Shahada (testimony in law: its meaning, its basis, the duty to give it, and the conditions of the witness)

In language, shahada means a certain report, presence and seeing, an oath, an admission, and death in God's cause. In the legal sense it is a statement of one person's right against another, made before the judge, in the word "I testify" (ashhadu). It is also called bayyina (evidence), since it clears what is confused and uncovers the right. ^{1 2 3} It differs from an admission (iqrar), which reports a right owed by the speaker, and from a claim (da'wa), which seeks a right from another. All three are reports, and are told apart by whether the speaker gains by it and whether the ruling binds only him. ³

Bearing and giving testimony is a communal duty (fard kifaya), on the basis of the verses of the surah of the Cow (282) and (283) and the surah of Divorce (2) that forbid refusing or hiding testimony. When enough witnesses have given it the sin is lifted from the rest; if all refuse, all are sinful. A refuser sins only if giving it harms him not and his testimony would help; if it harms him or would not help, he is not bound, citing the verse that forbids harming the scribe or the witness. It becomes an individual duty where no other witness is present and the right is at risk. ⁷

Testimony is established by the Qur'an, the sunna, consensus and reason: the verse of the Cow (282) on two men of your own, and the verse of Divorce (2) on two just men among you; the report of Wa'il ibn Hujr, "your two witnesses or his oath"; the report of Ibn 'Abbas, "the proof is on the claimant and the oath on the defendant". Consensus holds it for proving claims, since people deny one another. ⁴

The majority count five pillars: the witness, the party who benefits, the party against whom, the matter testified to, and the wording; the Hanafis take the wording alone, "I testify". The cause of giving is the claimant's request, or fear of losing the claimant's right if the witness is not known as a witness. Testimony is a proof that shows the right but does not create it; yet it obliges the judge to rule by it, since the judge is ordered to rule by the right. ⁴

• Sanity at the time of bearing, since bearing is understanding and retaining the event. A madman or a child who does not understand cannot bear it. ⁸
• Knowledge by seeing or by hearing the matter itself, not by another's word, following the report of Ibn 'Abbas: testify only to what shines for you like this sun. Other than in matters that may be known by hearsay, such as marriage, descent and death, the witness must have seen. A witness may not testify to what he finds in his own handwriting unless he remembers it and is sure, since writing can resemble writing. ^{8 5}
• Sight: the Hanafis do not allow a blind person to bear testimony at all; Zufar and the Malikis, Shafi'is and Hanbalis allow it in matters of hearsay, if he is sure of the voice. The Hanbalis allow a blind witness who knows the speaker's voice from long acquaintance. ^{8 9}
• Age, freedom, Islam and uprightness are not required at the time of bearing: a child, a slave, an unbeliever or a sinner who bore it, and later came of age, was freed, became Muslim or repented, has his testimony accepted. ⁵

These concern the witness, the testimony, the matter testified to, and the number of witnesses.

• Age: a child's testimony is not accepted, since God says "two men of your own" and a child is not counted a man; and one who cannot be trusted with his own property cannot be trusted with others'. Some Malikis and Hanbalis allow children to testify among themselves about wounds and killing before they separate, the Malikis adding that no adult should have joined them. ^{5 9}
• Sanity: the testimony of one who is not sane is not accepted by consensus, whether the cause is madness or drunkenness. ⁹
• Freedom: the majority do not accept the testimony of a slave, since testimony is a form of authority and a slave is busy with his master's service; the Hanbalis accept a slave's testimony in all matters except penalties and retaliation. ⁹
• Sight: the Hanafis do not accept a blind man's testimony at all; the Shafi'is do not accept it on acts, but do on words that are known by hearsay and in interpreting before the judge; the Malikis accept it on words, not acts, for a sharp person whose hearing is not confused and who is sure of the parties; the Hanbalis accept it if the voice is certain. ^{9 10}
• Islam: the basis is that the witness is a Muslim, since the verses speak of "men of your own" and "just men among you"; the Malikis, Shafi'is and the well-known Hanbali view follow this. They make one exception: a non-Muslim's testimony on a bequest during a journey, by the verse of the surah of the Table Spread (106). The Hanafis accept the testimony of dhimmis against one another, even of different religions, and of belligerents against their like; an apostate's is never accepted. ^{10 6}
• Speech: the majority do not accept a mute's testimony; Malik accepts it if his sign is understood; the Hanbalis accept it if he gives it in writing. ⁶
• Uprightness: all agree it is required, citing the verse "two just men among you"; a sinner's testimony is refused. The Malikis define uprightness as religious restraint from major sins, avoidance of minor ones, keeping trusts and good dealing, with more good than bad in the person. The Hanbalis define it as religious rectitude in observing the duties and avoiding major sins and persisting in minor ones; the Shafi'is make manliness (muru'a) a separate condition. Uprightness is a condition for the judge's duty to accept. ^{6 11}
• Care: the testimony of one who is heedless and rarely retains anything is refused; one who errs seldom is accepted, since no one is free of error. ¹¹

