Mālik therefore said:
“It is admissible, for the two women together are treated as the equivalent of one.”

Al-Shāfiʿī replied:
“It is not admissible, because they have been accorded the status of a single witness only when they accompany one male witness—never by themselves and never in combination with anything else.”

A further question arises: may judgment be rendered on the basis of an oath in ḥudūd that are the private rights of individuals, such as slander (qadhf) and bodily injury? The school records two opinions on the matter.

Section Three: Refusal to Swear (nukūl)

With respect to establishing the claim against a defendant solely through his refusal to swear, the jurists have also differed. Mālik, al-Shāfiʿī, the jurists of the Ḥijāz, and a group of Iraqis hold that if the defendant declines the oath, nothing falls due to the claimant by that refusal alone unless the claimant himself takes the oath or produces a single witness.

Abū Ḥanīfah, his companions, and the majority of the Kūfans maintain that judgment is given for the claimant on the strength of the refusal itself in cases involving property, once the oath has been tendered to the defendant three times.

According to Mālik, the “reversal of the oath” (qalb al-yamīn) is confined to situations in which one male witness and two women are accepted, or one witness plus an oath. In al-Shāfiʿī’s view, the reversal applies in every case that requires an oath.

Ibn Abī Laylā says, “I reverse it in cases devoid of suspicion, but I do not reverse it where suspicion exists.” Within Mālik’s school, regarding the oath taken because of suspicion (yamīn al-tuhmah), does it become reversible or not? There are two opinions.

Those who allow the reversal rely chiefly on Mālik’s report that “the Messenger of Allah—may Allah bless him and grant him peace—reversed the oath in the case of the qasāmah, transferring it to the Jews after first beginning with the Anṣār.”

Another argument advanced by Mālik is that rights, in his view, are established only by one of two elements combined: either by an oath together with a witness, by a refusal together with a witness, or by a refusal together with an oath. The basis is his insistence on “two-fold” proof. Al-Shāfiʿī, however, does not judge on the basis of one witness plus refusal.

Those who judge on the mere refusal argue that, since testimony serves to affirm the claim and the oath to refute it, when the defendant refuses the oath the claim must be deemed proven. They further contend that transferring the oath from the defendant to the claimant contradicts explicit textual evidence, for the texts designate the oath as the duty of the defendant.

These, then, are the fundamental modes of proof upon which a judge relies.

The jurists also agree that a judge may issue a ruling on the basis of a letter sent to him by another judge. According to the majority, however, this is permissible only when the letter is accompanied by testimony—that is, when the first judge, in whose court the ruling has been established, calls two upright witnesses to attest that the ruling recorded in the letter is indeed confirmed before him. The two witnesses then testify before the second judge that the letter is from him and that he had them witness the ruling’s confirmation. Others have said that the judge’s mere handwriting suffices, and that this was the earlier practice.