SHARIAsource

In this excerpt from his legal treatise, the Hanafī jurist al-Sarakhsī relays how the imperial grand judge Yaḥyā b. Aktham (d. 242/857) upheld the Ḥanafī position regarding the eligibility of non-Muslims to serve as witnesses. Yaḥyā was said to have permitted non-Muslim testimony against any other non-Muslims. He explained his position, writing that, “consulting the opinions of the earliest jurists, I have found no one forbidding the testimony of the protected people, except two [conflicting] opinions attributed to Rabīʿa.” Further, Sarakhsī relays the Ḥanafī criterion for witness eligibility which developed in a specific hierarchical framework. Muslims were placed above non-Muslims and, within that, locals above outsiders (dhimmī vs. ḥarbī). As Ahmed El Shamsy notes in Justice and Leadership in Early Islamic Courts, this framework equates the right to give testimony with the right to demonstrate legal authority (wilāya) over another.

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.  

In this historical text, Wakīʿ documents the historical feud between Qaysī and Yamanī Arabs which precluded members of each group from testifying against the other in Muslim courts due to concerns of bias. The factional tension also affected political and judicial spheres. For example, Wakīʿ relates that the governor of Basra ʿUqba b. Salm (in office 149–50/766–67) was pressured into releasing an unjustly imprisoned man by the judge Sawār b. ʿAbd Allāh b. Qudāma (in office 138–56/ 755–73). The judge complied with this order because of pressure and instability due to factional political alliances. Given the degree to which Qaysī and Yamanī rivalries influenced the political sphere, it seems understandable that their testimony against each other was not accepted in the courtroom. Ahmed El Shamsy references this source in Justice and Leadership in Early Islamic Courts as the first of many historical cases in which progressive restrictions were placed on who might be permitted to give testimony resulting from increased political rivalry.

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.