It was the dispute between the
caliph and Fatima (s) when she argued that the Prophet
(s) had donated Fadak to her. Imam Ali and Umm Aymen
witnessed of that but the caliph refused Fatima’s claim[1]
and was not satisfied with these two witnesses and asked
her to bring two men or a man and two women as
witnesses.
1. The first thing that we would
blame Abu Bakr for was his situation in this case as a
ruler in spite of that his caliphate did not gain the
legal quality until that day at least. [2]
But now we do not want to study this blame because such
argument will take us to wider horizons.
2. The second note about the subject is that if Fadak
was with Fatima, then she would not have to have any
evidence. There were two things about this note:
First: in whose possession Fadak was?
Was it really in Fatima’s possession? We could understand
that from the letter of Imam Ali to Othman bin Hunayf: “Yes,
Fadak (only) was in our possession away from all what were
under the heaven but some
people became
stingy with it and others turned away from it”. [3]
This means that Fadak was in the Prophet’s family’s
possession. This was confirmed by the traditions of the
Shia.
The meaning of Imam Ali’s speech showed
that Fadak was in Imam Ali and Fatima’s possession and it
could not be interpreted as it was in the Prophet’s
possession; first because the Prophet’s possession meant the
Prophet’s family’s possession and second because the Prophet
had his own properties other than Fadak.
Second: was possession as evidence of
ownership? Yes, the Muslims agreed on this unanimously. [4]
If it was not so, the social system of the human life would
be disordered.
Someone might object by saying that if Fadak was in Fatima’s
possession, so why she did not protest with this evidence.
It would suffice for her than to claim it was donated to her
and to protest with the Quranic verses of the inheritance.
In the documents of the Shia about this case there was an
answer to this objection for they mentioned the protest of
the Prophet’s family against the caliph by means of the very
evidence but we did not want to study the case in the light of
something of that.
But we should notice that Fadak was
a very wide land and was not like small properties,
whose possession would be known easily. If we supposed
that Fadak was in Fatima’s possession and it was
undertaken by her agent, who managed it, so who would
know this other than the agent?
We knew well that Fadak was not
near Medina so that the people of Medina would know
about its affairs or the person, who managed it. It was
at a distance of some days from Medina and it was a
Jewish village.
[5] It was not in the Islamic
environment to be known among the Muslims that it was in
Fatima’s possession.
Fatima thought if she claimed her
possession of Fadak that the caliph would ask her for
evidence as he asked her about the donation as long as
he-in her opinion-was controlled by a prevailing power
of his tendency that did not make him confess anything.
It was easy for the (whale) on that day to swallow
Fatima’s agent of Fadak and anyone else, who knew the
truth, as it swallowed Abu Sa’eed al-Khidri and
prevented him from telling the truth of the donation of
Fadak whereas he told of it after that as it was
mentioned in the Sunni and Shia books, or it was easy
for the jinn to kill as they killed Sa’d bin Obada and
relieved the caliph Omar[6]
from him, or to accuse anyone of being apostate if he
refused to give the zakat to the caliph as those, who
refused to give the zakat of the Muslims to the
caliph Abu Bakr, were accused. [7]
3. Let us leave this argument aside to
get to the basic matter, which is: did Abu Bakr believe in
the infallibility of Fatima and the verse of purification,
which purified the Prophet’s family, among which was Fatima,
from any sin or not?
We do not want to discuss in details
the concept of infallibility or to prove it for Fatima by
the verse of purification because the books of the Shia
about the virtues of the Prophet’s family suffice the task.
We do not doubt that the caliph was aware of that because
his daughter Aa’isha herself often narrated that the verse
of purification concerned Fatima, her husband and her two
sons[8]
as it was declared by the Sunni and Shia books of Hadith.
Whenever the Prophet (s) went to the mosque to offer the
Fajr[9]
prayer, after the revelation of this verse, he passed by
Fatima’s house and called out: “O people of the house, it is
the (time for) prayer.
(Allah
only desires to keep away the uncleanness from you, O people
of the House! and to purify you a (thorough) purifying.
Quran 33:33)”
He kept on that for six months. [10]
So why did Abu Bakr ask Fatima for
evidence? Did the claim, whose truthfulness was certified,
need evidence?
Those, who objected to Abu Bakr, said: “Evidence is needed
to confirm the truthfulness of the claimant, but being
certain (of the claimant’s truthfulness) is firmer (than the
evidence). If it is necessary to judge for the one, who has
true evidence, it must be judged for the
one, whose truthfulness is known by the judge.”
