A distinct Ismailisystem of jurisprudence was founded after the establishment of theFatimiddynasty in North Africa. The pre-Fatimid IsmailisAdherents of a branch of Shi’i Islam that considers Ismail, the eldest son of the Shi’i Imam Jaʿfar al-Ṣādiq (d. 765), as his successor. were preoccupied in various parts of the Abbasid Empire with missionary activities, promising the advent of the expected messianic figure calledMahdiandQa’imwho would restore justice and equity. Toward this goal, they developed a highly sophisticated gnostic system of thought, wherein thebatini(esoteric) sciences were more emphasised than thezahiri(exoteric) sciences. Law not only belonged to the latter category but also had very little practical use until the Ismailis had not obtained political power. Hence, it was not a priority at that stage. This, however, does not mean that they completely neglected law. The early Shi‘i communities, especially theImamis, shared a common heritage with each other up to the death ofImamJa‘far al-Sadiq in 148 AH/765 CE. Thus, they shared certain rituals and practices that had evolved until then. Recent scholarship has demonstrated thatImamMuhammad al-Baqir played a major role in the shaping of Shi‘i jurisprudence (Lalani, pp. 114-26), which became crystallised during the time of his sonImamJa‘far al-Sadiq and was known asmadhabAhl al-Bayt(rite of jurisprudence from the family of the Prophet). It should be also noted that both the Ismailis and theImamisconsiderImamMuhammad al-Baqir and his sonImamJa‘far al-Sadiq as the founders of their respective systems of law, because most of the traditions inQadial-Nu‘man’sٲ‘a’i al-Islamand Abu Ja‘far Muhammad Kulayni’sKitab al-kafiare traced back to these Imams. This school of jurisprudence was not in favour ofra’y(personal opinion) orqiyas(analogical deduction), both of which prevailed in the contemporary circles of the Sunni juris-consults(faqih).The Ismailis shared certain ritualistic features with other Shi‘i, such as the wiping of the feet in ablution, sayingbasmala(i.e., the formulaBe’sm Allah al-rahman al-rahim)aloud in recitation of the Qur‘an and during obligatory prayers, and addition of the formulahayya ‘ala khayr al-‘amal(come to the best of work) in the call to prayer(adhan;Lalani, pp. 120-24).
Soon after his triumphant entry intoQayrawanin 296 AH/909 CE, Abu ‘Abd Allah al-Shi‘i, a major Fatimid岹‘iwho was instrumental in the founding of the Fatimid dynasty, appointed Muhammad b. ‘Umar Marvazi, a local Shi‘i figure, as judge (Qadi).Marvazi imposed strict adherence to the above Shi‘i rituals and legal practices. Moreover, he ordered the omission ofal-salat khayr men al-nawm(prayer is better than sleep) from the morning call to prayer and prohibited thetarawihprayers led by a mosqueimamduring the month ofRamadan. In the Friday sermon (khutba) he added the blessings (salat)on Imam ‘Ali, bibi FatimaDaughter of the Prophet Muhammad and his first wife, Khadīja bint Khuwaylid. Also wife of ʿAlī b. Abī Ṭālib and mother of al-Ḥasan and al-Ḥusayn., Imam Hasan, and Imam Husayn immediately after the blessings on the Prophet. He also issued an order forbidding jurists to give legal opinions except according to the Shi‘i madhab(school), declaredtalaq al-batta(irrevocable divorce) invalid, and upheld the right of a daughter to inherit the whole of her father’s estate, to the exclusion of‘asaba(agnates), in the absence of a son (Ibn al-Haytham, pp. 64-67; Maliki, II, pp. 41, 55-56, 60-62; Ibn ‘Izari, I, pp. 151,159,173).
Unfortunately, we have no information about legal compositions of Marvazi or his immediate successors in the office ofqada’IfriqiyaMediaeval Muslim name for modern-day Tunisia; also the area where the Fatimids founded their state in the early tenth century..One can only surmise that some of those judges might have written law manuals hoping that their works would be recognised officially. Even if they did, their works were overshadowed by those ofQadial-Nu‘man and soon fell into disuse and were lost.
