From Obscurity to Manifestation: The Legal Thought of al-Qaḍī al-Nuʿmān

            From Obscurity to Manifestation: The Legal Thought of Qaḍī al-Nuʿmān


            God said to Job, “Hasten to appoint a member of your hierarchy (ḥudūd) to spread this knowledge so that he may wash away all the impurities that the ignorant among the community have mixed in with the exoteric aspect of your mission (daʿwa).” Qaḍī al-Nuʿmān continues his taʾwīl,[1] “So [Job] did this and the people of his daʿwa returned to him, joined by others as well.”[2] The Fatimids’ greatest jurist, Qaḍī al-Nuʿmān, was the living example of Job in this regard. He served four Fatimid Caliph-Imams right before the emergence of the Fatimid empire into Egypt. He was the first compiler and codifier of Ismaili ḥadīth, legal theory (uṣūl), and positive law (furūʿ). In similitude to the origins of the Fatimid Caliphate, Qaḍī al-Nuʿmān’s origins are obscure and hidden in shadows. What was his intellectual milieu during his formative years? What was Nuʿmān’s doctrinal background? Was he raised Ismaili, or did he convert? Why were his legal texts so important? How did they help the Fatimid state? What are the contents of his legal works? While many academics of the past have worked on Ismailis, so much still remains hidden and secret in this very neglected niche that is Ismaili Studies.
            Research on the Ismailis in the Western Academy has mostly been quiescent until fairly recent scholarship, despite a large interest by early Orientalists. Baron Antoine Isaac Silvestre de Sacy was one of the most prominent early orientalists during the first half of the 19th century,[3] and had a lifelong interest in the Druze.[4] In spite of a strong interest in the Ismailis by Academics, up until the 1930s, all their research was based on highly polemical Sunni sources, and ‘Assassin’ legends of the Crusader chronicles, which was predominantly due to the fact that there was so few Ismaili manuscript sources available to researchers.[5] Thus, many scholars still even used the pejorative misnomer ‘Assassin’ up until the early 20th century.
            However, in the 1930s a large scale divulgence of Ismaili manuscripts took place by the Bohras and Khojas. The two primary culprits behind this outpouring of Ismaili sources were none other than Wladimir Ivanow, a Russian academic under the employ of the 48th Nizari Ismaili Imam Sultan Muhammad Shah Aga Khan III (d. 1957), and Asaf A.A. Fyzee, an alumnus of the Cambridge University Law School, who both worked together to found the Islamic Research Association in Bombay in 1933.[6] The groundbreaking efforts of these scholars allowed later academics like Marshall Hodgson (d. 1968) to write his doctoral thesis that he presented at The University of Chicago in 1951 on the Nizari Ismailis of the Alamut period.[7] Ismailis studies have been allowed to thrive and flourish in recent times due to The Institute of Ismaili Studies founded by H.H. Prince Karim Aga Khan IV, the 49th & current Imam of the Nizari Ismailis.[8] 
