Islamic Fiqh > Judgment and testimony > Testimony (chahada) > Second condition: freedom
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
The jurists of the 4 schools agreed that the testimony of slaves in the legal punishments is not valid; they differed concerning other than the punishments: is it accepted or not?
The majority of the jurists, the Hanafis, the Malikis and the Shafi'is, held that it is not accepted at all, because of His word, the Most High:
« O you who believe, when you contract a debt for a fixed term, write it down. »
Surah al-Baqarah, 282
He then conjoined to it the word of Allah the Most High:
« And take as witnesses 2 witnesses from among your men. »
Surah al-Baqarah, 282
This proves that freedom is required, in virtue of 2 indications in the higher purport of the address. First: the word of Allah the Most High: « When you contract a debt for a fixed term » (Surah al-Baqarah, 282) up to His word: « and let the one upon whom is the obligation dictate » (Surah al-Baqarah, 282), which concerns free men, not slaves. The proof is that the slave does not own the contracts of debt; and if he acknowledges something, his acknowledgment is not valid except with his master's permission; the address is directed to one who owns that absolutely, without another's permission: this proves that freedom is a condition of this testimony.
The other indication of the address is the word of Allah the Most High: « from among your men »: the apparent sense of this expression requires free men, like the word of Allah the Most High:
« And marry the unmarried among you. »
Surah an-Nur, 32
meaning the free. Do you not see that He conjoined to it His word: « and the righteous among your male slaves and female slaves » (Surah an-Nur, 32)? The slaves thus do not enter the word of Allah the Most High: « among you » (Surah an-Nur, 32). Therein is proof that freedom is a condition of this testimony and that a slave's testimony is not valid, for Allah's commands, the Most High, carry obligation, and He commanded taking witnesses from free men: none else is permissible. It is not permissible for anyone to drop the condition of freedom, for if that were permissible, dropping the condition of number would be too; and therein is proof that the verse contained the invalidity of slaves' testimony (Ikhtilaf al-Ulama 1/281 and 282, Mukhtasar Ikhtilaf al-Ulama 3/335 and 336, Ahkam al-Quran 2/221 and 222, Sharh Sahih al-Bukhari 8/36, at-Taj wa al-Iklil 5/106, al-Sharh al-Kabir with the commentary of ad-Dasuqi 6/60, Tahbir al-Mukhtasar 5/109, al-Hawi al-Kabir 17/58 and 59, al-Bayan 13/276 and 277, an-Najm al-Wahhaj 10/285 and Mughni al-Muhtaj 6/370).
The Hanbalis held that the testimony of slaves is accepted in other than the legal punishments and retaliation (qisas).
Imam Ibn Hubayrah, may Allah have mercy on him, said: they agreed that slaves' testimony is not valid at all, except Ahmad: he permitted it in other than the punishments and retaliation, according to the well-known position of his school (al-Ifsah 2/415).
Imam Ibn Rushd, may Allah have mercy on him, said: as for freedom, the majority of the jurists of the great cities make it a condition in accepting testimony, while the people of the apparent sense (Zahiris) said: a slave's testimony is valid, for the basis is only the condition of uprightness, and servitude has no effect in rejection unless that is established from the Book of Allah, the Most High, the Sunnah or consensus; and the majority seemingly regarded servitude as a trace of disbelief, so it was bound to have an effect in rejecting testimony (Bidayat al-Mujtahid 2/347).
Ibn Qudamah, may Allah have mercy on him, said: question. Al-Khiraqi said: a slave's testimony is valid in everything except the legal punishments; and the testimony of a female slave is valid in what women's testimony is valid in.
The discussion of this question is in 3 sections. First: on accepting a slave's testimony in other than the punishments and retaliation: the position of the school is that it is accepted; this is related from Ali and Anas, may Allah be pleased with them both.
Anas said: « I never knew anyone who rejected a slave's testimony »; and this is the view of Urwah, Shurayh, Iyas, Ibn Sirin, al-Batti, Abu Thawr, Dawud and Ibn al-Mundhir.