Qadial-Nu‘man, an Ismaili Shi‘i fromQayrawanSee Kairouan, entered the service of the Fatimid dynasty at an early age and served in various capacities the first four caliphs consecutively for over half a century, from 312AH/924 CE until his death in 363AH/974 CE. He was commissioned by the fourth imam-caliphal-Mu‘izzal-Din-Allah (r. 341-65 AH/953-75 CE) to compose theٲ‘a’i al-Islam,his magnum opus, which was officially promulgated as the Fatimid code. He is, therefore, rightly regarded by the Ismailis as the one who propounded their law.Qadial-Nu‘man had also composed several legal works based on themadhabof theAhl al-Bayt. In his first and voluminousKitab al-izah,which has reached us in abridged versions, his efforts were directed to the collection and classification of a vast number of legal traditions transmitted from the family of the Prophet. He compiled this work from all the available sources. This early and massive work consisting of 3,000 folios could be seen as an attempt byQadial-Nu‘man to lay the foundation on which Ismaili law could then be built. Consequently, he made several abridgments of theKitab al-izah,namelyKitab al-akhbar(oral-ikhbar), Mukhtasar al-izah,al-Urjuza al-muntakhaba,Kitab al-iqtisar,andKitab al-ikhtisar (orMukhtasar al-athar,orIkhtisar al-athar).In addition to those legal texts, he also wrote refutations of the Sunni schools of jurisprudence and their founders, such as Malik b. Anas, Abu Hanifa, and Shafi’i(for the chronology of these works and the development of Nu‘man’s thought, see Poonawala, 1996, pp. 119-24). In hisIkhtilaf usul al-madhahib(p. 22),Qadial-Nu‘man cites the decree ofImamal-Mu‘izz al-Din-Allah, wherein he is instructed by the latter about the roots of jurisprudence. It states that, in issuing his legal decisions,Qadial-Nu‘man should first follow theϳܰ’a, next, the tradition (sunna)of the Prophet, and for what is not found in either of them he should turn to themadhabof the Imams from the family of the Prophet. If something still remains doubtful and difficult to resolve, he should refer the matter to theImam. In hisKitab al-iqtisar(p. 167) andKitab al-ikhtisar,Qadial-Nu‘man proposes the same principles for issuing legal decisions and rejectsra’yandqiyas.
Theٲ‘a’i,according to Imad-al-Din Idris (d. 872 AH/1468 CE), a Musta‘li-Tayyibi岹‘iand a historian, was closely supervised by the Caliph-Imam al-Mu‘izz himself (Idris, p. 44). The work follows the general pattern of law manuals and is divided into two volumes. The first deals with the acts of devotion and religious observances (‘i岹)while the second with laws pertaining to human interactions (mu‘amalat).Qadial Nu‘man states on the authority ofImamJa‘far al-Sadiq that Islam was founded on seven pillars, that is,walaya(devotion to the imamIn general usage, a leader of prayers or religious leader. The Shi’i restrict the term to their spiritual leaders descended from ʿAlī b. Abī Ṭālib and the Prophet’s daughter, Fatima.),tahara(ritual purity),salat(prayers),zakat(charitable giving),sawm(fasting in the month ofRamadan),hajj(pilgrimage to Mecca), andjihad(holy war).Walaya,the corner-stone of Ismaili faith, embodies the doctrine of theimamatethat lies at the basis of Shi’ism, andQadial-Nu‘man transformed it into a dynamic principle after the establishment of the FatimidcaliphateThe Muslim political institution or state centred around the caliph, which came to an end, historically, in 1924 with the disappearance of the Ottoman Empire.. It is considered the highest and the noblest of the seven pillars, without which no human acts of devotion and worship are acceptable to God. It should be noted that, unlike with the Ismailis,walayadid not become part of the Imami legal works. Theٲ‘a’iwas therefore the first juristic text to givewalayaa legal status in Islamic law. For the Ismailis and the newly founded Fatimid dynasty, it was not merely a religious belief but was the very basis of their claim to the political leadership of the Muslim community. In the chapter onjihad,Qadial-Nu‘man included the ‘ahd (a command document) ascribed toImam‘Ali b. Abi Talib(ٲ‘a’i, tr., I, pp. 436-56), which dealt with the ruler’s conduct with his subjects. This document, according to Wadad Kadi (p.104), represents the Ismaili theory of the state.Tahara,which implies physical and spiritual purification and is a necessary requirement for the valid performance of prayers, was raised byQadial-Nu‘man to the status of an independent pillar (di‘ama,pl.岹‘a’i).
