerning what men do not see; Ahmad even specified the acceptance of two testimonies in the legal punishments occurring in their private gatherings, baths and wedding feasts. The disbelievers whom Muslims do not mix with deserve all the more that their mutual testimony be accepted when we judge between them, and Allah commands us to judge between them; the Prophet (peace be upon him) stoned the two Jews without hearing their confession or the testimony of any Muslim: without accepting mutual testimony this would not have been possible. And Allah knows best.

Second condition: freedom. The jurists of the four schools agree that the testimony of slaves in the legal punishments (hudud) is not permitted, and they discuss its admissibility otherwise. The majority, Hanafis, Malikis and Shafi'is, reject it absolutely. To the verse "when you contract a debt for a fixed term, write it down," Allah adds: "and take two witnesses from among your men" (Surah Al-Baqarah, 282): freedom is therefore required, by two implications. The first runs from "when you contract a debt" to "let the one upon whom the obligation rests dictate": this applies only to free men, for the slave holds no debt contracts and his acknowledgment is valid only with his master's permission, whereas the address is directed to the one who holds all that absolutely. The second is the phrase "from among your men," whose apparent meaning designates free men, as in "marry the single ones from among you" (Surah An-Nur, 32), which refers to the free, Allah then conjoining "the righteous among your slaves and slave-women" (Surah An-Nur, 32), proof that slaves are not included in "from among you." Allah's commands pertain to obligation: He commanded that free men bear witness, so no one may drop the condition of freedom, for then the condition of number might also be dropped; the verse thus implies the invalidity of slaves' testimony (Ikhtilaf al-'Ulama, 1/281-282 ; Mukhtasar Ikhtilaf al-'Ulama, 3/335-336 ; Ahkam al-Qur'an, 2/221-222 ; Sharh Sahih al-Bukhari, 8/36 ; At-Taj wal-Iklil, 5/106 ; Al-Sharh al-Kabir with ad-Dasuqi's gloss, 6/60 ; Tahbir al-Mukhtasar, 5/109 ; Al-Hawi al-Kabir, 17/58-59 ; Al-Bayan, 13/276-277 ; An-Najm al-Wahhaj, 10/285 ; Mughni al-Muhtaj, 6/370).

The Hanbalis, on the contrary, accept the testimony of slaves outside legal punishments and retaliation. Imam Ibn Hubayrah reports their consensus on the absolute invalidity of slaves' testimony, except Ahmad: the best-known position of his school permits it in everything except hudud and retaliation (Al-Ifsah, 2/415). Ibn Rushd notes that the majority of jurists of the great cities require freedom as a condition of acceptance, whereas the Zahiris permit it: the principle is only the requirement of uprightness, and servitude has a barring effect only if established by the Book, the Sunnah or consensus; the majority saw servitude as one of the effects of disbelief, which must therefore weigh on the rejection of testimony (Bidayat al-Mujtahid, 2/347).

Ibn Qudamah poses the question and answers that the slave's testimony is permitted in everything except the legal punishments, and the slave-woman's testimony where that of the free woman is permitted. The discussion has three parts. The first is acceptance outside hudud and retaliation: the madhhab admits it, reported from 'Ali and Anas. Anas said: "I know of no one who rejected a slave's testimony," as did 'Urwah, Shurayh, Iyas, Ibn Sirin, al-Batti, Abu Thawr, Dawud and Ibn al-Mundhir. 'Ata', Mujahid, al-Hasan, Malik, al-Awza'i, ath-Thawri, Abu Hanifah, ash-Shafi'i and Abu 'Ubayd reject it: the slave lacks the sense of honor, and testimony rests on completeness, which admits no degrees, like inheritance. Ash-Sha'bi, an-Nakha'i and al-Hakam accept it in minor matters. Our proof is the generality of the verses of testimony: the slave is among our men, he is upright, his narrations, fatwas and religious reports being accepted.

A prophetic proof via 'Uqbah ibn al-Harith:

I married Umm Yahya bint Abi Ihab, and a black slave woman came and claimed to have suckled us both. I mentioned it to the Messenger of Allah (peace be upon him), who said: "How so, when she claims it?" In Abu Dawud's version: "O Messenger of Allah, she is a liar," and he replied: "What do you know after she has said what she said? Leave her."Reported by al-Bukhari and Muslim (agreed upon), with Abu Dawud's wording

The upright slave, free of suspicion, has his testimony accepted like the free man, and we do not concede that he lacks honor: he divides like the free man into those with honor and those without, and among them are commanders, scholars, the righteous and the pious. Iyas ibn Mu'awiyah was asked about the testimony of slaves; he said: "I would reject the testimony of the slave of 'Abd al-'Aziz ibn Suhayb." Ziyad ibn Abi Ziyad, client of Ibn 'Abbas, was among the scholarly ascetics, honored by 'Umar ibn 'Abd al-'Aziz; 'Ikrimah, client of Ibn 'Abbas, is one of the trusted scholars; and many scholarly clients were slaves or sons of slaves whose only change was freedom: freedom does not change one's nature and creates neither knowledge nor honor, and only the one who has honor is accepted among them.