There is a weakness in this
justification because the comparison did not occur between
the evidence and the certainty of the judge in addition to
the actual reality, but it considered the effect of each of
them on the judge and the result was that knowledge was to
be firmer than the evidence because certainty was firmer
than supposition. The comparison had to regard the nearest
of the two to the truth that was to be regarded in every
dispute. The knowledge of the judge, in this kind of
comparison, was not to be preferred to the evidence because
a judge might mistake as evidence might mistake. Both of
them were equal in the regard of falling into error.
But there was something in the matter that the researchers
ignored. It was impossible for the caliph’s knowledge about
Fatima’s truthfulness[11]
to be but the truth because the reason behind his knowledge
of her truthfulness was not of those reasons that might lead
to errors or mistakes but it was the holy Quran, which
declared her infallibility. [12]
In the light of this quality of knowing Fatima’s
truthfulness, we could determine that the evidence, even if
it was the legal proof, on which the judgment would depend,
might fall into error. But the knowledge that could never
fall into error, because of the witness of Allah, was
worthier to be relied on when judging.
In another way we say: if the holy
Quran had declared Fatima’s ownership of Fadak, then the
matter would not have had any way of doubting or hesitating
for any Muslim to judge. It was much clear that declaring
the infallibility of Fatima by the holy Quran would strongly
confirm her claim about her donation because the infallible
would never lie and whenever claiming, the claim was
definitely true. There would be no difference between
determining the infallibility and determining the donation
as related to the case, except that the ownership of Fadak
by Fatima (s) was the literary meaning of the second text
(the tradition) and the perceived concept of the first text
(the verse) via its literary conception.
4. None of the Muslims ever doubted
about Fatima’s truthfulness and no one ever accused her of
fabricating but the dispute arose between the disputers that
whether knowing the truthfulness of the claim would be
sufficient evidence for judgment or not. Let us put the
verse of purification aside for a moment and suppose that
Abu Bakr was like anyone of the other Muslims and then his
knowledge of Fatima’s truthfulness did not have the quality
we referred to in the previous point but it was as the rest
of thoughts, which would be liable to errors and mistakes.
But nevertheless the ruler might judge according to his
knowledge[13]
or he might depend on the evidence as it was mentioned in
the holy Quran. Allah said:
(..and
that when you judge between people you judge with justice.
4:58)
and:
(And
of those whom We have created are a people who guide with
the truth and
thereby they do justice. 7:181),
which means that they judge with justice.
There are two
notes about truth and justice:
First: truth and
justice as an actual and real
matter.
Second: truth
and justice according to the judicial criteria.
So judgment according to the evidence is right and just
in the light of this note even if it fails in error. In
opposition to that, judgment according to the witness of
a sinner (fasiq) is neither right nor just even if the
sinner is truthful in his saying.
If the two previous verses referred
to the first meaning of truth and justice then they
would show that judgment according to the actual reality
was to be true with no need to the evidence. If the
ruler found someone’s ownership of a certain property,
he could judge of that because he thought it was the
fixed truth according to the actual reality. His
judgment for that person of being the owner of that
property would be the confirmation-in his opinion-of
judgment with truth and justice that Allah had ordered
to be followed. But if we interpreted the two verses
according to the second meaning that was according to
the judicial criteria hence the two verses could not be
of any use in this concern because they did not
prove-then-that any judgment would be right and
according to the criteria! And which judgment would be
but so?
It was clear that the concept understood from the verses
referred to the first meaning and specially the word
truth
because whatever was described by this word would be
understood that that thing was a fixed true matter. So
to judge with truth was as determining a fixed fact. The
form of the first verse showed that. It included
judgment with justice.
