A distinct Ismaili泭system of jurisprudence was founded after the establishment of the泭Fatimid泭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尪far al-廜〢diq (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泭Mahdi泭and泭Qaim泭who would restore justice and equity. Toward this goal, they developed a highly sophisticated gnostic system of thought, wherein the泭batini泭(esoteric) sciences were more emphasised than the泭zahiri泭(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 Shii communities, especially the泭Imamis, shared a common heritage with each other up to the death of泭Imam泭Jafar al-Sadiq in 148 AH/765 CE. Thus, they shared certain rituals and practices that had evolved until then. Recent scholarship has demonstrated that泭Imam泭Muhammad al-Baqir played a major role in the shaping of Shii jurisprudence (Lalani, pp. 114-簫26), which became crystallised during the time of his son泭Imam泭Jafar al-Sadiq and was known as泭madhab泭Ahl al-Bayt泭(rite of jurisprudence from the family of the Prophet). It should be also noted that both the Ismailis and the泭Imamis泭consider泭Imam泭Muhammad al-Baqir and his son泭Imam泭Jafar al-Sadiq as the founders of their respective systems of law, because most of the traditions in泭Qadi泭al-Numans泭嗨硃ai鳥 al-Islam泭and Abu Jafar Muhammad Kulaynis泭Kitab al-kafi泭are traced back to these Imams. This school of jurisprudence was not in favour of泭ray泭(personal opinion) or泭qiyas泭(analogical deduction), both of which prevailed in the contemporary circles of the Sunni juris-consults泭(faqih).泭The Ismailis shared certain ritualistic features with other Shii, such as the wiping of the feet in ablution, saying泭basmala泭(i.e., the formula泭Besm Allah al-rahman al-rahim)泭aloud in recitation of the Quran and during obligatory prayers, and addition of the formula泭hayya ala khayr al-amal泭(come to the best of work) in the call to prayer泭(adhan;泭Lalani, pp. 120-24).
Soon after his triumphant entry into泭Qayrawan泭in 296 AH/909 CE, Abu Abd Allah al-Shii, a major Fatimid泭餃硃i泭who was instrumental in the founding of the Fatimid dynasty, appointed Muhammad b. Umar Marvazi, a local Shii figure, as judge (Qadi).泭Marvazi imposed strict adherence to the above Shii rituals and legal practices. Moreover, he ordered the omission of泭al-salat khayr men al-nawm泭(prayer is better than sleep) from the morning call to prayer and prohibited the泭tarawih泭prayers led by a mosque泭imam泭during the month of泭Ramadan. In the Friday sermon (khutba) he added the blessings (salat)泭on Imam Ali, bibi FatimaDaughter of the Prophet Muhammad and his first wife, Khad蘋ja bint Khuwaylid. Also wife of 尪Al蘋 b. Ab蘋 廜珀lib and mother of al-廎兀san and al-廎工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 Shii madhab泭(school), declared泭talaq al-batta泭(irrevocable divorce) invalid, and upheld the right of a daughter to inherit the whole of her fathers estate, to the exclusion of泭asaba泭(agnates), in the absence of a son (Ibn al-Haytham, pp. 64-67; Maliki, II, pp. 41, 55-56, 60-簫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 of泭qada泭IfriqiyaMediaeval Muslim name for modern-day Tunisia; also the area where the Fatimids founded their state in the early tenth century..泭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泭Qadi泭al-Numan and soon fell into disuse and were lost.
Qadi泭al-Numan, an Ismaili Shii from泭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泭al-Muizz泭al-Din-Allah (r. 341-65 AH/953-75 CE) to compose the泭嗨硃ai鳥 al-Islam,泭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.泭Qadi泭al-Numan had also composed several legal works based on the泭madhab泭of the泭Ahl al-Bayt. In his first and voluminous泭Kitab al-izah,泭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泭Qadi泭al-Numan to lay the foundation on which Ismaili law could then be built. Consequently, he made several abridgments of the泭Kitab al-izah,泭namely泭Kitab al-akhbar泭(or泭al-ikhbar), Mukhtasar al-izah,泭al-Urjuza al-muntakhaba,泭Kitab al-iqtisar,泭and泭Kitab al-ikhtisar (or泭Mukhtasar al-athar,泭or泭Ikhtisar al-athar).泭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泭(for the chronology of these works and the development of Numans thought, see Poonawala, 1996, pp. 119-24). In his泭Ikhtilaf usul al-madhahib泭(p. 22),泭Qadi泭al-Numan cites the decree of泭Imam泭al-Muizz al-Din-Allah, wherein he is instructed by the latter about the roots of jurisprudence. It states that, in issuing his legal decisions,泭Qadi泭al-Numan should first follow the泭紮喝娶a紳, next, the tradition (sunna)泭of the Prophet, and for what is not found in either of them he should turn to the泭madhab泭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泭Imam. In his泭Kitab al-iqtisar泭(p. 167) and泭Kitab al-ikhtisar,泭Qadi泭al-Numan proposes the same principles for issuing legal decisions and rejects泭ray泭and泭qiyas.
