CHAPTER V: LEGAL DECISIONS OF THE COMMANDER OF THE FAITHFUL
As for the reports which have demonstrated his outstanding quality in the legal decisions (he has given) with regard to religion and the laws (he has propounded) for which all the believers were in need, they are too numerous to be counted and too illustrious to be dealt with (properly), as are those which have been confirmed with regard to his precedence in traditional knowledge ('ilm), his supremacy over the community in gnosis (ma'rifa) and understanding. (There are many reports that) the scholars of the Companions (frequently) used to resort to him in matters which were difficult for them and they would seek his help in them and submit to his judgement concerning them. I will endeavour to put forward a brief summary which will give some indication of the others, if God, the Exalted, wills.
A. (Judgements of the Commander of the Faithful during the Lifetime of the Prophet)
With the regard to this, there are those of his judgements while the Apostle of God, may God bless him and his family, was alive which have been reported by the transmitters of tradition from the non-Shi'a ('amma) and from the Shi'a (khassa). In these (the Prophet) guided him and attested to the correctness of the decisions which he gave. He called attention to his goodness and praised him for it. Thus he separated him from the rest of men as a result of his outstanding merit in that. In this way he showed his entitlement to authority after him and the necessity for him to take precedence over others with regard to the position of the Imamate. Similarly, revelation has taken that (matter) within its compass in terms of the evidence for its meaning and what can be understood from the interpretation of its contents. Thus God, the Mighty and High, says:" Is not he who guides you to truth more entitled to be followed than one who does not go aright unless he is guided? For what is wrong with you, ,how do you judge? "(X 35). Then there is His statement, may He be praised:" Are those who know and those who do not know equal? Only those who possess hearts (ulu al-albab) remember "(XXXIX 9). There is the statement by Him, the Mighty and High, in the story of Adam when the angel said:" Are you creating in it one who will spread corruption there and shed blood while we (constantly) repeat Your praise and hallow You? He replied: I know what you do not know. And He taught Adam all the names (or things) and then He presented them to the angels. He said: Tell me the names of these if you are truthful. They answered: May You be praised, we have no knowledge except what You have taught us. You are the One Who knows and the Wise. Then He said: Adam, tell them their names. When he had told them their names, He said to them: Have I not told you that I know the unseen in the heavens and the earth and I know what you are showing and what you are keeping hidden "(II 31-33). God, the Exalted, informed the angels that Adam was more entitled to the vice-regency (khilafa) than they were because He had informed him of the names and he was the most excellent of them in knowledge of things informed (to him). He, may His names be hallowed, (also) said in the story of Talut:" Their prophet said to them: God has sent Talut to you as a king. They asked: Shall he have (the right of) kingship over us while we are more entitled to kingship than he is? He has not brought any extent of wealth. He replied: God has chosen him to be over you and has increased him extensively in knowledge and substance. God bestows His kingship on whom He wishes. God is (all) embracing and One Who knows "(II 247).
Thus (God) made the manner of his right to precedence over them,, by virtue of what He granted him in the scope of his knowledge and substance, and His having chosen him above all of them. These verses are in agreement with rational evidence that the one who is more knowledgeable has more right in the area of the Imamate than those who do not equal him in knowledge. Thus they also give evidence for the necessity of the precedence of the Commander of the faithful, peace be on him, over all the rest of the Muslims in the succession (khilafa) of the Apostle of God, may God bless him and his family, and in the Imamate of the community because of his precedence, peace be on him, over them in knowledge and wisdom and their falling short of his rank in that.
1. His Judgements in Yemen
Among those reports which have been handed down about his legal decisions, peace be on him, while the Prophet, may God bless him and his family, was still alive and present, is the following:
When the Apostle of God, may God bless him and his family, wanted to invest him with the office of judge in Yemen and to send him to them so that he might teach them the laws, explain to them what was permitted and forbidden, and judge for them according to the laws of the Qur'an, the Commander of the faithful, peace be on him, asked him: "Apostle of God, you are inviting me to (undertake) the office of judge while I am still a young man without knowledge of all (the matters of) judgement."
"Come nearer to me," he told him. He went nearer and he struck him in the chest with his hand and said: "O God, guide his heart and strengthen his tongue."
The Commander of the faithful reported: "I never doubted in my ability to judge between two men after that occurrence."
When the administrative house (dar) in Yemen was occupied by him and he began to take care of the office of judging and giving decisions among the Muslims, which the Apostle of God, may God bless him and his family, had entrusted to him, two men were brought before him. Between them was a maidservant over whom both of them had equal rights of possession as a slave. They had both been ignorant of the prohibition of having intercourse with her and had both had intercourse with her in the same month of her menstrual cycle. (They had done this) in the belief that this was permissible, because of their recent acceptance of Islam and their lack of knowledge of the laws which were in the law of Islam (shari'a). The maidservant had become pregnant and given birth to a boy. They were in dispute as to (who was the father).
He drew lots with their names on for the boy. The lot fell upon one of them. He assigned the boy to him but required him to pay half his value as if he had been a slave of his partner. He said: "If I knew that you had both embarked on what you have done after the proof had been given you of it being prohibited, I would have exerted (every effort) to punish you both."
The Apostle of God, may God bless him and his family, learned of this case. He accepted it and he acknowledged the judgement on them within Islam. He said: "Praise be to God Who has created among us, the family (ahl al-bayt), one who can judge according to the practice and method of David in judging." In that he was referring to judgement according to inspiration (ilham) which would have been taken in the sense of revelation (wahy) and the sending down of a text for it if there had been any explanation of such (an occurrence ever having taken place).