It was clear that the
application of the Islamic rules in the case of a dispute
would not need a legal order because their very legislation
as law for judgment meant that they must be applied. And so
the order of keeping to the law would not be but to remind
and to warn and had nothing to do with the essence of the
matter. The order of judging according to the actual facts,
whether they had evidence and witness or not, was a part of
the essence of the matter because it was a new determination
showing that the reality was the basis of the Islamic
judgment and the axis, around which it should turn without
being limited to formalities and special evidences. [14]
Then the two verses were considered as evidence of
respecting the judge’s knowledge in the Islamic judicial
laws. [15]
It was mentioned in at-Tabaqat al-Kubra
by ibn Sa’d[17]
that Abu Sa’eed al-Khidry had said: “I heard the caller of
Abu Bakr, when he received a sum of money from Bahrain
calling in Medina: “Let whoever the Prophet (s) had promised
to gift, come to us”. Many men came to him and he gave them
money. Abu Basheer al-Maziny came to Abu Bakr and said: “The
Prophet (s) said to me: O Abu Basheer, come to us if we get
something (of money)”. Abu Bakr gave him two or three
handfuls. After counting them they found that they were one
thousand and four hundred dirhams”.
If Abu Bakr did not ask anyone of the
companions about any evidence so why did he ask Fatima for
evidence regarding her gift?
Did the judicial system apply to Fatima
alone or were there special political circumstances behind
all that?
It was really odd to accept a companion’s claim of being
promised by the Prophet (s) to be given a sum of money and
to deny the claim of Fatima, the
Prophet’s daughter, just because she
did not find evidence to prove what she claimed.
And if knowing the truthfulness of the
claimant permitted to give him what he claimed,
was not Fatima more deserving of not
being suspected by he, who did not suspect Jabir or Abu
Basheer of lying?
If the caliph did not give those, who
claimed that the Prophet had promised them of what they
asked for according to their claim but according to the
possibility of their truthfulness-and the imam had the right
to give anyone any sum-then why would not he do the same
with the case of Fadak?
Thus the caliph fulfilled the Prophet’s
promises, which had no evidence, and ignored his (the
Prophet’s) donation to his daughter, the head of the women
of the world. The question about the difference between the
debts and promises on one hand and the donation on the other
remained without an acceptable answer!
5. Let us resume our argument in a new
way: that the ruler could not judge the claim that he
already knew its truthfulness if the claimant could not find
any evidence proving his claim and let us for now ignore the
result we got in the previous point to ask according to this
account:
First: What prevented Abu Bakr from witnessing to the
donation of Fadak if he had known the truthfulness of Fatima
(s)? He could join his witness to Imam Ali’s witness[18]
and so the evidence would be sufficient and the right would
be fixed. And since he himself was the judge, it would not
annul his witness because the witness of the judge[19]
was to be taken into account and it
was not irrelevant to the legal evidence, which would be
the reference in the disputes.
Second: about the acceptable
interpretation showing that the caliph ignored the
reality that was well known for him. In order to explain
this point, we had to differentiate between two things
that confused the researchers, who studied the case.
One: it was to judge for the
claimant what she claimed.
The other: it was to carry out the
effects of the actual reality.
If we supposed that the first was limited to the
evidence, the other would be obligatory because it was
not a judgment to be bound to its limits. If someone
knew that his house belonged to another and he handed it
over to him, this would not be a confession of his
ownership but it would be carrying out the judgments
determined by the law. Also if someone claimed before
the judge that the house, which was in his possession,
was his own then the judge and anyone of the Muslims had
to consider that house as any of the other properties of
that claimant. This did not mean that the judge judged
that the house was the claimant’s property according to
the principle of the possession of the hand[20]
or being under one’s control. The Muslims got themselves
to follow this judgment. In fact even if there was no
judge among them, they must keep to that. Neither the
controlling of a property nor the possession of the hand
were among the criteria of judgment in the Sharia but
they made it necessary to apply the judgments of the
actual reality.
The difference between the judgment of
the judge about someone’s ownership, or his sinfulness or
any of the other affairs, which the judge’s authority held,
and between the application of the effects of these matters
was that judgment decided the dispute that was to be
considered as an excellence of the judgment. It meant that
if the judge pronounced a judgment, it would be prohibited
for all the Muslims to annul it and it would be obeyed
without looking for any other excuse but to the very
judgment.
But as for the judge’s application of
the effects of the ownership without judgment, would not
have that regard and not every Muslim had to follow it and
to carry out those effects except if he (any Muslim) got the
knowledge of that as what the judge got.
The result: if the caliph knew of
Fatima’s ownership of Fadak, it would be compulsory for him
not to make use of it in any way she disliked and he was not
to extort it from her whether it was permissible for him to
judge according to his knowledge or not. There was no any
other disputer in the case, who would dispute Fatima about
Fadak, in order to be asked to swear and then he would
deserve it if he swore because the property that Fatima
asked for was either hers or the Muslims’.