The泭嗨硃ai鳥,泭according to Imad-al-Din Idris (d. 872 AH/1468 CE), a Mustali-Tayyibi泭餃硃i泭and a historian, was closely supervised by the Caliph-Imam al-Muizz 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莉硃餃硃喧)泭while the second with laws pertaining to human interactions (muamalat).泭Qadi泭al Numan states on the authority of泭Imam泭Jafar al-Sadiq that Islam was founded on seven pillars, that is,泭walaya泭(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 尪Al蘋 b. Ab蘋 廜珀lib and the Prophet’s daughter, Fatima.),泭tahara泭(ritual purity),泭salat泭(prayers),泭zakat泭(charitable giving),泭sawm泭(fasting in the month of泭Ramadan),泭hajj泭(pilgrimage to Mecca), and泭jihad泭(holy war).泭Walaya,泭the corner-stone of Ismaili faith, embodies the doctrine of the泭imamate泭that lies at the basis of Shi’ism, and泭Qadi泭al-Numan transformed it into a dynamic principle after the establishment of the Fatimid泭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,泭walaya泭did not become part of the Imami legal works. The泭嗨硃ai鳥泭was therefore the first juristic text to give泭walaya泭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泭jihad,泭Qadi泭al-Numan included the ‘ahd (a command document) ascribed to泭Imam泭Ali b. Abi Talib泭(嗨硃ai鳥, tr., I, pp. 436-56), which dealt with the rulers conduct with his subjects. This document, according to Wadad Kadi (p.104), represents the Ismaili theory of the state.泭Tahara,泭which implies physical and spiritual purification and is a necessary requirement for the valid performance of prayers, was raised by泭Qadi泭al-Numan to the status of an independent pillar (diama,泭pl.泭餃硃ai鳥).
The泭嗨硃ai鳥,泭as a law manual, addresses matters of substantive law, hence,泭Qadi泭al-Numan restricted the authorities to泭Imam泭Jafar 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泭Imam. The sources of law, according to泭Qadi泭al-Numan, are the泭紮喝娶a紳Muslims believe that the Holy 紮喝娶a紳 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 廎仟d蘋th.)泭of the Prophet, and the teachings or rulings of the Imams. The major differences with Imami (Twelver Shii) law are that泭Qadi泭al-Numan admitted the prohibition of temporary marriage泭鳥喝喧a,泭and the introduction of a fixed calendar rather than sighting the new moon for the beginning and end of泭Ramadan泭(嗨硃ai鳥,泭tr., I, p. 339 , II, p. 214). The泭嗨硃ai鳥泭is considered by the Mustali-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),泭vizier泭of the Imam-caliph al-Aziz, is credited to have composed a legal work based on the pronouncements of泭Imam泭al-Muizz and泭Imam泭al-Aziz (r. 365-86 AH/975-96 CE), but the work did not survive. After泭Qadi泭al-Numan, there was no significant development in Ismaili law either during the remainder of the Fatimid rule in Egypt or in Yemen, where the Mustali-Tayyibi community survived for the next four centuries after the fall of the泭Fatimids泭in Egypt (567 AH/1171 CE) and the泭Sulayhids泭in Yemen (532 AH/1138 CE). It was in India that the works of泭Qadi泭al-Numan were glossed. Aminji b. Jalal (d. 1010 AH/1602 CE), an eminent jurist, deserves special mention in this respect. His泭Kitab al-sual wal-jawab泭(Majdu, pp. 37-38) is an interesting collection of legal questions and their answers. Another noteworthy work is the anonymous泭Kitab al-sual wal簫 jawab al-masaik al-Hind ma al-hawashi men kutub al-Qadi al-Numan泭(Majdu, p. 37) , which consists of questions put to the contemporary泭餃硃is泭and other泭dawa泭dignitaries and the answers given by them. In addition, it contains extensive excerpts from the works of泭Qadi泭al-Numan that have not survived, especially泭Kitab al-izah泭and泭Mukhtasar al-izah. Another anonymous work worth mentioning is泭Taqwim泭(or泭Taqawim)泭al-ahkam泭(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 that泭ray泭and泭qiyas泭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泭Qadi泭al-Numan 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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