The Early History of Ismaili Jurisprudence: Law under the Fatimids 9780755607792, 9781786734600

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the early history of ismaili jurisprudence

The Institute of Ismaili Studies Ismaili Texts and Translations Series, 18 ____________________________________________________________ Editorial Board: Farhad Daftary (general editor), Wilferd Madelung (consulting editor), Nader El-Bizri, Heinz Halm, Abbas Hamdani, Hermann Landolt, Mehdi Mohaghegh, Roy Mottahedeh, Azim Nanji, Ismail K. Poonawala, Ayman F. Sayyid, Paul E. Walker Previously published titles: 1. Ibn al-Haytham. The Advent of the Fatimids: A Contemporary Shiʿi Witness. An edition and English translation of Ibn al-Haytham’s Kitāb al-Munāẓarāt, by Wilferd Madelung and Paul E. Walker (2000). 2. Muḥammad b. ʿAbd al-Karīm al-Shahrastānī. Struggling with the Philosopher: A Refutation of Avicenna’s Metaphysics. A new Arabic edition and English translation of al-Shahrastānī’s Kitāb al-Muṣāraʿa, by Wilferd Madelung and Toby Mayer (2001). 3. Jaʿfar b. Manṣūr al-Yaman. The Master and the Disciple: An Early Islamic Spiritual Dialogue. Arabic edition and English translation of Jaʿfar b. Manṣūr al-Yaman’s Kitāb al-ʿālim waʾlghulām, by James W. Morris (2001). 4. Idrīs ʿImād al-Dīn. The Fatimids and their Successors in Yaman: The History of an Islamic Community. Arabic edition and English summary of Idrīs ʿImād al-Dīn’s ʿUyūn al-akhbār, vol. 7, by Ayman F. Sayyid, in collaboration with Paul E. Walker and Maurice A. Pomerantz (2002). 5. Naṣīr al-Dīn Ṭūsī. Paradise of Submission: A Medieval Treatise on Ismaili Thought. A new Persian edition and English translation of Naṣīr al-Dīn Ṭūsī’s Rawḍa-yi taslīm, by S. J. Badakhchani with an introduction by Hermann Landolt and a philosophical commentary by Christian Jambet (2005). 6. al-Qāḍī al-Nuʿmān. Founding the Fatimid State: The Rise of an Early Islamic Empire. An annotated English translation of al-Qāḍī al-Nuʿmān’s Iftitāḥ al-daʿwa, by Hamid Haji (2006). 7. Idrīs ʿImād al-Dīn. ʿUyūn al-akhbār wa-funūn al-āthār. Arabic critical edition in 7 volumes by Ahmad Chleilat, Mahmoud Fakhoury, Yousef S. Fattoum, Muhammad Kamal, Maʾmoun al-Sagherji and Ayman F. Sayyid (2007–2009).

____________________________________________________________ 8. Aḥmad b. Ibrāhīm al-Naysābūrī. Degrees of Excellence: A Fatimid Treatise on Leadership in Islam. A new Arabic edition and English translation of Aḥmad b. Ibrāhīm al-Naysābūrī’s Kitāb ithbāt al-imāma, by Arzina Lalani (2010). 9. Ḥamīd al-Dīn Aḥmad b. ʿAbd Allāh al-Kirmānī. Master of the Age: An Islamic Treatise on the Necessity of the Imamate. A critical edition of the Arabic text and English translation of Ḥamīd al-Dīn al-Kirmānī’s al-Maṣābīḥ fī ithbāt al-imāma, by Paul E. Walker (2007). 10. Orations of the Fatimid Caliphs: Festival Sermons of the Ismaili Imams. An edition of the Arabic texts and English translation of Fatimid khuṭbas, by Paul E. Walker (2009). 11. Taqī al-Dīn Aḥmad b. ʿAlī al-Maqrīzī. Towards a Shiʿi Mediterranean Empire: Fatimid Egypt and the Founding of Cairo. The reign of the Imam-caliph al-Muʿizz, from al-Maqrīzī’s Ittiʿāẓ al-ḥunafāʾ bi-akhbār al-aʾimma al-Fāṭimiyyīn al-khulafāʾ, translated by Shainool Jiwa (2009). 12. Taqī al-Dīn Aḥmad b. ʿAlī al-Maqrīzī. Ittiʿāẓ al-ḥunafāʾ bi-akhbār al-aʾimma al-Fāṭimiyyīn al-khulafāʾ. Arabic critical edition in 4 volumes, with an English introduction by Paul E. Walker and notes by Ayman F. Sayyid (2010). 13. Naṣīr al-Dīn Ṭūsī. Shiʿi Interpretations of Islam: Three Treatises on Theology and Eschatology. A Persian edition and English translation of Naṣīr al-Dīn Ṭūsī’s Tawallā wa tabarrā, Maṭlūb al-muʾminīn and Āghāz wa anjām, by S. J. Badkhchani (2010). 14. al-Muʾayyad al-Shīrāzī. Mount of Knowledge, Sword of Eloquence: Collected Poems of an Ismaili Muslim Scholar in Fatimid Egypt. A translation from the original Arabic of al-Muʾayyad al-Shīrāzī’s Dīwān, translated by Mohamad Adra (2011). 15. Aḥmad b. Ibrāhīm al-Naysābūrī. A Code of Conduct: A Treatise on the Etiquette of the Fatimid Ismaili Mission. A critical Arabic edition and English translation of Aḥmad b. Ibrāhīm al-Naysābūrī’s Risāla al-mūjaza al-kāfiya fī ādāb al-du‘āt, by Verena Klemm and Paul E. Walker with Susanne Karam (2011).

____________________________________________________________ 16. Manṣūr al-ʿAzīzī al-Jawdharī. Inside the Immaculate Portal: A History from Early Fatimid Archives. A new edition and English translation of Manṣūr al-ʿAzīzī al-Jawdharī’s biography of al-Ustādh Jawdhar, the Sīrat al-Ustādh Jawdhar, by Hamid Haji (2012). 17. Nāṣir-i Khusraw. Between Reason and Revelation: Twin Wisdoms Reconciled. An annotated English translation of Nāṣir-i Khusraw’s Kitāb-i jāmiʿ al-ḥikmatayn, by Eric Ormsby (2012).

The Early History of Ismaili Jurisprudence Law under the Fatimids A critical edition of the Arabic text and English translation of al-Qāḍī al-Nuʿmān’s Minhāj al-farāʾiḍ

by

Agostino Cilardo

I.B.Tauris Publishers london • new york in association with The Institute of Ismaili Studies london

Published in 2012 by I.B.Tauris & Co Ltd 6 Salem Rd, London W2 4BU 175 Fifth Avenue, New York NY 10010 www.ibtauris.com in association with The Institute of Ismaili Studies 210 Euston Road, London NW1 2DA www.iis.ac.uk Distributed in the United States of America and in Canada Exclusively by Palgrave Macmillan, 175 Fifth Avenue, NY 10010 Copyright © Islamic Publications Ltd, 2012 All rights reserved. Except for brief quotations in a review, this book, or any part thereof, may not be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. isbn

978 1 78067 129 9

A full cip record for this book is available from the British Library A full cip record for this book is available from the Library of Congress Library of Congress catalog card: available Typeset in Minion Tra for The Institute of Ismaili Studies Printed and bound in Great Britain by T.J. International, Padstow, Cornwall

The Institute of Ismaili Studies

The Institute of Ismaili Studies was established in 1977 with the object of promoting scholarship and learning on Islam, in the historical as well as contemporary contexts, and a better understanding of its relationship with other societies and faiths. The Institute’s programmes encourage a perspective which is not confined to the theological and religious heritage of Islam, but seeks to explore the relationship of religious ideas to broader dimensions of society and culture. The programmes thus encourage an interdisciplinary approach to the materials of Islamic history and thought. Particular attention is also given to issues of modernity that arise as Muslims seek to relate their heritage to the contemporary situation. Within the Islamic tradition, the Institute’s programmes promote research on those areas which have, to date, received relatively little attention from scholars. These include the intellectual and literary expressions of Shi‘ism in general, and Ismailism in particular. In the context of Islamic societies, the Institute’s programmes are informed by the full range and diversity of cultures in which Islam is practised today, from the Middle East, South and Central Asia, and Africa to the industrialised societies of the West, thus taking into consideration the variety of contexts which shape the ideals, beliefs and practices of the faith. These objectives are realised through concrete programmes and activities organised and implemented by various departments of the Institute. The Institute also collaborates periodically, on a programme-specific basis, with other institutions of learning in the United Kingdom and abroad.

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Table of Contents

Acknowledgements Introduction

xi 1

1.

The life and works of al-Qāḍī Abū Ḥanīfa al-Nuʿmān

5

2.

Differences among al-Nuʿmān’s five Ismaili works, and a comparison of their doctrines with Imāmī and Sunni doctrines on inheritance

43

Conclusion

81

Note on the edition Translation of the Minhāj al-farāʾiḍ

87 91

Bibliography English Index

125 137

Arabic Index Arabic Text

ix

Acknowledgements

I wish to express my gratitude to The Institute of Ismaili Studies for kindly providing me with a copy of the Kitāb al-yanbūʿ (MS 1262, ArI, ZA) and two copies of the Minhāj al-farāʾiḍ (Cortese, Descriptive Catalogue, p. 53, no. 82/889; Cortese, Zāhid ʿAlī Collection, pp. 118–119, no. 101). I am indebted also to the Bombay University Library for giving me a copy of the manuscript from the Fyzee Collection. My warmest thanks go to Fayaz S. Alibhai and Lisa Morgan who critically read my text, shaping its linguistic form and making useful remarks. I am also grateful to Hamid Haji for preparing the Arabic CRC so meticulously and beautifully. Last but not least, I wish to express my gratitude to Professor Wilferd Madelung for reading my work and offering useful suggestions.

