Commentary: The Logic of Excluding Testimony in Early Islam

In chapter one of Justice and Leadership in Early Islamic Courts, Ahmed El Shamsy examines selected criteria used to exclude the testimony of certain types of witnesses in Islamic courts of the second century AH / eighth century CE. Specifically, the chapter seeks to make three points:

1. In the early second century, Muslim judges presiding over court cases applied a notion of communal enmity among confessional groups as a criterion for determining the admissibility of witness statements by members of one group against those of another. This criterion was used both in cases that crossed confessional lines and in cases involving coreligionists only.

2. Over the course of the second century, this criterion fell out of use and was replaced by other criteria for interconfessional testimony. These criteria included the a priori exclusion of witness statements by members of certain groups as well as individual ascertainment of the probity of potential witnesses.

3. The oral and cryptic nature of the sources from the early second century presented significant obstacles to later scholars’ understanding of the reasoning that underpinned the early criteria. They consequently opened the way for a fundamental reconceptualization of who counted as an acceptable witness.

Read the chapter.