            Despite this ginormous divulgence of Ismaili source material, there is still a major lack of material regarding early (pre-Fatimid) Ismailism.[9] Academics are not completely sure what the intellectual milieu was at the time of its development, nor how Ismailism resonated with other Islamic trends at the time, but rather academics have been scratching their heads trying to make sense of polemical histories of the Ismailis from Twelver or Sunni sources.[10] Even early treatises attributed to the Ismailis are questionable, such as The Brethren of Purity or Ikwan al-Safa’, which was widely circulated during the 9th century; some like Hamdani have argued that this compendium of treatises does in fact come from the Ismailis and shows their widespread appeal.[11]
            Nonetheless, what can be gleamed with more certainty is the fact that the Shīʿa viewed leadership after the death of the Prophet Muḥammad ﷺ differently, not only who should be leader, ʿAlī, but also the role of the successor (khalīfa) of the Prophet as a descendant of ʿAlī and as the sole interpreter of scripture, the sole religious authority, as appointed by the Prophet. A nepotic transfer of religious authority and theocracy naturally led to many many schisms every time a Shīʿī Imam passed away. With the exception of the Zaydīs, who broke away from the 5th Imam, the major schisms within early Shīʿism happened after the death of Jaʿfar aṣ-Ṣādiq (d. 765), the 6th Imam.[12] Besides those who thought that Jaʿfar aṣ-Ṣādiq went into occultation, the majority of Shīʿa at the time, according to both Twelver and Ismaili sources, believed that Jaʿfar aṣ-Ṣādiq has designated his son Ismāʿīl to succeed him.[13] However, Ismāʿīl died a very premature death shortly before his father, and thus sprang the proto-Ismaili/Twelver community into confusion and split them into six factions.[14] The proto-Twelvers (Imāmīs) sided with quiescent Mūsā b. Jaʿfar al-Kāẓim as their 7th Imam.[15] Whereas, the proto-Ismailis sided with Ismāʿīl’s son Muḥammad b. Ismāʿīl.[16] Although, often lopped in alongside Ismaili’s, it is important to note that the Qaramatians were those who held Ismāʿīl as being in occultation.[17] It is also very important to note that the Ismailis never referred to themselves as Ismailis, a term used by outsiders; they often referred to their movement as daʿwa al-hādiyah (the guiding mission).[18]
            The early Ismaili community, who followed Muḥammad b. Ismāʿīl, later migrated with Muḥammad’s son ʿAbd-Allah to the small village Salamiyyah in Syria; It was from there that their secret daʿwa was able to take place for the next 100+ years.[19] After finishing secret daʿwa training in Yemen, the missionary ʿAbd-Allah ash-Shīʿī met Kutama Berbers in Makkah, who were inclined to Shīʿism.[20] With permission of the current Ismaili Imam, ʿAbd-Allah al-Mahdī, ʿAbd-Allah ash-Shīʿī settled with the Kutama in Ifriqiyya to gain their support.[21] For the next 15 years, ʿAbd-Allah ash-Shīʿī had either converted or crushed the Zaydī, Twelver, and Kharajite Kutama Berbers and conquered the Sunni-Arab city-centers, which were mostly populated with Ḥanafīs and Mālikīs.[22] In 909, ʿAbd-Allah al-Mahdī, after a treacherous journey with many setbacks, finally was marched into Raqqada by ʿAbd-Allah ash-Shīʿī, and the Fatimid dynasty was established.[23]
            Born in Qayrawān (903), Abū Ḥanīfa al-Nuʿmān b. Muḥammad b. Manṣūr b. Aḥmad b. Ḥayyūn al-Tamīmī al-Maghribī, better known as Qaḍī al-Nuʿmān, was a man whose legacy would last over a millennium.[24] Modern scholarship knows virtually nothing about Nuʿmān’s early childhood.[25] Academics disagree as to whether he was raised as a Sunnī or Shīʿī. As Cilardo eruditiously points out:
 
