The Messenger of Allah—may Allah bless him and grant him peace—thereupon said to them, “Will you take the oaths and thus become entitled to your companion’s blood?” A similar wording appears in the mursal report of Bashīr ibn Yasār, where he relates that the Messenger of Allah—peace and blessings be upon him—asked, “Will you swear fifty oaths and thereby claim the blood of your companion—or of the one who killed him?”

Those who maintain that qasāmah establishes only the payment of the blood-money argue as follows: under the Sacred Law oaths are acknowledged to have an effect in establishing financial claims. This is evidenced by the rule that property may be awarded on the basis of an oath paired with a single witness, as well as by the liability that arises when a defendant refuses to swear—or when, upon his refusal, the oath is transferred to the plaintiff for those who allow that procedure.

They further point out that the narration transmitted by Mālik from Ibn Abī Laylā is weak, because the latter is an unknown transmitter from whom no one besides Mālik has reported; it is also said that he never directly heard from Sahl. As for the ḥadīth of Bashīr ibn Yasār, its chain of transmission is disputed: Mālik relates it in mursal form, whereas others transmit it with a continuous isnād.

The Qāḍī observes: this very weakness appears to be the reason al-Bukhārī did not include either of these ḥadīths. Their position is further reinforced by analogy, together with the report from ʿUmar—may Allah be pleased with him—in which he said, “There is no retaliation through qasāmah; only the diyah is established by it.”

As for those who hold that qasāmah serves merely to dismiss the claim, their principal proof is the foundational rule that the oath rests with the defendant; the ḥadīths supporting this view will be cited later, God willing.

Third Issue

Among the scholars who uphold qasāmah—those who say it may entail either financial compensation or retaliation—there is a difference of opinion, based on the transmitted reports, over who begins with the fifty oaths. Al-Shāfiʿī, Aḥmad, Dāwūd ibn ʿAlī and others say that the claimants begin, whereas the jurists of Kūfah and Baṣrah and many scholars of Madīnah say that the defendants take the oaths first.

The chief evidence for starting with the claimants is the ḥadīth of Mālik from Ibn Abī Laylā, on the authority of Sahl ibn Abī Ḥathmah, together with the mursal report of Bashīr ibn Yasār. Those who begin with the defendants rely on the report recorded by al-Bukhārī from Saʿīd ibn ʿUbayd al-Ṭāʾī, from Bashīr ibn Yasār, concerning an Anṣārī man named Sahl ibn Ḥuthmah, in which:

“The Messenger of Allah—may Allah bless him and grant him peace—said, ‘Can you produce evidence against the one who killed him?’ They replied, ‘We have no evidence.’ He said, ‘Then they shall swear on your behalf.’ They responded, ‘We are not satisfied with the oaths of the Jews!’ The Messenger of Allah—peace and blessings be upon him—disliked leaving his blood unavenged and therefore paid the blood-money himself: one hundred camels from the camels of al-Ṣadaqah.”

The Qāḍī concludes: this text is explicit that the fifty oaths confer nothing beyond the dismissal of the claim.