Theٲ‘a’i,as a law manual, addresses matters of substantive law, hence,Qadial-Nu‘man restricted the authorities toImamJa‘far al-Sadiq and his predecessors. In this work he does not deal with the day-to-day running of the state, where the ultimate authority was the rulingImam. The sources of law, according toQadial-Nu‘man, are theϳܰ’aMuslims believe that the Holy ϳܰ’a contains divine revelations to the Prophet Muhammed received in Mecca and Medina over a period of 23 years in the early 7th century CE. More, the tradition (sunnaCustom or practice; particularly that associated with the exemplary life of the Prophet Muhammad, comprising his deeds and utterances as recorded in the ḥadīth.)of the Prophet, and the teachings or rulings of the Imams. The major differences with Imami (Twelver Shi‘i) law are thatQadial-Nu‘man admitted the prohibition of temporary marriageܳ‘a,and the introduction of a fixed calendar rather than sighting the new moon for the beginning and end ofRamadan(ٲ‘a’i,tr., I, p. 339 , II, p. 214). Theٲ‘a’iis considered by the Musta‘li-Tayyibi Ismailis as the greatest authority on their law and has remained until today a source of supreme authority for them in legal matters.
Ibn Killis (d. 380 AH/991 CE),vizierof the Imam-caliph al-‘Aziz, is credited to have composed a legal work based on the pronouncements ofImamal-Mu‘izz andImamal-‘Aziz (r. 365-86 AH/975-96 CE), but the work did not survive. AfterQadial-Nu‘man, there was no significant development in Ismaili law either during the remainder of the Fatimid rule in Egypt or in Yemen, where the Musta‘li-Tayyibi community survived for the next four centuries after the fall of theFatimidsin Egypt (567 AH/1171 CE) and theSulayhidsin Yemen (532 AH/1138 CE). It was in India that the works ofQadial-Nu‘man were glossed. Aminji b. Jalal (d. 1010 AH/1602 CE), an eminent jurist, deserves special mention in this respect. HisKitab al-su’al wa’l-jawab(Majdu‘, pp. 37-38) is an interesting collection of legal questions and their answers. Another noteworthy work is the anonymousKitab al-su’al wa’l jawab al-masa’ik al-Hind ma‘ al-hawashi men kutub al-Qadi al-Nu‘man(Majdu‘, p. 37) , which consists of questions put to the contemporary岹‘isand otherda‘wadignitaries and the answers given by them. In addition, it contains extensive excerpts from the works ofQadial-Nu‘man that have not survived, especiallyKitab al-izahandMukhtasar al-izah. Another anonymous work worth mentioning isTaqwim(orTaqawim)al-ahkam(Majdu‘, pp. 36-37), wherein various topics in law concerning what is permitted and what is forbidden are arranged in a novel way. All the latter three works reiterate thatra’yandqiyasare not permitted. Hence, they give answers to the questions posed in the form of a ruling, however, without going into the details of methodology as to how the authorities arrived at those answers.
One can thus conclude that Ismaili jurisprudence began withQadial-Nu‘man and ended with him. Before him, there was no distinct Ismaili jurisprudence, and after him there was no significant development except glosses, repetition, and restatement.