Among the cases brought before him, peace be on him, while he was in Yemen, is the report of (the case in which) a pit was dug for a lion. It fell into it and the people gathered round to look at it. One man was standing on the edge of the pit. His foot slipped and he hung on to another man. That man hung on to a third, and the third to a fourth. They all fell into the pit and were all killed. He, peace be on him, gave the judgement that the first was the prey of the lion and he (and his family) were responsible for the payment of a third of the blood-price for the second. Similarly the second (and his family) were responsible for the payment of a third of the blood-price for the third and the third (and his family )were responsible for the payment of a third of the blood-price for the fourth.
The report of that reached the Apostle of God, may God bless him and his family. He said:, "Abu al-Hasan has given judgement in their regard with the judgement of God, the Mighty and High above (on) His throne."
Then there was brought before him (the case in which) it is reported that a girl was carrying (another) girl on her shoulder in a game. Another girl came along and pinched the girl who was carrying (the other one). She jumped because of being pinched. The girl who was being carried fell and broke her neck. She died.
He, peace be on him, judged that the girl who did the pinching was, responsible for a third of the blood-price, the girl who jumped was responsible for (another) third of it and the remaining third was inoperative because the riding of the girl, who broke her neck, on the girl who jumped was in fun.
The report of that reached the Apostle of God, may God bless him and his family. He accepted it and testified to the correctness of it.
He, peace be on him, gave judgement on (a case where) a wall had fallen on some people and killed them. Among their number there was a slave-woman and a free woman. The free woman had had a small child, born of a free man, and the slave-woman had had a small child, born of a slave. The free child could not be distinguished from the slave child.
He drew lots between them; he adjudged freedom as belonging to the one of them for whom the lot for freedom was drawn and he adjudged slavery for the one for whom the lot for slavery was drawn. Then he freed (the slave child) and made him retainer (lit. client mawla)(of the free child). In this way he also decided about their inheritance with the decision going in accordance with (the norm for) the free one and his retainer.
The Apostle of God, may God bless him and his family, accepted his judgement in this decision and he declared its correctness through his acceptance of it, as we have mentioned and described.
2. A Case outside Yemen during the Life of the Prophet
Reports have been handed down that two men brought a dispute before the Prophet, may God bless him and his family, about a cow which had killed a donkey.
"Apostle of God," said one of them, "this man's cow has killed my donkey."
"Go to Abu Bakr," the Apostle of God told them, "and ask him about that."
They came to Abu Bakr and told him their story.
"Why have you left the Apostle of God, may God bless him and his family, and come to me? he asked them.
"He told us to do that," they answered.
"A beast has killed a beast and therefore its owner has no responsibility (for the dead beast)," he said.
They returned to the Apostle of God, the blessing of God be on him, and told him of that. He said to them: "Go to 'Umar b. al-Khattab and tell him your story. Ask him for a judgement about that."
They went to him and told him their story. He asked: "Why have you left the Apostle of God and come to me?"
"He told us to do that," they answered.
"Why did he not tell you to go to Abu Bakr?" he asked.
"We were ordered to do that," they told him, "and we went to him."
"What did he say to you about this case?" he enquired.
"He said such and such," they replied.
"My view agrees with Abu Bakr's," he said.
They returned to the Prophet, may God bless him and his family, and gave him a report of that. He said: "Go to 'Ali b. Abi Talib so that he may judge between you."
They went to him and told him their story.
"If the cow entered into the stable of the donkey, then the owner (of the cow) must pay the price of the donkey to the owner (of the donkey)," he declared. "But if the donkey entered into the stable of the cow, and (the cow) killed it, the owner (of the donkey) has no payment due from the owner (of the cow)."
They went back to the Prophet, may God bless him and his family, and told him about his judgement between them. He, may God bless him and his family, said: "'Ali b. Abi Talib, peace be on him, has given judgement between you with the judgement of God, the Exalted." Then he said: "Praise be to God who has created among us, the family (ahl al-bayt), one who can give judgement in the manner of David."
Some of the non-Shi'a ('amma) authorities report that this judgement between the two men was made by the Commander of the faithful, peace be on him, in Yemen.
B. Judgements of the Commander of the Faithful during the Rule of Abu Bakr
(This is) a brief summary of the legal decisions given by (the Commander of the faithful), peace be on him, during the rule of Abu Bakr. Among these is the account which has been handed down by both non-Shi'a and Shi'a authorities:
A man was brought before Abu Bakr. He had drunk wine, so Abu Bakr wanted to administer the prescribed punishment (hadd) on him. However the man pleaded: "I drank it without having knowledge that it was forbidden because I grew up among people who regarded it as lawful. I did not know that it was forbidden until now."
Abu Bakr became unable to deliver a decision in the matter. He did not know the way to judge him. Some of those present advised him to seek for information from the Commander of the faithful, peace be on him, about the decision in that matter. He sent someone to ask him about it.
The Commander of the faithful advised: "Tell two trustworthy Muslims to go around the gatherings of the Emigrants and Ansar to ask them whether any of them had recited to (the man) the verse (of the Qur'an) forbidding (wine) or had reported it to him on the authority of the Apostle of God, may God bless him and his family. If two of them give testimony of that, then he should carry out the prescribed punishment on him. If no one can give testimony on that, he should tell him to repent and let him go."
Abu Bakr did that. Not one of the Emigrants and Ansar gave evidence that they had recited the verse (of the Qur'an) forbidding (wine) or had reported it to him on the authority of the Apostle of God, may God bless him and his family. So he told him to repent and let him go. He submitted to (the authority of) 'Ali in judging it.
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They have reported that Abu Bakr was asked about God's words: Fakihatan wa abban (XXXIII 40). He did not know the meaning of al-abb in the Qur'an and said: "Any sky which looks down (on me) or any land which holds me up .. rather what shall I do, if I say something about the Book of God, the Exalted, which I do not know. As for al-fakiha, (fruit), we know its meaning but as for al-abb God knows better."
