speech, the opposite of which is muteness. Speech is stipulated because testimony requires it at the time it is given. If a person cannot speak, how can he give testimony? If you say, “He can give it by gesture,” we reply: A gesture does not yield certainty, whereas certainty is a condition of testimony. This is why the author says:

“The testimony of a mute person is not accepted.” He is one who cannot speak. Usually, a mute person cannot hear either; accordingly, he cannot testify concerning what is heard, though he may testify concerning what is seen. Nevertheless, the author says, “The testimony of a mute person is not accepted.”

“Even if his gesture is understood.” The word “even if” indicates a difference of opinion. Some scholars hold that if the mute person’s gesture is understood, it is accepted, because the Lawgiver has recognized gestures in all matters, as al-Bukhari mentioned in a chapter heading (1). Thus, gestures apply in all matters, acts of worship and transactions alike. Once the gesture is understood, certainty is attained. Consider: if a mute person were asked, “Do you testify that this man owes that man ten riyals?” and he nodded his head, saying yes, this would be as certain as if he had spoken. Thus, the claim that certainty is unattainable in the testimony of a mute person is incorrect. Rather, certainty may be attained even in his testimony.

Even if we do not say that he owes ten, but he points to one person as owing another, then raises his hand ten times, we understand it to mean one hundred riyals. A riyal may then be brought to him, it may be pointed out to him, and his gesture understood. In short, the sound and decisive view is that the testimony of a mute person is accepted if his gesture is understood. This is indicated by the fact that, if we were to say, “No—”