“Discovering al-Nuʿmān’s doctrinal orientation is important for understanding the theological underpinnings that informed his work and his judgements and, far more importantly, the relationship between Sunnis and Shi’is, and between Imāmīs and Ismailis.”[26]
 
It is established, however, that Nuʿmān’s father converted to Ismailism when Nuʿmān was only 6 years old.[27] To make matters more convoluted, most sources say that his father Muḥammad was practicing dissimulation (taqīya).[28] Most academics have argued that Nuʿmān was initially raised Mālikī, then later converted, via his father, to Ismailism.[29] Because of his father’s taqīya we are not sure of Nuʿmān’s training in Ismaili sciences. I agree with Stewart that given that his name was ‘Abū Ḥanīfa al-Nuʿmān,’ most likely he was initially raised, at least nominally, as a Ḥanafī.[30] As we will see later, Nuʿmān’s main legal texts would indicate that he was, most likely, not formally trained formally in Sunnism. His education as a boy, and young man remain a total enigma.
            Nevertheless, he joined the service of ʿAbd-Allah al-Mahdī in 925 as a secretary, copyist and personal news reporter to the Imam, which indicates young Nuʿmān must’ve had a formal education.[31] After al-Mahdī’s passing (d. 934), Nuʿmān joined the service of his successor, al-Qāʾim (d. 946).[32] After al-Qāʾim, Nuʿmān became a judge under the subsequent Caliph-Imam al-Manṣūr, who later promoted Nuʿmān to be the supreme judge (qāḍī al-quḍāt).[33] Nuʿmān’s career reached its zenith during his most prolific period, under the service of al-Muʿizz (d. 975), who put Nuʿmān in charge of the appellate courts (maẓālim).[34] Nuʿmān would later follow al-Muʿizz into conquered Egypt, only to pass away one year later (d. 974).[35] al-Muʿizz would personally lead Qaḍī al-Nuʿmān’s funeral prayer.[36]
            It was during the reign of Caliph-Imam al-Muʿizz that Qaḍī al-Nuʿmān would write his two most famous works, namely Ikhtilāf uṣūl al-madhāhib wa al-radd ʿalā man khālaf al-ḥaqq fīhā (Difference of Opinion Regarding the Law Schools’ Hermeneutics and Repudiation of He Who Disagrees with the Truth Within It), and Daʿāʾim al-Islām (The Columns of Islam).[37] Both to this day remain the primary sources of Ismaili law.[38] Moreover, Ikhtilāf uṣūl al-madhāhib is the oldest extant Shiite uṣūl al-fiqh book.[39]
            Stewart holds that Nuʿmān most likely completed Ikhtilāf uṣūl al-madhāhib somewhere between 954-960, as the Daʿāʾim was completed in 960.[40] The Ikhtilāf uṣūl al-madhāhib is very unlike any Sunni uṣūl al-fiqh manual. There is no mention of khāṣṣ, ʿāmm, ijmāʿ, qiyās, amr, nahy, tartīb, etc. The text is quite similar to the Akhbārī movement of the Twelvers, in the sense that it rejects all forms of ijtihād.[41] Nuʿmān recognizes only three sources of Islamic law: the Quran, the Sunna, and the akhbār of the rightful Imams. Moreover, he thoroughly demonstrates proof after proof to support these positions. Surprisingly, he uses most of the text to vigorously and intensely repudiates ‘Sunni’ ijtihād. He goes at great lengths to justify the Imams’ authority, and unlike Zaydīs or Twelvers, he included a chapter on walāyah of the Imams as part of his manual on positive law, the Daʿāʾim, considering professing the authority of the Imams as a matter of deed, not only belief, but action!
            The hallmark of Ikhtilāf uṣūl al-madhāhib, like that of the Akhbārīs – both appropriating from Ẓāhirīs – is the fact that there is an obsessive conservatism with achieving 100% certainty, and the calamitous nature of uncertainty regarding difference of opinion.[42] Sunnis, on the other hand, and later Twevler Uṣūlīs were more concerned with the balance of rationality with scripture, and correct legal procedure – over certainty. They were quite comfortable having high probability, than absolute certainty. Nuʿmān saw Sunni ijtihād as a threat to the Imam’s authority as the adjudicator selected by God. He begins his first chapter condemning the Umayyids and Abassids for allowing lay people with “improper knowledge,” people who disagreed, to judge in the law. He goes on to say:
They [Umayyads & Abassids] handed over control of the religion to commoners who claimed to be learned in the law. The rulers did this in order to appease the jurists and to attract thereby their support in attaining their own desires, despite their ignorance. The jurists took free reign and vied unhampered for leadership among themselves. They multiplied and with increase numbers their various inclinations caused them to split into factions, and their distinct views on legal questions led them to oppose one another. This occurred because the rulers had left them to their own devices...”[43]
 