Bibliography
Anonymous,Kitab al-su’al wa’l jawab al-masa’ik al-Hind ma‘ al-hawashi men kutub al-Qadi al-Nu‘man2 vols., MS. in the collection ofMullaQurban Husayn Gudhrawala.
Anonymous,Taqwim al-ahkam,MS. in the collection ofMullaQurban Husayn Gudhrawala.
Aminji b. Jalal,Kitab al-su’al wa’l-jawab aw Masa’el Aminji b. Jalal,MS. in the collection ofMullaQurban Husayn Gudhrawala.
Ibn al-Haytham,Kitab al-munazarat,ed. and tr. Wilferd Madelung and Paul Ernest Walker asThe Advent of the FatimidsMajor Muslim dynasty of Ismaili caliphs in North Africa (from 909) and later in Egypt (973–1171) More: A Contemporary Shi‘i Witness,London, 2000, pp. 66-67.
Ibn ‘Izari Marrakushi,al-Bayan al-magreb fi akhbar muluk al-Andalus wa’l-Magreb,ed. G. S. Colin and E. Levi-Provencal asHistoire de l’Afrique du nord et de l’Espagne musulmane et fragments de laChronique de ‘Arib,new ed., 2 vols., Leiden, 1948-51, I, pp. 151, 159, 173.
‘Imadal-DinIdris b. ‘Abd-Allah, ‘Oyun al-akhbar wa-fonun al-atharVI , ed. Mustafa Galeb, Beirut, 1404/1984,pp. 35-50.
Asaf A. A. Fyzee,Compendium of Fatimid Law,Simla, 1969.
Arzina R. Lalani,Early Shi‘i Thought: The Teachings ofImamMuhammad al-Baqir,London, 2000, pp. 114-26.
Wilferd Madelung, “The Sources of Ismaili Law,”Journal of Near Eastern Studies 35,1976, pp. 29-40.
— — , “‘Abd Allah b. ‘Abbas and-‘iٱLaw,” in U. Vermeulen and J. van Reeth, eds.,Law, Christianity and Modernism in Islamic Society: Proceedings of the Eighteenth Congress of the Union Europeenne des Arabisants et Islamisants,held at the Katholoieke Universiteit Leuven, Sept. 3-9, 1996, Leuven, 1998, pp. 13-25.
Esma‘il b. ‘Abd-al-RasulMajdu’,Fahrasat al-kutub wa’l-rasa’el,ed. ‘Ali-Naqi Monzawi, Tehran, 1966, pp. 18-38.
‘Abd Allah b. Muhammad Maleki,Riaz al-nufus fi tabaqat ‘ulama’ al-Qayrawan waIfriqiya,ed. Bashir Bakkush, 3 vols., Beirut, 1983, II, pp. 41, 55-56, 60-62.
Abu Hanifa Qazi Nu‘man b. Muhammad Tamimi,ٲ‘a’i al-Islam fidhikral-halal wa’l-haram wa’l-qazaya wa’ l-ahkam,ed. ‘Asaf A. A. Fayzi (Fyzee), 2 vols., Cairo, 1951-61; tr. A. A. A. Fyzee, asThe Pillars of Islam,completely revised and annotated by Ismail K. Poonawala, 2 vols., New Delhi, 2002-4.
— —,Kitab al-Ikhtisar,ed. Mohammad Wahid Mirza, Damascus, 1376/1957, p. 167.
— —,Kitab Ikhtelaf usul al-madhaheb,ed. S. T. Lokhandwalla, Simla, 1972. pp. 19-24.
Ismail K. Poonawala,Bibliography of Ismaili Literature,Malibu, Calif., 1977, pp. 48-68, 78-79,185.
— —, “Al-Qazi al-Nu‘man and Ismaili Jurisprudence,” inFarhad Daftary, ed.,Medieval Ismaili History and Thought,Cambridge, 1996, pp. 117-43.
Rudolf Strothmann, “Recht der Ismailiten,”Der Islam42, 1954, pp. 131-46.
Wadad Kadi, “An Early Fatimid Political Document,”Studia Islamica48, 1978, pp. 71-108.
