A distinct Ismaili听system of jurisprudence was founded after the establishment of the听Fatimid听dynasty 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 Ja士far al-峁⒛乨iq (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 called听Mahdi听and听Qa鈥檌m听who would restore justice and equity. Toward this goal, they developed a highly sophisticated gnostic system of thought, wherein the听batini听(esoteric) sciences were more emphasised than the听zahiri听(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鈥榠 communities, especially the听Imamis, shared a common heritage with each other up to the death of听Imam听Ja鈥榝ar al-Sadiq in 148 AH/765 CE. Thus, they shared certain rituals and practices that had evolved until then. Recent scholarship has demonstrated that听Imam听Muhammad al-Baqir played a major role in the shaping of Shi鈥榠 jurisprudence (Lalani, pp. 114-颅26), which became crystallised during the time of his son听Imam听Ja鈥榝ar al-Sadiq and was known as听madhab听Ahl al-Bayt听(rite of jurisprudence from the family of the Prophet). It should be also noted that both the Ismailis and the听Imamis听consider听Imam听Muhammad al-Baqir and his son听Imam听Ja鈥榝ar al-Sadiq as the founders of their respective systems of law, because most of the traditions in听Qadi听al-Nu鈥榤an鈥檚听顿补鈥榓鈥檌尘 al-Islam听and Abu Ja鈥榝ar Muhammad Kulayni鈥檚听Kitab al-kafi听are traced back to these Imams. This school of jurisprudence was not in favour of听ra鈥檡听(personal opinion) or听qiyas听(analogical deduction), both of which prevailed in the contemporary circles of the Sunni juris-consults听(faqih).听The Ismailis shared certain ritualistic features with other Shi鈥榠, such as the wiping of the feet in ablution, saying听basmala听(i.e., the formula听Be鈥檚m Allah al-rahman al-rahim)听aloud in recitation of the Qur鈥榓n and during obligatory prayers, and addition of the formula听hayya 鈥榓la khayr al-鈥榓mal听(come to the best of work) in the call to prayer听(adhan;听Lalani, pp. 120-24).
Soon after his triumphant entry into听Qayrawan听in 296 AH/909 CE, Abu 鈥楢bd Allah al-Shi鈥榠, a major Fatimid听诲补鈥榠听who was instrumental in the founding of the Fatimid dynasty, appointed Muhammad b. 鈥楿mar Marvazi, a local Shi鈥榠 figure, as judge (Qadi).听Marvazi imposed strict adherence to the above Shi鈥榠 rituals and legal practices. Moreover, he ordered the omission of听al-salat khayr men al-nawm听(prayer is better than sleep) from the morning call to prayer and prohibited the听tarawih听prayers led by a mosque听imam听during the month of听Ramadan. In the Friday sermon (khutba) he added the blessings (salat)听on Imam 鈥楢li, bibi FatimaDaughter of the Prophet Muhammad and his first wife, Khad墨ja bint Khuwaylid. Also wife of 士Al墨 b. Ab墨 峁乴ib and mother of al-岣san and al-岣sayn., 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鈥榠 madhab听(school), declared听talaq al-batta听(irrevocable divorce) invalid, and upheld the right of a daughter to inherit the whole of her father鈥檚 estate, to the exclusion of听鈥榓saba听(agnates), in the absence of a son (Ibn al-Haytham, pp. 64-67; Maliki, II, pp. 41, 55-56, 60-颅62; Ibn 鈥業zari, I, pp. 151,159,173).
Unfortunately, we have no information about legal compositions of Marvazi or his immediate successors in the office of听qada鈥櫶IfriqiyaMediaeval Muslim name for modern-day Tunisia; also the area where the Fatimids founded their state in the early tenth century..听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 of听Qadi听al-Nu鈥榤an and soon fell into disuse and were lost.
Qadi听al-Nu鈥榤an, an Ismaili Shi鈥榠 from听QayrawanSee 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-caliph听al-Mu鈥榠zz听al-Din-Allah (r. 341-65 AH/953-75 CE) to compose the听顿补鈥榓鈥檌尘 al-Islam,听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.听Qadi听al-Nu鈥榤an had also composed several legal works based on the听madhab听of the听Ahl al-Bayt. In his first and voluminous听Kitab al-izah,听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听Qadi听al-Nu鈥榤an to lay the foundation on which Ismaili law could then be built. Consequently, he made several abridgments of the听Kitab al-izah,听namely听Kitab al-akhbar听(or听al-ikhbar), Mukhtasar al-izah,听al-Urjuza al-muntakhaba,听Kitab al-iqtisar,听and听Kitab al-ikhtisar (or听Mukhtasar al-athar,听or听Ikhtisar al-athar).听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听(for the chronology of these works and the development of Nu鈥榤an鈥檚 thought, see Poonawala, 1996, pp. 119-24). In his听Ikhtilaf usul al-madhahib听(p. 22),听Qadi听al-Nu鈥榤an cites the decree of听Imam听al-Mu鈥榠zz al-Din-Allah, wherein he is instructed by the latter about the roots of jurisprudence. It states that, in issuing his legal decisions,听Qadi听al-Nu鈥榤an should first follow the听蚕耻谤鈥檃苍, next, the tradition (sunna)听of the Prophet, and for what is not found in either of them he should turn to the听madhab听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听Imam. In his听Kitab al-iqtisar听(p. 167) and听Kitab al-ikhtisar,听Qadi听al-Nu鈥榤an proposes the same principles for issuing legal decisions and rejects听ra鈥檡听and听qiyas.
