and his gesture were not understood, rights would be lost. In reality, we have two sides to consider: the side of the defendant and the side of the claimant. If someone were to say, “If you act upon the testimony of a mute person, you harm the defendant, because you have ruled against him on the basis of something that is not certain,” we would reply: If we do not accept his testimony, we harm the claimant’s side and neglect his right. Thus, there are two sides, both of which must be taken into consideration. If the mute person’s gesture is understood, what prevents us from accepting it? In truth, there is nothing to prevent it. It is therefore incumbent upon the judge—and upon anyone else who adjudicates between people—to rule on the basis of a mute person’s testimony when his gesture is understood.

His statement, “Except when he gives it in writing”: then it is accepted, because writing establishes certainty and is recognized in the Sacred Law. Allah Most High says:

“Let no scribe refuse to write as Allah has taught him; so let him write.” [al-Baqarah 2:282]

The Prophet ﷺ said: “No Muslim who has something to bequeath has the right to spend two nights without having his will written down with him.” (1)

The Prophet ﷺ also established proof against the disbelieving kings through writing: he wrote to Khosrow, Caesar, and the Negus, calling them to Allah Most High. (2) Thus, writing is a legally valid proof according to the Quran and the sunnah. Therefore, if this mute person gives his testimony in writing, we accept it, because writing establishes certainty. This is clear.

Accordingly, a mute person falls into three categories:

The first is one whose gesture is not understood and whose writing is not understood. His testimony is not accepted, without any difference of opinion, because there is doubt regarding what this testimony signifies.