swear, or I shall rule against you for refusing to do so.’ It is recommended that the judge repeat this three times, so that the defendant will have no excuse. The oath is not then returned to the claimant.
- The second view, held by the two imams Mālik and al-Shāfiʿī, is that the oath is returned to the claimant; if he swears, judgment is entered in his favour. This was also the position of ʿAlī ibn Abī Ṭālib, Shurayḥ, Ibn Sīrīn, al-Awzāʿī, al-Nakhaʿī, and was preferred by Abū al-Khaṭṭāb, Shaykh al-Islām, and his student Ibn al-Qayyim.
Ibn al-Qayyim argued for this opinion by noting that the Lawgiver allowed a single witness to be supplemented by the claimant’s oath; the defendant’s refusal (nukūl) is weaker than a single witness, so it is even more appropriate to grant judgment after the claimant swears. The refusal is neither evidence produced by the defendant nor a confession; it is a feeble proof and cannot by itself justify a ruling. When, however, the claimant’s oath is added, his side is strengthened: the defendant’s refusal together with the claimant’s oath take the place of two witnesses, or of one witness plus an oath.
2- He further said: The correct view is that refusal to swear stands in the place of a witness and admissible proof, not in the place of a confession or voluntary payment, because the one who refuses has explicitly denied the claim, maintains that he owes nothing, and persists in that denial while shrinking from the oath. How, then, can it be said that he is confessing while he insists on denying, thereby making himself out to be a liar?