Nukul (refusal to swear)

Nukul (refusal) is, in the lexicon, holding back from something out of cowardice; in the term, refusing to take an oath that has been required. The jurists differ over its nature (a surrender, an admission, or like producing evidence) and over whether a case may be decided by it. ¹

Nukul is the verbal noun of nakala, to shrink back or hold back; it is refusal to swear. Ibn 'Arafa defined it as the refusal of one on whom an oath is due to swear it. ¹ Oath (yamin). The strengthening of one side of a statement by naming God, or making a consequence depend on a condition. Oath ends the dispute at once; refusal does not. ¹ Admission (iqrar). Informing of a right owed to another by the one who informs. Refusal is, for some jurists, a substitute for admission. ¹

The jurists give four views. ¹ First: a surrender (bidhl). Abu Hanifa's view in matters on which an oath is taken. Matters on which no oath is taken, such as marriage, return in marriage, the return from ila', slavery, enslavement by a child, descent, patronage, penalties and li'an, do not admit surrender, so refusal does not apply. The argument: the oath is no longer binding with refusal, and refusal may be an admission, since it shows the refuser is lying, or a surrender, since the scrupulous man avoids a false oath. The surrender reading is preferred, since reading it as admission would mean calling the refuser a liar, while a surrender ends the dispute without accusation. ^{1 3} Second: an admission with doubt. Abu Yusuf and Muhammad hold that refusal in what may be admitted under law is an admission with a doubt, whether or not it allows surrender. Their reasoning: refusal shows the refuser is lying, since otherwise he would swear to fulfil the duty and avoid harm, so it is a partial sign, with the doubt of absence in it, since it is silence. ³ Third: not an admission; the oath returns to the claimant. The Shafi'is, and the Malikis outside accusation cases. In accusation cases (such as a claim against a craftsman or a thief), the Malikis count refusal as an admission in the prevailing view. ^{3 2} Fourth: like producing evidence, not like an admission. The Hanbalis hold this, since the refuser cannot be made an admitter of a right he denies, and refusal is not like surrender, because surrender may be a gift and none is given here. ³

The jurists differ on three views. ² First: the defendant is judged by refusal alone, with differences among some jurists about which claims. This is reported from Ibn 'Abbas, Uthman, Ali, Umar, Abu Musa al-Ash'ari, Shurayh, and one of two views of Ishaq ibn Rahawayh. The Hanafis take it in claims for property. In theft, the thief is made to swear on the property; if he refuses, he must return the stolen property, and is not cut. In claims for retaliation for a life, Abu Yusuf and Muhammad do not decide by refusal but for compensation (arsh or diya), while Abu Hanifa imprisons the refuser until he admits or swears. Retaliation for lesser injuries is decided by refusal, since limbs are treated as property. The prescribed penalties (hudud), such as fornication and drinking, are not decided by refusal; slander is disputed, and discretionary penalties (ta'zir) are decided by refusal. Li'an is not decided by refusal. In claims touching marriage, return in marriage, return from ila', slavery, enslavement, descent or patronage, Abu Hanifa does not decide by refusal, while the two companions swear the defendant and decide by refusal if he refuses. ² The prevailing Maliki view is that refusal alone decides an accusation claim, such as a claim that someone stole property: the claimant does not swear; the oath is laid on the defendant; if he refuses he is judged and must return the property. For the Maliki Ibn Juzayy, if the claimant brings one just witness, the rules vary: in property or what leads to it, he swears with his witness and is given his right; if he refuses, the oath returns to the defendant; in divorce or emancipation the defendant swears, and refusal is disputed (Ashhab decides, Ibn al-Qasim imprisons a year, Sahnun imprisons for ever); in marriage or return the witness counts for nothing. ^{2 4} Shafi'is. The school's rule is that the oath returns to the claimant and the defendant is not judged by refusal; where the oath cannot return, some companions decide by refusal, as when one who is asked to pay zakat claims he gave it to another collector. ⁴ Hanbalis. The defendant is judged by refusal alone in property claims or claims whose aim is property, as Ahmad reported and most of his companions held; in claims not aimed at property, such as retaliation for life or pure divine penalties (zina, drinking, theft), refusal decides nothing. Ahmad is reported to decide by refusal for retaliation below life and for slander, but the school's view is that nothing is decided by refusal in these. ⁵ Evidence for judging by refusal. From transmitted texts: Ibn 'Abbas's hadith "the proof is on the claimant and the oath on the one who denies", and the version "the oath on the defendant": the word "on" implies obligation; the oath is laid on the defendant, so if he swears he is cleared, and if he refuses he is judged. From the report of Salim ibn Abd Allah, that Ibn Umar sold a slave with a clean-title clause, and Uthman ordered him to swear that he knew of no defect; he refused and took back the slave. ⁵

