Ismacili usul

Despite a significant growth in the scholarship of Isma'ili studies in recent years, the study of Isma'ili law has not received sustained attention in western scholarship. This is partly because the Nizaris, the largest branch of Isma'ilis, abandoned the outward (zahir) expressions of religious practices in favour of actualising the esoteric (batin') essence of the shari^ca.

The 23rd hereditary Imam of the Nizaris, Hasan 'ala dhikrihi al-salam (Hasan II) proclaimed the advent of the Day of Resurrection (al-qiyama) in 559/1164 and, thus, relieved his followers from the obligation of the customary religious observances.^[21] It is, therefore, not only conceivable, but also justified, to posit this as the explanation of why legal works or legal studies did not gain popularity in the Nizari Isma'ili tradition. The fundamental reason, however, that explains the absence of a legal “school”, “framework” or “tradition” among the Nizaris, we argue, is their belief in a living functional Imam across every age and time. The belief in the authority of the Imams is a shared theological principle among the Shi'a, but what makes Nizari Isma'ilis distinct from their counterparts (the Twelvers, for instance) is their belief in a living Imam who actively instructs (Ia^cTnn) and interprets (taWU) the shari^ca. A school of law (madhhab) would emerge and thrive, one would argue, only if the divinely appointed central authority is absent; the presence of a living functional Imam does not leave room for any alternative legal interpretation and a cadre of legal interpreters.^[22]

Musta'li-Tayyibis, the second largest branch of Isma'ilis, on the other hand, continue to be committed to both zahir and batin aspects of the shari^ca.^[23] After the concealment (satr) of the 21st Imam, Imam Tayyib (b.

524/1130), the leadership of the community was delegated to the office of the da^ci mutlaq (a representative of the Imam vested with an unrestricted authority). Each da^ci is appointed by his predecessor through unambiguous declaration (nass). Given their belief in the concealment of the Imam, on the one hand, and the continuity of their adherence to the zahir of the shari^ca, on the other, it is reasonable to assume that there should be a fully operational “legal school” within the Musta'li-Tayyibi Isma'ili tradition. The monolithic nature of the legal material produced in the tradition, however, indicates otherwise.^[24] The reason appears to be clear; the dd^ci mutlaq assumes precisely the same authority and role as was bestowed upon the Imams. The da^ci, in the period of concealment (dawr al-satr), Musta'li-Tayyibis postulate, is directed by the divine guidance of the Imam and, therefore, possesses “unrestricted authority” (and hence the term mutlaq).^[25] In other words, a da^ci is not a regular mujtahid who exercises personal juristic reasoning in order to arrive at a legal conclusion, but rather a vicegerent of the hidden Imam to whom obedience is demanded. Notwithstanding the ambiguity surrounding the Imam-ddT^ relationship, it is pertinent to examine these questions: How do the da^cis respond to contemporary legal issues that have no precedence in early legal texts? Which interpretive techniques do they use to draw legal conclusions? What is the status of early works of fiqh, predominantly from the Fatimid period, in the Musta'li-Tayyibi legal framework? In what follows, we attempt to examine these questions by offering a brief survey of legal writings of the MustaTi-Tayyibi Isma'ili tradition.^[26] For the purpose of this introduction, we divide the origins and development of Isma'ili legal discourse into three periods.

1. The Fatimid period

The first period consists of legal works composed in the Fatimid era (297-567/909-1171).

This period is rightly considered the pinnacle of Isma'ili legal writings. Al-Qadi al-Nu'man (d. 363/974), under the patronage of the Fatimid Caliph-Imams, produced scores of single-authored legal works for judges, governors and bureaucrats in the burgeoning Isma'ili state. Fyzee,^[27] Lokhandawalla,^[28] Madelung,^[29] Poonawala^[30] among others^[31] have studied various aspects of Isma'ili legal writings of this period. Fyzee and Lokhandwalla are credited with being pioneering scholars in the field of Isma'ili legal theory. Madelung’s study, on the other hand, focused on the sources of Isma'ili law. In his study on the sources of Isma'ili law, Madelung concluded that the Isma'ili law (as reflected in al-Qadi al-Nu'man’s legal work al-idah) is essentially a compromise between Twelver and Zaydi law.^[32] In contrast, Poonawala argues that we can speak of an ‘independent’ Isma'ili law system initiated and developed by al-Qadi al-Nu'man which, though, did not continue after his death.^[33]