Ata, Mujahid, al-Hasan, Malik, al-Awzai, ath-Thawri, Abu Hanifah, al-Shafi'i and Abu Ubayd said: his testimony is not accepted, for he lacks dignity (muru'ah), and because testimony is built upon completeness and is not divisible: the slave does not enter it, like inheritance.
Ash-Shabi, an-Nakhai and al-Hakam said: it is accepted in the slight matter.
Our proof is the generality of the verses of testimony: he falls under them, for he is of our men, and he is upright: his narration, his fatwas and his religious reports are accepted.
Uqbah ibn al-Harith related:
« I married Umm Yahya, daughter of Abi Ihab. A black slave woman came and said: I suckled you both. I mentioned that to the Messenger of Allah, may the peace and blessings of Allah be upon him, and he said: And how, when she has claimed that? »reported by al-Bukhari and Muslim (agreed upon); variant of Abu Dawud
In Abu Dawud's version: I said: O Messenger of Allah, she is lying. He said: « And what do you know, when she has said what she said? Leave her. » And because he is upright and not suspected: his testimony is accepted like the free man's.
We do not concede that he lacks dignity: he is like the free man, divided between those with dignity and those without; there may be among them amirs, scholars, the righteous and the devout. Iyas ibn Mu'awiyah was asked about slaves' testimony and said: shall I reject the testimony of Abd al-Aziz ibn Suhayb? Among them was Ziyad ibn Abi Ziyad, the client of Ibn Abbas, among the ascetic scholars; Umar ibn Abd al-Aziz raised his standing and honored him. Among them was Ikrimah, the client of Ibn Abbas, one of the reliable scholars. And many of the client scholars were slaves or sons of slaves; manumission produced nothing in them but freedom, and freedom does not change character nor produce knowledge or dignity. None is accepted from them but one possessed of dignity; and it is not valid...
The generality of the jurists, the Hanafis, the Malikis, the Shafi'is and the Hanbalis, expressly made it a condition for the witness to be alert and retentive of what he testifies to: the testimony of the heedless and of one known for abundant error and forgetfulness is not accepted, for trust is not achieved by his word, because his testimony may be among what he erred and lapsed in; and because he may testify against other than the one he was asked about, or to other than what he witnessed, or for other than the one who charged him.
The Hanafis said: the condition of acceptance for testimony is that the witness be alert, retaining what he hears, and precise in what he delivers (Ahkam al-Quran 2/234 and the commentary of Ibn Abidin 7/93).
The Malikis said: the witness is required not to be heedless: the testimony of the heedless is not accepted except in a matter that admits no confusion, like his saying: « I saw this man kill this one, or put out his eyes, or cut off his hands », and the like of actions; and like his saying: « I heard this man divorce his wife so-and-so, or insult so-and-so », and the like of sayings.
Ibn Abd al-Hakam said: the kindly, excellent man may be weak, unreliable on account of his heedlessness, being imposed upon: his testimony is not accepted unless the matter testified to is manifest, clear and evident, confusing to no one, like his saying: « I saw this man cut off this one's hand », and the like: the heedless man's testimony is accepted in such a case.
As for the dull-witted, his testimony is not valid at all. The difference between the heedless and the dull-witted is that the heedless possesses a faculty, that is, an alerting force, but does not employ it, while the dull-witted has no faculty at all (at-Taj wa al-Iklil 5/111, Sharh Mukhtasar Khalil 7/179, al-Sharh al-Kabir with the commentary of ad-Dasuqi 6/64 and Tahbir al-Mukhtasar 5/112 and 113).
The Shafi'is said: the witness is required to be precise, not heedless, for lack of trust in his word, unless he explains the cause, such as an acknowledgment, with its time and place: it is then accepted of him. Slight error does not impair testimony, for none of the people is safe from it; whoever is dominated by error and forgetfulness has his testimony rejected, and whoever's errors and precision are equal is like one dominated by error.
It is recommended to question in detail a witness about whom something perplexed the judge, like most of the common people, even if they are upright; if he does not detail, the judge must investigate his condition (an-Najm al-Wahhaj 10/324, Mughni al-Muhtaj 6/387 and Nihayat al-Muhtaj 8/358).