The testimony of children among themselves

The jurists discussed the validity of children's testimony among themselves. The Malikis, and Imam Ahmad in one narration, permit it for wounds and brawls between them only, not against others, and only before they disperse, are coached or tutored; once dispersed, their testimony is no longer accepted, unless just men heard their testimony before the dispersal. Only free male children are concerned, never girls. Their testimony is admitted only where adults are absent, there being no need once men are present. It is not accepted to establish that a man wounded a child, nor that a child wounded a man; but if six children drown one of them, two testifying against three and the three against the two, the diyah is owed by their legal guardians in fifths: a fifth of the diyah charged to each one's guardian, since each wards it off from himself; on the other hand their mutual testimony is not accepted in that case. There is no dispute that no purgatory oath accompanies the testimony of a single child, neither in accidental wounding nor in accidental killing.

The proof of their acceptance is the consensus of the Companions: reported from 'Ali, Ibn az-Zubayr and Mu'awiyah with no one differing. 'Ali acted on the first testimony of children, Ibn az-Zubayr did the same, and Mu'awiyah permitted their mutual testimony as long as they had not entered houses and been coached. Abdallah ibn Abi Mulaykah relates that he sent to Ibn 'Abbas to ask him about children's testimony; he answered: Allah says "from among such witnesses as you approve" (Surah Al-Baqarah, 282), and they are not of those we approve; then he sent to Ibn az-Zubayr, who said: "By the truth, if they are asked, they must be believed," concluding: "I never saw judgment pronounced except on Ibn az-Zubayr's word" (reported by al-Hakim in Al-Mustadrak, 3131, with a chain authentic by the criteria of the two shaykhs, who did not publish it). Testimony is assessed according to necessity, as with women's solitary testimony in childbirth: children's gatherings for play and archery are almost never attended by men, so necessity permits their mutual testimony before dispersal, all suspicion being removed, and forbids it after, suspicion then attaching to them.

Necessity demands acceptance: otherwise we would bar what we are urged to train them in, war and combat, or let their blood be spilled, or require men to watch over them without cease, or forbid them any play that might wound, which even adults do not observe. All this being set aside, their testimony must be accepted, without requiring the tearing of garments or anything else, property being of a rank lower than blood, just as the purgatory oath is not applied there despite uncertainty; all the more since once dispersed they are coached, fed cues and learn lying (Al-Ishraf 'ala nakti masa'il al-khilaf, 5/41-43, no. 1807 ; Sharh Sahih al-Bukhari, 8/51-52 ; Al-Kafi, p. 470-471 ; Al-Istidhkar, 7/124-126 ; Bidayat al-Mujtahid, 2/346-347 ; Tafsir al-Qurtubi, 3/391 ; Al-Qawanin al-Fiqhiyyah, p. 202 ; Al-Kafi, 4/521 ; Manar al-Sabil, 3/499).

Malik reports from Hisham ibn 'Urwah that Abdallah ibn az-Zubayr used to judge by children's testimony concerning wounds among them. Malik specifies: the matter is agreed upon with us, children's testimony is permitted among them for wounds, not against others, and only before they disperse, are coached or instructed; if they disperse, no testimony, unless they had just men witness to their testimony before the dispersal (Al-Muwatta, 2/762).

Al-Mudawwana al-Kubra reports: children's testimony is permitted among them as long as they do not disperse, no adult intrudes between them and they are not coached, in wounds and killing, once at least two children testify before dispersal, all of them being children; a single child's testimony is not permitted, nor that of girls for wounds among them, nor children's testimony for an adult, whether they testified for him against a child or an adult. No purgatory oath among children, unless an adult man kills a child and a man witnesses the killing: the purgatory oath then rests on what the witness asserts, intentional or accidental. Sahnun reports that several great companions of Malik bar their testimony in killing as well as that of girls, while the great companion al-Makhzumi accepts girls and permits their testimony in killing. Ibn Nafi' addresses the case of the child testified against by other children for striking or wounding a child who died of the wound: the rightful claimants of the blood swear over the author of the fatal blow and receive the diyah. Ibn Wahb reports that 'Ali ibn Abi Talib, Shurayh, Abdallah, 'Urwah ibn az-Zubayr, Ibn Qusayt, Abu Bakr ibn Hazm and Rabi'ah permitted children's testimony among themselves as long as they did not disperse and return to their families or differ, taking their first statements (Al-Mudawwana al-Kubra, 13/163).