The Commander of the faithful, peace be on him, was informed of that statement of his about it. "May God be praised, did he know that al-abb is fresh herbage (kala') and pasture (mar'an) and that His words, wa fakihatan wa abban, are the enumeration by God, the Exalted, of his favours to His creatures through the things which He has provided for them to eat and created for them and their animals; (these are some of) the things by which their spirits are kept alive and their bodies exist."
Abu Bakr was asked about al-kalala (IV 176). He answered: "I will give my opinion about it. If I am right, then it is from God. If I am wrong, then it is from myself and from Satan."
The Commander of the faithful was informed of that. He said: "What makes him satisfied with opinion in this situation? Did he not know that al-kalala is brothers and sisters from (the same) father and mother, and from just the father and also from the mother in the same way. God, the Mighty and High, said: If they seek a decision from you, say: God gave a decision to you in terms of the brothers and sisters (al-kalala). If a man dies without children and he has a sister she shall have half of what he left (IV 176). He, the Mighty (also) said: If a man is succeeded by brothers and sisters (al-kalala) or by a wife while he had a brother or a sister, each one will have a sixth. If there are more than that, then they shall have a third (IV 12)."
The report is handed down that one of the Jewish rabbis came to Abu Bakr and said: "You are the successor (khalifa) of this community."
"Yes," he replied.
"We find in the Torah that the successors (khulafa') of prophets are the most knowledgeable of the communities," he said. "Therefore tell me about God, the Exalted. Where is He? In heaven or on earth?"
"In heaven on the throne," answered Abu Bakr.
"Then I should consider that the earth is without Him and I should consider according to this statement that He is in one place and not in another," the Jew stated.
"That is doctrine of atheists (zanadiqa)," declared Abu Bakr. "Go away from me or I will kill you."
The rabbi turned away in amazement and mockery at Islam. The Commander of the faithful, peace be on him, met him.
"Jew, I know what you have asked about and did not get an answer for," he said. "We say that God, the Mighty and High, is the whereness of whereness, there is no where for Him. He avoids any place containing Him while He is in every place, without contact with anything and without being next to anything. He encompasses knowledge of what is there and nothing of it is outside His provenance. I am telling you about what is written in one of your books which attests the truth of what I have told you. If you know it, do you believe in it?"
"Yes," replied the Jew.
He said: "Didn't you find in one of your books that Moses, the son of 'Imran, peace be on him, was sitting down one day when an angel came to him from the East. Moses asked him:' From where have you come?' It answered: 'From God, the Mighty and High.' Then an angel came to him from the West. He asked: 'From where have you come?' It answered: 'From God, the Mighty and High.' Then another angel came to him and said: 'I have come to you from the Seventh Heaven, from (being with) God, the Mighty and High.' Another angel came to him and said: 'I have come to you from the Seventh Firmament, from (being with) God, the Mighty and High.' Then Moses said: 'May God be praised, no place is without Him and He is not nearer to one place than another.' "
The Jew replied: "I testify that this is the truth and you have more right to (occupy) the place of your Prophet than the one who has control over it."
Reports like these are numerous.
C. Reports of the Judgements of (the Commander of the faithful) during the Rule of 'Umar b. al-Khattab
Among these is what has been handed down by non-Shi'a ('amma) and Shi'a (khassa) authorities concerning the story of Qudama b. Maz'un. The latter had drunk wine and 'Umar wanted to carry out the prescribed punishment on him. However, Qudama had said: "It is not necessary to give me the prescribed punishment because God has said: There is no crime in what those who have believed and performed good works have tasted as long as they have feared God, believed and performed good works (V 93)."
So 'Umar withdrew the prescribed punishment.
The Commander of the faithful, peace be on him, learned of that. He went to 'Umar and said: "You failed to administer the prescribed punishment on Qudama for drinking wine."
"He recited the verse of Qur'an to me," said 'Umar and recited it.
"Qudama is not one of the people (referred to) in the verse " retorted the Commander of the faithful, peace be on him. "Nor can anyone use it (as a pretext) for committing actions which God has forbidden. Those who have believed and performed good actions cannot make what is forbidden lawful. Send for Qudama and make him repent from what he said. If he repents, then administer the prescribed punishment on him. If he does not repent, kill him, for he has abandoned the religion (milla)."
Then 'Umar became aware (of the real situation). Qudama knew of the discussion and (publicly) showed his repentance and his withdrawal (of his assertion). 'Umar withdrew the punishment of death but he did not know how he should administer the prescribed punishment on him. He asked the Commander of the faithful, peace be on him: "Show me how the prescribed punishment (should be administered) on him."
"Give him the prescribed punishment of eighty (lashes)," he said. "For when the drinker of wine drinks it, he becomes drunk. When he becomes drunk, he talks nonsense. When he talks nonsense, he spreads calumnies."
Therefore 'Umar had him given eighty lashes and he gave judgement according to his advice in that matter.
It is reported that during the time of 'Umar, a man seduced a mad woman. Evidence for that was established against her. Therefore 'Umar ordered her to be flogged according to the prescribed punishment. She was brought past the Commander of the faithful (on her way) to be flogged.
"Why is the mad woman of the family of so-and-so being dragged along?" he asked.
"A man seduced her and fled and the evidence for fornication has been established against her. So 'Umar ordered her to be flogged," he was told.
"Take her back to him," he told them, "and ask him: Don't you know that this is a mad woman and the Apostle of God, may God bless him and his family has said: The order (of punishment) should be withheld from the mad person until he recovers. Her reason and her soul have been overcome."
She was taken back to 'Umar and he was told what the Commander of the faithful, peace be on him, had said. He said: "God has rescued (me) from it. I was almost destroyed through whipping her." And he withdrew the prescribed punishment from her.
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It is reported that a pregnant woman who had committed adultery was brought before 'Umar. He ordered her to be stoned. The Commander of the faithful, peace be on him, told him: "Take care that you have a (right to take) action against her, that is a (right to take) action against what is in her womb. For God, the Exalted, says; Nor does any bearer of a burden bear the burden of another (VI 164)."