xi

Introduction

In my research on the Islamic law of inheritance, I have utilised manuscripts written by scholars from the various schools of law. One of these is the Minhāj al-farāʾiḍ, which is attributed to the Ismaili qāḍī Abū Ḥanīfa al-Nuʿmān. It has proven invaluable in helping me to fathom the various aspects of the inheritance system of the Sunni as well as the Shiʿi, Ẓāhirī and Ibāḍī schools of law.1 With regard to the early formation of the Imāmī and Ismaili schools of law, the Minhāj has already helped to shed light on several issues which have been examined elsewhere,2 but many others remain, including, for example, the relationship between the Ismaili school, the Imāmī school and the remaining law schools; the comparison of the legal works of al-Nuʿmān in order to shed light on the development of his thought. Above all, however, it has a bearing on the question of the origin of Islamic law itself. Moreover, it has informed an examination of the meaning of the Qurʾanic term kalāla3 as well as an 1. Agostino Cilardo, Diritto ereditario islamico delle scuole giuridiche ismailita e imamita (Rome and Naples, 1993); Agostino Cilardo, Diritto ereditario islamico delle scuole giuridiche sunnite (ḥanafita, mālikita, šāfiʿita e ḥanbalita) e delle scuole giuridiche zaydita, ẓāhirita e ibāḍita (Rome and Naples, 1994). 2. Examples include the division of the heirs by kin into classes and the consequent negation of the doctrine of agnation, the privileges extended to the firstborn child, and the exclusion of a wife from the inheritance of some goods included in the estate. See Agostino Cilardo, ‘Some Peculiarities of the Law of Inheritance. The Formation of Imāmī and Ismāʿīlī Law’, Journal of Arabic and Islamic Studies, 3 (2000), pp. 127–137. 3. Agostino Cilardo, ‘Preliminary Notes on the Qurʾānic Term kalāla’, in U. Vermeulen and J.M.F. van Reeth, eds, Law, Christianity and Modernism in Islamic Society. Proceedings of the Eighteenth Congress of the Union Européenne des Arabisants et Islamisants held at the Katholieke Universiteit Leuven (September 3–September 9, 1996) (Leuven, 1998), pp. 3–12; Agostino Cilardo, The Qurʾānic Term kalāla. Studies in the Arabic

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­assessment of some recent reforms in inheritance law.4 Since the history of the rise and the nature of the Fatimid state is well known, and the role of al-Nuʿmān as a state jurist has also been widely studied, I wish instead to focus on a doctrinal comparison of al-Nuʿmān’s juridical works. Starting with an analysis of the Minhāj and highlighting the figure and works of al-Qāḍī Abū Ḥanīfa al-Nuʿmān, I shall trace the development of Ismaili jurisprudence (fiqh) against the backdrop of the Imāmī as well as the Sunni elaboration. In so doing, I will compare the doctrines expressed in the Minhāj with those found in the other extant works of al-Nuʿmān. From this examination, I hope to draw some conclusions about when the Minhāj was composed, the originality of Ismaili jurisprudence, and the relation between Ismaili jurisprudence and other schools of law. Al-Nuʿmān is generally considered the founder of Ismaili jurisprudence, and its greatest exponent. Most scholars nevertheless assert that Ismaili fiqh lacks originality and is closely dependent on other systems of Islamic law. The present study takes this as its cue to provide evidence to the contrary by a detailed examination of the differences between Ismaili and other fiqh. Stimulated by the challenge formulated by Muḥammad Waḥīd Mīrzā,5 but limiting myself to the topic of inheritance, I shall thus proceed to conduct a comparative study between the Ismaili system of jurisprudence and the other Islamic systems of law. But such a study ought to start by questioning Mīrzā’s general observation that (1) there are no noteworthy differences between the Ismaili form Language and Poetry, ḥadīṯ, tafsīr and fiqh. Notes on the Origin of the Islamic Law (Edinburgh, 2005). 4. Agostino Cilardo, ‘On Some Recent Laws on the Islamic Law of Inheritance’, in A. Fodor, ed., Proceedings of the Arabic and Islamic Sections of the 35th International Congress of Asian and North African Studies (ICANAS) (Budapest, 1–7 July 1997), Part II: The Arabist, Budapest Studies in Arabic, 21–22 (Budapest, 1999), pp. 193–204. 5. That is, to ‘conduct a comparative study between the Ismaili system of jurisprudence and the other Islamic systems of law’ (‘Il aurait été intéressant de faire une étude comparative entre le système ismaélien et les autres systèmes de jurisprudence musulmane’). See Muḥammad Waḥīd Mīrzā, ‘Avant-propos’ in his edition of Kitāb al-iqtiṣār, by al-Qāḍī Abū Ḥanīfa al-Nuʿmān (Damascus, 1376/1957), p. xxxviii.

introduction

3

of ʿibādāt (religious practices) and other forms of ʿibādāt, and (2) Ismaili rules on muʿāmalāt (with respect to marriage, repudiation and inheritance, for example), totally diverge from those of Sunni and Imāmī systems of law. Such comparisons may appear pedantic, but they are necessary in order to definitively fix al-Nuʿmān’s own theological background and thereby explore whether this was Mālikī or Ḥanafī, and to establish the doctrinal position of the Minhāj with respect both to his other works and to works by the Imāmīs and the Sunnis.

Chapter 1

The life and works of al-Qāḍī Abū Ḥanīfa al-Nuʿmān

I. The Fatimids and al-Qāḍī Abū Ḥanīfa al-Nuʿmān The history of the Fatimid dynasty (297‒567/909‒1171) and the life and work of the Ismaili author and jurist al-Qāḍī al-Nuʿmān (d. 363/974) during this period are popular fields of research for both Western and Muslim scholars of Islamic studies.1 The recurring allegations, products of a Sunni polemic, that Ismailism is similar to the religion of the Majūs and that the Ismailis tried to put an end to the domination of Arabs and Islam, while themselves seeking to dominate the Majūs, are obviously false.2 De Sacy3 believes that until Abū ʿAbd Allāh al-Shīʿī (d. 298/911),4 the Ismailis were nothing more than an ordinary sect of the Shiʿis. This opinion is shared by Ivanow5 who maintains that ‘Ismailism was in its plain religious 1. See, for instance, Farhad Daftary, The Ismāʿīlīs: Their History and Doctrines (2nd ed., Cambridge, 2007), pp. 167–172; Farhad Daftary, Ismaili Literature: A Bibliography of Sources and Studies (London, 2004), pp. 142–146; Farhad Daftary, Ismailis in Medieval Muslim Societies, Ismaili Heritage Series, 12 (London, 2005); Sumaiya Abbas Hamdani, Between Revolution and State: The Path to Fatimid Statehood, al-Qadi al-Nuʿman and the Construction of Fatimid Legitimacy (London, 2005); and the Bibliography in the present work. 2. Wladimir Ivanow, Studies in Early Persian Ismailism (Leiden, 1948), pp. 177–178. 3. Antoine Silvestre de Sacy, Exposé de la religion des Druzes (Paris, 1838), vol. 1, p. lxxii. 4. Called al-Muḥtasib, the founder of Fatimid rule in North Africa; see S. M. Stern, ‘Abū ʿAbd Allāh al-Shīʿī’, in EI2, vol. 1, pp. 103–104. 5. Wladimir Ivanow, Brief Survey of the Evolution of Ismailism (Leiden, 1952), p. 74.

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system closely connected with moderate, or Twelvers’, Shiism’,6 even if he rightly observes that ‘the elements of Shiism probably did not go further than the importance attached to the theocratic principle and a strong sympathy with the house of the Prophet’.7 Five stages in the evolution of Ismailism can be distinguished,8 but it was during the second stage, which coincided with the Fatimid era,9 that both the Ismaili movement and Ismaili literature attained maturity. It is through the efforts of al-Qāḍī al-Nu‘mān during this period in elaborating the Ismaili juristic system that he may be rightly considered the Fatimid jurist above all others and perhaps led Poonawala to observe that ‘Ismaʿili law began with Nuʿmān and ended with him’.10 Al-Nuʿmān11 entered the service of the first Fatimid Imam-Caliph 6. The name of this branch of the Shiʿa is equally Twelvers or Ithnāʿasharīs (Arabic), because they believe in twelve imams; they are also called Imāmīs, because of the fundamental role of their imams, both as legitimate interpreters of the Islamic sources and as leaders of their community. See W. Madelung, ‘Imāma’, in EI2, vol. 3, pp. 1163–1169. 7. Ivanow, Brief Survey, p. 31. 8. Ibid., pp. 28–30. 9. On the Fatimids, see Étienne M. Quatremère, ‘Mémoires historiques sur la dynastie des Khalifes Fatimites’, Journal Asiatique, 2, no. 3 (1836), pp. 97–142; Ferdinand Wüstenfeld, Geschichte der Fatimiden-Chalīfen nach arabischen Quellen (Göttingen, 1881); E. Graefe, ‘Fāṭimids’, in EI, vol. 3, pp. 88–92; Marius Canard, ‘Fāṭimids’, in EI2, vol. 2, pp. 850–862.  More recent sources are cited in Daftary, Ismaili Literature, under Thierry Bianquis, Michael Brett, Heinz Halm, Yaacov Lev, Paul Walker, etc. 10. Ismail K. Poonawala, ‘Al-Qāḍī al-Nuʿmān and Ismaʿili Jurisprudence’, in Farhad Daftary, ed., Mediaeval Ismaʿili History and Thought (Cambridge, 1996), p. 132. See also Shamoon T. Lokhandwalla, ‘The Origins of Ismaili Law’ (D. Phil. thesis, Faculty of Oriental Studies, University of Oxford, 1951), pp. 17–18, 233. 11. See Ḥusain F. al-Hamdānī, ‘Some Unknown Ismāʿīlī Authors and their Works’, Journal of the Royal Asiatic Society (1933), pp. 368–370; Wladimir Ivanow, Ismaili Literature. A Bibliographical Survey (Tehran, 1963), pp. 32–37; Āghā Buzurq, al-Dharīʿa ilā taṣānīf al-Shīʿa (Tehran, 1355– 1381/1936–1961), vol. 8, pp. 197–198, no. 771; Muḥsin al-Amīn al-Ḥusaynī al-ʿĀmilī, Aʿyān al-Shīʿa (Beirut and Damascus, 1370–1382/1951–1962), vol. 50, pp. 13–15, no. 11169; Carl Brockelmann, Geschichte der arabischen Litteratur (GAL), 2 vols., 2nd ed., Weimar, 1943–1949; 3 supplements, Leiden, 1937–1942, vol. 1, p. 201, no. 5; Brockelmann, GAL, supplement no.

