What is the validity of establishing liability based solely on oaths taken by numerous non-accused individuals in a homicide case lacking enmity?

Chapter on Qasamah (Oaths regarding murder)

Al-Mughni

Book of Blood-Money (Diyyāt)

Book 48 · Issue 2 · Bab 3

Open in Qurani

Primary text

Establishing liability and imposing a fine solely based on the oaths of non-accused individuals, especially when contrary to established Prophetic legal principles, is not sound. The ruling of 'Umar in the incident involving the two tribes is considered secondary to the explicit Sunnah regarding evidence and oaths. The Sunnah, established by the Prophet (peace be upon him), prioritizes the claimant providing evidence and the defendant taking the oath over the practice observed by 'Umar. Furthermore, the case involving 'Umar may be interpreted as the accused admitting to accidental killing while denying intentional murder, leading them to be sworn regarding the intentional act. The practice of making oaths obligatory upon those who are not the defendants, and compelling them financially alongside confinement for the oaths, contradicts the established legal methodology.

Supporting text

Ibn al-Mundhir noted that the Prophet (peace be upon him) established the rule of requiring evidence from the claimant and an oath from the defendant, and he instituted the Qasamah (oath-taking procedure) specifically for a corpse found in Khaybar. The position held by the proponents of the opinion (of Abu Hanifa) deviates from these established Sunan.