the other, and both are equally plausible with neither having any advantage, the matter falls under the [well-known] disagreement concerning a jurist exercising independent judgment who encounters conflicting evidence, none of which outweighs the other. One opinion holds that he may adopt whichever he wishes; another, that he adopts the more stringent position; and another, that he adopts the more lenient position.

Likewise, according to one opinion, the swearer treats his oath as unbroken. In matters of divorce, the basis for this is the certainty of the existing marriage bond; in an oath sworn by Allah, it is the presumption of freedom from liability. According to another opinion, he treats his oath as broken, on grounds of caution and because sexual relations may not be deemed lawful without certainty. According to a further opinion, he may choose either position. The basis for this is that, according to the sound view, a jurist exercising independent judgment is required to give a ruling and is prohibited from following another jurist’s opinion. Thus, when the evidence is equally balanced in his judgment, that very balance establishes his freedom to choose. This resembles the choice afforded to someone making expiation between freeing a slave, feeding the needy, and clothing them, or the choice afforded to someone who has had intercourse with two sisters as to which of them he will render unlawful to himself, and similar cases.

The second opinion is that neither the circumstances surrounding the oath nor people’s customary purposes in swearing oaths are taken into account. Rather, the oath is interpreted according to the apparent meaning of its wording if the swearer had no particular intention. An instance of this occurs in Sahnūn’s recorded hearings, in Ibn al-Qāsim’s own statement and his report from Mālik. Since the circumstances take precedence over customary usage, if the circumstances are disregarded, customary usage is all the more deserving of being disregarded. In my view, this disagreement follows their disagreement over general wording occasioned by a particular circumstance: should it retain its general scope, or be restricted to that circumstance?

The third opinion is that the circumstances surrounding the oath are taken into account, but customary usage is not. This opinion can be inferred from al-Mudawwana, since customary usage is disregarded in some of its cases. Examples include someone who swears not to eat eggs but eats fish roe, or swears not to eat heads but eats fish heads. In other cases, customary usage is taken into account, such as someone who swears not to enter a house but enters a mosque.

Section

All of this concerns cases in which the customary usage and intended meaning are only presumed. Where the customary usage and intended meaning are known with certainty, there is no disagreement that they must be taken into account. An example is a man saying, “By Allah, I will certainly lead so-and-so as a camel is led, and I will certainly show so-and-so the stars at midday.” Here it is known that the intended meaning differs from the literal wording, so the oath is interpreted according to his known intent, without disagreement. The evidence for