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al-Mahdī (r. 297–322/909–934) while he was still a very young man. But it was during the reign of the fourth Fatimid Imam-Caliph al-Muʿizz (r. 341‒365/953‒975) that he composed the main legal works of the Ismaili school.12 These appear to be the product of an unusual method: al-Nuʿmān wrote nothing without first consulting the imams, and as such, his main work, the Daʿāʾim al-Islām, is considered the result of cooperation between him and al-Muʿizz. This circumstance gave it great authority since ‘the Imam was both the secular ruler and the real pontiff in one person’.13 In any case, it is to be underlined that al-Nuʿmān’s major merit was the construction of a juridical and legal system not just for Ismaili adherents but for the use of the Fatimid state. The new system of law was only gradually brought into practice. Based on information furnished by al-Kindī,14 we know that Jawhar, the conqueror of Fusṭāṭ, left the Mālikī Abū Ṭāhir, there as qāḍī with instructions to decide cases according to the tenets of the madhhab of the ahl al-bayt in the particular fields of succession, repudiation and the new moon (hilāl), although he allowed the Sunnis to follow 1, pp. 324–325, no. 7; Fuat Sezgin, Geschichte des arabischen Schrifttums (GAS) (Leiden, 1967–1984), vol. 1, pp. 575–578, no. 6; Asaf A.A. Fyzee, ‘al-Nuʿmān’, in EI vol. 6, pp. 953–954 (reprint 1987); Farhat Dachraoui, ‘al-Nuʿmān’, in EI2, vol. 8, pp. 117–118; ʿImād al-Dīn Idrīs (d. 872/1468), in his ʿUyūn al-akhbār, ‘gives a very long and the most authoritative account extant of Qāḍī an-Nuʿmān’s life and works’ (see Asaf A.A. Fyzee, ‘Qadi an-Nuʿman. The Fatimid Jurist and Author’, Journal of the Royal Asiatic Society [1934], p. 4). 12. Law schools considered in this work are the four Sunni (Ḥanafī, Mālikī, Shāfiʿī and Ḥanbalī) schools, the three Shiʿi (Imāmī, Ismaili and Zaydī) schools, and the Ibāḍī and Ẓāhirī schools. 13. Ivanow, Studies, p. 21. 14. al-Kindī, Kitāb al-wulāt wa-kitāb al-quḍāt, ed. Rhuvon Guest (Leiden and London, 1912), p. 584. See also Ḥasan Ibrāhīm Ḥasan and Ṭāhā Aḥmad Sharaf, al-Muʿizz li-Dīn Allāh. Imām al-Shīʿa al-Ismāʿīliyya wa-muʾassis al-dawla al-Fāṭimiyya fī Miṣr (Cairo 1367/1947), p. 194 (as regards successions, however, in the note it is wrongly stated that such a peculiarity consists in giving the woman a pre-eminence over, or at least, the same rights as a man) and p. 305; Poonawala, ‘Isma‘ili Jurisprudence’, p. 134, n. 7. Interesting ideas about the establishment of the new system of law in Egypt are given in Richard Gottheil, ‘A Distinguished Family of Fatimide Cadis (al-Nuʿmān) in the Tenth Century’, Journal of the American Oriental Society, 27 (1906), p. 221.

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their school regarding the law of inheritance. To a case regarding fasting, however, both Sunni and Ismaili rules were applied.15 We also know that al-Muʿizz recommended that Abū Ṭāhir consult al-Nuʿmān on the major questions regarding the administration of justice and on controversial juridical points.16 Because the major goal of al-Muʿizz was to ensure the enforcement of Ismaili rules, particularly regarding the law of inheritance, when Abū Ṭāhir died, al-Muʿizz did not appoint Abū Ṭāhir’s son as qāḍī, but al-Nuʿmān’s son, ʿAlī b. al-Nuʿmān.17 Al-Maqrīzī (d. 845/1442) clearly shows that a long time passed before there was wide knowledge of the new system: ‘“Fatimide law, according to the Shīʿite doctrine, was first taught at the Azhar in Ṣafar 365 (975), when ʿAlī Ibn al-Nuʿmān, the cadi, sat in the Cairo mosque known as the Azhar and dictated a compendium of law composed by his father for the Shīʿites”. This work was called the Kitāb al-iqtiṣār’.18 What we can assume is that a distinct Ismaili law did not exist before the establishment of the Fatimid dynasty.19 The early Ismailis followed the law of the land wherever they settled.20 15. Ḥasan and Sharaf, al-Muʿizz, p. 195. 16. Waḥīd Mīrzā, ‘Avant-propos’, pp. xxix–xxx. 17. al-Kindī, Wulāt wa-quḍāt, p. 589. See also Ḥasan and Sharaf, al-Muʿizz, p. 198. 18. Gottheil, ‘Distinguished Family’, p. 221. See also Ismail K. Poonawala, ‘Al-Qadi al-Nuʿman’s Works and the Sources’, Bulletin of the School of Oriental and African Studies, 36 (1973), p. 114. Later on, Poonawala specifies that the compendium must not be identified with the Iqtiṣār (‘Ismaʿili Jurisprudence’, pp. 138–139, n. 42). 19. One has to distinguish the time when the Ismaili law was widely known and practised and the time of its formation. For the first case, some time passed before its application, as confirmed by Gottheil (‘Distinguished Family’, p. 221): ‘…the Fatimids seem to have been rather large-minded in this respect, if not in others. They were sufficiently latitudinarian to allow all the four forms of Mohammedan canon law to be taught in the schools and to be used by the adherents of different parties. From the time of al-Mustanṣir on, we read of Shāfiʿite doctors being appointed to the chief cadiship.’ ʿAlī b. al-Nuʿmān (d. 374/984) was the first to teach the Ismaili doctrine after his father’s death; this means that Ismaili law was not generally known till that time. As for the formation of the Ismaili law system, on the contrary, it was gradually but completely formed during al-Nuʿmān’s lifetime. It was not extant before. 20. Poonawala, ‘Ismaʿili Jurisprudence’, p. 117.

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II. Does Ismaili fiqh lack originality? In the last century, several eminent scholars shed light upon the history and the law of the Ismailis. In particular, they discovered and presented the works of the Ismaili school, which for the most part had been kept hidden by the Ismailis themselves. It is noteworthy, however, that sometimes the distinctive features of Ismaili law escape other Muslim as well as Western writers, so much so that one sees few differences between Imāmī and Ismaili law, and Sunni and Ismaili law in the literature. Thus, Ivanow21 considers the main Ismaili treatise, the Daʿāʾim al-Islām, a work which really very closely resembles an Ithnaʿ-asharī treatise of its kind, the only substantial difference at first sight being in the opening book, on walâyat instead of the usual kitâb at-tawḥîd. This kitâb al-­walâyat is a really good summary of what most probably were the basic ideas of the religion under the early Fatimids.

Ivanow22 adds: It is possible therefore to state positively that the ‘practical theology’ of the Fatimids, except in certain aspects of the doctrine of Imamat, differed very little from the early Ithnaʿ-asharī school as it is summed up in al-Kāfī and other early works. It was perfectly faithful to the latter doctrine in spirit, and even in letter, if we disregard minute differences here and there, similar to those found in the case of the four orthodox Sunnite madhhabs, etc. The best proof of this similarity is the fact that the basic work of this doctrine, Qāḍī Nuʿmān’s Daʿāʾimu’l-Islām, is to this day claimed by the Ithnaʿashari experts as a work belonging to their school.

According to Gottheil, ‘the differences between Sunnite and Shīʿite actual practice seems to have been small – to us they appear infinitesimal’.23 The geographer al-Maqdisī relates only three classes of Fatimid ‘peculiarities’, all of them regarding prayer.24 Another 21. Ivanow, Ismaili Literature, p. 32, no. 64. 22. Wladimir Ivanow, The Alleged Founder of Ismailism (Bombay, 1946), p. 140. 23. Gottheil, ‘Distinguished Family’, p. 218. 24. Ibid., pp. 218–220. ‘The third peculiarity [regarding the prayer] is to follow such customs as the Imāms had indeed not prohibited, though

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reference, describing Fatimid practices, shows that ‘in many fundamental principles of faith (uṣūl) they agree with the Muʿtazilites’.25 Other scholars note a few further differences between Ismaili and Imāmī law, such as the prohibition of temporary marriage (mutʿa), the annulment of a will (waṣiyya) in favour of an heir by quota without the consent of the remaining heirs, and other minor differences in ritual.26 However, in the particular field of inheritance law, it did not escape Fyzee’s27 notice that there were marked differences between Ḥanafī and Shiʿi law: ‘In the law of inheritance, the divergence between the Ḥanafī law and its Ithnā ʿAsharī counterpart is so extreme and so remarkable that it seems strange that no one except Tyabji should have dealt with the question.’ In a later work, ‘The Fatimid Law of Inheritance’, Fyzee gives a very brief summary of the Book of Inheritance of the Daʿāʾim. Fyzee’s summary concerns only a few aspects of the Ismaili inheritance system. It does not purport to be complete. Moreover, there is no comparison between the Ismaili school and any other law school. Lastly, Fyzee is not interested in the question of the formation and the originality of this Ismaili system. However, it seems that sometimes there are errors in his presentation: they had not been known before this time’ (p. 220). This statement by al-Maqdisī sheds light on the later origin of such innovations, suggesting that they were introduced in later times by the imams. 25. Poonawala, ‘Works and Sources’, p. 112, no. 1. 26. See Lokhandwalla, ‘Origins’, pp. 9–10. See also Wilferd Madelung (‘Ismāʿīliyya’, in EI2, vol. 4, pp. 198–206), who makes reference to the work of Rudolf Strothmann (‘Recht der Ismailiten’, Der Islam, 31 [1954], pp. 131–146) and Fyzee (Compendium of the Fatimid Law [Simla, 1969]). Based on the analysis of the Daʿāʾim, Robert Brunschvig (‘Fiqh fâtimid et histoire de l’Ifrîqiya’, in Mélanges d’histoire et d’archéologie de l’occident musulman, Hommage à G. Marçais. Alger, 1957, vol. 2, pp. 13–20), too, outlines some uniquely Fatimid viewpoints regarding the ʿibādāt, above all the prayer; but he concludes that it is necessary to examine the whole work in order to ‘juger des perturbations que, dans les autres branches du fiqh, la domination fâtimide a apportées dans la vie juridique et sociale de la Berbérie’ (p. 20). 27. Asaf A.A. Fyzee, ‘Shīʿī Legal Theories’, in M. Khadduri and H.J. Liebesny, eds, Law in the Middle East (Washington, 1955), vol. 1, pp. 130.

