They also differed over whether the outward ruling of a judge can dissolve or contract the bond of marriage when, in reality, the marriage is not valid—for a judicial decision, taken merely on appearances, can neither render the unlawful lawful nor the lawful unlawful unless the underlying reality agrees with it. Does this rule apply here or not?

The majority maintain that property and sexual relations stand on the same footing: a judge’s verdict does not make anything forbidden permissible, nor anything permissible forbidden. For example, if a false witness testifies that an unrelated woman is the wife of a certain man when she is not, the majority hold that she does not become lawful to him even though the judge has so ruled on the basis of outward evidence.

Abū Ḥanīfah and most of his associates, however, say that she does become lawful to him.

The majority rely on the general wording of the ḥadīth cited earlier. The Ḥanafīs, by contrast, reason that the ruling in cases of mutual imprecation (liʿān) is established by revelation. In liʿān it is certain that one of the two parties is lying, yet the procedure nonetheless annuls the marriage, forbids the woman to the husband who imprecated her, and makes her lawful to another man. If he is the liar, she did not become forbidden to him except by the judge’s verdict; and likewise if she is the liar, for her adultery, according to most jurists, does not in itself dissolve the marriage. The majority respond that the separation brought about by liʿān is a punitive measure, enacted because it is known that one of the two spouses is lying.

Chapter Three
The Means by Which Judgments Are Rendered

Judgment is issued on the basis of four things: testimony, an oath, refusal to swear, and confession, or on a combination of these. This chapter therefore contains four sections.

Section One: Testimony

The consideration of witnesses concerns three matters: their qualifications, their gender, and their number.

The qualities required in a witness, taken overall, are five: probity, adulthood, Islam, freedom, and the absence of any grounds for suspicion. Some of these are matters of consensus; others are disputed.

Probity. The Muslims agree that probity is a prerequisite for the acceptance of testimony, in view of the Almighty’s words:

“from among those you approve as witnesses” (al-Baqarah 2:282),

and His words,

“And call to witness two just men from among you” (al-Ṭalāq 65:2).

They differ, however, about what probity actually means. The majority define it as a quality over and above mere Islam: that a person keep the obligatory and recommended acts of the Law and avoid its prohibitions and disliked matters. Abū Ḥanīfah holds that outward Islam and the absence of any known blemish are sufficient.

As noted earlier, the root of the disagreement lies in their understanding of “probity” as opposed to “iniquity,” for they all concur that the testimony of an open sinner is inadmissible, citing the Almighty’s words:

“O believers, if a sinful person brings you news, verify it…” (al-Ḥujurāt 49:6).

Nor do they dispute that the testimony of such a person is accepted once his repentance is established, except