Among various legal compositions of al-Qadi al-Nu'man, the Ikhtilaf usul al-madhahib is described as containing ‘the most important extant discussions of Islamic legal theory from the fourth/tenth century’.^[34] This work is essentially a refutation of Sunni legal theory, but in the process al-Qadi al-Nu'man articulates the Isma'ili position on the theory of legal interpretation. The entire work revolves around one central theme: only Imams can interpret God’s revealed law. The Sunnis, al-Qadi al-Nu'man argues, had to take recourse to different tools to interpret laws because they rejected the authority of the rightful Imams. He accuses Sunnis of following whim and exercising personal judgments by applying analogy (qiyas), preference (istihsdn), speculative reasoning (nazar), opinion (ra¹y), inference (istidlal), and consensus (ijmd^c) in their legal interpretations.

These tools bear different titles, he professes, but they yield the same result i.e. conjecture. It is for this reason that at the very outset of the Ikhtilaf, al-Qadi al-Nu'man outlines what he considers to be the authentic sources of law. He cites his letter of appointment by al- Mu'izz in which the Caliph-Imam had instructed him:

In all your decisions and judgments, you should follow the Book of God...If you neither find in the Qur’an any text [concerning a problem] nor any decision in the sunnα...search it in the creeds of the pious, pure and well guided Imams...If something appears obscure and hence confusing or if dubious and hence baffling, refer it to Amir al-Mu’minin so that he may guide you to the proper decision on it.^{^[35]}

He also wrote several other independent treatises that reportedly contained a sustained criticism of the legal theories of Abu Hanifa, Malik, al-Shafl'i, Ibn Surayj, al-'Utbi among few other jurists of the 2nd∕8th and 3rd∕9th centuries.^[36] None of these treatises are extant. As stated earlier, the primary objective of these works is refutation - Isma'ili legal theory is only mentioned in passing. A more nuanced approach to investigate Isma'ili legal hermeneutics, we propose, is examining al-Qadi al-Nu'man’s first legal composition, namely al-idah. It is an analytical work of fiqh from which Isma'ili legal theory could be worked out. In al-idah, al-Qadi al-Nu'man refers to the praxis (^camal) as a supplementary argument;^[37] he gives preponderance to one set of reports over the other;^[38] he analyses the linguistic expressions of apparent speeches (zawahir, sing. zahir) used in the reports;^[39] he cites customary practice of the people (zahir umur al-nas);^[40] he alludes to the consensus of the transmitters of the descendants of the Prophet (ijma^c al-ruwat ^can Ahl al-bayt).^[41] These are among the various legal tools and techniques that are of direct interest to the field of usul al-fiqh:^[42] Al-Idah, the only analytical legal work of al-Qadi al-Nu^tman, has only partially survived and therefore any attempt to present a complete portrayal of Isma^tili usul of this period is severely limited.

Among the legal writings of this period, particular mention should be made of Ibn Killis’s (d. 380/991) treatise, al-Risala al-waziriyya. This Fatimid wazir of Jewish origin is credited with a legal composition based on the rulings of Caliph-Imams al-Mu^tizz (r. 341-365/953-975) and al- ^tAziz (r. 344-386/975-996) with whom he had worked closely. Within the Isma'ili tradition, this non-extant work is remembered with different titles: al-Risala al-waziriyya, Musannaf al-wazir, Mukhtasar al-musannaf and Mukhtasar al-wazir. Ibn Killis’s treatise was ranked among the most authoritative texts next only to the Da^ca¹in al-islam.^[43]

2. The Yemeni period

The second phase of the Ismatili legal tradition represents the period in which Ismatilis not only split into Nizaris and Mustatlis, but each of these two factions witnessed crisis in their respective traditions that permanently changed the legal trajectory of their communities. In the third decade of the 6th∕12th century, the 21st Mustatli-Tayyibi Imam went into concealment leaving the social and religious affairs of the community in the hands of da^ci mutlaqs. Later in the sixth decade of the same century in Alamut of Iran, the 23rd Nizari Imam abrogated the zahiri aspects of the shari^ca. These two events inevitably changed the development of the Ismatili legal tradition. The Ismatili legal tradition, in the second period, therefore, is represented by the legal writings of the Mustatli-Tayyibi da^ci mutlaqs of Yemen.