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(i) Father, mother, brother. Fyzee gives the following solution for their share of the inheritance accordingly: one-sixth to the father, one-sixth to the mother, two-thirds to the brothers. According to him, ‘this happens only if there are more brothers than one; if there is only one brother, the distribution is: father 1/3, mother 1/3, brother 1/3’ (p. 64). But later on, in a contradictory way, he states that ‘full, consanguine and uterine brothers and sisters28 are entirely excluded by the father, mother, son, and daughter. They inherit only in the absence of parents and children’ (p. 65). However, according to all the law schools, the first solution given by Fyzee is absolutely wrong because the father always bars brothers and sisters of every kind (p. 64). Conversely, later on (p. 65), he correctly relates the Imāmī and Ismaili doctrine as clearly pointed out in the Daʿāʾim. As a matter of fact, on this issue, the doctrine explicated in the Daʿāʾim is very clear. It states that brothers cause the partial exclusion of the mother, thus her share of the inheritance is reduced from one-third to onesixth, although they themselves do not receive the difference, which is allotted to the father.29 It further specifies that only two full or consanguine brothers, or the one full and the other consanguine brothers, or four full or consanguine sisters, or a brother and two sisters,30 cause the mother’s inheritance to be reduced from onethird to one-sixth. The uterine brothers and/or sisters do not inherit and do not exclude the mother from a portion of the inheritance. Thus, only spouses have the right to inherit in the presence of children and parents.31

28. Full brothers and sisters are related through the father and mother; consanguine brothers and sisters are related only through the father, while uterine brothers and sisters are related only through the mother. 29. al-Qāḍī Abū Ḥanīfa al-Nuʿmān, Daʿāʾim al-Islām wa-dhikr al-ḥalāl wa’l-ḥarām wa’l-qaḍāyā wa’l-aḥkām ʿan ahl bayt rasūl Allāh, ed. Āṣif b. ʿAlī Aṣghar Fayḍī (sic) (2nd ed., Cairo, 1385/1965), vol. 2, p. 371, no. 1338. 30. Ismailis, like the Imāmīs and the Sunni schools, interpret the plural ikhwa of Qurʾan 4:11 as ‘two or more brothers, or a brother and two or more sisters, or four sisters at least’. However, Imāmīs and Ismailis believe that brothers/sisters partially excluding the mother must be full or consanguine brothers/sisters. 31. al-Nuʿmān, Daʿāʾim, vol. 2, pp. 371–372, nos. 1339–1340. See Cilardo, Scuole giuridiche ismailita e imamita, pp. 80–81, 93–116.

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(ii) Grandparents. Fyzee states that ‘the paternal grandfather is excluded by the father; and the paternal grandmother by the mother’ (p. 66). However, the Fatimid Ismaili doctrine, contrary to the Imāmī rule,32 is that both paternal and maternal grandfathers are always excluded, while the maternal and/or paternal grandmother has the right to one-sixth in the presence of the parents of the deceased person, based on the well-known ḥadīth.33 Therefore, the case examined by Fyzee, of mother, grandfather and grandmother, and which is not found in the Daʿāʾim, is solved differently than it would have been if Ismaili doctrine was being applied correctly. Here, Fyzee factors the mother, grandfather and grandmother into the solution. He does not specify the kind of grandfather and grandmother. However, ‘a paternal grandfather and a maternal grandmother’ are presumably concerned, based on the application of the rule to give a male double the share of the female. According to Fyzee, the mother has the right to one-third of the inheritance while ‘the remaining two-thirds are divided so that the grandfather gets double the share of the grandmother, thus the grandfather, 2/3 x 2/3 = 4/9; and the grandmother, 2/3 x 1/3 = 2/9. Whence, finally: mother = 3/9; grandfather = 4/9; grandmother = 2/9’. According to the doctrine, properly applied, one-third of the inheritance should go to the mother and one-sixth to the grandmother (for a total of three-sixths); then the remaining three-sixths should be shared proportionally between them. In the end, the mother would receive two-thirds and the grandmother one-third. (iii) ʿAwl.34 According to Fyzee, the principle of ʿawl (proportional reduction of the shares of all the heirs) ‘is not accepted by the Ithnā-ʿAsharīs, and apparently rejected also by the Fatimids. The 32. According to the Imāmī rule, any kind of grandfathers and grandmothers is excluded by the parents because Imāmīs do not consider valid that ḥadīth, contrary to the Ismailis. 33. al-Nuʿmān, Daʿāʾim, vol. 2, p. 378, no. 1352. See Cilardo, Scuole giuridiche ismailita e imamita, pp. 117–118. 34. If the amount of the shares to be attributed to the heirs is greater than the estate available (farīḍa ʿāʾila), one has recourse to the proportional reduction of all the shares, according to some law schools, or to the reduction of the shares of only some heirs, according to others. See Cilardo, Scuole giuridiche ismailita e imamita, pp. 25–31; Cilardo, Scuole giuridiche sunnite, pp. 62–75.

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illustration given in the Daʿāʾim is as follows: husband, 1/2 = 3/6; agnatic brother, 1/3 = 2/6; consanguine sister, 1/2, but reduced to 1/6’ (p. 67). However, it seems that the case is presented slightly differently in the Daʿāʾim (the number of uterine brothers is not important, because two or more of them shall receive the same share).35 It specifies the shares to be inherited in the case of the husband, uterine (rather than agnatic) brothers, and a consanguine sister: the husband shall be allotted one-half (= 3/6), uterine brothers one-third (= 2/6), while what remains shall be given to the consanguine sister. Only the husband and uterine brothers, as well as the wife and the parents, have the right to receive their determined shares fixed in the Qurʾan. On the contrary, some other heirs (children and full or consanguine brothers or sisters) sometimes receive fixed shares, but sometimes they take only what remains after the attibution of the shares to the quota-sharers. Based on their principle that Qurʾanic shares cannot be reduced, Imāmīs and Ismailis believe that only the juridically weakest heirs – children and full and/or consanguine brothers and/or sisters – must suffer a reduction (naqṣ) of their shares, if the amount of shares to be attributed is greater than the estate available. Thus, the Daʿāʾim36 conforms to the Imāmī doctrine, rejecting the doctrine of the ʿawl and accepting the doctrine of the naqṣ (reduction only of the share of some heirs). (iv) Privileges of the eldest son. Fyzee attributes to the Ismailis a doctrine which is properly ascribed to the Imāmīs. He says that, according to the Ismailis, ‘where a man dies leaving several sons, the sword, the buckler, the ring and the Koran would go to the eldest son; if the eldest has died, then to the eldest surviving son … (The same is [true for] the Ithnā-ʿAsharī rule; [but] not so, in Ḥanafī law)’ (p. 68). In actual fact, however, al-Nuʿmān37 rejects this rule. The Ithnāʿasharī rule is completely rejected by the Ismailis, who, however, try to justify it, but not on the basis of the inheritance rules. In fact, all the law schools, except the Imāmī school, believe that all the goods left by a deceased person are part of the estate. The only 35. al-Nuʿmān, Daʿāʾim, vol. 2, p. 383. 36. al-Nuʿmān, Daʿāʾim, vol. 2, pp. 381–383, nos. 1361–1363. See Cilardo, Scuole giuridiche ismailita e imamita, pp. 25–31. 37. al-Nuʿmān, Daʿāʾim, vol. 2, pp. 348–349, no. 1297; pp. 394–396, no. 1393. See Cilardo, Scuole giuridiche ismailita e imamita, pp. 73–74; Cilardo, ‘Peculiarities’, pp. 132–134.

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plausible justification given by al-Nuʿmān of this peculiar doctrine is that it is a specific rule applied only to their imams, who transmit as a legacy (waṣiyya) those goods to one another, like a testator (mūṣī) does. The term waṣī, instead of mūṣī, used in this context has a more strictly religious connotation with respect to the imams. This peculiar Imāmī doctrine is related by the Imāmī jurist al-Kulaynī (d. 328/939) and by later Imāmī jurists. This allows us to infer its recent origin. Al-Nuʿmān too believes that the imams do not leave a personal estate, but more radically he states that nothing in their possession can follow the usual inheritance rules, but it must be considered a sort of public treasury, which shall pass from one imam to another by reason of their office. (v) Exclusion of women to inherit real property. Lastly, another doctrine specific to the Imāmīs is erroneously attributed to the Ismailis by Fyzee; that is, ‘women do not inherit landed property (ʿaqār) but the price of the property is to be distributed upon sale (naqḍ). Land is supposed to be a waqf [charitable endowment] for men who go out for jihād and fight against the enemy. (Ithnā-ʿAsharīs agree only in respect of a childless widow, and their excluder [exclusion] is not so wide; the rule does not exist in Ḥanafī law)’ (p. 68). In a later article, however, Fyzee38 rectifies his opinion by attributing the opposite doctrine to al-Nuʿmān. In the Daʿāʾim, al-Nuʿmān39 refutes the Imāmī doctrine; he says that it is in contrast to the Qurʾan, the sunna, the ijmāʿ of the imams and of the umma. From the Islamic point of view, the only plausible justification, given by al-Nuʿmān, of the exclusion of women to inherit some goods is that they were immobilised as waqf exclusively in favour of men. Lokhandwalla,40 studying in particular the law of marriage and the law of land, believes that there was a ‘copious and widespread influence of the Mālikī school’ on the Ismaili doctrines, and that the Ismaili system was produced from a combination of ‘Imāmī Šīʿī elements, the outstanding concepts and topics of the age and the Mālikī law of the land’. According to Lokhandwalla, the reason for 38. Asaf A.A. Fyzee, ‘Aspects of Fatimid Law’, Studia Islamica, 31 (1970), pp. 90–91. 39. al-Nuʿmān, Daʿāʾim, vol. 2, pp. 396–397, no. 1394. See Cilardo, Scuole giuridiche ismailita e imamita, pp. 163–164; Cilardo, ‘Peculiarities’, pp. 134–136. 40. Lokhandwalla, ‘Origins’, pp. 234–235.