• No conviction for slander: a convicted slanderer is not accepted (surah of Light, 4). If he repents and mends his ways, the majority accept him (verse 5); the Hanafis never accept him; the Malikis refuse him only in the matter of his penalty. ¹¹
• Men only in penalties and retaliation, according to the custom reported from al-Zuhri. ¹¹
• No suspicion of interest: a witness who gains or avoids loss by his testimony is refused, as is an heir testifying to a wound before it heals, a guarantor for the one guaranteed, and, according to the majority, one spouse for the other (the Shafi'is differ). Testimony is also refused for one's ascendant or descendant, for an enemy against his enemy (worldly enmity, not religious), for one who testifies to clear himself from the shame of lying, for eagerness to testify without a claim, and for partisanship. The jurists cite the saying that the testimony of a traitor, a man who bears a grudge against his brother, or a servant of a household is not accepted. ^{11 12}

• A claim must exist, by the claimant or his agent, in rights of persons; rights of God do not need one according to the majority. ¹²
• The testimony must agree with the claim; the number needed for things men usually see; the two witnesses must agree; the original witness must be unavailable in testimony on testimony; and the word "I testify" is required by the majority, while the Malikis accept any word showing knowledge, such as "I saw" or "I heard". ^{12 13}
• The matter testified to must be known, and it must be property or a benefit of value. ¹³

• Adultery needs four men, since God requires four witnesses; the Hanbalis require three men for a claim of poverty to take zakat. ^{13 14}
• All other penalties and retaliation need two men, by agreement. The majority hold that what men usually see and that is not property, such as marriage, divorce, return, the vow of abstinence, zihar, descent, Islam, apostasy, injury and its assessment, death, insolvency, agency, guardianship and testimony on testimony, is proved by two men; the Hanafis accept two men or a man and two women in all things except penalties and retaliation, and do not accept a judgement by one witness and an oath. ^{14 15}
• Women alone are accepted in birth, the cry at birth, suckling, and defects of women that men may not see. There are five views on the number: one midwife (al-Hasan); one woman (Abu Hanifa, except the birth of a divorced woman); two women (Malik and others); three (Uthman al-Batti); four (al-Shafi'i and 'Ata'). ^{15 16}
• One upright witness suffices for the start of Ramadan (al-Shafi'i and Ahmad in the known view, and the Hanafis if the sky is clouded), with the Malikis requiring the imam's commission and the Hanbalis requiring that no other be available; a single physician for wounds and a single farrier for animal defects are accepted by the Malikis and Hanbalis. ^{16 17}

Witnesses are required to marriage according to the majority, while Malik holds that it is not required once the marriage is publicly announced. Among sales, Abu Musa, Ibn 'Umar and others hold witnesses obligatory; the majority hold them recommended, since the verse of the Cow ends with "if one of you trusts another, let him give back the trust", and the Prophet ﷺ sold and bought without witnesses and pledged his coat of mail. ^{17 18}

Testimony is normally from seeing and certainty, not from guessing, as the verses of the Gold Ornaments (86) and of Joseph (81) show, and the saying to Ibn 'Abbas. Some matters are known by sight, such as killing, theft, usurpation, fosterage, adultery and drinking; others by hearing as well as seeing, such as marriage, sale, hire and divorce, for which the Hanbalis accept hearing alone when the speakers are certainly known. ¹⁸

This is testimony in which the witness states that his knowledge comes from hearsay, without naming the source. It is allowed for need. It has three degrees: certain knowledge from wide transmission (as of ancient cities), like sight; strong knowledge near certainty from a great crowd, as the reputation of Nafi' as the most trustworthy of Malik's pupils, and this is the degree meant when jurists speak of hearsay in general; and a weaker strong opinion. The sighting of the new moon by a great crowd, and general reputations for uprightness or fault, are examples. ^{19 20} The Malikis accept it on conditions: two or more upright men; no suspicion; the report must be widespread; and the claimant swears, since the original report may come from one person. Its places, as the Malikis reckon them, are few, such as death, descent and endowment, and a longer list of marriage, freedom, divorce, appointment of judges, guardianship of the foolish and the like. The majority accept hearsay for descent and birth; the Hanbalis and some Shafi'is accept it in nine matters; Abu Hanifa accepts it only in marriage, death and descent and rejects it for absolute property. ^{21 22 23}

Ibn Farhun explains tawassum as the mark cut into a camel to show its owner. Malik and his companions allowed the testimony of travelling companions for one another about what they had dealt in on the road, even without known uprightness, out of necessity; it does not extend to rights that existed before the journey without knowledge of uprightness. ^{23 24}