Nuʿmān says in chapters 2-3 regarding disagreement in religion:
“Those jurists followed their whims (ahwāʾ), without guidance from God, and they produced new rulings originating with themselves regarding the religion of God; they contradicted the Book of God and the speech of the Messenger of God.”[44] He continues, “God said: ‘We have neglected nothing in the Book.’ He said to His Messenger: ‘We sent down the Book to you as an explanation of everything, a guidance, mercy, and glad tidings for the Muslims.’ Thus God announced that He explained everything in his Book and that He did not neglect anything in it at all. This in His word indicates that all the religious obligations that He imposed on His creation, as well as lawful and unlawful matters, and judgments and rulings, are included and explained in His book.”[45] He goes on to say, “There is no need to draw an analogy from text, or to infer something from it, nor is there need for personal judgment, legal interpretation, preference, or speculative reasoning, as those who are in disagreement have claimed.”[46] Then he writes, “God reported that He perfected His religion, so how could those people claim that He did not perfect it, such that they had to perfect it themselves?”[47] In regards to Sunnis, he states, “By claiming that they derive rulings concerning the book of God or the Practice of the Messenger of God, these ignorant people have asserted for themselves a status above that of the prophets and angels.”[48]
 
Chapter 4 is predominantly a decree from Caliph-Imam al-Muʿizz, where he says:
 
“Whenever something continues to perplex you and thus be difficult for you, and remains obscure and thus intractable, refer it in the final instance to the Commander of the Faithful, so that he might direct you to the correct ruling on the issue, so that you might adopt it and act upon it.”[49]
 
Chapters 5 and 6 are a refutation of taqlīd to anyone other than the Imam. According to Nuʿmān, the Sunnis were purporting a prophetic narration, which said, “My Companions are like the stars. No matter which of them you follow, you will be led aright.”[50] Nuʿmān found this an incomprehensible travesty, for the companions spilled each others blood, battled one another, and divided into factions.[51] He charges the Sunnis with misunderstanding this narration as referring to all the companions, when it only refers to certain specific companions.[52] Chapters 7-11 are refutations of Sunni hermeneutical techniques, and the final chapter is, more or less, a summary of everything previous – refuting ijtihād and raʾī, with a small epilogue at the end.  In sum, the Ikhtilāf strives to denounce subjectivity, and subjective Sunni hermeneutical techniques. Fallible humans have no right to determine God’s law, unless guided by the infallible Imams, whose authority is established by the Quran itself. Following the Imams is a guarantee of certainty. Deviation from following the Imams is uncertainty.
            The Daʿāʾim al-Islām (The Columns of Islam) was written by Qaḍī al-Nuʿmān as commissioned by the Caliph-Imam al-Muʿizz.[53] The Daʿāʾim was approved by al-Muʿizz and subsequent Imams.[54] The Daʿāʾim is very unique in many ways, the first thing that strikes you, is that there are 7 pillars of Islam presented, instead of 5, with purity (ṭahāra) and jihād being the two additions.[55] As mentioned above, unlike any other Shīʿī legal text, his 2nd chapter, after faith (īmān), is on walāyah.[56] Nuʿmān begins with a Quranic verse, saying of an Imam, and then goes on to say:
“So [the Messenger of God] complied with God’s command and proclaimed the walāyah of the Commander of the Faithful, ʿAlī b. Abī Ṭālib, on the Day of Ghadīr Khumm… And the command relating to walāyah was the last to be revealed. Then God revealed the following verse: ‘This day have I perfected for you your religion and completed My favor on you and chosen for you Islam as a religion’ … The Messenger of God: He said, ‘I charge those who have faith in God and in me and who have confirmed my message, to accept the walāyah of ʿAlī b. Abī Ṭālib. For fidelity to him is fidelity to me, a command which my Lord has given me, and a compact He has made with me; and He has ordered me to convey it to you from Him.’”[57]   
 
Since this was the official law of the Fatimid Caliphate, which ruled over a majority Sunni population, and was expanding – soon into Egypt, it made sense to stress the walāyah, and thus the Imamate.
            The chapter on ṭahāra is certainly an enigma at first glance, due to its unusual structure compared to Sunni fiqh chapters on ṭahāra. Not to anyone's surprise, Nuʿmān begins with the verse of purity, [Quran 5:6].[58] Poonawala points out, that like Imāmīs and Ẓāhirīs, Nuʿmān interprets this verse to mean that masḥ (wiping) is required, not a full washing (ghusl) of the feet.[59] Nothing unusual yet, until you reach the next line:
“Thus it is related to us that [the Imams] used to clean themselves with water after using stones [to wipe themselves after easing themselves or passing water], and that the people were wont to clean themselves with stones only.”[60]
 
