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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 12 · Page 196Section

Translation · EN

If immoral individuals or children testify to it, does it constitute Lawth? There are two viewpoints: one is that it is not Lawth, because no ruling is attached to their testimony, so Lawth is not established by it, just as it is not established by the testimony of children and the insane. The second is that Lawth is established by it, because it is testimony that causes the predominance of the assumption of the truthfulness of the claimant, so it resembles the testimony of women and slaves. The statement of children is considered in granting permission to enter a house, accepting a gift, and the like. This is the school of al-Shafi'i. It is considered that the children should come separately so that collusion on lying does not occur. These aspects have been mentioned from Ahmad as constituting Lawth, because they cause the predominance of the assumption of the truthfulness of the claimant, resembling enmity. It has been narrated that this does not constitute Lawth, and this is the manifest implication of his words regarding the one who was killed in the crush; because Lawth is only established by enmity based on the case of the Ansarite who was killed in Khaybar, and it is not permissible to use analogy (Qiyas) upon it. This is because the ruling was established based on a likely indication (Mazannah), and it is not permissible to use analogy in such likely indications, for the ruling is only extended by the extension of its cause. Analogy in likely indications is a unification based merely on the wisdom and the predominance of assumptions, while wisdoms and assumptions differ and do not unite, they become disordered and are not restricted, and they differ with the variation of circumstances, conditions, and individuals. Thus, it is not possible to link the ruling to them, nor to extend it by their extension. Moreover, equality between the original case (Asl) and the derivative case (Far') regarding the requirement is considered in extension and analogy, and there is no way to reach certainty of equality between the two assumptions given the multitude of possibilities and their wavering. Therefore, according to this report, the ruling for these cases is the same as for others in which there is no Lawth.

Section: If two men testify against a man that he killed one of these two killed persons, this testimony is not established, and it would not be Lawth according to anyone whose view we know. If they testify that this killed person was killed by one of these two men, or one of them testifies that this person killed him and the other testifies that he confessed to killing him, or one of them testifies that he killed him with a sword and the other testifies that he killed him with a knife, the testimony is not established, and it would not be...

Notes

(16) Omitted from: B. (17) In M: "and it does not differ". (18) In M: "our scholars". An error. (19) In M: "that this".

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