The Hanbalis said: the witness is required to be alert and retentive of what he testifies to: the testimony of the heedless and of one known for abundant error and forgetfulness is not accepted, for trust is not achieved by his word, because his testimony may be among what he erred and lapsed in; and because he may testify against other than the one he was asked about, or to other than what he witnessed, or for other than the one who charged him.
The testimony of one in whom error and lapse are infrequent is accepted, for none is safe from an occasional error and from forgetfulness (al-Mughni 10/168, Kashshaf al-Qina 6/529, Sharh Muntaha al-Iradat 6/658 and Manar as-Sabil 3/499).
The people of knowledge are in consensus that uprightness is required of the witness, because of the word of Allah the Most High:
« And take as witnesses 2 just persons from among you. »
Surah at-Talaq, 2
And His word: « such as you approve as witnesses » (Surah al-Baqarah, 282); approval is directed to the upright and negated of the wicked.
As for withholding regarding the wicked person's testimony, it is because of the word of Allah the Most High:
« O you who believe, if a wicked person brings you news, verify it, lest you harm a people in ignorance and become regretful over what you did. »
Surah al-Hujurat, 6
The news is the report; every testimony is a report, though not every report is a testimony. And because of the word of Allah the Most High:
« Is one who was a believer like one who was wicked? They are not equal. »
Surah as-Sajdah, 18
The prohibition of equality, if it entails accepting the upright, entails rejecting the wicked. And from Amr ibn Shuayb, from his father, from his grandfather, attributed to the Prophet:
« The testimony of a betrayer, male or female, is not valid, nor that of one bearing rancor against his brother. »a good hadith (hasan): reported by Abu Dawud 3601, Ibn Majah 2366, Ahmad 2/208 and ad-Daraqutni 4/244
A large number of scholars related the consensus that uprightness is required for testimony and that the wicked person's testimony is not accepted. Imam Ibn Battal, may Allah have mercy on him, said: the scholars are in consensus on rejecting the wicked person's testimony (Sharh Sahih al-Bukhari 7/179). Imam al-Mawardi, may Allah have mercy on him, said: there is no disagreement on rejecting the wicked person's testimony, by the text (al-Hawi al-Kabir 17/272).
Imam Ibn Rushd, may Allah have mercy on him, said: as for uprightness, the Muslims agreed on requiring it in accepting a witness's testimony, because of the word of Allah the Most High: « such as you approve as witnesses » (Surah al-Baqarah, 282), and the word of Allah the Most High: « And take as witnesses 2 just persons from among you » (Surah at-Talaq, 2). They differed: what is uprightness? The majority said: it is a quality beyond Islam: that one be committed to the obligations and recommended acts of the Law, avoiding the forbidden and the disliked. Abu Hanifah said: the outward appearance of Islam suffices for uprightness, along with no known disqualifying flaw.
The cause of the disagreement, as has been said, is their hesitation over the concept of the name of uprightness as opposed to wickedness. Thus they agreed that the wicked person's testimony is not accepted, because of the word of Allah the Most High: « O you who believe, if a wicked person brings you news » (Surah al-Hujurat, 6), to the end of the verse. And they did not differ that the wicked person's testimony is accepted if his repentance is known, except one whose wickedness arose from calumny: Abu Hanifah says his testimony is not accepted even if he repents. The majority say: it is accepted.
The cause of the disagreement: does the exception in the word of Allah the Most High:
« Never accept their testimony; those are the wicked ones, except those who repent after that. »
Surah an-Nur, 4 and 5
revert to the nearest mentioned or to the whole sentence, apart from what consensus particularized, namely that repentance does not lift the punishment from him (Bidayat al-Mujtahid 2/346)?
Ibn Qudamah, may Allah have mercy on him, said: there is no disagreement on requiring it: uprightness is required in all testimonies; here, with added precaution, it is more strongly required. The testimony of the wicked person is not accepted, nor that of one whose condition is unknown, whose uprightness is not known, for he may be wicked (al-Mughni 9/65). He also said: they agreed that they are required to be Muslims, upright outwardly and inwardly, whether the one testified against is a Muslim or a dhimmi (al-Mughni 10/155).