This may not be striking to the fiqh neophyte, but to the fiqh specialist, this is a preemptive pejorative strike against Sunnis, who are allowed to only use stones (i.e. inanimate objects other than bones or Quranic ṣuḥūf) to clean oneself after answering the call of nature.[61] Moreover, what is strange about this passage is it’s placement, because its not the normal, usual place you find the topic of ‘cleaning oneself after answering the call to nature’ (istinjāʾ or istiṭāba), which is usually much later on after a discussion of different types of water or how to preform the ritual of the minor ablution (wuḍūʾ).    
            A quaint and striking feature of the Daʿāʾim is that it often flows khabr[62] by khabr telling a story about the Imams, sprinkled with occasional Quranic verses. One forgets he is reading a prescriptive law text for the Fatimid state. In this way, it is unlike the concise prescriptions and prohibitions of Sunni mukhtaṣars (summarized law manuals). The reports from the Daʿāʾim all have legal ramifications of course, and this is most evinced by the chapter on jihād. Unlike Sunni fiqh chapters on jihād, Nuʿmān’s chapter is predominantly about governance, and some even call it the constitution of the Fatimid state.[63] It also contains a large interesting passage about fighting rebels, perhaps due to ʿAbd-Allah ash-Shīʿī’s betrayal and rebellion against the Imam.[64] Nuʿmān says:
“Thus God has made fighting the rebellious group a compulsory duty, just as He has made it mandatory to fight the polytheists… ʿAlī said, [regarding the battle of the Camel and Ṣiffīn] ‘There were only two alternatives left to me by reason of the Word of God, either fighting them or denying the revelation of God to Muḥammad.”[65]
 
The topic of fighting rebels is very uncommon in the fiqh genre, and Poonawala notes that only al-Māwardī appears to address the issue, but only in reference to the Kharijites.[66] It is the common pattern in the Daʿāʾim to start with a Quranic verse, and a quote from either the Imams or the Prophet Muḥammad, keeping in line with Nuʿmān’s legal theory: 1. Quran, 2. Sunna, 3. The Imams. Both the Ikhtilāf and the Daʿāʾim are sui generis, not only because they are the first articulations of Ismaili jurisprudence, but also Fatimid jurisprudence; moreover, they both remain to this day a mainstay for many contemporary Ismailis.[67]
            The Fatimid Ismaili state, materializing seemingly out of oblivion, must’ve been a shock to their Sunni counterparts. This new burgeoning state, backed by Kutama Berbers, was in dire need of law and order. The rural Kutama Berbers and city-Arabs were made up of very diverse doctrinal orientations. The Fatimids needed a distinct Ismaili law based on the precepts of the Imams to unify the state, not appropriating Sunni hermeneutics with uncertain ijtihād that undermined the Imams’ religious authority. From obscurity appears the young Sunni convert Qaḍī al-Nuʿmān, who would take up the task, forever leaving his legacy on Ismailism and Islamic thought. His unique texts give us an insight into Sunni and Twelver legal arguments, methods, and general intellectual milieu. It gives us an often neglected part of the conversation, Ismaili jurisprudence.      
 
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[1]     Taʾwīl in the Ismaili context is a spiritual hermeneutic or an inner meaning of an outward text.

[2]     Herman Landolt, Samira Sheikh & Kutub Kassam, eds., An Anthology of Ismaili Literature: A Shi’i Vision of Islam (London: I.B. Tauris Publishers in association with The Institute of Ismaili Studies, 2008), 193. (slightly edited, my emphasis).

[3]     All subsequent dates will be Gregorian.