"I have not lived (to see) a problem with which Abu al-Hasan is not (competent to deal)," said 'Umar. Then he asked: "What shall I do with her?"
"Take care of her until she gives birth," he said. "When she has given birth and you have found someone to nurse her child, then administer the prescribed punishment on her." `
Thus was 'Umar relieved of (his cares). In that decision, he relied on the Commander of the faithful, peace be on him.
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It is reported that ('Umar) summoned a woman who had been conversing with men at her (house). When his messengers came to her, she was frightened and afraid. She had a miscarriage and her child fell to the ground crying but then died.
'Umar was informed of that. He gathered the Companions of the Apostle of God, may God bless him and his family, together and asked them about the law concerning that. They all said: "We consider that you were acting correctly. You only wanted good and there is no (blame for) anything against you in that."
The Commander of the faithful, peace be on him, was sitting without saying anything about that. 'Umar asked him: "What is your view about this, Abu al-Hasan?"
"You have heard what they said," he answered.
"But what is your view?" he insisted.
"The people have said what you heard," he replied.
"I adjure you to give your view," he said.
"If people have (been trying to) come close to you, they have deceived you," he said. "If they thought about their advice then they have disregarded (the fact that) the blood-wit is required of you as the one responsible for the death and you thereby incur the blood-wit (aqila), because the killing of the child was (as a result of) a mistake connected with you."
"By God, you have advised differently from them," he said. "By God, I will not delay until the blood-wit is paid by (my clan) Banu 'Adi"
The Commander of the faithful, peace be on him, had brought that about.
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It is reported that during the time of 'Umar, two women were disputing over a child. Each of them claimed that it was her child without any proof but no one else contested their claim to it. The decision with regard to that was not clear to 'Umar. He resorted to the Commander of the faithful, peace be on him, with regard to it.
He summoned the two women and warned them both, making them both afraid. But they both persisted in their dispute and difference. In the face of their both persisting in dispute, he, peace be on him, said: "Bring me a saw."
"What are you going to do?" the two women asked.
"I will cut it into two halves," he said, "and each of you can have a half."
The one remained silent but the other said: "O God, O God, Abu al-Hasan, if there is no escape from that, then let her have it."
"God is greater (Allahu akbar)," he said. "This is your son not hers. If it had been her son, she would have had pity on him and been anxious (about him)."
The other woman admitted that the right (to the child) belonged to her colleague and the child was not hers. Thus was 'Umar relieved (of his cares) .and he blessed the Commander of the faithful for the trouble that he had saved him from through (his) judgement.
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[It is reported on the authority of Yunus, on the authority of al-Hasan:]
A woman was brought before 'Umar. She had given birth six months earlier and he now intended to stone her. The Commander of the faithful, peace be on him, said to him: "If you quarrel with the Book of God, I will dispute with you. God, the exalted says: "The (period) of pregnancy and weaning (of a child) is thirty months" (XLVI 15). And He, the High, (also) says: "Mothers suckle their children for two complete years for anyone who wants to carry out (the full period of) suckling" (II 233). When the woman has carried out the suckling for two years, and the (period of) pregnancy and suckling (of the child) is thirty months .. . At the moment (she has only fulfilled) the responsibility (of suckling) for six months (and therefore cannot be killed)."
'Umar freed the woman and confirmed the decision concerning that. The Companions acted according to it and the Successors (al-tabi'un) (to the Companions) and those who adopted it right up to the present time.
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It is reported that witnesses gave evidence against a woman that they had found her at one of the watering places of the Bedouin and a man who was not her husband (ba'l) was having intercourse with her. 'Umar ordered her to be stoned as she had a husband (ba'l). She declared: "O God, You know that I am innocent."
"Do you impugn the witnesses as well?" remarked 'Umar.
"Let them bring her back and let them question her," said the Commander of the faithful, peace be on him. "Perhaps she has an excuse."
She was brought back and questioned about the circumstances (of what she had done). She said: "My family had some camels. I went out with my family's camels and took with me some water. There was no milk in the camels. A neighbour of ours had camels with him and there was milk in his camels. My water was used up and I asked him to give me a drink. He refused to give me a drink unless I submitted myself to him. I refused. When my life was about to depart I submitted myself to him unwillingly."
"God is greater (Allahu akbar)," declared the Commander of the faithful, peace be on him. "Whoever is compelled (to do something) without desiring (to do it) is not a transgressor and no sin is (counted) against him (II 173)."
When 'Umar heard that he freed her.
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Among the reports about (the Commander of the faithful), peace be on him, with regard to the idea of giving judgement, and the soundness of (his) opinion, his guidance of the people to their (true) interests and his realisation of what would be likely to corrupt the people without his informing them of the proper course is the following:
[Shababa b. Suwar has reported on the authority of Abu Bakr al-Hudhali, who said: I heard one of our scholars saying:]
The foreigners (a'ajim) from Hamdhan, al-Rayy, Isfahan, Qumus and Nahawand sent letters to each other. They sent messengers to one another (saying): "The king of the Arabs who has brought them their religion and produced their Book has died." They were referring to the Prophet, may God bless him and his family. "Their king after him was an insignificant king and he has died." They were referring to Abu Bakr. "Another arose after him who has lived longer so that he has reached as far as you in your lands and he has sent his soldiers to attack you." They were referring to 'Umar b. al-Khattab. "He will not desist from you until you expel those of his soldiers who are in your land, go against him and attack him in his land. Therefore make an alliance (to do) this and make a covenant (to carry) it (out)."
