remember it, or does not dare to speak of it. He himself is then responsible for losing his right, since he failed to present his evidence. The judge ruled only with knowledge and justice; this man’s loss resulted from his own inability and negligence, not from the judge.

The same applies to the evidence for legal rulings. If two reports conflict, one reliably established with a connected chain of transmission and the other with a gap in its chain, the established, connected report is stronger than the disconnected one. This is known, because the narrator of the former is known to be upright and accurate, whereas the uprightness and accuracy of the other are unknown. It is like two witnesses, one whose uprightness has been attested and another whose uprightness has not: the accredited witness carries greater weight, although the other’s statement may in fact be true. Nevertheless, the jurist exercising independent judgment has acted only upon knowledge—his knowledge that one is stronger than the other. He is not someone who follows nothing but conjecture. This became clear to him only after exhaustive investigation into the person who transmitted that hadith with a gap in its chain and into the accreditation of this witness.

The narrator in the disconnected report may indeed be upright and accurate in his retention, just as this witness may be upright. We do not know that the narrator lacks uprightness; rather, we lack knowledge of the uprightness of either him or the witness. Their uprightness may remain unknown despite its actual strength and preponderance. This is where error arises in independent judgment. Yet no scholar can require the jurist to abandon what he knows in favour of something he does not know merely because it may actually be established.

If one of the two positions must be preferred, then what is known to be established must be preferred over what is not known to be established, even though the latter is not independently known to be absent. For if the two