We assume that Abu Bakr was the legal caliph of the Muslims
at that time; therefore he would be their guardian, who was
to be responsible to guard their rights and properties. If
Fatima was truthful according to his opinion and there was
no one to litigate her, then the caliph had no right to
extort Fadak from her. Deciding the case according to the
evidence only prohibited the judgment and would not permit
seizing the property from its owner.
Then the impermissibility of a judgment decided by a
judge according to his own knowledge[21]
would not commute the punishment and would not take the
caliph out of the test successfully.By Shaheed Muhammad Baqir As-Sadr
References:
1. Sharh Nahjul Balagha, vol.16 p.216.
2. After ten days of the caliphate that yet the Hashimites and some of the great companions did not pay homage to Abu Bakr to be the legal caliph. Refer to at-Tabari’s Tareekh, vol.2 p.233.
3. Sharh Nahjul Balagha, vol.16 p.208.
4. Refer to al-Qawa’id al-Fiqhiyya by Hassan al-Bajnawardi, vol.1 p.113, al-Muhalla by ibn Hazm, vol.9 p.436, al-Muhaththab by ash-Shirazi ash-Safi’ee, vol.2 p.312, al-Furooq by al-Qirafi al-Maliki, vol.4 p.78 and Tahreer al-Majalla by sheikh Muammad Hussayn Kashif al-Ghita’, vol.4 p.150.
5. Refer to Futooh al-Buldan by al-Balathari, p.42-43.
6. The tradition showed clearly that Omar sent a messenger to kill Sa’d if he did not pay homage (to Omar) and when Sa’d refused to pay homage, the messenger killed him. (They claimed that the jinn had killed him). Refer to al-Iqd al-Fareed by ibn Abd Rabbih, vol.4 p.247.
7. As in the story of Malik bin Nuwayra. Refer to at-Tabari’s Tareekh, vol.2 p.273 and the edited one, vol.2 p.28.
8. Muslim’s Sahih, vol.3 p.331, al-Mustadrak, vol.3 p.159 and at-Taj aj-Jami’ lil Ussool by Mansoor Ali Nassif, vol.3 p.333.
9. The dawn.
10. Ahmad’s Musnad, vol.3 p.295, al-Mustadrak, vol.3 p.172.
11. Refer to Abu Bakr’s saying about the truthfulness of Fatima in Sharh Nahjul Balagha, vol.16 p.216.
12. As in the verse: (Allah only desires to keep away the uncleanness from you, O people of the House! and to purify you a (thorough) purifying) 33:33.Refer to al-Mustadrak, vol.3 p.160-161 and Muslim’s Sahih, vol.5 p.37.
13. l-Bayhaqi’s Sunan, vol.10 p.142, Tanqeeh al-Adilleh by Muhammad Reza al-Ha’iri and Bidayet al-Mujtahid by ibn Rushd, vol.2 p.465.
14. If we want to translate this meaning into the scientific language we say: according to the second account the order is a guiding order (optional) and there is no possibility for the obligatory order because the thing ordered to be followed is itself enough to be an incentive to acting. Regarding the order as obligatory determines to turn the word (justice) to the second meaning because there is a possibility for the order to be obligatory by following the reality if the evidence confirms it and a possibility of following the order at all.
I apologize for not using the scientific idioms concerning logic, philosophy, jurisprudence and fundamentals of Islam unless I am obliged to do that because I try to make the research be understood by the ordinary readers.
15. If it was said that the tradition narrated by the Prophet’s family about that, who judged with truth and he did not know the real judgement that he would deserve punishment and then it showed that judgement did not rely on the actual reality. Hence the matter would turn between casting the tradition away from showing not executing the judgement and considering the punishment to be unjustified and between considering the two verses to refer to the second meaning. I would say: no one of these two interpretations was true but the tradition kept to the verses in regard to the judge’s knowledge. And so the subject of the judgement would be combined of the actual reality and the knowledge of it or in other words it would be the result of the actual reality.
16. Vol.2 p.953.
17. vol.2 p.318.
18. So that the witness would be of two men, which was the legal condition for the witness to be accepted.
19. The witness of the judge is permissible. Refer to al-Bayhaqi’s Sunan, vol.10 p.131.
20. The principle of the hand means proving the ownership by the hand, which means the full control over that certain property.
21. Refer to al-Bayhaqi’s Sunan, vol.10 p.143-144.
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