When the report (of this) came to the Muslims in Kufa, they sent it to 'Umar b. al-Khattab. When the report reached him, he was very afraid on account of it. He went to the mosque of the Apostle of God, may God bless him and his family. He went up on the pulpit and praised and glorified God. Then he said: "Men of the Emigrants and the Ansar, Satan has gathered groups (of men) against you. With them he has dared to attempt to put out the light of God. Indeed the people of Hamdhan, the people of Isfahan, the people of al-Rayy and Qumus, of Nahawand, despite difference in language, colour and religion, have made a covenant and an alliance to drive your brother Muslims from their land and to come against you and attack you in your land. Give me advice but be brief and not too lengthy in words This is a day for (such advice), after which there will be a day (to speak at greater length)."
They began to consult. Talha b. 'Ubayd Allah stood up he was one of the orators of Quraysh. He praised and glorified God. Then he said: "Commander of the faithful, affairs have begun to bridle you; times have brought hardship to you; misfortunes have tested you and experiences have taught you. You, the one blessed with authority (amr) and fortunate in nature, have been given authority. Therefore you have knowledge, you have been given information and you know it well. You have only avoided (evil) consequences of God's decision as a result of choosing good. So attend to this matter according to your own view and do not avoid that." Then he sat down.
"Speak," 'Umar urged (the people).
'Uthman b. 'Affan stood up. He praised and glorified God. Then he said: "I think that you should direct the Syrians from Syria and the Yemenis from Yemen, and that you should go with the inhabitants of these two sanctuaries (Mecca and Medina) and with the people of the two camp towns of Kufa and Basra. Then all the polytheists would meet all the Muslims. Commander of the faithful, you would not seek to survive after the Arabs, nor would you enjoy with any delight the world, nor would you seek refuge from it in a well-fortified fortress. Therefore attend to (the matter) with your own view and do not avoid that." Then he sat down.
"Speak," 'Umar urged (the people).
The Commander of the faithful, 'Ali b. Abi Talib, peace be on him, spoke praising God until he had finished the introductory praises and he glorified Him and called for blessings on His Apostle, may God bless him and his family. Then he said: "If you sent the Syrians from Syria, the Byzantines would come against their children. If you sent the Yemenis from Yemen, the Abyssinians would come against their children. If you sent (the people) from the two sanctuaries, the bedouin would rebel against us on (every) flank and side. Thus the families of Arabs which you leave behind you are more important to you than what is in front of you. As for what you have mentioned of the number of foreigners and your fear of their groupings, we never fought in the time of the Apostle of God, may God bless him and his family, with regard to number. We only used to fight with regard to the help (of God). As for what you have been informed of their gathering to come against the Muslims, God is more averse to their coming than you are to it. It is more appropriate for Him to change what He is averse to. When the foreigners look at you, they say (to themselves) that this is the man of the Arabs. If you break him, you break the Arabs and it would be much more difficult for (them to continue) their eager (advance). Thus you united them against yourself and those who did not use to support them are (now) supporting them. However, I consider that you should make them remain in their camp-town and write to the people of Basra. Let them divide into three groups. Let one of their groups look after their offspring as guards of them. Let another group undertake (the task of resisting) the people who have made this covenant, to break them up. Let (the third) group go to their brothers as reinforcements for them."
"This is the best view," said 'Umar. "I would like to follow it." Then he began to repeat the words of the Commander of the faithful, peace be on him, setting it out in admiration of it and as his choice.
[Al-Shaykh al-Mufid, may God be pleased with him, said:]
Consider, may God support you, this view which was announced with the merit of sound judgement when the thoughtful leaders (ulu al-albab wa-al-'ilm) were in dispute. Reflect upon the success which God brought to the Commander of the faithful, peace be on him, in all circumstances and the way the people used to resort to him in difficult matters. Then add that to what has been established of his merit in religion which was not possible for the other prominent people so that they were in need of him because of his knowledge. You will find out about it in the chapter on miracles, which we have already mentioned. May God be the friend of success.
This has been a brief outline of the judgements delivered by (the Commander of the faithful), peace be on him, during the rule of 'Umar b. al-Khattab. There were similar (judgements) during the rule of 'Uthman b. 'Affan.
D. Reports of the Judgements of the Commander of the Faithful during the Rule of 'Uthman b. 'Affan
Among these is the report which non-Shi'a ('amma) and Shi'a (khassa) historians (naqalat al-athar) relate.
An old man married a woman. The woman became pregnant but the old man claimed that he had not had intercourse with her and denounced her pregnancy. The matter was unclear to 'Uthman. He asked the woman: "Did the old man make you lose your virginity while (you) were a virgin?"
"No," she replied.
"Administer the prescribed punishment on her," ordered 'Uthman.
"A woman has two orifices," the Commander of the faithful, peace be on him, interposed, "the orifice for the menstrual flow and the orifice for urine. Perhaps the old man was close to her and his semen managed to flow into her menstrual orifice. Then she became pregnant through him."
He asked the man about that and he answered: "I used to discharge semen while kissing her but without ever going to the extent of making her lose her virginity."
"The pregnancy is due to him," declared the Commander of the faithful, peace be on him, "and the child is his child. I consider that he should be punished for his (wrongful) denunciation."
'Uthman carried out his judgement in that and was amazed at him.
They have reported that a man had a concubine and he gave her a child. Then he separated from her and married her to one of his slaves. The master died. She was freed by virtue of her being in the possession of her son. Her son also inherited her husband. The son died and she inherited her husband from her child. They came before 'Uthman as a result of a dispute. She was claiming: "This is my slave." He was claiming: "She is my wife and I will not release her (from the marriage)."
"This is a difficult problem," said 'Uthman.
The Commander of the faithful, peace be on him, was present. He said: "Ask her whether he has had intercourse with her after her inheritance."
"No," she replied.
"If I was aware that he had done that, I would have punished him," he said. "Go. He is your slave without any rights over you. If you wish to keep possession of him, or to free him, or to sell him, that is your right."
