There are texts that contradict those, which indicates explicitly that rehabilitated lands remain the property of the Imam and he has right to the kharaj (land tax) thereon. These two sets of texts, which imply the proprietorship by the person who rehabilitates a land that he has rehabilitated, and that is not responsible for any tax in relation to the property. One gives that meaning only superficially, while the other indicates that more explicitly.

As for the first set of the texts, they are just like what is mentioned in the tradition by Muhammad ibn Muslim on the authority of the Ahlul-bayt (a.s.): “Whoever rehabilitates a portion of the land will have more right to it and that it will be his”. For the ‘lam’ (genitive) in the phrase ‘lahum’ implies competent authority while the literal meaning of its application to competent authority – a manner of ownership.

As for the second set of the texts, the example is a tradition reported by ‘Abdullah ibn Sinan on the authority of Abu ‘Abdillah (a.s.). He said: “While I was present a question was asked of the Imam, about a person who had rehabilitated a wasteland, had dug out stream, built houses and thereon planted palm groves and trees.” The Imam replied: “The land was his and the rent accruing from the houses. But he will have to pay the ‘ushra (tithe – i.e., zakat).”

His contenting himself with the mention of zakat in place of the determination of what was due upon him is like making explicit statements as to the negation of the kharaj (land tax) and the cessation of the relationship of the Imam with the riqbah (physical ownership) of the land. Therefore, a remedy for the ending of the conflict between these two sets and the set referred to in the text, is inevitable.

Perhaps it may be argued that this set is irrelevant after the establishment of a definite and decisive sirah practice as regards the person who reclaims (a land) while not required to pay the kharaj since the time of the Imam to this day. Likewise, there is no reason in carrying it to the time of the zuhur of the Hujjah. Thus, it is necessary to dissociate from this.

Our reply to this is that, if it is meant the practice of the jurist to follow strictly the text of Ahlul-bayt (a.s.), it may perhaps be due to their not giving for remuneration of traditions declaring something lawful or permissible, not because of the discontinuation of the Imam’s relation with the land directly after its rehabilitation. If it is meant for the practice of Muslims of other sects – then it is on account of their subscribing to another jurist principle. Or, it may perhaps be said that the companions have avoided from this set – indicating ownership of the Imam, so it is void as a basis of argumentation.

Our reply to this is follows.

First, avoidance of a tradition does not make it void as a basis for argumentation as we have described in the usul (Principle of Jurisprudence). Second, avoiding of all jurists is not proved and mutual admission of all jurists as to the de facto invalidity of tasq (a fixed sum of land tax) on account of the traditions declaring the lawfulness of permissibility of its meaning by all.

Third, if the avoidance of the meaning (of the tradition) were admitted, it would perhaps be because of the application of the rules in areas of conflicting textual evidence and the preference for the opposite. It was not because of defects in the particular texts.

According to this, the resolution of the conflict is necessary to conceive for these reasons:

First: to take the set (of textual evidence) ordering kharaj on the basis of istihbab (presumption of accompanying circumstances) as an integral part of its obvious invalidity.

It may be argued that this would be confusing the obligatory (taklifiyyah) law with the declaratory (wad’iyyah) law, because this integration will be valid in respect of taklifiyyah (obligatory) laws whereby its order holds when the permission is arrived at on the basis of preference. But it is not valid in respect of the declaratory laws, as the basis for that integration is absent here.

Therefore, the reason for the taking evidence of the taklifi (order to mean the obligatory) preference, after the occurrence of the permission, will be constructed on the basis of the research scholar. An-Na’ini, as regards the evidence of the obligatory nature of the order; and because the obligatory nature and the basis are not the two meanings of the word, rather the obligatory nature is drawn from reason’s diction by the necessity of the furnishing of the wanted (demanded) of the Mawla (the Lord) whenever mentioned thereof.

Therefore, when the permission comes, the question of the obligatory nature factually disappears and is established by its integration with the comprehensive demand – the meaning of the word istihbab. Or it may be on the basis of being obligatory nature established by the application of the meaning of the order so that the bearing demand from – istihbab – to be restricted to the application which is the origin of the obligatory nature and to be restricted to the requirement of the rule. Or it may be on the basis of obligatory nature being a declaratory meaning towards a direction, since the bearing of istihbab depends upon a claim of the existence of the literary sense of the secondary meaning of the version of istihbab – choice or preference – reaching it into its turn after the lifting of hand from its first literary sense of necessity in order to be istihbab established by literary sense and not by interpretation.

All this is not accomplished in the matter of the literary meaning of the statement of declaratory law just as in the place, since his statement (‘let him pay the fixed amount of land-tax or the fixed land-tax’) is practice (‘urfan) an explanation of the indication for (the ownership of) ownership and not a naked defining (controlling) demand pure and simple. So it does not lead to the meaning of istihbab.

