Book of Qasāmah (the Collective Oath Procedure)
The jurists have disagreed over qasāmah in four principal questions that serve as the foundations for the subsidiary rulings of this chapter:
First Question
Is it obligatory for the judge to apply qasāmah, or not?
Second Question
If we say it is obligatory, does it establish liability for blood-retaliation, for the diyah, or does it merely ward off an unsupported claim?
Third Question
In taking the oaths, do the claimants begin or the defendants? How many of the heirs must swear?
Fourth Question
What constitutes circumstantial evidence (lawth) that requires the claimants to take the oaths first?
Issue One
With respect to the general obligation to rule by qasāmah, the majority of the jurists of the provinces—Mālik, al-Shāfiʿī, Abū Ḥanīfah, Aḥmad, Sufyān, Dāwūd and their followers, along with many others—affirm that it is obligatory.
A group of scholars, however—Sālim ibn ʿAbd Allāh, Abū Qilābah, ʿUmar ibn ʿAbd al-ʿAzīz and Ibn ʿUlayyah—state that judgment by it is not permissible.
The majority rely on what has been established from the Prophet—may Allah bless him and grant him peace—in the report of Ḥuwayyiṣah and Muḥayyiṣah, a ḥadīth whose authenticity is unanimously agreed upon by the scholars of ḥadīth, though they differ over its precise wording, as will be detailed later.
The second group argue that qasāmah contravenes established principles of the Sacred Law. One of these principles is that no one may swear except to what he knows with certainty or has perceived with his senses. How, then, can the blood-heirs take an oath when they did not witness the killing—indeed, they may be in one town while the murder occurred in another?
For this reason al-Bukhārī narrates from Abū Qilābah that ʿUmar ibn ʿAbd al-ʿAzīz once brought his couch out to the people, then admitted them. He asked, “What do you say concerning qasāmah?” The people became agitated and replied, “We say