A witness may not take payment for giving testimony he is bound to give. If it is not binding and giving it costs him work and hardship, most jurists forbid payment but allow the cost of riding to the place; some Shafi'is and Hanbalis allow a living from it. ^{24 25}

All agree on the true uprightness established by inquiry and certification, and differ on resting on apparent uprightness. Ibn Wadah and the chief judge of Cordova had witnesses sworn in a dispute over an estate, and Ibn al-Qayyim finds this not far-fetched; the Hanbalis allow an oath only in two places, according to the report on the testimony in a journey. ²⁵

A witness may be unable to appear, through travel, illness or excuse, so he has two witnesses testify to his testimony, who carry it to the judge in its words. It is allowed only when the original witnesses cannot be had, and the Shafi'is and Hanbalis require the impossibility to last until judgement. The Malikis and Abu Thawr, and one Shafi'i view, allow it in all matters, property or penalty; the Hanafis and Hanbalis allow it in rights not lost by doubt, not in penalties such as retaliation; the Shafi'is allow it except for penalties owed to God, such as adultery and drinking. Two witnesses on one original are the majority view, and the Hanbalis allow one witness per original; the Hanafis and a Shafi'i view require two for each. Women may not carry testimony on testimony according to the Hanafis and Shafi'is; the Malikis allow it with a man; the Hanbalis allow women. ^{25 26 27} The witness on testimony must give it in the words he heard, and it needs a request by the original witness (istirʿa) according to the Shafi'is and Hanbalis, though the Hanafis do not require it. If the original witness becomes unfit, the testimony is not accepted. Acceptance requires that the original witness be fit when he gave testimony. The Malikis permit the testimony of a request (istirʿa) on acts a person does under compulsion, such as divorce, endowment and marriage, with a secret writing of the one who compelled him; they forbid it in sales. ^{27 28 29}

If witnesses retract before judgement, their testimony falls and they owe nothing. If they retract after judgement but before execution, a penalty or retaliation is not carried out, while money or a contract stands and the witnesses pay what they caused. If they retract after execution, the judgement is not annulled and the recipient need not return anything, and the witnesses owe what they caused. If they testified to a killing deliberately, the Shafi'is, Hanbalis and some Malikis apply retaliation, while the Hanafis and most Malikis owe only blood money. If a witness out of several retracts, the liability is in proportion to what remains of the quorum, and the Hanbalis divide it over the number of witnesses. ^{29 30 31 32}

Testimony that agrees with the claim is accepted, and that disagrees is not. Abu Hanifa requires the witnesses to agree in both wording and meaning; his companions require agreement in meaning. A witness to a thousand and another to two thousand do not complete the testimony for Abu Hanifa but do for the others, for the thousand. A disagreement in time, place or description of an act means the two testimonies are of different acts and do not complete. ^{32 33}

• Property in the hand of one party: the Hanafis and the well-known Hanbali view prefer the outside claimant; the Malikis and Shafi'is prefer the possessor, citing a judgement for the possessor of a camel. ^{33 34}
• Property in the hand of a third party: the Hanafis judge by the earlier date or divide equally; the Malikis drop both when no preference can be found; the Shafi'is may drop both and the possessor swears; the Hanbalis drop both. ^{34 35}
• Where the property is in both hands: the Hanafis divide by halves; the Shafi'is leave it, with variants of drawing lots and division; the Hanbalis drop both and the parties swear and divide. ³⁵
• A claim tied to a cause (inheritance, purchase, offspring): the Majalla's examples of preferring the more authoritative proof, such as sole ownership over partnership and sale over gift. Greater numbers and stronger justice are not preferred by the majority, since God set the number of two and accepted the just with the more just. ^{35 36 37}

• Scattered witnesses (shahadat al-abdad): witnesses who testify separately at different times; the Malikis accept them in marriage if they are six in number, in the sense that each testimony is one of a set. ^{37 38}
• Concealed witnesses (shahadat al-istikhfa'): witnesses who hide to hear a secret confession are accepted by the majority; the Malikis require that the confessor be not deceived or treacherous; some Hanbalis refuse, citing the verse forbidding spying. ^{38 39}
• False testimony is a major sin, and the witness is not accepted afterwards. If found out, the judge may publicise the witness; Abu Hanifa says he is announced in the market or at the prayer, while others add beating, imprisonment or disgrace; those who repent after a period of visible repentance are accepted by the Hanbalis and Hanafis, and never by Malik. ^{39 40}

This is testimony that a witness gives without a claimant or prior suit, for God's sake. It is accepted in all matters that are purely God's right, such as adultery, drinking, theft, banditry, zakat, expiation, divorce, the status of a slave-mother and endowments for the poor and the public. ⁴⁰