[4]     Farhad Daftary, “The Study of the Ismailis: Phases and Issues,” in The Study of Shiʿi Islam: History, Theology, and Law, eds. Farhad Daftary and Gurdofarid Miskinzoda (London: I.B. Tauris Publishers in association with The Institute of Ismaili Studies, 2014), 55; You can also see de Sacy’s Expose de la religion des Druzes (Paris 1838), 2 vol. as cited in the aforementioned page by Daftary; The Druze are a subsect of Ismailis; Sumaiya A. Hamdani, Between Revolution and State: The Path to Fatimid Statehood: Qadi al-Nu’man and the Construction of Fatimid Legitimacy (London & New York: I.B. Tauris Publishers in association with The Institute of Ismaili Studies, 2006), xxii, states that Daftary claims Western scholarship on Ismailis “initially grew out of an interest in the Crusades” and their ‘primitive’ ethnographies; all dates are going to be Gregorian for the sake of brevity.

[5]     Daftary, “The Study of the Ismailis: Phases and Issues,” 57.

[6]     Ibid, 60-61.

[7]     Ibid, 62-64; See Marshal G.S. Hodgson, The Order of Assassins: The Struggle of the Early Nizārī Ismāʿīlīs against the Islamic World (The Hague, 1955; repr. New York, 1980) as cited by Daftary; Daftary also mentions recent scholars such as Ismail K. Poonawala, Heinz Halm, Paul E. Walker, Herman Landolt, Thierry Bianquis, Micheal Brett, Pieter Smoor, Yaacov Lev, Farhat Dachraoui, Mohammed Yaloui, Ayman F. Sayyid, Christian Jambet, Daniel de Smet, and Paula Sanders.

[8]     Daftary, “The Study of the Ismailis: Phases and Issues,” 65;  For more information on the history of Western scholarship on Ismaili studies see Farhad Daftary, “Western progress in Ismāʿīlī studies,” In The Ismāʿīlīs: Their history and doctrines (1990; repr., NYC: Cambridge University Press, 1992).

[9]     Daftary, The Ismāʿīlīs: Their history and doctrines, 33.

[10]   Hamdani, Between Revolution and State, xxiv.

[11]   Ibid, 143 note 52; Yousef Casewit, The Mystics of al-Andalus: Ibn Barrajān and Islamic Thought in the Twelfth Century (NYC: Cambridge University Press, 2017), 2. Casewit also mentions that this treatise was highly influential to Andalusian Mysticism, as well as Fatimid Ismāʿīlī cosmology.

[12]   Daftary, The Ismāʿīlīs: Their history and doctrines, 93; Moojan Momen, An Introduction to Shi’i Islam: The History and Doctrines of Twelver Shi’ism (New Haven: Yale University Press, 1985), 54.

[13]   Moojan Momen, An Introduction to Shi’i Islam, 55.

[14]   Daftary, The Ismāʿīlīs: Their history and doctrines, 94; Moojan Momen, An Introduction to Shi’i Islam, 54-56. Momen categorizes them into 7 different factions; Sumaiya A. Hamdani, Between Revolution and State, 1. Hamdani is unsure whether Ismāʿīl died before his father or not.

[15]   Daftary, The Ismāʿīlīs: Their history and doctrines, 94-95; Moojan Momen, An Introduction to Shi’i Islam, 56-57;  Sumaiya A. Hamdani, Between Revolution and State, 1.

[16]   Daftary, The Ismāʿīlīs: Their history and doctrines, 96; Moojan Momen, An Introduction to Shi’i Islam, 55;  Sumaiya A. Hamdani, Between Revolution and State, 2.

[17]   Sumaiya A. Hamdani, Between Revolution and State, 3 & 34. Hamdani says on page 3, “What was to become known as the Qarmati began with the conversion to the Ismaili cause of Hamdan Qarmat, and eventually became limited to southern Iraq, Bahrayn, and parts of Iran.” (slightly edited).

[18]   Daftary, The Ismāʿīlīs: Their history and doctrines, 93.

[19]   Sumaiya A. Hamdani, Between Revolution and State, 3-4.

[20]   Ibid, 5.

[21]   Ibid, 6.

[22]   Ibid, 6-17;  Daftary, The Ismāʿīlīs: Their history and doctrines, 136.