They reported that in the time of 'Uthman a slave woman who was in the process of buying her freedom (mukatiba) committed fornication. She had already purchased three-quarters of her freedom. 'Uthman asked the Commander of the faithful whether he should have her flogged according to the amount (required) for a free woman or the amount required for a slave. He also asked Zayd b. Thabit. The latter said that she should be flogged according to the amount (required) for a slave." How can she be flogged according to the amount (required) for a slave when she has already purchased three-quarters of her freedom?" asked the Commander of the faithful, peace be on him. "Should you not whip her according to the amount (required) for a free woman as she is much more of that?"
"If that is the case," said Zayd, "then she ought to inherit according to the amount (required) for a free woman."
"Indeed, that is necessary," replied the Commander of the faithful, peace be on him.
Zayd was silenced but 'Uthman disagreed with the Commander of the faithful, peace be on him. He followed Zayd's statement without paying attention to the proof which had been given to him (by the Commander of the faithful).
Mentioning further examples such as these would make the book unduly long. However the reports about them are well known.
E. Reports of the Judgements of (the Commander of the Faithful), peace be on him, after the Pledge of Allegiance of the General Populace to him and the Death of 'Uthman
The traditionists (ahl al-naql wa hamalat al-athar) report that a woman gave birth on the bed of her husband to a child who had two heads and bodies attached to one waist. His family were confused as to whether it was one or two. They went to the Commander of the faithful, peace be on him, to ask him about that so that they might know the law with regard to him. The Commander of the faithful, peace be on him, told them: "Watch him when he goes to sleep. Then wake up one of the bodies and heads. If they both wake up at the same time, then they are a single human being. If one of them wakes up and the other remains asleep, they are two persons and their rights in inheritance are the rights of two persons."
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[Al-Hasan b. 'Ali al-'Abdi reported on the authority of Sa'd b. Tarif, on the authority of al-Asbagh b. Nubata, who said:]
While Shurayh was in a session of judgements, a person came to him and said: "Abu Umayya, let me speak to you privately, for I have a (great) need."
He ordered those around him to leave him and they went away. Only his close associates (khassa) who attended him remained. He said: "Say what your need is."
"Abu Umayya," (the person) told him, "I have what men have and what women have. The judgement rests with you about whether I am a man or a woman."
He answered: "I have heard a decision about that from the Commander of the faithful, peace be on him, which I remember. Tell me from which of the two orifices does your urine come?"
"From them both," answered the person.
"From which does it (finally) finish?" he asked.
"From them both together," was the reply.
Shurayh was amazed. The person said: "I will tell you something (else) about my affair which is (even) more amazing."
"What is that?" asked Shurayh.
"My father married me (to a man) on the assumption that I was a woman. I became pregnant from my husband and I bought a slave girl to look after me. I had intercourse with her and she became pregnant from me."
Shurayh struck one of his hands against the other in amazement and said: "This is a matter which must be taken before the Commander of the faithful, peace be on him, for I have no knowledge of the ruling concerning it."
He got up and the person followed him and those present with him. He went in to the Commander of the faithful, peace be on him. He told the story to him and the Commander of the faithful, peace be on him, summoned the person. He asked about (the story) which Shurayh had told him. (The person) admitted it.
"Who is your husband?" he asked.
"So-and-so b. so-and-so," was the reply, "and he is present in the town."
He had him summoned and asked him about what (the other) had said.
"It is true," he said.
"You have to be braver than a lion-hunter when you face this sort of situation," he said. Then he called Qanbar, his retainer (mawla) and said: "Take this person into a house and with (the person) four just women and order them to strip (the person) naked and to count the ribs after making sure that the pudenda are covered." The man (i.e. Qanbar) said: "Commander of the faithful, men and women will not be secure from this person."
So (the Commander of the faithful) ordered that a straw-dealer should cover him with straw and he left him alone in a house. Then he went into it and counted the ribs. There were seven on the left side and eight on the right side. He declared: "This is a man."
He ordered his hair to be cut arid that he be dressed in a hat, sandals and a cloak (rida). He separated him from his (former) husband.
[Some traditionists reported:] When the person made the claim he made about two orifices, the Commander of the faithful, peace be on him, ordered two just Muslims to go to an empty house and take the person with them. He ordered two mirrors to be set up one of them facing the pudenda of the person and the other facing the (first) mirror. He ordered the person to show its nakedness by facing the mirror so that the two just men could not see it (directly). He ordered the two just men to look into the mirror facing (the first) mirror. When the two just men realised the truth of what the person had claimed about (having) two orifices, he considered its status (to be established) by counting the ribs. When he declared him to be a man, he ignored his claims of being pregnant as being a mistake and he did not act in accordance with it. He declared the pregnancy of the slave girl as due to him and he associated him with it.
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They reported that one day the Commander of the faithful, peace be on him, went into the mosque and found a young man weeping (there) with some people around him. The Commander of the faithful, peace be on him, asked about it. He said: "Shurayh has judged a case against me and he has not done me justice."
"What is (the nature of) your affair?" he asked.
"These people" he said and he indicated a group who were present, "took my father out on a journey with them. They came back but he did not come back. I asked them about him and they said that he had died. I asked them about the money (maal) that he had taken with him and they said: 'We do not know of any money.' Then Shurayh made them swear an oath and ordered me to stop interfering with them."
The Commander of the faithful, peace be on him, told Qanbar: "Gather the people and summon the shurat al-khamis."
Then he sat down and summoned the group (to come before him) and the young man with them. He asked him about what he had said and he repeated his claim and began to cry, saying: "By God, I accuse them of (killing) my father, Commander of the faithful. They tricked him so that they could take him with them out of a desire to (get) his money."
Then, the Commander of the faithful, peace be on him, questioned the people. They told him exactly what they had told Shurayh: "The man died and we do not know of any money of his."
Then he looked into their faces and said to them: "What do you think? Do you think that I do not know what you have done with the father of this youth? Then I would have little knowledge."