The second reason: The set of traditions indicating explicitly the continuation of the ownership of the Imam gets eliminated (in his disappearance) when it conflicts with the explicit tradition in its disappearance and ends up, in its turn, to the set of other literal traditions in its disappearance and gives to the rehabilitator the proprietor’s right to the land in general. The reason for it is that this set of literal tradition cannot reasonably be a part of the conflict with the set of traditions, which are explicit about the continuation of the Imam’s ownership of a wasteland because the applicatory literal sense cannot be contrary to the explicit. Rather, the explicit tradition will be tied to it literally.

Accordingly, the conflict in the preceding category will be between the two sets of explicit traditions and will reach in their turn the applicatory literal sense without contradiction.

This explanation is based on the fundamental rule about the domain of contradiction. The rule is that when two sets of traditions come in conflict, whereby, for instance, one in its entirety is explicit about negation, while in the other there is explicit and literal affirmation. Therefore, elimination of all of them in the same rank because of that which is literal as to affirmation cannot contradict that which is explicit as to negation, when the explicit to a certain extent fits with the context of legal practice. The explicit as to affirmation contradicts the explicit as to negation only and after their mutual elimination; and comes back to the literal sense of the negation not contrary as regards its rank.

This general rule, although it is not absolutely accepted in practise by all jurists yet, is in fact, an extension of the rule that is accepted by them in theory and practice. The rule is a restart to the above general after the mutual elimination of the two specifics because the very idea which demonstrates that the general (universal) cannot happen to be a part (side) of the contradiction at the level of the two specifics points to that in place of similar kind.

This reason, however, is based on the determination of the elimination of the two explicit, one by one, and the non-preference of either. The explanation of the ‘preferred’ will be given later on.

The third reason: It is based on the reversal of relationship on the pretext that the texts are opposed to each other in the direction of incongruity. The tradition of tahlil (making or declaring lawful or permissible) is limited to the text implying that the person who rehabilitates the wasteland does not own it and the evidence of kharaj (land tax) due from him, and removes the individuals whom the traditions of tahlil includes. Therefore, because of this the text becomes absolutely (in general) more moral specific than the text that negates kharaj (land tax) absolutely (in general) and the contradiction disappears.

It may be argued against this – as an adjunct to the forms of the major reversal of relationship – that the reversal of relationship between the two universals (generals) that are incompatible with each other, is accomplished only when the specific, happens to be with one of them, contradicts the other in order to take the meaning of the corresponding universal, the source of the specific – and in the place of the traditions of tahlil. And if they were contrary or earmarked, they would not indicate the certainty of kharaj except that they are not in agreement with the negation of kharaj and implying the rehabilitator’s proprietorship of the (rehabilitated) land because the literal sense of the negative universal is the explanation of the entire Divine Ordinance, and not declaring the proprietary permissible as is the intent of the traditions of tahlil.

The mention of some of the traditions of the negative set as regards the source of the Jews and Christians, a matter which is indicative of the fact that in connection with the statement of the private proprietary permission, so it cannot be taken to mean the source (origin) of the tradition of tahlil to be the reversal of relationship.

The fourth reason: That the two sets of texts contradict each other, and the text which is indicative of proprietary ownership of the land by the person who rehabilitates it is chosen either on account of its being a mashhur (well known) tradition or on account of its conformity to universals of the definite practice of the Prophet, whereas in that the sentence: “He who rehabilitates a land, that land belongs to him”, is mutawatir from the Prophet and Imams. It indicates by the application of ‘lam’ to the ownership and so it carries more weight for the text that is indicative of the ownership of the rehabilitated land by the person who spent efforts on it.

The reply to this is what we have mentioned in the usul (Principle of Jurisprudence). It is that a tradition being mashhur (well known) - but not to a degree that leads to its certainty – does not lend more weight, in the same way that correspondence with as-sunnatul- qat’iyyah (a decisive practice of the Prophet or Imams) does not enhance the position a fact about sunnah when it has not reached the level of tawatur.

The fifth reason: That the text in support of disallowing ownership of a land to the person who reclaims it - and upholding the Imam’s proprietary ownership - carries greater weight in a place of the other and that is because the other text which contradicts it is opposed to the universal (principle) of the Qur’an and is presumably of questionable authenticity.

As for the universal (principle) of the Book, it is the declaration of Allah, the High,

“Do not appropriate each other’s property by invalid means except in the way of commerce with one another by mutual consent” (4:29).

This verse gives the verdict that every means of appropriation or taking possession of another’s property except by way of commerce with mutual consent is invalid. Obviously, taking into possession of the property of the Imam by way of rehabilitation is not trading with mutual consent, so it is invalid by the application of the verse.

What, in view of this verse, could therefore prove the ownership gained by the person reclaiming the land? Therefore, it will have precedence, likewise the reality of the direction in respect of it, is decisive not what indicates to the rehabilitator’s ownership, so consider well.