in terms of need and leniency regarding them. It is not valid to analogize it to the testimony of the original witness due to the difference we have mentioned, so its substantiation is invalid. The apparent meaning of Ahmad’s words is that it is not accepted in retaliation (qisas) either, nor in the punishment for slander (qadhf), because he said: 'It is only permissible in rights; as for bloodshed and prescribed punishments, no.' This is the opinion of Abu Hanifa. Malik, al-Shafi'i, and Abu Thawr said: It is accepted. This is the apparent meaning of al-Khiraqi’s words, due to his statement: 'in everything, except in prescribed punishments.' This is because it is a right of a human being that is not dropped by retracting a confession, and it is not recommended to conceal it; thus, it resembles property. Our companions mentioned this as a narration from Ahmad, because Ibn Mansur reported that Sufyan said: 'The testimony of one man in place of another in divorce is permissible.' Ahmad said: 'How excellent is what he said!' Thus, our companions treated it as a narration regarding retaliation. However, this is not a narration, for divorce does not resemble retaliation. The school (madhhab) holds that it is not accepted in it, because it is a bodily punishment that is averted by doubts and is based upon dropping it; thus, it resembles prescribed punishments. As for that which is other than prescribed punishments, retaliation, and property—such as marriage, divorce, and everything else that is not established except by two witnesses—Ahmad stated explicitly that it is acceptable in divorce and rights, which indicates its acceptance in all such rights. This is the opinion of al-Khiraqi. Ibn Hamid said: It is not accepted in marriage. A similar view is held by Abu Bakr. According to their view, it is not accepted except in property and what is intended as property. This is the opinion of Abu 'Ubayd, because it is a right that is not established except by two witnesses, so it resembles the punishment for slander. The reasoning for the first view is that it is a right that is not averted by doubts, so it is established by testimony [upon testimony], like property, and by this, it differs from prescribed punishments.

Third section: Regarding its conditions. It has three conditions. The first is that the testimony of the original witness must be impossible to obtain due to death, absence, illness, imprisonment, or fear from a ruler [or other]. This is the opinion of Malik, Abu Hanifa, and al-Shafi'i. It is narrated from Abu Yusuf and Muhammad that it is permissible even with the ability to produce the original witness, by analogy to the transmission of reports and religious matters. It is reported from al-Sha'bi that it is not accepted unless the original witness dies, because if they are both alive, their presence is hoped for, and thus they are like those who are present. A similar view is narrated from Ahmad, except that the judge interpreted it as applying to death and what is in its meaning, such as absence.