The evidence for deciding by refusal, continued. From the reports: Ibn Abi Mulaykah, as judge in Basra, had two women dispute a bracelet; the claimant had no proof, the other refused the oath; he wrote to Abu Musa, who ordered him to recite to them the verse on those who sell God's covenant and their oaths for a small price, and then to offer the oath to the defendant, and if she refused, to judge against her. Shurayh judged by refusal before Ali, who said "qalun", that is, you are right. And the report of al-Harith: a man refused an oath before Shurayh, who judged against him; the man said he would swear, and Shurayh said "my judgement has passed". The judges of the Companions' time did not reject these rulings, so the judges held it a consensus that a defendant may be judged by refusal alone. By reason: the claimant's right against the defendant is an answer, admission, which he prevented by denying, so the law turned it into an oath as its substitute; when he refuses, the original right returns. Refusal shows the claimant's truth, as if he had brought proof. Refusal shows the defendant either surrenders or admits, since otherwise he would swear to discharge a duty and avoid harm. ^{6 7} The second view: the oath returns to the claimant. The defendant is not judged by refusal alone; the oath is returned to the claimant, who wins if he swears and loses the claim if he refuses. Reported from Ubayy ibn Ka'b, Zayd ibn Thabit (may God be pleased with him) and al-Miqdad, a report from Ali and Umar, and held by al-Awza'i, Ibrahim al-Nakha'i, Ibn Sirin, al-Sha'bi and Abd Allah ibn Utba; Ibn Abi Layla had two views. The Malikis take it in the claim of verification (tahqiq), where the claimant knows the thing's kind and quantity, such as a dinar or a garment of known description, when the defendant does not admit and there is no proof; and in property claims touching property, such as option or term, when he does not admit and the claimant has no proof; and one Maliki view for accusation claims. The Shafi'is take it in all claims. Abu al-Khattab al-Kalwadhani of the Hanbalis, approved by Ahmad and chosen by Ibn al-Qayyim, takes it too. ^{7 8} Evidence for the second view. From the text: "or they fear that oaths will be returned after their oaths" (al-Ma'ida), that is, after refusing the required oaths, the oath is moved from one side to another; and Ibn Umar's report that the Prophet ﷺ returned the oath to the claimant. By reason: refusal may come from ignorance of the facts, from scruple about swearing to what one does not know, from fear of the oath's consequence, or from disdain while knowing one is truthful; so refusal is not proof when there is doubt and possibility, and the refusal does not establish the claimant's truth, so no judgement may be given for him without proof; if he swears, his oath is evidence when nothing stronger exists. ⁸ The third view: imprisonment until he swears or admits. No judgement by refusal and no return of the oath; the refuser is imprisoned until he swears or admits the right, a view of the Hanbalis; Ibn Abi Layla says "I will not leave him until he swears or admits", and some rulings in the four schools follow this. The Hanafis in the oath of the blood-feud (qasama), when the claimant accuses all or some residents of a quarter without naming them, imprison those who refuse until they swear or admit, and do not judge by refusal nor return the oaths to the heirs of the dead, since the oath in the qasama is an end in itself, not a means to the blood-money: al-Harith ibn al-Azma' said to Umar "will you make us swear and fine us?" and Umar said yes; he also said "by what then is this blood invalidated?". The Malikis in the qasama imprison the refuser until he swears or dies in prison, the apparent school view; al-Jallab says that if the imprisonment lasts more than a year he is flogged a hundred lashes and released unless he is defiant, in which case he remains in prison for ever. One Shafi'i aspect, for cases where the oath cannot be returned to the claimant, such as the judge's claim of a debt found in the register of one who has no heir, imprisons the refuser until admission or oath. A Hanbali view imprisons the refuser in claims not about property. ^{8 9}

Some jurists hold that certain oaths are not returned by refusal: (a) the oath of accusation, due to the claimant when his accusation rests on doubt, since one in doubt does not swear; (b) the strengthening oath, asked of the claimant when there is proof and the judge doubts the justice of the witnesses or the defendant is absent, because returning it would let the oath cancel the proof, which is stronger; (c) the oath in slander, since a penalty is not averted by returning an oath; (d) the completing oath, the claimant's oath with one witness, since it stands in for testimony; (e) the oath of li'an, since it is like testimony against the woman, and was ordered to avert the penalty of zina from her; (f) the returned oath, when the claimant refuses the oath returned to him by the defendant's refusal, and gives no excuse or asks no delay: he loses his right, and may not return the oath, since a returned oath is not returned again. ¹⁰