The majority of jurists, Hanafis, Shafi'is and Hanbalis, make puberty a condition of validity: children's testimony is not permitted under any circumstance, neither in property nor in wounds. Their proofs are drawn from Surah Al-Baqarah (verse 282): the address to adult men, since children hold no debt contracts; "let the one upon whom the obligation rests dictate," the child being excluded since his acknowledgment is invalid; "let him fear Allah his Lord and not diminish anything," which cannot address the child, a stranger to obligation and hence to the threat; "take two witnesses from among your men," children not being of our men; the address having begun with adults, "from among your men" refers back to them; "from among such witnesses as you approve" excludes the child; "the witnesses must not refuse when they are called" is a prohibition, yet the child may refuse to appear and the claimant cannot compel him; finally, "do not conceal testimony: whoever conceals it, his heart is sinful" (Surah Al-Baqarah, 283) cannot address minors, the sin of concealment not being imputable to them. And since his undertaking cannot entail his liability upon retraction, he is not of the people of testimony: everyone whose testimony is valid incurs liability upon retraction.

Permitting their testimony for wounds alone before dispersal is arbitrary and baseless, a distinction without ground, since the principles establish that the one whose testimony is valid in wounds is valid elsewhere. To claim they are sincere before dispersal is meaningless: these witnesses may be the offenders themselves, driven to testify by fear of being caught; it is the habit of children to shift their own misdeed onto another. Allah required uprightness in testimony, threatened the false witness and barred the testimony of sinners and of one who does not refrain from lying as a precaution: how could the testimony of one whose lying goes unsanctioned and whom neither modesty nor honor restrains be permitted, when the proverb says: "a greater liar than a child"? And were they deemed sincere before dispersal, girls' testimony would have to be accepted like boys', and one person's like the group's; yet number is taken into account there, testimony in wounds being reserved to males: all the conditions must therefore be fulfilled, including puberty and uprightness. Whoever permits their mutual testimony must then permit it against men, since that mutual testimony is no firmer than against them.

Allah commands us to accept the testimony of the witnesses we approve, and these are not among them; the one whose testimony we accept, we accept at the moment he testifies and afterwards, in every situation. The Prophet (peace be upon him) said: "The pen is lifted from three: the child until he reaches puberty, the sleeper until he wakes, and the insane until he regains his reason" (authentic hadith, cited previously). The pen being lifted in his own acknowledgment, it is lifted all the more in his testimony for another. Testimony in property is lighter than in blood, and it is not accepted from them in property: all the more not in blood. Were their mutual testimony permitted on account of their seclusion from men, it would be so for women's gatherings in baths and weddings, which is not the case despite necessity, though they are accepted alongside men in property; children, whose testimony is not even accepted alongside men, are all the more not accepted alone, which voids their argument. Ibn az-Zubayr's judgment alongside Ibn 'Abbas's dissent prevents consensus from forming. And the analogy is with Ibn 'Abbas: the one whose testimony is not accepted in property is not accepted in wounds, like the sinners (Mukhtasar Ikhtilaf al-'Ulama, 3/337-338 ; Al-Mabsut, 16/135-136 ; Bada'i' al-Sana'i', 6/267 ; Al-Umm, 7/48 ; Al-Hawi al-Kabir, 17/59-60 ; Al-Muhadhdhab, 2/324 ; An-Najm al-Wahhaj, 10/285-286 ; Mughni al-Muhtaj, 6/371 ; Al-Mughni, 10/166-167 ; Kashshaf al-Qina', 6/527 ; Sharh Muntaha al-Iradat, 6/657 ; Manar al-Sabil, 3/497-499).

Imam Ibn Qudamah reports that the testimony of a prepubescent child is never accepted, from Ibn 'Abbas, and from al-Qasim, Salim, 'Ata', Makhul, Ibn Abi Layla, al-Awza'i, ath-Thawri, ash-Shafi'i, Ishaq, Abu 'Ubaydah, Abu Thawr, Abu Hanifah and his companions. From Ahmad another narration accepts their testimony in wounds if they testify before dispersal about the situation in which they wounded one another, Malik's position: their sincerity and retention are apparent; once dispersed, no longer, for they may be coached. Ibn az-Zubayr said: "If they are seized at the moment of the incident, by the truth, they understand and remember." Az-Zuhri deems their testimony permitted, with a purgatory oath of the wounded party's heirs, according to Marwan. A third narration from Ahmad accepts the testimony from the age of ten; Ibn Hamid specifies: outside hudud and retaliation, like slaves. 'Ali accepted their mutual testimony, as did Shurayh, al-Hasan and an-Nakha'i; Ibrahim said they permitted it among themselves; al-Mughirah that their companions did not permit it against a free man or a slave.