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, said: the jurists agree that if a witness testifies before the judge while a type of disqualifying wickedness has spread about him, it is not permissible to accept his testimony, and it is permissible for anyone to impugn him for it, even without having seen it (Majmu al-Fatawa 28/371). He also said: the wicked person's testimony is rejected by the text of the Quran and the agreement of the Muslims; some of them permit the most excellent of the wicked, then the next, in case of necessity when no upright persons and the like are found. As for accepting the wicked person's testimony without cause, none of the Muslims has said it (Mukhtasar al-Fatawa al-Misriyya, p. 604).
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, said: rejecting the testimony of one known for lying is agreed upon among the jurists. And he said: the upright person, in every time, place and group, is according to its context; the witness among every people is whoever is upright among them, even if, were he among others, his uprightness would be of another kind... And this view has foundations, among them: dhimmi testimony, and the testimony of children and women in what men cannot witness; and the conditions in the Quran concern the assumption of testimony, not its delivery (al-Fatawa al-Kubra 4/641 and 642).
The Malikis said: if finding the upright person described by those qualities is impossible or difficult, as in our age, one suffices with one whose lying is not known, out of necessity; and it has been said: he is compensated by an increase in number (the commentary of ad-Dasuqi on al-Sharh al-Kabir 6/62 and the commentary of as-Sawi on al-Sharh as-Saghir 9/329).
The jurists required the witness to be speaking; and they differed over the mute person's testimony when it is understood: is it accepted or not?
The majority of the jurists, the Hanafis, the Shafi'is in the more correct view and the Hanbalis, held that the mute person's testimony is not valid even if his gesture is understood: his gesture was set in place of expression in a place of necessity, namely marriage and divorce, for these are obtained only from him; and we have no need of his testimony, for it is valid from another through speech: it is therefore not valid through his gesture, like the gesture of the speaking person. Confirming this: testimony requires certainty, hence the nod of the speaking person is not sufficient, and certainty is not achieved by gesture; his gesture was accepted only in his own particular rulings out of necessity, and there is no necessity here. This is also why he may not be a judge: the judge's ruling is executed only when found in his own writing under his seal; his ruling was not recorded, and the witness does not testify merely from seeing his writing: all the more reason judgment is not passed on another's writing (Mukhtasar Ikhtilaf al-Ulama 3/369, al-Mabsut 16/130, Bada'i as-Sana'i 6/268, al-Muhadhdhab 2/324, Rawdat at-Talibin 7/397, Mughni al-Muhtaj 6/371, al-Ifsah 2/416, al-Mughni 10/185 and 186, al-Kafi 4/521, Kashshaf al-Qina 6/528, Sharh Muntaha al-Iradat 6/658 and Manar as-Sabil 3/449).
However, the Hanbalis said: it is accepted of him if he delivers it in his writing, not by gesture, because writing indicates the words.
As for arguing from the gesture of the Prophet, may the peace and blessings of Allah be upon him, it does not hold: the Prophet, may the peace and blessings of Allah be upon him, was able to speak, and his gesture was acted upon in prayer; and if a speaking person testified by nod and gesture, it would not be valid by consensus: it is thus established that testimony is unlike other rulings.
The Malikis and the Shafi'is, in the view opposite the more correct one, held that the mute person's testimony is valid if his gesture is understood, and that it stands in place of the wording of testimony: for testimony is knowledge the witness delivers to the judge; if it is understood of him by a way such as his case is understood by, it is accepted, like the speaking person delivering it by voice. And because it is a meaning requiring speech for understanding to occur: if speech is impossible, the gesture may stand in its place when understanding occurs through it; its basis is acknowledgment and divorce, where it stands in place of his speech in his rulings of divorce, marriage, zihar and ila; likewise in his testimony. And because the Prophet, may the peace and blessings of Allah be upon him, while seated in prayer, gestured to the people, who were standing, to sit, and they sat (Sharh Sahih al-Bukhari 7/459, al-Ishraf 5/64 and 65, hadith 1823, at-Taj wa al-Iklil 5/111, al-Sharh al-Kabir with the commentary of ad-Dasuqi 6/64, Tahbir al-Mukhtasar 5/112, al-Muhadhdhab 2/324 and Rawdat at-Talibin 7/397).
