Disagreements of the Jurists. al-Qadi al-Nu'man

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СКАЧАТЬ Lowry for their continual advice and assistance over many years. As the volume editor, Joseph Lowry provided crucial input regarding the translation of terms related to legal hermeneutics as well as invaluable help in rendering al-Qāḍī al-Nuʿmān’s dialectical style in Arabic into intelligible English. He saved me on several occasions from making serious blunders in translation; without his indefatigable attention, the translation would certainly have suffered. Finally, I would like to thank my dear wife, Marmar, and my children, Noor and Ali, for enduring patiently the labor that preparing this volume has entailed. Support for research was provided in part by the Bill and Carol Fox Center for Humanistic Inquiry of Emory University and by the University Research Council of Emory University.

      Introduction

Al-Qāḍī Abū Ḥanīfah al-Nuʿmān ibn Muḥammad ibn Aḥmad ibn Ḥayyūn al-Tamīmī was a prominent judge, jurist, and author of the Fatimid Empire (296–567/909–1171), in many ways the young Fatimid state’s chief ideologue for nearly half a century. He, more than any other scholar, founded Ismaʿili law as a discipline, in addition to writing extensively on history, theology, law, legal theory, Prophetic reports, and commentary on the Qurʾan. His legal writings remained the main references in this field throughout the Fatimid period and after; they are still widely recognized as authoritative by both the Bohra and Nizari Ismaʿili communities.¹ The edition and translation presented in this volume are of one of al-Qāḍī al-Nuʿmān’s most important legal works, Ikhtilāf uṣūl al-madhāhib, a title which may be literally rendered “The Islamic Legal Schools’ Conflicting Principles of Interpretation.” The work ranks among the most important extant discussions of Islamic legal theory from the fourth/tenth century.

Since the early twentieth century, a small number of scholars have investigated al-Qāḍī al-Nuʿmān’s life, establishing the main outlines of his career and his bibliography.² Al-Qāḍī al-Nuʿmān’s father Muḥammad, who was born in 259/87273 and died in Rajab 351/August–September 962, had been a jurist in the Sunni Mālikī legal tradition living in Qayrawān. Poonawala argues that the father converted to Ismaʿili Shiʿism before the establishment of the Fatimid state in 296/909 and suggests that al-Nuʿmān was raised as an Ismaʿili. Al-Qāḍī al-Nuʿmān’s birthdate is not known but has been estimated to be in the last decade of the ninth century. He was certainly an Ismaʿili when he entered the service of the Fatimids at a relatively young age in 313/925, serving for nine years during the reign of the first Fatimid caliph, al-Mahdī (296–322/909–34).

One premodern author, the Egyptian historian Ibn Taghrībirdī (d. 815/1412), reports that al-Qāḍī al-Nuʿmān had been a Ḥanafī jurist before he converted to Ismaʿili Islam. He reports, erroneously, that the Ḥanafī legal school had been dominant in North Africa until the Zirid ruler al-Muʿizz ibn Bādīs (1016–62) imposed the Mālikī legal school.³ The Ḥanafī legal school was certainly represented in Tunisia, but the main population had been Mālikī from early on in the ninth century. Ḥanafī influence came from the Abbasid capital, Baghdad, partly through the patronage of the local dynasty, the Aghlabids (184–296/800–909). Ibn Taghrībirdī appears to have his facts wrong, and the suggestion is usually dismissed as unfounded.⁴

However, modern scholars overlook an important piece of evidence that may have been behind Ibn Taghrībirdī’s assertion but which he assumed was too obvious to mention: the fact that the judge’s name, Abū Ḥanīfah al-Nuʿmān, matches exactly that of the famous eponym of the Ḥanafī madhhab. The name is relatively rare, and the fact that his father chose this name for him suggests that the father—and not the son—may have “converted” to the Ḥanafī madhhab prior to his conversion to Ismaʿilism. This interpretation derives some support from evidence that the Ḥanafīs and the Shiʿah were in a sense allies against the Mālikīs in debates over Islamic law and theology and that the Ismaʿilis had more luck attracting Ḥanafīs than Mālikīs.⁵