Not much is known about the legal writings of the da^ci mutlaqs of Yemen. Poonawala has listed two factors that lead to the absence of legal compositions in the Mustatli-Tayyibi legal tradition of this period. First, al-Qadi al-Nu⅛an's Da^ca¹im al-islam was an ‘enduing work’ that met ‘the approval of the fourth Fatimid Caliph-Imam al-Mutizz li-Din Allah’ leaving no scope for other works to emerge or develop.

Second, the concealment of al-Tayyib rendered ‘modifying any aspect of the law’ a challenging task.^[44] These two factors, Poonawala argues, explain why legal discussions failed to recieve much attention in the ensuing years. Qutbuddin, on the other hand, asserts that the Da^ca^,im al-islam is ‘supplemented by several other works by Fatimid-Tayyibi scholars’ in the Musta'li-Tayyibi legal tradition.^[45] Qutbuddin, however, does not offer list of these ‘several works’, nor any details of their ‘Fatimid-Tayyibi’ authors.

From the little we know about the legal discussions of this period, it appears that law and legal authority was a regular topic of debate among the Musta'li-Tayyibi Isma'ilis of Yemen. The 19 th da^ci mutlaq Idris 'Imad al-Din (d. 872/1468), for instance, issued the verdict that the legal opinions stated in the Da^ca¹im al-islam of al-Qadi al-Nu'man take precedence over those recorded in the Musannaf al-wazir of Ibn Killis when they contradict one another, no matter how minor (ma kana fihi shay¹ yasiryunaqid...fa-l-ruju^t fihi ila,..Kitab Da^ca¹im).^[46] He goes further by stating that even the Mukhtasar al-athar of al-Qadi al-Nu'man should be preferred over the Musannaf al-wazir. Idris’ remedy for the issue of contradiction between early texts indicates the existence of a reasonably vibrant legal tradition among the Musta'li-Tayyibi scholars of Yemen (and also in western India where they had a strong followership among the Bohras) in which early legal texts were read and analysed, and solutions were sought in areas of disagreement.

Among legal compositions of this period that bear close resemblance to works of “legal theory” (usul al-fiqh) is 'Ali b. Muhammad b. al-Walid’s (d. 612/1215) Mukhtasar al-usul, a section of which is edited and commented upon in Chapter 8 of this volume. In the Mukhtasar, 'Ali b. Muhammad refutes what he sees as the dubious and flawed theories of legal interpretation adopted by the Sunnis, highlighting the importance of obtaining religious guidance from a divinely appointed central authority (i. e. Imam and by extension the da'is in the period of concealment). In doing so, he argues for the superiority of Isma'ili tradition over other Islamic legal and doctrinal schools.

There is also another genre of legal works from this period that follow the style of “question and answer” (al-su¹al wa-l-jawab). These works record the correspondence between Yemeni da'is and their Indian followers on various legal issues, from ritual ablution to matters concerning financial transactions, marriage and capital punishment - issues which are typical of any classical compendium of Islamic law. They are referred to as al-masa¹il or Kitab al-su¹al wa-l-jawab. Al- Masa¹il al-Sham^cuniyya (also known as Kitab al-su¹al wa-l-jawab), for instance, is a collection of responses by the da^ci mutlaq Badr al-Din Hasan b. Idris (d. 918/1512) to the questions raised by his Indian associate Sham'un b. Ahmad al-Ghuri al-Isma'ili in the year 890/1485-86.^[47] The da^ci, in these exchanges, has kept the responses extremely brief and often quotes early works of law to support his position.^[48] Though the majority of the questions concern the daily religious obligations of the laity, occasionally technical questions are also raised. In one correspondence, for instance, Sham'un b. Ahmad seeks explanation in reference to the command of washing the face and laving the eyes (ishrab al-^taynayn) during ablution as instructed in the Da^cd¹im al-islam: whether closing the eyes (taghammud) would render the ablution defective? The da'i replied that it is recommended to lave the eyes, but the obligation is fulfilled even without performing it.^[49] These correspondences not only show strong ties of the Bohras with their Yemeni da'is, but also offer glimpses into their socio-religious life in western India.^[50] In another instance, Sham'un b. Ahmad asks: “What is your opinion concerning parting the hair on both the sides and not leaving them hanging down on the nape as customarily practised by Indian men and women?” In compliance to the then Indian culture, the da'i responded: “Hair should be parted in two sides from the forehead to the nape and this practice (of dressing hair) should not be avoided intentionally.”^[51]