Imam al-Imrani, may Allah have mercy on him, said: and they agreed that their testimony is not accepted against a Muslim (al-Bayan 13/277). Imam Ibn Rushd, may Allah have mercy on him, said: as for Islam, they agreed that it is a condition of acceptance, and that the disbeliever's testimony is not valid (Bidayat al-Mujtahid 2/347). Ad-Damiri, may Allah have mercy on him, said: the disbeliever's testimony against a Muslim is not valid, by consensus (Tahbir al-Mukhtasar 5/109). For the disbeliever is not of us, nor of our men; and because, if the testimony of the wicked among the Muslims is not accepted, it is all the more impermissible for the disbelievers to testify against anyone (Mukhtasar Ikhtilaf al-Ulama 3/339 and 340, Ahkam al-Quran 4/159 and 160, al-Mudawwana al-Kubra 13/156 and 157, Sharh Sahih al-Bukhari 8/73, al-Kafi, p. 476, Bidayat al-Mujtahid 2/347, al-Sharh al-Kabir with the commentary of ad-Dasuqi 6/60, Tahbir al-Mukhtasar 5/109, al-Umm 6/141 and 142, al-Hawi al-Kabir 17/61, al-Bayan 13/277 and 278, an-Najm al-Wahhaj 10/283 and 284, Mughni al-Muhtaj 6/370, al-Mughni 10/181 and Manar as-Sabil 3/449).
The jurists differed over a disbeliever's testimony when he testifies to the bequest of a traveler who died on his journey: is it accepted or not?
The Hanbalis held that, if 2 witnesses from among the dhimmis testify to the bequest of the traveler who died on his journey, their testimony is accepted if no others are found among the Muslims, and they are sworn after the afternoon prayer (al-Asr): we did not betray, nor conceal, nor purchase by it a price, even for a near relative; and: we shall not conceal Allah's testimony, for then we would indeed be among the sinners; because of the word of Allah the Most High:
« O you who believe, when death approaches one of you at the time of making a bequest, let there be 2 witnesses, 2 just men from among you, or 2 others from besides you, if you are traveling and death's affliction befalls you. »
Surah al-Ma'idah, 106
This is the text of the Book, and the Messenger of Allah, may the peace and blessings of Allah be upon him, judged by it, and so did his Companions. Ibn Abbas related:
« A man of Banu Sahm went out with Tamim ad-Dari and Adi ibn Badda; the Sahmi man died in a land where there was no Muslim. When they came back with his estate, they had lost a silver cup edged with gold; the Messenger of Allah, may the peace and blessings of Allah be upon him, made them both swear. Then the cup was found in Makkah, and they said: we bought it from Tamim and Adi. Two men of his heirs stood up and swore: our testimony is more worthy than their testimony, and the cup belongs to our companion (Surah al-Ma'idah, 107). He said: it was concerning them that this verse was revealed: O you who believe, testimony between you... »reported by al-Bukhari 2628 and Abu Dawud 3606
From ash-Shabi:
« A Muslim was at the point of death at Daquqa and found no Muslim to witness his bequest, so he had 2 men of the People of the Book witness it. They came to Kufa, went to al-Ashari and informed him, bringing the estate and the bequest. Al-Ashari said: this is a matter that had not occurred since what happened in the time of the Messenger of Allah, may the peace and blessings of Allah be upon him. He made them swear after the afternoon prayer: they had not betrayed, nor lied, nor altered, nor concealed, nor changed; and that it was indeed the man's bequest and his estate; and he executed their testimony. »an authentic hadith: reported by Abu Dawud 3605
Interpreting the verse as meaning other than your tribe is not valid, for the verse was revealed concerning the case of Adi and Tamim, without disagreement among the exegetes; and Said ibn al-Musayyib, al-Hasan, Ibn Sirin, Ubayda, Said ibn Jubayr, ash-Shabi, Sulayman at-Taymi and others interpreted it as has been said; and the hadiths that have been related indicate it. And because, if what they advanced were valid, the oaths would not be due, for the 2 Muslim witnesses have no collective oath (qasama) upon them. And because it is not valid to construe it as concerning the assumption of testimony, for it is a command to make them swear, and there are no oaths in assumption. And because it is not valid to construe it as concerning the oath, by His word: « they will swear by Allah, if you doubt: we shall not exchange it for a price, even if he be a near relative, and we shall not conceal Allah's testimony » (Surah al-Ma'idah, 106), to the end of the verse; and because He conjoined it to the 2 upright believers, and they are 2 witnesses.
