xi. ISMAʿILI JURISPRUDENCE
A distinct Ismaʿili system of jurisprudence was founded after the establishment of the Fatimid dynasty in North Africa. The pre-Fatimid Ismaʿilis, as a secret revolutionary organization, were preoccupied in various parts of the ʿAbbasid empire with missionary activities, promising the advent of the expected messianic figure called Mahdi and Qāʾem who would restore justice and equity. Toward this goal, they developed a highly sophisticated gnostic system of thought, wherein the bāṭeni (esoteric) sciences were more emphasized than the ẓāheri (exoteric) sciences (see BĀṬENIYA). Law not only belonged to the latter category. but also had very little practical use as long as the Ismaʿilis 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 Is-maʿilis shared a common heritage with other Shiʿites, especially the Imamis up to the death of the Imam Jaʿfar al-Ṣādeq in 148/765. Thus, they shared with the Zaydis as well as the Imamis certain rituals and practices that had evolved until then. Recent scholarship has demonstrated that Imam Moḥammad al-Bāqer (q.v.) played a major role in the shaping of Shiʿite jurisprudence (Lalani, pp. 114-26), which became crystallized during the time of his son Imam Jaʿfar al-Ṣādeq and was known as maḏhab Ahl al-Bayt (rite of jurisprudence from the family of the Prophet; see AHL-E BAYT). It should be also noted that both the Ismaʿilis and the Imamis consider Imam Mo-ḥammad al-Bāqer and his son Imam Jaʿfar al-Ṣādeq as the founders of their respective systems of law, because most of the traditions in Qāżi Noʿmān’s Daʿāʾem al-Eslām and Abu Jaʿfar Moḥammad Kolayni’s Ketāb al-kāfi are traced back to these Imams. This school of jurisprudence was not in favor of raʾy (personal opinion) or qiās (analogical deduction), both of which prevailed in the contemporary circles of the Sunni jurisconsults (faqih). The Ismaʿilis share certain ritualistic features with other Shiʿites, such as the wiping of the feet in ablution, saying basmala (i.e., the formula beʾsm Allāh al-raḥmān al-raḥim) aloud in recitation of the Qurʾan and during obligatory prayers, and addition of the formula ḥayya ʿalā ḵayr al-ʿamal (come to the best of work) in the call to prayer (aḏān; Lalani, pp. 120-24).
Soon after his triumphant entry into Qayrawān in 296/909, Abu ʿAbd Allāh Šiʿi, the founder of the Fatimid dynasty, appointed Moḥammad b. ʿOmar Marvazi, a local Shiʿite figure, as judge (qāżi). Marvazi imposed strict adherence to the above Shiʿite rituals and legal practices. Moreover, he ordered the omission of al-ṣalāt kayr men al-nawm (prayer is better than sleep) from the morning call to prayer and prohibited the tarāwiḥ prayers led by an imam during the month of Ramażān. In the Friday sermon (ḵoṭba) he added the blessings (ṣalāt) on Imam ʿAli, Fāṭema, Imam Ḥasan, and Imam Ḥosayn immediately after the blessings on the Prophet. He also issued an order forbidding jurists to give legal opinions except according to the Shiʿite maḏhab (school); declared ṭalāq 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 ʿaṣāba (agnates), in the absence of a son (Ebn al-Hayṯam, pp. 64-67; Māleki, II, pp. 41, 55-56, 60-62; Ebn ʿEzāri, I, pp. 151, 159, 173).
Unfortunately, we have no information about legal compositions of Marvazi or his immediate successors in the office of qażāʾ Efriqiya. One can only surmise that some of those judges might have written law manuals hoping that their works would be recognized officially. Even if they did, their works were overshadowed by that those of Qāżi Noʿmān and soon fell into disuse and were lost.
Qāżi Noʿmān, an Ismaʿili Shiʿite from Qayrawān, entered the service of the Fatimid dynasty at an early age and served the first four caliphs consecutively for over half a century, from 312/924 until his death in 363/974, in various capacities. He was commissioned by the fourth caliph al-Moʿezz le-Din-Allāh (r. 341-65/953-75) to compose the Daʿāʾem al-Eslām, his magnum opus, which was officially promulgated as the Fatimid code. He is, therefore, rightly regarded by the Ismaʿilis as the one who propounded their law. Qāżi Noʿmān had also composed several legal works based on the maḏhab of the Ahl al-Bayt. In his first and voluminous Ketāb al-iżāḥ, 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 by Qāżi Noʿmān to lay the foundation on which Ismaʿili law could then be built. Consequently, he made several abridgments of the Ketāb al-iżāḥ, namely Ketāb al-aḵbār (or al-eḵbār), Moḵtaṣar al-iżāḥ, al-Orjuza al-montaḵaba, Ketāb al-eqteṣār, and Ketāb al-eḵteṣār (or Moḵtaṣar al-āṯār, or Eḵteṣār al-āṯār). In addition to those legal texts he also wrote refutations of the Sunni schools of jurisprudence and their founders, such as Mālek b. Anas, Abu Ḥanifa, and Šāfeʿi (for the chronology of these works and the development of Noʿmān’s thought, see Poonawala, 1996, pp. 119-24). In his Eḵtelāf oṣul al-maḏāheb (p. 22), Qāżi Noʿmān cites the decree of al-Moʿezz le-Din-Allāh, wherein he is instructed by the latter about the roots of jurisprudence. It states that, in issuing his legal decisions, Qāżi Noʿmān should first follow the Qurʾān, next, the tradition (sonna) of the Prophet, and for what is not found in either of them he should turn to the maḏhab of the Imams from the family of the Prophet. If something still remains doubtful and difficult to resolve, he should refer the matter to the Imam. In his Ketāb al-eqteṣār (p. 167) and Ketāb al-eḵteṣār, Qāżi Noʿmān proposes the same principles for issuing legal decisions and rejects raʾy and qiās.
