Ta'arud (conflict between proofs, and how one is preferred)

Conflict (ta'arud) is the mutual resistance between two evidences, so that one demands what the other does not; if joining them is impossible, one prefers the stronger. ^{1 2}

Contradiction (tanaqud) is mutual denial that cannot coexist or cease together, while conflicting things may cancel each other. Dispute (tanazu') is wider. ²

If two evidences conflict and can be joined they are joined; if not, one prefers. The term is used mostly of testimony; the principles are in the entry on the foundations of law. ²

The Hanafis, in a dispute between two claimants over a thing in a defendant's hand, prefer the outsider's proof if one dates it; Abu Yusuf prefers the one who dates, and if both date with the same ownership, the earlier date wins; if the thing is in a third party's hand both share it. Number of witnesses and extra probity are not weighed. ^{2 3} The Malikis prefer the more upright witnesses in the known view, two witnesses over a witness and an oath, and proof with an earlier date or a stated cause of ownership; ownership is preferred over possession, and the transmitting proof over the one that assumes continuity. If both are cancelled, the thing stays with its holder on his oath. ³

If the thing is in one party's hand and each brings proof, the holder's proof prevails and the other's is not heard until the claimant's is heard. If the thing is in a third party's hand and both bring proof, both are cancelled and the holder swears to each; other views divide it, cast lots, or wait until they agree. Adding witnesses to one side does not prefer it in the school. ⁴

The known view of Ahmad prefers the proof of the claimant; another narration prefers the holder's proof if it states the cause of ownership, on the hadith of Jabir about the camel; Abu al-Khattab held the holder's proof always prevails. The first view reasons that the proof of the claimant establishes what did not exist. ^{5 6}

Penalties of God are averted by doubts; a full proof of an act, opposed by a proof of its absence, is preferred if the latter is the stronger; the Hanafis say a defendant who claims a doubt without proof is cleared. The Malikis weigh the time of seeing or of the claim, in cases of sanity or madness. ⁶

The entry continues past p.5353 on conflicting evidence in various rights.

Impeachment (jarh) takes precedence over praise (ta'dil) for the Hanafis, Shafiis, Hanbalis and in one Maliki view, since the impeacher has extra knowledge and assertion outweighs denial. Impeachment and praise need two men in most schools, while Abu Hanifa and Abu Yusuf accept one, since for them they are reports. The Shafiis and Hanbalis require the cause to be stated in impeachment but not in praise. When two praise and two impeach, the Malikis have two views: judge by the more upright, or by the impeachment, which adds knowledge of the hidden. Al-Khumi distinguishes one sitting, nearby sittings and distant sittings. ^{7 8}

The Hanafis are the most lenient: no one leaves the faith except by denying what admitted him to it, and one is condemned only for what is certain, since established Islam is not removed by doubt; the jurist must not declare a Muslim an unbeliever where his words can bear a good meaning. The Malikis hold that if a proof or sign calls for no killing, it prevails; they differ on accepting the excuse of one who apostatised soon after converting. ⁸

A general rule: if prohibition and permission conflict in one act, prohibition prevails, so the offspring of a lawful and an unlawful animal is forbidden. If an obligation conflicts with a prohibition, the obligation prevails, as when the dead of Muslims are mixed with the dead of unbelievers, and all are washed and prayed over. When two obligations conflict, the stronger prevails: individual duty over communal duty, and the Friday prayer over the funeral when time is short. The more excellent of two virtues prevails. ^{8 9 10} When one proof forbids and another permits, the prohibition prevails, explained by the uses of abrogation; Uthman said of the marriage with two sisters by possession: one verse made them lawful and one forbade them, and prohibition is dearer to us. A breach of an oath prevails over keeping it. ¹⁰ The jurists prefer the specific over the general in most cases, since the specific intended by a general word is the common case while abrogation is rare. ^{10 11} A forced man may eat carrion but not game when in the state of pilgrimage, on Malik's view; a praying man who has only silk or a soiled garment prays in the silk. ¹¹

The original state is that what was remains; the apparent is what is likely. The original is innocence of the debtor, so the defendant's word stands; the Shafiis and Hanbalis have detailed rules. ^{11 12}

The Malikis and Hanbalis prefer the word over the gesture, as in the prostration on the forehead and the nose. The Hanafis alone allow prostration on the nose alone, preferring the gesture, while the majority allow the forehead alone; the word fixes the meaning and the gesture may not. The Shafiis prefer the gesture in phrases such as «I pray behind this Zayd», and the Hanafis in sales by gesture to a class. ^{12 13 14}

The conflict between the textual proofs is in the appendix on the foundations of law. ¹⁴