Chapter on Qasāmah

Introduction

Qasāmah (pronounced with an open qāf and an un-doubled sīn) is the verbal noun of aqsama, meaning “to swear.” The word is also used as a noun for al-qasm, “the oath,” and thus qasāmah denotes numerous oaths uttered emphatically.

In legal terminology, qasāmah refers to a series of repeated oaths taken in a claim involving the killing of someone whose blood is protected by law.

Its practical form is as follows: a corpse is discovered—whether bearing wounds or otherwise—the killer is unknown, and no admissible evidence identifies who committed the homicide. The victim’s heirs then accuse a specific individual of being the murderer, and circumstantial indications support their allegation.

These indications are many: prior enmity between the victim and the accused, the body being found in the accused’s dwelling, the victim’s belongings turning up in someone’s possession, and so on. In such a situation the claimants swear fifty oaths that the defendant is the killer, thereby earning the right to his blood. If they refuse to swear, the defendant is asked to swear fifty times; if he does so, he is acquitted. Should he in turn decline, judgment is entered against him because of his refusal.

The legitimacy of qasāmah is established in the Sunnah.

Qāḍī ʿIyāḍ said: “Qasāmah is an independent foundation of the Sacred Law, a basic rule among the principles of judgments, and a pillar of public welfare.”

This is the position of the majority of scholars among the Companions, their successors, and the leading imams.

Al-Wazīr (Ibn Hubayrah) stated: “The scholars have unanimously agreed that qasāmah is legislated when a slain person is found and his killer is unknown, thereby creating a specific exception within the general proofs.”