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the flourishing of the Ismaili legal system lay ‘in the Fatimid adaptation of the Mālikī doctrines to a large extent’. Madelung,41 for his part, believes that Ismaili fiqh in general represents a compromise between Imāmī and Zaydī law, but this assertion is rejected by Poonawala,42 who argues that it is incorrect to characterise Ismaili law in such a way. This issue leads to the question of the early doctrinal training of al-Nuʿmān. Despite the similarities of the Ismaili law at times with the Sunni law, other times with the Imāmī law, the Ismaili jurisprudence has, overall, traits of originality under two aspects at least: first of all, the different rules drawn from Sunni and Imāmī legal systems have been reworked and adapted by al-Nuʿmān in order to elaborate a ‘State Code’ for the use of the Fatimids. Secondly, a fundamental role in the formation of the Ismaili system was played by the Fatimid imams, especially al-Muʿizz, who oversaw the drafting of the legal works by al-Nuʿmān, to the extent that they are attributed to the imam sometimes. Ultimately, the Ismaili law is not comparable either to the Sunni system or to the Imāmī system, but it is one of the three major legal Shiʿi systems, besides the Imāmī and Zaydī systems. III. Was al-Nuʿmān originally a Mālikī, a Ḥanafī or an Ithnāʿasharī scholar? One of the unanswered questions about al-Nuʿmān is, ‘What was his exact doctrinal orientation?’ Strangely enough many doubts exist, both in the Islamic sources and among Western scholars, about al-Nuʿmān’s theological persuasion. Islamic sources do not help much because they do not provide enough of the kind of information that would enable us to resolve this question. The fact that al-Nuʿmān himself never qualified his theological orientation has led to this uncertainty. Due to the very obscurity of this issue, Western scholars have postulated diverging views on the more fundamental questions of the relationship between Sunnism and Shiʿism, and on the relationship among the various groups within 41. Wilferd Madelung, ‘The Sources of Ismāʿīlī Law’, Journal of Near Eastern Studies, 35 (1976), pp. 32 and 33. 42. Poonawala, ‘Ismaʿili Jurisprudence’, p. 133.

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Shiʿism. Establishing the doctrinal qualification of al-Nuʿmān is not mere idle speculation. Indeed, it is important to scholars not only for ascertaining the origin of his doctrines, but also for tackling wider problems, such as the kind of his juridical reasoning (the interpretation of the sources) and the relationship between al-Nuʿmān and the established power, mainly the imam al-Muʿizz. In his early life, al-Nuʿmān worked for the first Fatimid Caliph al-Mahdī (d. 322/934)43 during the last nine years of his reign, from 313 to 322. Then he entered the service of the second Fatimid Caliph al-Qāʾim (d. 334/946)44 until the death of the latter. During this period, al-Nuʿmān devoted himself to studying history, philosophy and jurisprudence, and composed numerous works. He took on greater responsibilities during the reign of the third Fatimid Caliph al-Manṣūr (r. 334–341/946–953):45 his main tasks were collecting, preserving and copying books. It is unclear whether some books that are attributed to al-Manṣūr were jointly composed by him and al-Nuʿmān, or whether they were written by al-Nuʿmān who simply recorded the opinions of al-Manṣūr. The role of al-Nuʿmān reached a climax under the reign of al-Muʿizz (d. 365/975),46 to whom, as to 43. Fyzee, ‘Qadi an-Nuʿman’, p. 7; Poonawala, ‘Ismaʿili Jurisprudence’, pp. 119–121; John Walker, ‘al-Mahdī ʿUbaid Allāh’, in EI, vol. 5, pp. 119–121 (reprint 1987); Farhat Dachraoui, ‘al-Mahdī ʿUbaid Allāh’, in EI2, vol. 5, pp. 1242–1244. 44. Sobernheim, ‘al-Ḳāʿīm bi-Amr Allāh’, in EI, vol. 4, p. 643 (reprint 1987); Farhat Dachraoui, ‘al-Ḳāʾim bi-Amr Allāh’, in EI2, vol. 4, pp. 457–458. 45. Brockelmann, GAL, supplement no. 1, p. 324, no. 5; Sezgin, GAS, vol. 1, p. 574, no. 3; Georges Marçais, ‘al-Manṣūr Ismāʿīl’, in EI, vol. 3, p. 257; F. Dachraoui, ‘al-Manṣūr Biʾllāh’, EI2, vol. 6, pp. 434–435. 46. Ibn Khallikān, Kitāb wafayāt al-aʿyān, tr. Mac Guckin De Slane (Paris, 1843–1871), vol. 3, pp. 377–381; Louis Massignon, Recueil de textes inédits concernant l’histoire de la mystique en pays d’Islam (Paris, 1929), p. 215; Étienne M. Quatremère, ‘Vie du Khalife Fatimite Moézzli-din Allah’, Journal Asiatique, 2 (1836), pp. 401–439; vol. 3 (1837), pp. 44–93 and 165–208; Ḥasan and Sharaf, al-Muʿizz, pp. 223–225, 258–268; Brockelmann, GAL, supplement no. 1, p. 324, no. 6; Sezgin, GAS, vol. 1, p. 574, no. 4; Ismail K. Poonawala, Biobibliography of Ismāʿīlī Literature (Malibu, Calif., 1977), p. 48; Hamilton A.R. Gibb, ‘al-Muʿizz li-Dīn Allāh’, in EI, vol 6, pp. 706–707; Farhat Dachraoui, ‘al-Muʿizz li-Dīn Allāh’, in EI2, vol. 7, pp. 485–489.

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his father, are also attributed some books; but again it is difficult to ascertain whether they were composed by him or by al-Nuʿmān. Under the reign of al-Muʿizz, al-Nuʿmān fulfilled the most important functions, and his efforts during this period resulted in his being considered the founder of Ismaili fiqh, and confirmed in his ‘role of theoretician of Ismāʿīlism’.47 ‘As a connection of the Banū Tamīm, … al-Nuʿmān rose rapidly in the hierarchy of the Shīʿī state to the high position of judge-in-chief (ḳāḍī ‘l-ḳuḍāt) of the community.’ 48 However, one wonders whether he was an Ismaili from the very beginning because sources are contradictory on the subject, even if al-Nuʿmān never declared his first affiliation. Poonawala,49 studying the Imāmī as well as the Sunni sources and the North African milieu, sheds definitive light on al-Nuʿmān’s early persuasion. He notes that, if for the early period ‘no Imāmī source is known that specifically asserts that al-Nuʿmān was an Imāmī … the situation changes dramatically in the later period, as most of the Imāmī divines now inequivocally vouch for al-Qāḍī al-Nuʿmān’s being a strict Imāmī’ (pp. 573 and 574). Poonawala traces the belief that al-Qāḍī al-Nuʿmān was an Imāmī back to Ibn Khallikān50 who stated that ‘he [al-Numʿān] was at first a Mālikī and then became an Imāmī51 and wrote several works for the Fāṭimids’ (p. 575). 47. F. Dachraoui, ‘al-Nuʿmān’, in EI2, vol. 8, p. 118. 48. Ibid., p. 117. 49. Ismail K. Poonawala, ‘A Reconsideration of al-Qāḍī al-Nuʿmān’s Madhhab’, Bulletin of the School of Oriental and African Studies, 37 (1974), pp. 572–579. Madelung (‘Sources’, p. 30) believes that al-Nuʿmān probably was originally a Sunni and apparently never received formal training in the Shiʿi ḥadīth and fiqh. However, Poonawala (‘Ismaʿili Jurisprudence’, p. 136, n. 17) considers this opinion to be incorrect, because ‘Nuʿman used the Imāmī and Zaydī sources for the obvious reason that Ismaʿili law had not yet developed and they did not have … ḥadīth collections of their own’. 50. Ibn Khallikān, Wafayāt, vol. 3, p. 565. 51. Āghā Buzurg (Dharīʿa, vol. 8, p. 197, no. 771) and Muḥsin al-Amīn (Aʿyān, vol. 50, p. 13, no. 11169) qualify al-Nuʿmān as al-Imāmī, or an Ithnāʿasharī, not an Ismaili scholar. Some Imāmī scholars claimed him as one of their own and regarded his main work, the Daʿāʾim, as one of their fourteen ‘classics’; they even advanced a theory that it was composed in reality by Ibn Bābawayh (d. 381/991). ‘They explain Ismāʿīlī elements in his works as incorporated for the sake of taqiyya’; see Ivanow, A Biobibliographic Survey, p. 32; Poonawala, ‘Reconsideration’, pp. 573–575.

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According to Poonawala, it is likely that Ibn Khallikān employed the term ‘Imāmiyya’ in a loose sense, which included the Ismailis (p. 577). In this context, Poonawala rejects the opinion of Fyzee,52 who ‘erroneously takes the above statement to imply that al-Nuʿmān, after having embraced the Imāmī faith, was converted to the Ismāʿīlī faith’ (p. 575). Poonawala demonstrates, based on Sunni sources, that the one who was converted was al-Qāḍī al-Nuʿmān’s father (p. 576), although it was difficult to tell because he practised taqiyya (precautionary concealment of one’s true beliefs). As for al-Qāḍī al-Nuʿmān himself, he ‘was brought up as an Ismāʿīlī’,53 a conclusion already drawn by Lokhandwalla, who presumed that al-Qāḍī al-Nuʿmān ‘received Ismāʿīlī training at an early age’ (p. 578). The statement made by Ibn Taghrībirdī that ‘al-Qāḍī al-Nuʿmān was at first a Ḥanafī and later became an Ismāʿīlī (Bāṭinī)’, on which ‘the Ismā‘īlī sources are totally silent’ (p. 577),’ is maintained only by some isolated scholars.54 ‘The most interesting fact about this work is that the Twelver Shiites regard it as the book belonging to their persuasion.’ (Ivanow, Brief Survey, p. 32). See also Shamoon T. Lokhandwalla, ‘Introduction’, in Kitāb Ikhtilāf uṣūl al-madhāhib by al-qāḍī Abū Ḥanīfa al-Nuʿmān (Simla, 1972), p. 5. The thesis of the taqiyya is maintained also by Fyzee: ‘The differing accounts of his being a Mālikī, Ḥanafī, Ithnà ʿAsharī, and Ismāʿīlī may be due to his practice of taqiyya in the early days of the Fatimid Caliphate’ (‘Qadi an-Nuʿman’ p. 9). 52. Fyzee, ‘Qadi an-Nuʿman’, p. 8. 53. Poonawala, ‘Reconsideration’, p. 579; Poonawala, ‘Ismaʿili Jurisprudence’, p. 136, n. 17. 54. The different views on the early education and persuasion of al-Nuʿmān are related by many scholars. See, for instance, Gottheil, ‘Distinguished Family’, p. 227, n. 3; p. 228; Ḥasan and Sharaf, al-Muʿizz, p. 258; Muḥsin al-Amīn, Aʿyān, vol. 50, p. 13, no. 11169; Fyzee, ‘Qadi an-Nuʿman’, p. 8; Ivanow, Alleged Founder, p. 151; Waḥīd Mīrzā, ‘Avantpropos’, p. xxvii (he considers the opinion that al-Nuʿmān passed through the Ithnāʿasharī school unsound because it is based only on the fact that some people believe that the Daʿāʾim was written by the Imāmī, Ibn Bābawayh al-Qummī); Muʿizz Goriawala, A Descriptive Catalogue of the Fyzee Collection of Ismaili Manuscripts (Bombay, 1965), p. 17; Lokhandwalla, ‘Introduction’, p. 3; Khayr al-Dīn al-Ziriklī, al-Aʿlām (2nd ed., Cairo 1373–1378/1954–1959), vol. 9, p. 8; Brockelmann, GAL, vol. 1, p. 201, no. 5; Sezgin, GAS, vol. 1, p. 575 (‘entstammte wahrscheinlich einer malikitischen Familie in Qairawān’); Fyzee, ‘al-Nuʿmān’, pp. 953–954;

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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 Shiʿis, and between Imāmīs and Ismailis. Various opinions have been expressed on these subjects. On the one hand, Dachraoui55 states that the Ismāʿīlī state madhhab was oriented in the direction of a reconciliation of the concepts of Ismāʿīlism with those of the orthodoxy of Ḳayrawān. Thus the points of doctrinal opposition between Sunnism and Shīʿism are not so flagrant in al-Nuʿmān’s works, as the geographical collections of biographies of orthodox scholars of Ḳayrawān would lead one to believe. If there remains a total divergence on the questions of the definition of faith or that of walāya adhesion to the Imāms, the contradiction in fact concerns only minor questions concerning ritual and practice of the cult. Reading the K. Daʿāʾim al-Islām allows one to estimate the importance of al-Nuʿmān’s endeavour to bring about a rapprochement between Ismāʿīlī doctrine and the theses of Sunnism.