Two other works from this period that belong to the genre of al-masa¹il∕al-su¹al wa-l-jawab are Aminji b. Jalal’s (d. 1010/1602) Kitab al-suⁱal wa-l-jawab∕Masa4l Aminji b. Jalal and Kitab al- hawashi. Both texts are very similar to al-Masa^,il al-Sham'uniyya in style, structure and content. Aminji was an eminent jurist from India and his writings are still considered among the most authoritative sources on law and legal authority.^[52]

The important question for us here is the methodology adopted by the da'is in responding to the legal issues raised by their followers. Given the nature of these masa¹il works that primarily addressed the queries of the laity, it is unreasonable to expect any sophisticated scholarly material. They have simply reproduced, after simplification, the material already available in the early works of fiqh which are often cited in the responses.^[53] The legal positions laid out in early texts are considered authoritative and, therefore, remain uncontested. The opinions of the living da'i and his interpretations of the early texts are also considered authoritative and therefore, the da'i is not required, or even expected, to offer any juristic reasoning or exegetical solutions. The titles with which the da'is are addressed indicate the spiritual hegemony offered to them by their followers. A few of these phrases merit mention: O! the destroyer of the strength of misguided and corrupt people (ya qasim zuhur ahl al-ghawaya wa-l-fitan),^[54] O! the one whom God has graced us with the opportunity of benefiting from his vast knowledge (ya man yasurru Allah 'alayna al- khawd fi bahr 'ilmihi),^[55] O! the one whom God - the exalted - has made him his door of grace to which those who seek refuge from the darkness can seek shelter (ya man ja'alahu Allah ta^cdla bab rahmatihi yaltaji^,u ilayhi man huwa lil-takhallus min al-'alam al-zulmani murid)^[56] among many similar phrases that appear at the very beginning of each question. Such forms of address demonstrate the all encompassing authority of the da'i.

There are several other works of law and legal authority written in this period.^[57] None of them, except for the Mukhtasar al-usul examined in Chapter 8, to the best of our knowledge, has been critically edited. It is our hope that this introductory survey will generate some interest in the study of Musta'li-Tayyibi legal literary activities of this period and their role and impact on wider Islamic legal tradition.

3. The Indian subcontinent period

The third period of Isma'ili legal tradition comprises juristic literature composed in the Indian subcontinent. In the mid-10th∕16th century, the office of da^ci mutlaq permanently moved from Yemen to India where it had its largest followership in the Bohra community. The dd^cis, hereafter, were of Indian origin. This period also witnessed several schisms within the community. In 1591, the Bohras split into Dawudis and Sulaymanis over the successorship of the 26th da^ci Dawud b. 'Ajabshah (d. 999/1591). In less than three decades, 'Alawis separated from the Dawudis.^[58] ^{^[59] This wider Bohra community kept splitting, mainly over the issue of dα¾hip, in the subsequent years. As a result of these conflicts, the literary output of the tradition further dwindled.}