The Daʿāʾem, according to ʿEmād-al-Din Edris (d. 872/1468), a Mostaʿli-Ṭayyebi dāʿi and a historian, was closely supervised by the Caliph-Imam al-Moʿezz himself (Edris, 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 (ʿebādāt) while the second with laws pertaining to human intercourse (moʿāmalāt). Qāżi Noʿmān states on the authority of Imam Jaʿfar al-Ṣādeq that Islam was founded on seven pillars, that is, walāya (devotion to the imam), ṭahāra (ritual purity), ṣalāt (prayers), zakāt (welfare tax), ṣawm (fasting in the month of Ramażān), ḥajj (pilgrimage to Mecca), and jehād (holy war). Walāya, the corner-stone of Ismaʿili faith, embodies the doctrine of the imamate that lies at the basis of Shiʿism, and Qāżi Noʿmān transformed it into a dynamic principle after the establishment of the Fatimid caliphate. 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 Is-maʿilis, walāya did not become part of the Imami legal works. The Daʿāʾem was therefore the first juristic text to give walāya a legal status in Islamic law. For the Is-maʿilis 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 on jehād, Qāżi Noʿmān included the ʿahd (a command document) ascribed to Imam ʿAli b. Abi Ṭāleb (Daʿāʾem, tr., I, pp. 436-56), which deals with the ruler’s conduct with his subjects. This document, according to Wadād al-Qāżi (p. 104), represents the Is-maʿili theory of the state. Ṭahāra, which implies physical and spiritual purification and is a necessary requirement for the valid performance of prayers, was raised by Qāżi Noʿmān to the status of an independent pillar (deʿāma, pl. daʿāʾem).
The Daʿāʾem, as a law manual, addresses matters of substantive law, hence, Qāżi Noʿmān restricted the authorities to Imam Jaʿfar al-Ṣādeq 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 ruling imam. The sources of law, according to Qāżi Noʿmān, are the Qurʾān, the tradition (sonna) of the Prophet, and the teachings or rulings of the Imams. The major differences with Imami (Twelver Shiʿites) law are that Qāżi Noʿmān admitted the prohibition of temporary marriage (motʿa), and the introduction of a fixed calendar rather than sighting the new moon for the beginning and end of Ramażān (Daʿāʾem, tr., I, p. 339, II, p. 214). The Daʿāʾem is considered by the Mostaʿli-Ṭayyebi Ismaʿilis as the greatest authority on their law and has remained until today a source of supreme authority in legal matters.
Ebn Kelles (d. 380/991), vizier of the caliph al-ʿAziz, is credited to have composed a legal work based on the pronouncements of al-Moʿezz and al-ʿAziz (r. 365-86/975-96), but the work did not survive. After Qāżi Noʿmān, there was no significant development in Ismaʿili law either during the remainder of the Fatimid rule in Egypt or in Yemen, where the Mostaʿli-Ṭayyebi community survived for the next four centuries after the fall of the Fatimids in Egypt (567/1171) and the Ṣulayhids in Yemen (532/1138). It was in India that the works of Qāżi Noʿmān were glossed. Aminji b. Jalāl (d. 1010/1602), an eminent jurist, deserves special mention in this respect. His Ketāb al-soʾāl wa’l-jawāb (Majduʿ, pp. 37-38) is an interesting collection of legal questions and their answers. Another noteworthy work is the anonymous Ketāb al-soʾāl wa’l-jawāb le-mašāʾeḵ al-Hend maʿ al-ḥawāši men kotob al-Qāżi al-Noʿmān (Majduʿ, p. 37), which consists of questions put to the contemporary dāʿis and other daʿwa dignitaries and the answers given by them. In addition, it contains extensive excerpts from the works of Qāżi Noʿmān that have not survived, especially Ketāb al-iżāḥ and Moḵtaṣar al-iżāḥ. Another anonymous work worth mentioning is Taqwim (or Taqāwim) al-aḥkām (Majduʿ, 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 that raʾy and qiās are 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 Ismaʿili jurisprudence began with Qāżi Noʿmān and ended with him. Before him, there was no distinct Ismaʿili jurisprudence, and after him there was no significant development except glosses, repetition, and restatement.