[23]   Hamdani, Between Revolution and State, 17-18.

[24]   Al-Qaḍī Al-Nuʿmān, Disagreements of the Jurists: A Manual of Islamic Legal Theory, trans. Devin J. Stewart (NYC: New York University Press, 2017), xvi-xvii.  Devin J. Stewart notes that his actual birth date is unknown, but he estimates in in the last decade of the 9th century; Asaf A.A. Fyzee, trans., The Pillars of Islam: Da’a’im al-Islam of al-Qadi al-Nu’man, revised and annotated by Ismail Kurban Husein Poonawala (2002; repr., New Delhi: Oxford University Press, 2006), xxvi-xxvii. Poonawala’s changes were so substantial that I will treat him as the author in subsequent footnotes; Daftary, The Ismāʿīlīs: Their history and doctrines, 249-250. Daftary has his birth date as 903; Hamdani, Between Revolution and State, 46.

[25]   Poonawala, The Pillars of Islam, xxvii.

[26]   Agostino Cilardo, ed. & trans., The Early History of Ismaili Jurisprudence: Law Under the Fatimids: A Critical Edition of the Arabic Text and English Translation of al- Qaḍī al-Nuʿmān’s Minhāj al-Farāʾiḍ (London: I.B. Tauris Publishers in association with The Institute of Ismaili Studies, 2012), 19.

[27]   Al-Nuʿmān, Disagreements of the Jurists, xvi; Daftary, The Ismāʿīlīs: Their history and doctrines, 249; Hamdani, Between Revolution and State, 46.

[28]   Cilardo, The Early History of Ismaili Jurisprudence, 18; Hamdani, Between Revolution and State, 46; Poonawala, The Pillars of Islam, xxviii.

[29]   Al-Nuʿmān, Disagreements of the Jurists, xvi; Daftary, The Ismāʿīlīs: Their history and doctrines, 249; Poonawala, The Pillars of Islam, xxviii.

[30]   Al-Nuʿmān, Disagreements of the Jurists, xvii.

[31]   Al-Nuʿmān, Disagreements of the Jurists, xvii; Cilardo, The Early History of Ismaili Jurisprudence, 16; Daftary, The Ismāʿīlīs: Their history and doctrines, 250; Hamdani, Between Revolution and State, 46; Poonawala, The Pillars of Islam, xxviii.

[32]   Al-Nuʿmān, Disagreements of the Jurists, xvii; Cilardo, The Early History of Ismaili Jurisprudence, 16.

[33]   Al-Nuʿmān, Disagreements of the Jurists, xvii-xviii; Cilardo, The Early History of Ismaili Jurisprudence, 16; Hamdani, Between Revolution and State, 46.

[34]   Al-Nuʿmān, Disagreements of the Jurists, xviii;  Cilardo, The Early History of Ismaili Jurisprudence, 16-17; Hamdani, Between Revolution and State, 47; To see more regarding the positions of qāḍī al-quḍāt & nāẓir fī al-maẓālim, see Joseph Schacht, An Introduction to Islamic Law (Oxford: Oxford University Press, 1982), 50-51.

[35]   Daftary, The Ismāʿīlīs: Their history and doctrines, 250.

[36]   Ibid.

[37]   Al-Nuʿmān, Disagreements of the Jurists, xx.

[38]   Poonawala, The Pillars of Islam, xxxiii; Ismail K. Poonawala, “The Evolution of al-Qaḍī al-Nuʿmān’s Theory of Ismaili Jurisprudence as Reflected in the Chronology of his Works on Jurisprudence,” in The Study of Shiʿi Islam: History, Theology, and Law, eds. Farhad Daftary and Gurdofarid Miskinzoda (London: I.B. Tauris Publishers in association with The Institute of Ismaili Studies, 2014), 295.

[39]   Devin J. Stewart, Islamic Legal Orthodoxy: Twelver Shiite Response to the Sunni Legal System (Salt Lake City: The University of Utah Press, 1998), 178.