Ahmad reports from Masruq: "We were with 'Ali when five boys came: we were six boys playing, one of them drowned; three testified against two that they had drowned him, and the two against the three; he charged the two with three fifths of the diyah and the three with two fifths." Masruq judged likewise. The madhhab remains absolute rejection, based on the verses of Al-Baqarah 282, At-Talaq 2 and "from among such witnesses as you approve," the child not being of the approved; "whoever conceals it, his heart is sinful": the witness who conceals his testimony is sinful, the child is not, proof that he is not a witness; the child does not fear the sin of lying, which neither turns him from it nor restrains him: no confidence in his word; and the one whose word is not accepted for himself in acknowledgment is not accepted for others, like the insane. This proves acknowledgment is broader: accepted from the disbeliever, the sinner and the woman, where their testimony is not; the one whose testimony is not accepted in property is not accepted in wounds, like the sinner, and the one whose testimony is not accepted against one unlike him is not accepted against his like, like the insane (Al-Mughni, 10/166-167).

Imam Ibn al-Qayyim devotes a chapter to "the fifteenth path: judging by the testimony of discerning children." People differed: a group rejected it absolutely, the position of ash-Shafi'i, Abu Hanifah and Ahmad in one narration; a second narration from Ahmad accepts the discerning child's testimony if the other conditions are met; a third accepts it for mutual wounding before dispersal, Malik's position. Ibn Hazm reports from Ibn az-Zubayr: "When they are brought at the moment of the incident, their testimony is valid," and Ibn Abi Mulaykah specifies that the judges adopted Ibn az-Zubayr's word. Qatadah reports from al-Hasan that 'Ali ibn Abi Talib said: "The child's testimony against a child is permitted, and the slave's testimony against a slave is permitted." Mu'awiyah: "Children's testimony against children is permitted as long as they do not enter houses and are coached," and 'Ali likewise. Ibn Abi Shaybah reports via Waki', from Abdallah ibn Habib ibn Abi Thabit, from ash-Sha'bi, from Masruq: "Six boys went swimming, one drowned; three testified against two that they had drowned him, and the two against the three; 'Ali ibn Abi Talib ruled two fifths of the diyah upon the three and three fifths upon the two." Ath-Thawri reports via Firas, from ash-Sha'bi, from Masruq: "Three boys testified against four, and the four against the three; Masruq charged the four with three sevenths of the diyah and the three with four sevenths." Abu az-Zinad said: "The Sunnah is to adopt children's testimony in wounds along with the oath of the claimants." 'Umar ibn 'Abd al-'Aziz permitted their mutual testimony for close-range wounds, and judged by their testimony with the claimants' oath when lives were at stake. Rabi'ah: their mutual testimony is accepted as long as they do not disperse. Shurayh: accepted when they agree, rejected when they differ, as said by Abu Bakr ibn Hazm, Sa'id ibn al-Musayyab and az-Zuhri. Waki' reports via Ibn Jurayj, from Abi Mulaykah: having asked Ibn 'Abbas and Ibn az-Zubayr, the former cited "from among such witnesses as you approve," while the latter said: "They are more worthy, when asked about what they saw, to testify," and Ibn Abi Mulaykah concluded: "I never saw the judges adopt anything but Ibn az-Zubayr's word."

The Malikis argue: the Law urges teaching children archery, javelin, combat and all that trains them in bearing arms, in charge and retreat, in strengthening the limbs, in boldness, in disdain for dishonor and flight; yet they are most often left to themselves and some injure one another: without accepting mutual testimony, their blood would be shed with impunity. The Lawgiver safeguarded the right of blood to the point of accepting uncertainty and the oath, though He does not accept it for a single dirham. On the acceptance of their testimony the schools of the righteous early generations agreed: 'Ali ibn Abi Talib, Mu'awiyah ibn Abi Sufyan, Abdallah ibn az-Zubayr, and among the successors Sa'id ibn al-Musayyab, 'Urwah ibn az-Zubayr, 'Umar ibn 'Abd al-'Aziz, ash-Sha'bi, an-Nakha'i, Shurayh, Ibn Abi Layla, Ibn Shihab and Ibn Abi Mulaykah, who said: "I never knew the judges except ruling on the word of Ibn az-Zubayr and Abu az-Zinad," and: "It is the Sunnah." Its conditions: understanding the testimony, being free males governed by the ruling of Islam, being at least two, agreeing without divergence, testifying before dispersal and coaching, the testimony being among themselves and for killing and wounds alone; it is not accepted for an adult accused of killing a child, nor for a child accused of killing an adult. If they testify then retract, the first testimony is upheld and the retraction disregarded. There is no doubt among them that neither validation nor invalidation applies to them. On enmity and kinship, whether they impair their testimony, two opinions; and on whether this rule covers girls or is reserved to males, two opinions (At-Turuq al-Hukmiyyah, p. 250-253 and 253-256).