The matter of donation of Fadak - Part 2

Continued from part 1 .......

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]  

In addition to that Abu Bakr himself often was satisfied with claims without any evidence. It was mentioned in al-Bukhari’s Sahih[16] that when the Prophet (s) died, Abu Bakr received a sum of money from al-Ala’ bin al-Hadhrami. Abu Bakr announced: “Whoever the Prophet (s) was in debt for or that the Prophet had promised a gift, let him come to us”. Jabir said: “The Prophet had promised to give me so and so and so…” He extended his hand three times. Jabir said: “He (Abu Bakr) put in my hand five hundred (either dirham or dinar) then five hundred then five hundred”.

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

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References :

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.