Abu Ubayd related in an-Nasikh wa al-Mansukh that Ibn Mas'ud judged by it in the time of Uthman. Ahmad said: the people of Madinah do not have the hadith of Abu Musa, so how would they know it? This ruling is thus established by the Book of Allah, the judgment of the Messenger of Allah, may the peace and blessings of Allah be upon him, the judgment of the Companions therein, and their acting by what is established in the Book and the Sunnah: recourse to it and acting by it is therefore required, whether it accords with analogy or contradicts it (al-Mughni 10/180 and 181, al-Kafi 4/521 and 522, Majmu al-Fatawa 15/299, I'lam al-Muwaqqi'in 1/91 and 92, Sharh az-Zarkashi 3/401 and Manar as-Sabil 3/500).
The majority of the jurists, the Hanafis, the Malikis and the Shafi'is, held that a disbeliever's testimony against a Muslim is not accepted, neither in travel nor in residence, neither in a bequest nor elsewhere; and that regarding the word of Allah the Most High: « O you who believe, when death approaches one of you at the time of making a bequest, let there be 2 witnesses, 2 just men from among you, or 2 others from besides you, if you are traveling and death's affliction befalls you » (Surah al-Ma'idah, 106), 2 answers are given. The first: it is abrogated by the word of Allah the Most High:
« And take as witnesses 2 just persons from among you. »
Surah at-Talaq, 2
The second: what is meant by His word: « or 2 others from besides you » (Surah al-Ma'idah, 106), is: other than your tribe; this is because enmity between the tribes in the pre-Islamic age was manifest, so Allah the Most High made clear that it is of no account after Islam, and that their testimony against one another is accepted. Do you not see that Allah the Most High said: « Detain them after the prayer, and they will swear by Allah » (Surah al-Ma'idah, 106): and this concerns only the Muslims, who pray. And the hadith is authentic, that the Prophet, may the peace and blessings of Allah be upon him, said: « The testimony of the people of one community against the people of another community is not accepted, except the Muslims: their testimony is accepted against the people of all communities. » And the reason their testimony is not accepted against us in other rights is the severance of their guardianship from us, and this reason exists in the bequest; and the reason their testimony is not accepted for a Muslim's bequest outside the travel situation exists in the travel situation (al-Mabsut 30/152 and 153, Mukhtasar Ikhtilaf al-Ulama 3/339 and 340, Ahkam al-Quran 4/159 and 160, al-Mudawwana al-Kubra 13/156 and 157, Sharh Sahih al-Bukhari 8/73, Bidayat al-Mujtahid 2/347, al-Umm 6/141 and 142, al-Hawi al-Kabir 17/61 and al-Bayan 13/277 and 278).
his probity would then be of another order, and it is through this that judgment between people becomes possible. Otherwise, if it were required, for the witnesses of every group, that none testify against them except one who stands firm in fulfilling the obligations and abandoning the forbidden, as the Companions used to be, all testimonies, or most of them, would be invalidated.
He also said: it may be argued that the testimony of those known for truthfulness is to be accepted, even if they are not committed to the prescribed rules, in cases of necessity, such as imprisonment, incidents among the Bedouins, and the people of a village in whom no upright witness is to be found. This has foundations, among them: the testimony of the non-Muslims under protection, the testimony of children and women in what men do not witness, and the fact that the conditions in the Qur'an concern the undertaking of testimony, not its delivery (al-Fatawa al-Kubra 4/641 and 642).