Because he considered it obligatory that the ḥadd be multiplied in proportion to the number of slanders—for when both the number of people slandered and the occurrences of slander increase together, it is all the more imperative that the penalty be repeated.

As for its remission, the jurists disagreed about whether the ḥadd can fall by the pardon of the person slandered. Abū Ḥanīfah, al-Thawrī, and al-Awzāʿī hold that such a pardon is invalid; consequently, the ḥadd is not waived. Al-Shāfiʿī, however, maintains that the pardon is valid—that is, the ḥadd is dropped—whether or not the case has already reached the imam. A third group says: if the matter has reached the imam, pardon is no longer permissible, but if it has not yet reached him, it is. Mālik’s position is reported in both directions: at one time he agreed with al-Shāfiʿī, and at another he said that pardon is effective so long as the case has not been brought to the imam, but once it has, it is not—unless the slandered party means by his pardon to shield himself, which is the view most commonly ascribed to him.

The root of their disagreement is whether this penalty is a right of God, a right of human beings, or a joint right. Whoever says it is God’s right does not allow pardon, just as in the case of adultery. Whoever views it as a human right permits pardon. And whoever regards it as a joint right, yet gives precedence to the imam’s share once the matter reaches him, distinguishes between whether it has reached the imam or not—drawing an analogy with the report concerning theft. The chief argument for those who say it is a human right—and this is the more persuasive view—is that if the slandered person himself confirms the accusation, the ḥadd is automatically waived.

Regarding who enforces the ḥadd, there is no disagreement that in cases of slander it is carried out by the imam.

They also concur that together with the ḥadd the slanderer’s testimony is discarded unless he repents. They differed, however, once he repents. According to Mālik—and the same is reported from al-Shāfiʿī—his testimony becomes admissible. Abū Ḥanīfah, by contrast, holds that his testimony is never accepted.

The cause of their difference lies in whether the Qurʾānic exception refers to the entire preceding statement or only to the closest phrase, in the Almighty’s words:

“Do not ever accept their testimony, for such people are rebellious sinners” (al-Nūr 24:4),

“except for those who repent” (al-Nūr 24:5).

Those who restrict the exception to the nearest phrase say that repentance removes the state of sin but does not rehabilitate the person’s testimony. Those who extend the exception to both clauses say that repentance removes both the charge of sin and the disqualification from testimony—arguing that to lift the sin while continuing to reject the testimony is legally incongruous, for once depravity is removed, testimony should be accepted. All agree that repentance does not annul the ḥadd.

As for the evidentiary requirement, they are unanimous that the offense is proved by the testimony of two upright, free, male witnesses.

Within Mālik’s school, however, there is discussion over whether one witness plus an oath, or the testimony of women, suffices; whether an oath is obligatory in such a claim; and, if the defendant refuses to swear, whether he is liable to the ḥadd by reason of that refusal together with the claimant’s oath. These are the foundational principles of this chapter upon which its subsidiary questions rest.

The judge states: If God grants length of days, we shall compose a systematic book on these subsidiary matters according to the school of Mālik ibn Anas, arranged in technical order, since this is the prevailing school in this island—namely Andalusia—so that the reader may exert himself in ijtihād within Mālik’s school; for, in my estimation, to gather every single narration would outstrip the span of one lifetime.