On the other hand, Gottheil56 agrees without hesitation with the statement made by al-Maqrīzī that al-Nuʿmān developed ‘Fatimide Law according to the Šīʿite doctrine’. Although the question of the first doctrinal orientation of al-Nuʿmān cannot definitively be answered, I suppose that al-Nuʿmān studied the fiqh literature deeply for several years. When he was charged by the Fatimid caliphs to write several compendiums of law, he must have considered the various options presented by both Sunni and Shiʿi works and chosen from among them the doctrines that were best aligned with Ismaili ideas of the sources of law (uṣūl al-fiqh). This is why one can note in al-Nuʿmān’s work both an evolution in the Ismaili doctrine, as proved by the different doctrinal stages clearly emerging in his legal literature through the years, and the originality of its elaboration, because the final features are peculiar to the Ismailis at last. That his system of law more closely resembles that of the Imāmīs is the result of the fact that his main references were to Imāmī works. Dachraoui, ‘al-Nuʿmān’, pp. 117–118. 55. Dachraoui, ‘al-Nuʿmān’, p. 118. 56. Gottheil, ‘Distinguished Family’, p. 221.

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IV. Ṭabaqāt literature The ṭabaqāt literature57 does not help much to doctrinally locate al-Nuʿmān. A strange destiny has been reserved in Islamic sources for his works: a sort of concealment and negation. In fact, if we take into account bibliographical works,58 we see instances of this. For example, Ibn al-Nadīm59 (d. 385/995), ‘a man of known Shiʿite sympathies or even possibly connected with Ismailism’,60 in his Kitāb al-fihrist, compiled circa 377/987, quotes both Sunni and Shiʿi authors, but does not mention al-Nuʿmān under the heading ‘Legal Authorities of the Shīah: the Ismāʿīlīya’. According to Ivanow,61 the scarcity of reliable bibliographical information in the literature of the Ismailis was due to their practice of concealing their literary works. This fact is related by Ibn al-Nadīm who notes that during his time (around 377/988), Ismaili books became rare. However, such writings were much more in evidence some twenty years before then, especially during the earlier part of the reign of al-Muʿizz. Al-Nuʿmān fared no better in the Imāmī ʿilm al-rijāl. Neither al-Najāshī62 (d. 450/1058) nor al-Ṭūsī63 (d. 460/1067) mention him. Al-ʿAllāma al-Ḥillī64 (d. 726/1325) does not quote him either. 57. ‘Book of classes’ arranged by ‘categories’ and organised into ‘generations’; Claude Gilliot, ‘Ṭabaḳāt’, in EI2, vol. 10, p. 7. 58. See Biancamaria Scarcia Amoretti, ‘ʿIlm al-ridjāl’, in EI2, vol. 3, pp. 1150–1152. 59. Ibn al-Nadīm, The Fihrist of al-Nadīm. A Tenth-Century Survey of Muslim Culture, ed. and tr. Bayard Dodge (New York and London, 1970), vol. 1, pp. 535–544. Ibn Shahrāshūb (Kitāb maʿālim al-ʿulamāʾ fī fihrist kutub al-Shīʿa wa-asmāʾ al-muṣannifīn min-hum qadīman wa-ḥadīthan, ed. ʿAbbās Iqbāl [Tehran, 1353/1934], p. 130, no. 969) counts Ibn al-Nadīm among the Sunni authors. 60. Ivanow, Alleged Founder, p. 6. 61. Ivanow, Ismaili Literature, pp. 13–14. 62. al-Najāshī, Kitāb al-Rijāl or Asmāʾ al-Rijāl (Bombay, 1317/1899). See Poonawala, ‘Reconsideration’, p. 572. 63. al-Ṭūsī, al-Fihrist or Fihrist kutub al-Shīʿa, ed. Muḥammad Ṣādiq Āl Baḥr al-ʿUlūm (2nd ed., Najaf, 1380/1960). See Poonawala, ‘Reconsideration’, p. 572. On al-Ṭūsī, see Ibn Shahrāshūb, Maʿālim, pp. 102–103, no. 742. It is worth noting that al-Ṭūsī’s Fihrist is considered the most complete work of its kind. It completes Ibn al-Nadīm’s Fihrist and took the place of the oldest works on rijāl. 64. al-ʿAllāma al-Ḥillī, Rijāl al-ʿAllāma al-Ḥillī, ed. Muḥammad Ṣādiq

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Ibn Shahrāshūb (d. 588/1192),65 in his work, which is a supplement to the Fihrist of al-Ṭūsī, mentions al-Nuʿmān. Although his book is devoted to the Imāmī authors, as ʿAbbās Iqbāl writes in the introduction (pp. 3–12), he ‘was the first amongst the Ithnā ʿAsharī authors to include Nuʿmān in his list of Shīʿī authors and traditionists. He explicitly mentions that he is not an Ithnā ʿAsharī author which could mean that in certain Ithnā ʿAsharī circles the works of Nuʿmān were well received and Nuʿmān was accepted as an Ithnā ʿAsharī.’ 66 V. Al-Nuʿmān’s method of juridical reasoning Al-Nuʿmān’s method of juridical reasoning in the Daʿāʾim is based on the practical application of the Ismaili doctrine regarding the uṣūl al-fiqh. Shiʿis in general believed that the imams transmitted and explained a number of allegorical books, one imam to another.67 The Fatimids, too, believed that such knowledge should be hereditary among the imams.68 The Fatimids did not accept the use of reasoning (raʾy) and deduction (qiyās) in tafsīr and fiqh69 because of the value that the Shiʿis placed on the use of sources: ‘Since the Imām was the depository of all learning … it was in close collaboration with him that the supreme ḳāḍī, in his function of official faḳīh of the dynasty, wrote treatises of fiḳh … Thus al-Nuʿmān consulted al-Muʿizz regularly whilst composing his main theological works.’ 70 The exhortation for judges to make rulings that conformed to the sources, rather than their own reasoning, is clearly propounded in the Iqtiṣār, which states that a qāḍī should decide in accordance with the Book of God and what he does not find in the Book of God, he should seek it in what is established from the Prophet of God and the Imāms from his Āl Baḥr al-ʿUlūm (2nd ed., Najaf, 1381/1961). 65. Ibn Shahrāshūb, Maʿālim, p. 113, no. 826. See Poonawala, ‘Reconsideration’, p. 572. 66. Lokhandwalla, ‘Introduction’, p. 32; See also pp. 7–8. 67. Ḥasan and Sharaf, al-Muʿizz, pp. 233–234. 68. Ibid., p. 137; Poonawala, ‘Isma‘ili Jurisprudence’, pp. 129–131. 69. al-Muʾayyad, Dīwān al-Muʾayyad fī’l-Dīn, dāʿī al-duʿāh, ed. Muḥammad Kāmil Ḥusayn (Cairo, 1949), pp. 103–104. 70. Dachraoui, ‘al-Nuʿmān’, pp. 117–118.

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­ rogeny. If he has no knowledge about it, or that [sic] he does not p find it he should refer it to the Imām and enquire from him about it; and he should not decide depending on his individual judgement (raʾy), or analogical deduction (qiyās), or discretionary preferences (istiḥsān).71

This kind of transmission of knowledge allows us to understand why, among the ‘people of different opinion’ (Sunnīs?), it was believed that the Imāmī Shiʿa had neither predecessors (salaf ) nor works (muṣannaf ), meaning that unlike the Sunnis, they had no tradition in the field of religious sciences; an allusion, perhaps, to the later origin of Imāmī fiqh. But al-Najāshī72 replies that only people who are ignorant of them would draw this conclusion. A work attributed to al-Nuʿmān, the Kitāb ikhtilāf uṣūl al-madhāhib,73 now edited by Lokhandwalla, sheds light on the question of the sources of law. It deals with the principles of Islamic law, and it is probably the only polemical treatise of al-Nuʿmān to survive.74 The reason why al-Nuʿmān compiled the Ikhtilāf was the prevalent discord amongst the Muslim community.75 Al-Nuʿmān ‘devotes only a few page-chapter to what he officially propounds to be the Ismāʿīlī beliefs and views on the uṣūl, but the rest of the book deals with the whole gamut of Sunnī uṣūl and their refutation’.76 However, some scholars doubt its authenticity. Fyzee77 states that he has only been able to examine a very modern and quite incorrect copy, although he notes copies are not rare. He observes from the introduction that the work is a recension of ʿAbd al-ʿAzīz b. Muḥammad b. al-Nuʿmān’s (d. 401/1011)78 work, but it goes back to al-Muʿizz; in 71. Lokhandwalla, ‘Introduction’, pp. 59–60. See also Poonawala, ‘Ismaʿili Jurisprudence’, pp. 124–126. 72. al-Najāshī, Rijāl, p. 2. 73. See Lokhandwalla, ‘Introduction’, pp. 42–50, no. 7. It is only quoted in Sezgin (GAS, vol. 1, p. 577, no. 17) without any other reference. 74. Lokhandwalla, ‘Introduction’, p. 42. 75. Ibid., p. 43. 76. Ibid., p. 50. 77. Fyzee, ‘Qadi an-Nuʿman’, p. 27, no. 18; Lokhandwalla, ‘Introduction’, pp. 43–44. 78. ‘He combined in his person all the offices of cadi, even that of hearing complaints … As a judge he was severe and firm. He is especially noted for his learning in the Canon law according to the Imāmī rite. He was

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fact, it is also related in the introduction of the work that al-Nuʿmān showed the book to al-Muʿizz, then Muḥammad b. al-Nuʿmān showed it to al-ʿAzīz, and lastly ʿAbd al-ʿAzīz b. Muḥammad b. al-Nuʿmān showed it to al-Ḥākim. According to Fyzee,79 this book, ‘carefully studied, should give much information regarding the legal system of the Ismāʿīlīs, although a cursory perusal of it produces a disappointing impression’. Despite its style and method of exposure, this work can show the understanding by al-Nuʿmān of the other law schools and how and why, and on what bases, he rejects their use of the sources, in particular of the ijtihād. Ivanow80 also seems to be uncertain about its attribution to al-Nuʿmān. In fact, he comments that it is written in a very evasive style in which the author does not mention the madhhab which he discusses, and leaves it to the reader to guess it. This is a strange manner for a jurist of high standing who should be accustomed to precise formulation of the case. Perhaps the work was ‘diplomatised’ in later revisions. A suspicious detail is the advertisement of the work as being approved by several successive Imams.