He ordered them to separate from each other and they separated from each other within the mosque. Each one of them was made to stand next to one of the pillars in the mosque. Next he summoned 'Ubayd Allah b. Abi Rafi', his scribe at that time, and told him to lit down. Then he called one of them. He told him: "Tell me on which day did you leave your houses while the father of this boy was with you? And (do it) without raising your voice."
"On such and such a day," he said.
"Write it down," he told 'Ubayd Allah.
"In which month was it?" he asked.
"In such and such a month," was the answer.
"Write it down," he instructed.
"In which year?"
"In such and such a year."
"Write it down."
'Ubayd Allah wrote all that down.
"Of what sickness did he die?" he asked.
"Of such and such a sickness."
"In which place did he die?"
"In such and such a place."
"Who washed and shrouded his corpse?"
"So-and-so."
"With what did you shroud him?"
"With such and such."
"Who said the prayer over him?"
"So-and-so."
"Who put him into the grave?"
"So-and-so."
'Ubayd Allah b. Abi Rafi' was writing all that down. When he came to the statement about the burial, the Commander of the faithful, peace be on him, said: "God is greater (Allahu akbar)." (He said it) in a way that the people in the mosque could hear. Then he ordered the man to be taken back to his place.
He summoned another of the men and made him sit close to him. He questioned him in the same way as he had questioned the first man and he gave answers which disagreed with (the answers of) the first man throughout his interrogation. (All the time) 'Ubayd Allah was writing them down. When he had finished his questioning, he said: "God is greater," in a way that the people in the mosque could hear. He ordered that the two men be taken out of the mosque to the prison but they were to stand and wait at the door.
He summoned the third and questioned him in the same way as he had questioned the first. He gave answers which contradicted what both of them had said and he confirmed that to him. He said: "God is greater." Then he ordered him to be taken out to his two colleagues.
He summoned the fourth of the men. His words were confused and he stuttered. (The Commander of the faithful) warned him and made him afraid. (The man) confessed that his colleagues had killed the man and taken his money and that they had buried him in such and such a place near Kufa. The Commander of the faithful, peace be on him, said: "God is greater." Then he ordered him to be taken to prison.
He summoned one of the men (already questioned) and said to him: "You have claimed that the man died in bed. Yet you killed him. Tell me the truth about your situation, otherwise I will punish you as a warning to the others that I should be told the truth in your case." He confessed to killing the man with a similar confession to his colleague.
Then he summoned the rest (of them) and they confessed the murder. They were at a loss to do anything. Their statements about the man's murder and the theft of his money concurred. He ordered some of his men to go with some of them to the place where they had buried the money and to get it out and hand it over to the young man, the son of the murdered man.
"What do you want (to be done to them) now that you know what they did to your father?" he asked him.
"I want the judgement between us to take place before God, the Mighty and High," he said. "So I will spare their blood in this world."
Therefore the Commander of the faithful, peace be on him, desisted from carrying out the prescribed punishment for murder but still punished them severely.
"Commander of the faithful," Shurayh asked him, "how (did you manage to come to) this decision?"
He said: "David, peace be on him, passed some boys playing and calling out to one of them, 'Religion is dead.' The boy would then answer them. David, peace be on him, approached them. He said: 'Boy, what is your name?' 'My name is Religion is Dead,' he answered. 'Who gave you this name?' David, peace be on him, asked. He replied: 'My mother.' Then David asked: 'Where is your mother?' He answered: 'In her house.' 'Go with us to your house,' said David. He went with him to her and brought her out of her house.' Maidservant of God', he said, 'what is the name of your son?' 'His name is Religion is Dead,' she answered. 'Who gave him this name?' David, peace be on him, asked her. 'His father,' she replied. 'What was the reason for that?' he asked. She said: 'He went out on a journey with some people while I was pregnant with this boy. The people came back but my husband did not come back. I asked them about him and they told me that he had died. I asked them about his money and they told me that he did not leave any money. I asked them if he had made any instruction in his will. They said that he had. He had said that I was pregnant and if I bore a girl or a boy, I should name him Religion is Dead. Therefore I named him as I was instructed in his will as I did not wish to oppose him.' David, peace be on him, asked her: 'Do you know the people?' 'Yes,' she replied. He said to her,' Come with me with these'-meaning the people who were in front of him-, Then he had them brought out of their houses. When they were (all) present, he judged them according to this judgement. The murder was proved against them and he got the money from them. Then he said to her: 'Maidservant of God, name this child of yours Religion is Alive.' "
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It is reported that a woman desired a young man and she tried to seduce him but the young man refused. She went away and got an egg. She put the white (of the egg) on her dress. Then she began to make accusations against the young man and had him brought before the Commander of the faithful, peace be on him. She claimed: "This young man has treated me shamefully. He has raped me."
She took her dress and showed the white (on it) from the egg, saying: "This is his semen on my dress."
The young man began to cry, pleading and swearing his innocence from her accusations.
"Order someone to heat water until it is very hot," the Commander of the faithful, peace be on him, told Qanbar. "Then bring it to me while it is still like that."
The water was brought and he ordered it to be thrown on the woman's dress. They threw it on it and the water collected up the white of the egg and they came together. He ordered it to be taken and given to two of his followers. He said: "Taste it and spit it out."
They tasted it and found that it (tasted like) egg. He ordered the young man to be freed and the woman to be flogged as a punishment for her false accusation.
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[Al-Hasan b. Mahbub reported: `Abd al-Rahman b. al-Hajjaj told me: I heard Ibn Abi Layla saying:]
The Commander of the faithful, peace be on him, judged a case which no one had dealt with before. That was that two men had travelled together on a journey. They sat eating together. One of them took out five loaves of bread and the other three. A man passed them and greeted them. They invited him to eat and he sat eating with them. When he had finished eating, he put down eight dirhams. saying: "This is compensation for your food which I have eaten."