Al-Nuʿmān served as a secretary or official of some type under the first Fatimid ruler, al-Mahdī (r. 296–322/909–34), for nine years, that is, from ca. 313/925, and throughout the reign of the second caliph, al-Qāʾim (r. 322–34/934–46). Shortly after coming to power, the third caliph, al-Manṣūr (r. 334–41/946–53), appointed al-Nuʿmān to the judgeship of Tripoli, in what is now Libya. In 337/948, the caliph moved the capital to al-Manṣūriyyah and made al-Qāḍī al-Nuʿmān supreme judge, serving as judge of the new capital as well as of the earlier capitals al-Mahdiyyah and Qayrawān, with the right to appoint other judges in Fatimid territory. Al-Manṣūr also authorized him to deliver the addresses of “the Sessions of Knowledge” (majālis al-ḥikmah), which were held in the palace every week after Friday prayer and intended to edify the congregation in Ismaʿili doctrine and the religious sciences. After al-Muʿizz li-Dīn Allāh (r. 341–65/953–75), the fourth Fatimid caliph, acceded to the caliphate, al-Qāḍī al-Nuʿmān was confirmed in his position of supreme judge in Fatimid territory. In a decree in 343/954 which al-Qāḍī al-Nuʿmān presents verbatim in Ikhtilāf uṣūl al-madhāhib, the caliph granted him additional duties, charging him with overseeing the grievance court and hearing appeals from throughout the Empire, and he served in this capacity for several decades. The reign of al-Muʿizz was the apogee of al-Qāḍī al-Nuʿmān’s career. After the Fatimid conquest of Egypt in 358/969 and the construction of a new capital city at Cairo, al-Qāḍī al-Nuʿmān accompanied al-Muʿizz to Egypt in 362/973. He died in Cairo the next year, in Jumada II 363/March 974.⁶ His sons and their descendants went on to serve al-Muʿizz and subsequent Fatimid caliphs as prominent judges and in other official capacities until the mid-eleventh century.

      Al-Qāḍī al-Nuʿmān’s Works on Law and Legal Theory

Al-Qāḍī al-Nuʿmān devoted a great deal of energy to the composition of legal works. His earliest such work was entitled Kitāb al-Īḍāḥ; al-Qāḍī al-Nuʿmān compiled it while working under al-Mahdī, that is, between 313/925 and 323/934. Containing 3,000 folios, it was a comprehensive collection of oral reports attributed to the Imams, arranged by legal topic, that drew on Zaydi and Imami Shiʿi sources. The extant section of this work, a substantial fragment from the chapter on ritual prayer, was examined by Wilferd Madelung, who discussed the sources on which al-Qāḍī al-Nuʿmān drew, identifying over twenty works devoted to Shiʿi law and to reports from the Imams and other ʿAlids. Most of these works were compiled in Kufa in southern Iraq in the third/ninth century, by authors who belonged to the Zaydi, Imami, and similar subsects of Shiʿism and who related material mainly from Kufan transmitters. It thus contrasts with the canonical collections of the Twelver Shiʿah such as al-Kāfī by Muḥammad ibn Yaʿqūb al-Kulaynī (d. 329/941) and Man lā yaḥḍuruhu al-faqīh by Ibn Bābawayh al-Qummī (d. 381/991), which rely heavily on transmitters from Qum instead. Overall, the material that al-Qāḍī al-Nuʿmān used in compiling this work suggests that it represents a compromise between the Zaydi and Imami traditions of Shiʿism. One may generalize this characterization to Ismaʿili law in general.⁷ The extant fragment of Kitāb al-Īḍāḥ has recently been published.⁸ This work was designed to serve as a comprehensive source of oral reports for use in determining the rulings on the points of law, parallel to the six books of the Sunnis: the Ṣaḥīḥ of al-Bukhārī (d. 256/870), the Ṣaḥīḥ of Muslim (d. 261/851), the Sunan of Abū Dāwūd al-Sijistānī (d. 275/889), the Sunan of Ibn Mājah (d. 273/886), al-Jāmiʿ al-ṣaḥīḥ of al-Tirmidhī (d. 279/892), and the Sunan of al-Nasāʾī (d. 303/915). It was a fundamental part of al-Qāḍī al-Nuʿmān’s project to establish the foundations of Ismaʿili law and to put it on a par with Sunni Islamic law. It was exactly contemporary with the first main canonical collection of oral reports of the Twelver Shiʿi, al-Kāfī by Muḥammad ibn Yaʿqūb al-Kulaynī (d. 329/941), which served a similar purpose.

Also during this period al-Qāḍī al-Nuʿmān completed two abridgements of Kitāb al-Īḍāḥ, entitled Kitāb al-Akhbār [or perhaps al-Ikhbār], which contained 300 folios and omitted the СКАЧАТЬ