Lokhandwalla, however, ultimately attributes the work to al-Nuʿmān as does Poonawala,81 who has demonstrated that it is ascribed to al-Nuʿmān in many ancient sources.82 Furthermore, Poonawala83 historically locates its composition after the Mukhtaṣar al-āthār and before the Daʿāʾim. A sound argument for appointed to be the head of the Dār al-ʿIlm, where he collected a large library …’. Because of his contentions with the caliph al-Ḥākim, ʿAbd al-ʿAzīz b. Muḥammad b. al-Nuʿmān was put to death; see Gotheil, ‘Distinguished Family’, pp. 231–236, esp. 235–236. 79. Fyzee, ‘Qadi an-Nuʿmān’, p. 27, no. 18. 80. Ivanow, Ismaili Literature, p. 34, no. 73. 81. Poonawala, ‘Works and Sources’, p. 111, nos. 7 and 8; p. 112, no. 3; p. 114, nos. 1, 8, 9 and 11. See also Poonawala, Biobibliography, p. 55, no. 10. 82. Copies of Kitāb ikhtilāf uṣūl al-madhāhib are present at The Institute of Ismaili Studies, London; see Adam Gacek, Catalogue of Arabic Manuscripts in the Library of the Institute of Ismaili Studies (London, 1984), vol. 1, p. 31, no. 35; Delia Cortese, Arabic Ismaili Manuscripts. The Zāhid ʿAlī Collection in the Library of the Institute of Ismaili Studies (London, 2003), p. 51, no. 38. 83. Poonawala, ‘Ismaʿili Jurisprudence’, p. 124.

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its ­authenticity, based on a historical datum, is also produced by Cortese,84 who outlines why this work is important: ‘This treatise is of interest because it records the royal decree dated 28 Rabīʿ I 343/30 September 954 by which al-Qāḍī al-Nuʿmān was entrusted, among other roles, with the maẓālim proceedings in all the Fatimid territories. The document is therefore important as it gives us an insight into early Ismaili jurisprudence and its applications’. VI. The Minhāj al-farāʾiḍ of al-Qāḍī al-Nuʿmān A heretofore unedited manuscript on inheritance law, the Minhāj al-farāʾiḍ is attributed to al-Nuʿmān. It is considered to be an Ismaili work, but deeper examination is needed to definitively answer the following questions: Are its contents Sunni or Shiʿi, Imāmī or Ismaili? Is the author Abū Ḥanīfa al-Nuʿmān? What is the relationship between this manuscript and the other works of al-Nuʿmān, and are they doctrinally compatible? Are there divergences between the doctrine of the Minhāj and that of al-Nuʿmān’s other works? What was its date of composition? The scholars who have dealt with the Minhāj al-farāʾiḍ inculcate a subtle doubt about its attribution to al-Nuʿmān. Ivanow85 writes that it is ‘usually attributed to Q.N., but mentioned neither in F. [Fihrist al-Majdūʿ], nor in ʿUyūn; apparently quite spurious’. Fyzee,86 on his part, states that this ms is ‘preserved’; however, he observes that the work is not mentioned in the ʿUyūn, but asserts that it is attributed to al-Nuʿmān in the Ismaili bibliography Fihrist al-Majdūʿ. Poonawala87 has demonstrated definitively that the title is not mentioned in the Fihrist al-Majdūʿ. Thus, a serious problem of 84. Cortese, Arabic Ismaili Manuscripts, p. 51, no. 38. 85. Wladimir Ivanow, A Guide to Ismaili Literature (London, 1933), p. 37, no. 64a. In his second amplified edition of Ismaili Literature (p. 36, no. 88), Ivanow simply writes that this work is ‘on the law of inheritance, not mentioned in the ʿUyûn’, and is included among the ‘works which have been lost’. This state of uncertainty is evident by the fact that the Minhāj is cited by Muḥsin al-Amīn (Aʿyān, vol. 50, p. 14), but not by al-Ziriklī (Aʿlām, vol. 9, p. 8). Lokhandwalla (‘Introduction’, p. 38) writes that the Minhāj ‘is usually attributed to him [al-Nuʿmān]’. 86. Fyzee, ‘Qadi an-Nuʿman’, p. 26, no. 14. 87.  Poonawala, ‘Works and Sources’, p. 111, n. 11; Poonawala, Biobibliography, p. 67, no. 56.

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authorship arises. In fact, for Fyzee this tract is of doubtful authenticity. However, Sezgin,88 Goriawala89 and Poonawala90 generally attribute the Minhāj al-farāʾiḍ to al-Nuʿmān. Poonawala (‘Works and Sources’) did not find this title mentioned in the Fatimid, the Sunni or the Imāmī sources, which is quite remarkable and raises the possibility that this manuscript may be a fragment of a different treatise by al-Nuʿmān. VII. The Minhāj compared to four other works of al-Nuʿmān We would know more about the evolution of Ismaili fiqh if we possessed many of the works of al-Nuʿmān which unfortunately are lost, although for Fyzee ‘it can hardly be doubted that in the Yemen some of his works considered as lost by us are still preserved’.91 Among these, there may be treatises which Sezgin does not even mention.92 Thus, the presentation of such works furnished here is purely academic because we are not able to compare them with our manuscript. It would be very useful, for instance, to study al-Nuʿmān’s Kitāb al-ittifāq waʾl-iftirāq,93 or its lost abridgement, Kitāb al-muqtaṣir,94 to gain a wider perspective of the differences between the legal opinions of the jurists of different schools of law and those of the ahl al-bayt. Moreover, al-Nuʿmān’s lost works – for instance, his books 88. Sezgin, GAS, vol. 1, p. 578, no. 22 (it ‘ihm wird noch zugeschrieben’). Brockelmann does not mention the Minhāj al-farāʾiḍ in GAL. 89. Goriawala, Descriptive Catalogue, pp. 25–26, no. 39. 90. Poonawala, Biobibliography, p. 67, no. 56. 91. Fyzee, ‘Qadi an-Nuʿman’, p. 5. 92. The earliest Ismaili works go back to the beginning of the fourth century. Some authors of that period are known, but their listing before al-Nuʿmān is not the same in Sezgin (GAS, vol. 1, pp. 573–575, nn. 1–5) and in Ivanow (Ismaili Literature, pp. 17–31). 93. Fyzee, ‘Qadi an-Nuʿman’, p. 20, no. 6; Ivanow, Ismaili Literature, p. 36, no. 85. This work is mentioned by the Imāmī Ibn Shahrāshūb (Poonawala, ‘Works and Sources’, p. 114, no. 1) and by the Sunni Ibn Khallikān, but under the title Ikhtilāf al-fuqahā’ʾ (Poonawala, ‘Works and Sources’, p. 112, no. 3, and note 24). 94. Fyzee, ‘Qadi an-Nuʿman’, p. 20, no. 7; Ivanow, Ismaili Literature, p. 36, no. 86; Poonawala, Biobibliography, p. 55, nos. 8–9; p. 56, no. 14; p. 68, no. 60; Poonawala, ‘Ismaʿili Jurisprudence’, p. 139, n 45.

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on controversy (radd), such as al-Risāla al-miṣriyya fīʾl-radd ʿalā al-Shāfiʿī,95 or Kitāb fī-hi al-radd ʿalā Aḥmad b. Surayj al-Baghdādī,96 or al-Radd ʿalā Mālik,97 or al-Radd ʿalā Abī Ḥanīfa98 – would help us to understand the kind of reasoning he utilised against the other schools of law. Many of his other works are lost or not available, but we have information on the date of their composition and their contents. Of particular importance is the Kitāb al-īḍāḥ because the Minhāj could be one of its parts. However, the Kitāb al-īḍāḥ ‘is now completely lost’,99 even if, ‘from time to time news comes from Syria that a copy of this Îḍâḥ is still preserved by the local Ismailis, non-Aghakhani Nizaris. Sometimes a book is produced, with the title al-Îḍâḥ fî … I have seen two such îḍâḥs, but both had nothing in common with the work of Qâḍî Nuʿmân except for the first word in its title.’ 100 According to Fyzee,101 ‘the author began writing it in al-Mahdī’s reign’, but the date of the Kitāb al-īḍāḥ’s compilation is more accurately fixed by Lokhandwalla,102 who asserts that ‘this was the first 95. Fyzee, ‘Qadi an-Nuʿman’, p. 26, no. 15; Ivanow, Ismaili Literature, p. 36, no. 89. This work is mentioned in some ancient sources (see Poonawala, ‘Works and Sources’, p. 112, no. 3; pp. 114–115, no. 6; Poonawala, Biobibliography, p. 63, no. 30). 96. Fyzee, ‘Qadi an-Nuʿman’, p. 27, no. 16; Ivanow, Ismaili Literature, p. 36, no. 90. See Poonawala, ‘Works and Sources’, p. 112, no. 3; Poonawala, Biobibliography, p. 62, no. 29. Fyzee and Ivanow wrongly read this name as Aḥmad b. Shurayḥ al-Baghdādī. 97. Poonawala, ‘Works and Sources’, p. 112, no. 3; Poonawala, Biobibliography, p. 63, no. 33. 98. Poonawala, ‘Works and Sources’, p. 114–115, no. 6; Poonawala, Biobibliography, p. 63, n. 34. Kayfiyyat al-ṣalāt, considered by Fyzee (‘Qadi an-Nu’man’, p. 26, no. 13) and Ivanow (Ismaili Literature, p. 36, no. 87) ‘a controversial discussion of the rules of prayers according to various schools of jurisprudence’, really ‘does not deal with fiqh but rather with the esoteric interpretation of invoking the blessings of God on the Prophet’ (Poonawala, ‘Works and Sources’, p. 110, n. 8; Poonawala, Biobibliography, p. 64, no. 39). 99. Fyzee, ‘Qadi an-Nu’man’, p. 19, no. 1. It is mentioned in some ancient sources; see Poonawala, ‘Works and Sources’, p. 111, no. 8; p. 114, no. 1. 100. Ivanow, Ismaili Literature, p. 36, no. 83. 101. Fyzee, ‘Qadi an-Nu’man’, p. 19, no. 1. Ivanow, Ismaili Literature, p. 36, no. 83, says nothing about its origin. 102. Lokhandwalla, ‘Introduction’, pp. 1, 15 and 17. Poonawala (‘Ismaʿili Jurisprudence’, p. 121) agrees with him. See also Poonawala,