Notwithstanding this turmoil, several legal works were composed in this period. The 39th Dawudi da^ci Ibrahim Wajih al-Din (d. 1168/1754) composed al-Muntakhaba al-Wajihiyya which contains excerpts from early works of fiqh.^5s In the same period, Luqmanji b. Habiballah (d. 1173/1760), known as “Nu'man al-waqt” (i.e. al-Qadi al-Nu'man of his time), composed a legal treatise elucidating the meaning of sighting (ru¹ya) of the moon to determine the beginning of the month mentioned in reports of the Imams. In the Risalat Wajihiyya fi tartib al-din wa-tabyin fard shahr Ramadan, he concludes that the reports do not mean to suggest sighting with the eyes (ru¹yat al-^cayn), rather ascertaining through science and knowledge (ru¹yat al-^cilm). He also composed Mukhtasar Wajihiyya fi l-td^ca wa-l-qabul lil-amr wa-l-nahy that concerns with submitting to the commands and prohibitions of the shari^ca and another treatise on zakat entitled MajmU^c Wajhi fi ada^, al-zakat.^[60]

The masa^,il works continued to be written in this period too. The two important collections of this period are al-Masa¹il al-Sayfiyya and al-Masa¹il al-Zayniyya that contain responses of the 43rd Dawudi daci 'Abd 'Ali Sayf al-Din (d. 1232/1817) to the questions put by Ibrahim al-Sayfi (d. 1236/1821) and Tayyib Zayn al-Din (d. 1252/1837) respectively.^[61] There are several other legal treatises, manuals and compendia written in this period for the use of Bohra community.^[62]

As expected, there are no independent works of legal theory written in this period. The reason appears to be obvious. The status of dai was now elevated to quasi-infallible (kal-ma^csum), claiming the exact same authority and obedience that had been attributed to (and demanded from) the Imams.^[63] There was no room for alternative legal interpretations, and so no need for independent legal debate and discussion. No one could challenge the dd^cfs verdicts since they are not textbound. The daci is not a mufti or a mujtahid as in other legal traditions. His pronouncements are not fatwas. The role of the scholars, in the seminary, is to disseminate the teachings of the daci. They should not engage in critical assessment of the dacps positions. This rather rigid model of Musta'li-Tayyibi legal tradition has its own obvious shortcomings, particularly the lack of diversity, but it has, conversely, resulted in producing a fairly consistent and organised legal system from the Fatimid period up until now.

The survey of Musta'li-Tayyibi legal writings presented in this section helps us understand the developmental history of the Isma'ili legal tradition. The legal writings of the first period revolved around defining the contours of Shi'i (against Sunni) legal tradition; the activities in the latter two periods aimed at catering to the religious needs of the believers. The dacis, in the second and third period, enjoyed the same status and authority which the Imam claimed in the first period. We have also suggested that there is a telling absence of writings concerning legal theory in all the three periods. This is a peculiar feature that characterises the Isma'ili legal tradition more broadly. In an Isma'ili legal framework, the sole authority for interpreting the sharTa is bestowed upon the Imams (when present) and daci mutlaqs (in the absence of Imams). This leaves no scope for others (students and scholars alike) to engage in any kind of juristic reasoning.

The development, or lack thereof, of a legal school within a Shi'i tradition is, thus, directly proportional to the involvement, or lack thereof, of the Imam in the daily affairs of the community. The hidden twelfth Imam of the Twelvers, for instance, is believed to have suspended any direct involvement in guiding his followers, leaving them to derive laws from the available sources, which resulted in the emergence of a thriving legal tradition spearheaded by the jurists (Chapters 1-5). Zaydis, on the other hand, do not restrict imamate to one single person in a given time; there could be several Imams at the same time and each of them could establish his own school of law. Moreover, Zaydi Imams are not expected to possess divinely inspired knowledge.^[64] ^{^[65] This particular imamology of Zaydis has also resulted in the emergence and development of a rigorous legal tradition (Chapters 6 and 7). Contrary to the Twelvers and Zaydis, Isma'ilis never felt the need to extrapolate laws from the sources since the sole authority of legal interpretation lies with an unbroken chain of living functional Imams in the Nizari tradition and da^ci mutlaqs in the Musta'li-Tayyibi tradition.}

<< | >>

↑

Source: Rajani Kumail (ed.). Shiʿite Legal Theory: Sources and Commentaries. Edinburgh University Press,2023. — 352 p.. 2023

More legal literature on Laws.Studio

Ismacili usul

More on the topic Ismacili usul: