Shāfiʿī's (d. 204/820) Legal Theory on Witness Eligibility

In this text, Muḥammad b. Idrīs al-Shāfiʿī (d. 204/820) lays out his legal theory regarding the criterion for witness eligibility. Shāfiʿī’s introduces specific criteria, inferred from the Qurʾān, for admitting or rejecting testimony on an individual rather than group basis. He also forbids non-Muslim testimony, citing Qurʾānic precedent. [In section 6:476,] Shāfiʿī theorizes that a concern over individually held bias from enmity represents the underlying rational for denying the testimony of individual witnesses in courts. This rational extends to cases involving Muslim and non-Muslim witnesses and plaintiffs. He notes that, “We do not permit the testimony of an enemy against his enemy” (in Arabic “lā nujīz shahādat ʿaduww ʿalā ʿaduwwih”). Shāfiʿī proceeds to condemn baseless hatred due to factional rivalries and dictates that displays of such bias negate one's credibility to serve as a witness in all cases. Shāfiʿī also considers the consequences for one who might hold theologically related bias from heretical religious beliefs. This approach largely agrees with the Ḥanafī position. [In section 7:513-516,] Shāfiʿī provides two additional categories of individuals whose testimony should be rejected due to their theological beliefs, namely, (1) those who do not accept that false testimony is forbidden in Islamic law and (2) those who harbor enmity against a specific individual due to a theological dispute. Notably, Shāfiʿī qualifies that the latter case only proscribes the individual from testifying against those with whom he is in dispute (and thus potentially biased against). So, his convictions would not negate his overall credibility as a witness to testify in other cases. [In section 7:573-74,] In a further presentation of nuance, Shāfiʿī indicates that there is no blanket prohibition to disqualify the testimony of the gamer and poet. Rather, the testimony of these characters ought only to be disqualified on a case-by-case basis if it was discovered they were dishonest or derelict in their religious duties. In contrast, as Ahmad El Shamsy notes, other legal scholars indiscriminately excluded these "shady" characters. [In section 8:40,] Shāfiʿī demonstrates a more lenient approach towards including Muslim witnesses of questionable status, he represents a more stringent position regarding non-Muslim testimony which he completely prohibits. Since there is no reliable Hadith on the topic, Shāfiʿī relies on Qurʾānic verses to construct his argument. He cites 2:282 and 65:2, respectively, to select, “from those you approve as witnesses,” and the “upright witnesses from among you” to argue that non-Muslims are excluded because they are neither 'approved of' by Muslims nor considered part of the community of ‘upright witnesses.’ Shāfiʿī then anticipates and rebuts a counter-argument to his position on non-Muslim witnesses from the jurist al-Shaybānī (d. 189/804 or 805) who supports non-Muslim testimony. In his rebuttal, Shāfiʿī dissects Shaybānī's position and highlights the absurdity of preferring scripturalists over other non-Muslims for the purpose of testimony, given that they are seen to have falsified their scripture and should therefore be assumed even less trustworthy. Also Shāfiʿī hyperbolically questions why Shaybānī would show more concern for preserving the legal rights of Muslims over the rights of individuals of questionable status within the Muslim community, such as slaves or Bedouins, who are excluded from testimony because their integrity cannot be verified. Ahmad El Shamsy notes in Justice and Leadership in Early Islamic Courts that Shāfiʿī’s approach might be characterized as one which grants decisive authority to scripture. 

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.  

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