The听顿补鈥榓鈥檌尘,听according to Imad-al-Din Idris (d. 872 AH/1468 CE), a Musta鈥榣i-Tayyibi听诲补鈥榠听and a historian, was closely supervised by the Caliph-Imam al-Mu鈥榠zz 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 (鈥榠产补诲补迟)听while the second with laws pertaining to human interactions (mu鈥amalat).听Qadi听al Nu鈥榤an states on the authority of听Imam听Ja鈥榝ar al-Sadiq that Islam was founded on seven pillars, that is,听walaya听(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 士Al墨 b. Ab墨 峁乴ib and the Prophet’s daughter, Fatima.),听tahara听(ritual purity),听salat听(prayers),听zakat听(charitable giving),听sawm听(fasting in the month of听Ramadan),听hajj听(pilgrimage to Mecca), and听jihad听(holy war).听Walaya,听the corner-stone of Ismaili faith, embodies the doctrine of the听imamate听that lies at the basis of Shi’ism, and听Qadi听al-Nu鈥榤an transformed it into a dynamic principle after the establishment of the Fatimid听caliphateThe 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,听walaya听did not become part of the Imami legal works. The听顿补鈥榓鈥檌尘听was therefore the first juristic text to give听walaya听a 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 on听jihad,听Qadi听al-Nu鈥榤an included the ‘ahd (a command document) ascribed to听Imam听鈥楢li b. Abi Talib听(顿补鈥榓鈥檌尘, tr., I, pp. 436-56), which dealt with the ruler鈥檚 conduct with his subjects. This document, according to Wadad Kadi (p.104), represents the Ismaili theory of the state.听Tahara,听which implies physical and spiritual purification and is a necessary requirement for the valid performance of prayers, was raised by听Qadi听al-Nu鈥榤an to the status of an independent pillar (di鈥榓ma,听pl.听诲补鈥榓鈥檌尘).
The听顿补鈥榓鈥檌尘,听as a law manual, addresses matters of substantive law, hence,听Qadi听al-Nu鈥榤an restricted the authorities to听Imam听Ja鈥榝ar 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 ruling听Imam. The sources of law, according to听Qadi听al-Nu鈥榤an, are the听蚕耻谤鈥檃苍Muslims believe that the Holy 蚕耻谤鈥檃苍 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 岣d墨th.)听of the Prophet, and the teachings or rulings of the Imams. The major differences with Imami (Twelver Shi鈥榠) law are that听Qadi听al-Nu鈥榤an admitted the prohibition of temporary marriage听尘耻迟鈥榓,听and the introduction of a fixed calendar rather than sighting the new moon for the beginning and end of听Ramadan听(顿补鈥榓鈥檌尘,听tr., I, p. 339 , II, p. 214). The听顿补鈥榓鈥檌尘听is considered by the Musta鈥榣i-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),听vizier听of the Imam-caliph al-鈥楢ziz, is credited to have composed a legal work based on the pronouncements of听Imam听al-Mu鈥榠zz and听Imam听al-鈥楢ziz (r. 365-86 AH/975-96 CE), but the work did not survive. After听Qadi听al-Nu鈥榤an, there was no significant development in Ismaili law either during the remainder of the Fatimid rule in Egypt or in Yemen, where the Musta鈥榣i-Tayyibi community survived for the next four centuries after the fall of the听Fatimids听in Egypt (567 AH/1171 CE) and the听Sulayhids听in Yemen (532 AH/1138 CE). It was in India that the works of听Qadi听al-Nu鈥榤an were glossed. Aminji b. Jalal (d. 1010 AH/1602 CE), an eminent jurist, deserves special mention in this respect. His听Kitab al-su鈥檃l wa鈥檒-jawab听(Majdu鈥, pp. 37-38) is an interesting collection of legal questions and their answers. Another noteworthy work is the anonymous听Kitab al-su鈥檃l wa鈥檒颅 jawab al-masa鈥檌k al-Hind ma鈥 al-hawashi men kutub al-Qadi al-Nu鈥榤an听(Majdu鈥, p. 37) , which consists of questions put to the contemporary听诲补鈥榠s听and other听da鈥榳a听dignitaries and the answers given by them. In addition, it contains extensive excerpts from the works of听Qadi听al-Nu鈥榤an that have not survived, especially听Kitab al-izah听and听Mukhtasar al-izah. Another anonymous work worth mentioning is听Taqwim听(or听Taqawim)听al-ahkam听(Majdu鈥, 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听ra鈥檡听and听qiyas听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 Ismaili jurisprudence began with听Qadi听al-Nu鈥榤an 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.
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