[40]   Al-Nuʿmān, Disagreements of the Jurists, xx.

[41]   Stewart, Islamic Legal Orthodoxy, 246.

[42]   Robert Gleave, Islam and Literalism: Literal Meaning and Interpretation in Islamic Legal Theory (Edinburgh: Edinburgh University Press, 2013), 148; Stewart, Islamic Legal Orthodoxy, 184.

[43]   Al-Nuʿmān, Disagreements of the Jurists, 9; Al-Qaḍī Al-Nuʿmān, Ikhtilāf uṣūl al-madhāhib, ed. Muṣṭafā Ghālib, 3rd ed. (Beirut: Dār al-Andalus, 1983), 32-33.

[44]   Al-Nuʿmān, Disagreements of the Jurists, 15; Al-Nuʿmān, Ikhtilāf uṣūl al-madhāhib, 38.

[45]   Al-Nuʿmān, Disagreements of the Jurists, 16-17; Al-Nuʿmān, Ikhtilāf uṣūl al-madhāhib, 44-45.

[46]   Al-Nuʿmān, Disagreements of the Jurists, 18; Al-Nuʿmān, Ikhtilāf uṣūl al-madhāhib, 40.

[47]   Al-Nuʿmān, Disagreements of the Jurists, 19; Al-Nuʿmān, Ikhtilāf uṣūl al-madhāhib, 43.

[48]   Al-Nuʿmān, Disagreements of the Jurists, 21; Al-Nuʿmān, Ikhtilāf uṣūl al-madhāhib, 45.

[49]   Al-Nuʿmān, Disagreements of the Jurists, 26; Al-Nuʿmān, Ikhtilāf uṣūl al-madhāhib, 49.

[50]   Al-Nuʿmān, Disagreements of the Jurists, 37.

[51]   Ibid, 40.

[52]   Ibid 41.

[53]   Poonawala, The Pillars of Islam, xxx; Some even argue that al-Muʿizz was the co-author.

[54]   Ibid.

[55]   Ibid, 2-3.

[56]   For an indepth coverage of the word ‘walāyah’ in contradistinction to ‘wilāyah,’ see Poonawala, The Pillars of Islam, 2 note 6.

[57]   Poonawala, The Pillars of Islam, 20. slightly edited.

[58]   “O you who have believed, when you rise to [perform] prayer, wash your faces and your arms to the elbows and wipe over your heads and your feet to the ankles. And if you are in a state of janabah, then purify yourselves.” See Poonawala, The Pillars of Islam, 123.

[59]   Poonawala, The Pillars of Islam, 123 note 2; For a detailed discussion of this issue, you may see Eric Winkel, Islam and the Living Law: The Ibn al-’Arabi Approach (Karachi: Oxford University Press, 1997), 65-83.

[60]   Poonawala, The Pillars of Islam, 123.

[61]   To see a Sunni example that is contemporaneous to Qaḍī al-Nuʿmān, see  Abū al-Qāsim al-Khiraqī, al-Mukhtaṣar fī al-Fiqh (Cairo: Dār al-Furqān, 2017), 37; For a dating of the text and attribution to Imam Khiraqī, see Nimrod Hurvitz, “the Mukhtaṣar of al-Khiraqī and its place in the formation of Ḥanbalī legal doctrine” in Law, Custom, and Statute in the Muslim World. Studies in Honor of Aharon Layish, ed. Ron Shaham (Leiden: Brill, 2006).

[62]   Khabr literally means ‘report;’ it refers to ḥadīths and a plethora of reports from other than the Prophet. In this case from various Imams.  

[63]   Poonawala, The Pillars of Islam, xxxii-xxxiii.

[64]   Hamdani, Between Revolution and State, 28-29; Poonawala, The Pillars of Islam, 479.

[65]   Poonawala, The Pillars of Islam, 480.

[66]   Ibid, 479 note 230; Wafaa H. Wahba, trans., The Ordinances of Government (Reading: Garnet Publishing, 1996), 83-97.

[67]   Cilardo, The Early History of Ismaili Jurisprudence, 19.