The two men began to dispute over it. The one with three loaves said: "This (should be shared) between us, half each."
"Rather I should have five and you should have three," said the one with five loaves.
They came before the Commander of the faithful, peace be on him, and told him their story. He said: "This is a matter in which meanness and rivalry is not proper. Reconciliation would be better."
"I will only be satisfied by the giving of judgement," said the one who had had three loaves.
"Since you will only be satisfied by the giving of judgement," said the Commander of the faithful, peace be on him, "you have one of the eight and your companion seven."
"May God be praised," he exclaimed, "how can this matter come to be like that?"
"I have told you," he said. "Didn't you have three loaves?"
"Yes," he answered.
"And your companion had five?"
"Yes."
"That is twenty-four (when multiplied) by. three," he said. "So you ate eight, your companion eight and your guest eight. Thus he gave you eight dirhams. Seven of which belong to your companion (as he supplied seven-eighths of the guest's food) and one to you (as you supplied one-eighth of the guest's food)."
The two men departed (reflecting on) the perspicacity of the judgement of their case.
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The scholars of (religious) practices (siyar) report that during the time of the Commander of the faithful, peace be on him, four men drank alcohol. They became drunk and began to cut each other with knives. Each of them was wounded. An account of their (action) was brought to the Commander of the faithful, peace be on him, and he ordered them to be put into prison until they became sober. Two of them died in prison but two survived. The families of the two (dead) men came to the Commander of the faithful, peace be on him, and demanded: "Give us the right to retaliate against these two men, Commander of the faithful. For they have killed two of our colleagues."
"How do you know that?" he asked. "Perhaps (the dead men) killed each other."
"We do not know," they answered. "So judge them according to what God has taught you."
He said: "The blood-wit of the two men who were killed is the responsibility of the tribes of the four men after the account has been settled by the payment for the two who are alive of the blood-wit for their wounds."
That was a judgement in a case for which there was no way of establishing the truth other than by it. Don't you see that there was no evidence to distinguish the killer from the killed and no evidence of intention to kill? Therefore the judgement was made according to the rule of accidental killing and on the basis of confusion about (the actions of) the killer and killed.
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It is reported that six men went down to the Euphrates and dived into it to play. One of them drowned. Two of them testified that the (other) three had made him drown while the three testified that the two made him drown. He, peace be on him, adjudged the division of the blood-wit into fifths on the five. The two were to pay three-fifths according to the amount of testimony against them and the three were to pay two-fifths in accord with the amount of testimony against them.
There was no judgement in that with more right to (be considered) correct than the judgement he, peace be on him, gave.
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They reported that a man was about to die and he bequeathed part of his wealth without designating it. His heirs differed on that after his (death). They came before the Commander of the faithful, peace be on him. He told them to exclude one-seventh of the wealth as the bequest and he recited the words of Him, the Exalted: It has seven gates, each of which is a divided part (XV 44).
He, peace be on him, judged (a case) concerning a man who, at his death, had made a bequest of a share of his wealth without specifying it. Similarly when he died, the heirs disputed about its significance. His judgement to them was to take out an eighth of his wealth and he recited the words of God, the Exalted: The sadaqat (alms tax) is only for the poor and needy. (IX 60). There were eight categories for the (sadaqat) and to each category (he gave) a share of the sadaqat.
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He, peace be on him, judged a case concerning a man who made a bequest and said: "Free every slave of mine who has been long in my possession."
When he died, the executor did not know what to do. He asked about that and (the Commander of the faithful) told him to free every slave (of the man) who had been in his possession for six months.
Then he recited His words, Exalted be His name: For the moon we have appointed stages until it becomes again like an old dry branch of a palm tree ('urjun) (XXVI 39).
It has been established that the branch of a palm tree only becomes similar to the new moon in its strength six months after fruit has been taken from it.
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He gave judgement concerning a man who had made a vow to fast for a time but without mentioning any definite time. (He told him) to fast for six months and he recited the words of Him, the Mighty and High: It brings forth its fruit at every season by the permission of its Lord. (XIV 26)
That was every six months (so the time he interpreted to be equivalent to six months).
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A man came to him and said: "Commander of the faithful, I had some dates. My wife rushed (up to me) and took one of them and put it in her mouth. I vowed that she would never eat it nor spit it out."
He, peace be on him, said: "Let her eat half of it and spit out the other half. Then you will be free of your vow."
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He, peace be on him, gave judgement concerning a man who struck a woman and she had a miscarriage (when it was still) an embryo. (He ordered him) to pay the blood-wit for it of forty dinars and he recited the words of Him, the Mighty and High: We created man from an essence of clay. Then We made him a drop in a firm abode. Then We formed the drop into an embryo, and We formed the embryo into a clot of blood, and We formed the clot of blood into bones. We clothed the bones with flesh. Then we caused it to grow as a final act of creation. Blessed be God the best of Creators. (XXIII 12-14). He explained that (the blood-wit for) the drop was twenty dinars, for the embryo forty dinars, for the clot sixty dinars, for the bone before it was established as a creature eighty dinars, for the form (of the child) before the soul entered it a hundred dinars. If the soul had entered it, then (the blood-wit) was a thousand dinars.
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This has been a sample of the judgements and difficult decisions pronounced by (the Commander of the faithful), peace be on him. No one had given judgements on (such cases) before him. Nor did any of the non-Shi'a ('amma) and Shi'a (khassa) know anything about them. His natural disposition ('itra) made him able to deal with them. If anyone else had been tested by having to give a decision about them, such a man would have shown his deficiency in (knowing) the truth about them, just as (the Commander of the faithful) had made it clear.
In this brief outline of the legal decisions (of the Commander of the faithful) which we have put forward here, there is sufficient for our purposes, if God wills.
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Author: Shaykh al-Mufid