Anonymous, Ketāb al-soʾāl wa’l-jawāb le-mašāʾeḵ al-Hend maʿ al-ḥawāši men kotob al-Qāżi al-Noʿmān, 2 vols., ms. in the collection of Mollā Qorbān Ḥosayn Godhrawala.
Anonymous, Taqwim al-aḥkām, Ms. in the collection of Mollā Qorbān Ḥosayn Godhrawala. Aminji b. Jalāl, Ketāb al-soʾāl wa’l-jawāb aw Masāʾel Aminji b. Jalāl, ms. in the collection of Mollā Qorbān Ḥosayn Godhrawala.
Ebn al-Hayṯam, Ketāb al-monāẓarāt, ed. and tr. Wilferd Madelung and Paul Ernest Walker as The Advent of the Fatimids: A Contemporary Shiʿi Witness, London, 2000, pp. 66-67.
Ebn ʿEzāri Marrākoši, al-Bayān al-moḡreb fi aḵbār moluk al-Andalus wa’l-Maḡreb, ed. G. S. Colin and E. Lévi-Provençal as Histoire de l’Afrique du nord et de l’Espagne musulmane … et fragments de la Chronique de ʿArib, new ed., 2 vols., Leiden, 1948-51, I, pp. 151, 159, 173.
ʿEmād al-Din Edris b. ʿAbd-Allāh, ʿOyun al-akbār wa-fonun al-āṯār VI, ed. Moṣṭafā Ḡāleb, Beirut, 1404/1984, pp. 35-50.
Asaf A. A. Fyzee, Compendium of Fatimid Law, Simla, 1969.
Arzina R. Lalani, Early Shiʿi Thought: The Teachings of Imam Muḥammad al-Bāqir, London, 2000, pp. 114-26.
Wilferd Madelung, “The Sources of Ismāʿili Law,” JNES 35, 1976, pp. 29-40.
Idem, “ʿAbd Allāh b. ʿAbbās and Shi-ʿite Law,” in U. Vermeulen and J. van Reeth, eds., Law, Christianity and Modernism in Islamic Society: Proceedings of the Eighteenth Congress of the Union Européenne des Arabisants et Islamisants, held at the Katholoieke Universiteit Leuven, Sept. 3-9, 1996, Leuven, 1998, pp. 13-25.
Esmāʿil b. ʿAbd-al-Rasul Majduʿ, Fahrasat al-kotub wa’l-rasāʾel, ed. ʿAli-Naqi Monzawi, Tehran, 1966, pp. 18-38.
ʿAbd Allāh b. Moḥammad Māleki, Riāz al-nofus fi ṭabaqāt ʿolamāʾ al-Qayrawān wa Efriqiya, ed. Bašir Bakkuš, 3 vols., Beirut, 1983, II, pp. 41, 55-56, 60-62.
Abu Ḥanifa Qāżi Noʿmān b. Moḥammad Tamimi, Daʿāʾem al-Eslām fi ḏekr al-ḥalāl wa’l-ḥarām wa’l-qażāya wa’l-aḥkām, ed. ʿĀṣaf A. A. Fayżi (Fyzee), 2 vols., Cairo, 1951-61; tr. A. A. A. Fyzee, as The Pillars of Islam, completely revised and annotated by Ismail K. Poonawala, 2 vols., New Delhi, 2002-4.
Idem, Ketāb al-eqteṣār, ed. Mo-ḥammad Waḥid Mirzā, Damascus, 1376/1957, p. 167.
Idem, Idem, Ketāb eḵtelāf oṣūl al-maḏāheb, ed. S. T. Lokhandwalla, Simla, 1972. pp. 19-24.
Ismail K. Poonawala, Biobibliography of Ismāʿili Literature, Malibu, Calif., 1977, pp. 48-68, 78-79, 185.
Idem, “Al-Qāżi al-Nuʿmān and Ismaʿili Jurisprudence,” in Farhad Daftary, ed., Medieval Ismaʿili History and Thought, Cambridge, 1996, pp. 117-43.
Rudolf Strothmann, “Recht der Ismailiten,” Der Islam 42, 1954, pp. 131-46.
Wadād al-Qāżi, “An Early Fāṭimid Political Document,” Studia Islamica 48, 1978, pp. 71-108.
(Ismail K. Poonawala)
Originally Published: December 15, 2007
Last Updated: April 5, 2012
This article is available in print.
XIV, Fasc. 2, pp. 195-197