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and foremost of Nuʿmān’s works undertaken and finished during the reign of al-Mahdī’. Lokhandwalla points out that al-Nuʿmān entered the services of Caliph al-Mahdī, about 313/925, and that the work was composed ‘during the second decade of the fourth century [between] 315 … [and] 320’. He further notes, ‘all his later works speak proudly of this voluminous compilation’.103 In the nine-year period that al-Nuʿmān served al-Mahdī, he composed three works, and in the last two years he worked on two abridgments of the Kitāb al-īḍāḥ. The first was the Kitāb al-ikhbār,104 which was written between 320 and 323; the other was the Mukhtaṣar al-īḍāḥ.105 Al-Nuʿmān appears, thus, to have embarked on the writing of his voluminous work, Kitāb al-īḍāḥ, soon after his official employment. About its contents, Fyzee106 only says that the Kitāb al-īḍāḥ is ‘a comprehensive work of fiqh containing all the authentic traditions and reports with their isnāds’. For Ivanow,107 it is a large compendium of fiqh, perhaps of the type of al-Kāfī fī ʿilm al-dīn by the Imāmī scholar al-Kulaynī (d. 328/939), which included all the relevant ḥadiths with their isnāds. A more detailed description is given by Lokhandwalla, who writes that in the Kitāb al-īḍāḥ, al-Nuʿmān collected ‘all the traditions, whether the narrators were agreed on Biobibliography, pp. 51–52, no. 1. 103. Lokhandwalla, ‘Introduction’, p. 15. 104. Mentioned in the ancient sources; see Poonawala, ‘Works and Sources’, p. 110, no. 5; p. 111, no. 8; p. 112, no. 3; Poonawala, Biobibliography, p. 53, no. 3; Poonawala, ‘Ismaʿili Jurisprudence’, p. 122. Fyzee (‘Qadi an-Nuʿman’, p. 19, no. 3) and Ivanow (Ismaili Literature, p. 34, no. 68) state that the Kitāb al-ikhbār is an abridgment of the Kitāb al-īḍāḥ. But Fyzee has ‘never seen a copy’, while Ivanow notes ‘copies of it are very rare’. Sezgin does not cite the Kitāb al-īḍāḥ, but in GAS (vol. 1, p. 577, no. 13) he relates that from it ‘vermutlich ein Auszug udT. K. al-Iḫbār in 13 Teilen’ has been written. A copy of the the Kitāb al-ikhbār fī’l-fiqh is present at The Institute of Ismaili Studies, London; see Delia Cortese, Ismaili and other Arabic Manuscripts. A Descriptive Catalogue of Manuscripts in the Library of the Institute of Ismaili Studies (London, 2000), p. 51, no. 78/933. 105. Poonawala, Biobibliography, pp. 52–53, no. 2; Poonawala, ‘Ismaʿili Jurisprudence’, p. 122. Fyzee (‘Qadi an-Nuʿman’, p. 19, n. 2) and Ivanow (Ismaili Literature, p. 36, no. 84) maintain that the Ikhtiṣār al-īḍāḥ, now entirely lost, is an abridgment of the Kitāb al-īḍāḥ. 106. Fyzee, ‘Qadi an-Nuʿman’, p. 19, no. 1. 107. Ivanow, Ismaili Literature, p. 36, no. 83.

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them or not, and out of that huge mass “through evidence and proofs selected those which were worthy of acceptance”. The treatment and division of this book could not have been any different from his later works which were abridgements, in differing lengths, from it’.108 In fact, the Kitāb al-ikhbār reports ‘all the traditions of the latter [i.e. the Īḍāḥ] related without Isnāds. It contains the conflicting doctrines on a given point of law and the author’s preference for what he considers as more reliable,’ 109 whereas the Mukhtaṣar al-īḍāḥ ‘seems to have comprised only those traditions which were accepted as thābit (sound, well-attested). This was a second step in consolidating the legal practices’.110 More recently, Madelung (‘Sources’) has studied a fragment of a manuscript of Kitāb al-īḍāḥ, whose authenticity there is no reason to doubt. Unfortunately for our purpose, it contains only a part of the Kitāb al-ṣalāt. However, considering that the Kitāb al-īḍāḥ was al-Nuʿmān’s first legal work, Madelung surmises that this ‘fragment is apt to shed important new light on the sources and the genesis of Ismāʿīlī law’ (p. 30). The conclusion reached by Madelung is very innovative and is extremely useful because he finds a relation between both Imāmī and Zaydī, and Ismaili law: ‘Ismāʿīlī law thus appears in the K. al-īḍāḥ, both materially and theoretically, as a compromise between Imāmī and Zaydī law’ (p. 32). Further, Madelung applies this compromise ‘to Ismāʿīlī fiqh in general’ (p. 33). However, for the purpose of dating the Minhāj al-farāʾiḍ, it is worth analysing al-Nuʿmān’s extant manuscripts. Also, through a critical examination of them, and by sketching their historical profile, an outline of the doctrinal development of al-Nuʿmān’s thought can be postulated, even if it seems quite strange that a system of law due to a single jurist could be subject to evolution. But this is undoubtedly due to al-Nuʿmān’s need to adapt the system to contemporary events. The following four works are suitable for this purpose, two of which have been published. Useful historical information can help us to date them. 108.  Lokhandwalla, ‘Introduction’, p. 15. Poonawala (‘Ismaʿili Jurisprudence’, p. 121) agrees with this view. 109.  Lokhandwalla, ‘Introduction’, p. 17. 110.  Lokhandwalla, ‘Introduction’, p. 18. It is not mentioned in the ancient sources; see Poonawala, ‘Works and Sources’.

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Kitāb al-iqtiṣār The answer to the question of whether the Iqtiṣār111 is an abridgement of the Kitāb al-ikhbār, which is itself an abridgement of the Kitāb al-īḍāḥ,112 or ‘a straight and simple exposition of law following the pattern of al-Muntakhaba in its divisions of sections and subsections’,113 a sort of al-Muntakhaba in prose, will help us to date the composition of those works, which in turn allows us to date the composition of the Minhāj. Al-Urjūza al-muntakhaba, or al-Muntakhaba, is a summary of Kitāb al-īḍāḥ, the first versified version of fiqh, and was composed before Kitāb al-iqtiṣār.114 In fact, according to Lokhandwalla115 and Poonawala,116 the Iqtiṣār seems to have been compiled soon after or at the same time as al-Muntakhaba, during the reign of al-Qāʾim (r. 322–334/934–946), and before the Daʿāʾim. Like the Īḍāḥ, Akhbār and Muntakhaba, the Iqtiṣār was a semi-­ official compendium of law.117 The Kitāb al-iqtiṣār is the earliest of the four works by al-Nuʿmān that will be examined in this chapter. Kitāb al-yanbūʿ The Kitāb al-yanbūʿ is mentioned in the Fihrist al-Majdūʿ,118 and a copy of the manuscript is housed at The Institute of Ismaili Studies 111. It is mentioned occasionally in the ancient Arabic sources; see Poonawala, ‘Works and Sources’, p. 110, no. 2; p. 111, no. 8; p. 112, no. 3; p. 113, no. 7; Poonawala, Biobibliography, p. 54, no. 5. 112. Fyzee, ‘Qadi an-Nuʿman’, pp. 19–20, no. 5; Ivanow, Ismaili Literature, p. 34, no. 68. This opinion is also held by Waḥīd Mīrzā, ‘Avantpropos’, p. xxxiii. 113. Lokhandwalla, ‘Introduction’, p. 21; Waḥīd Mīrzā, ‘Introduction’, p. xxxiii. 114. Poonawala, Biobibliography, pp. 53–54, no. 4; Poonawala, ‘Ismaʿili Jurisprudence’, p. 122. 115. Lokhandwalla, ‘Introduction’, p. 21. 116. Poonawala, ‘Ismaʿili Jurisprudence’, p. 119. 117. Ibid., p. 122. 118.  Poonawala, ‘Works and Sources’, p. 111, no. 8; Poonawala, Biobibliography, p. 54, no. 6; Poonawala, ‘Ismaʿili Jurisprudence’, p. 137, n. 23. Thus, Fyzee’s comment (‘Qadi an-Nuʿman’, p. 19, no. 4) that the Kitāb al-yanbūʿ ‘is omitted in some copies of ʿUyūn, VI’, and that it is preserved, but not available, is now proven wrong. The Kitāb al-yanbūʿ is listed in Sezgin (GAS, vol. 1, p. 576, no. 4) without any further detail.

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in London.119 The Kitāb al-yanbūʿ is very important for delineating al-Nuʿmān’s doctrinal evolution. It is considered a great authority on legal questions, and is deemed to be equal in weight to the Iqtiṣār, Ikhbār and Mukhtaṣar al-āthār.120 However, there is no unanimity among scholars about its contents because it is uncertain whether al-Nuʿmān composed Part I on ʿibādāt. Fyzee121 observes that ‘Part I on ʿibādāt seems to be lost [but that] Part II on muʿāmalāt is still preserved … next to the Daʿāʾim’. Ivanow,122 however, states that ‘it is only concerned with the matters dealt with [in] the second vol. of the Daʿâʾim, although not coinciding with the text of it’. The extant copy deals with muʿāmalāt and does not give isnāds. The manuscript at The Institute of Ismaili Studies is dated 1356/1937 and it is legible. It is composed of folios 1v–165r and is introduced by the basmala; then it abruptly begins to discuss the subject of the buyūʿ (transactions), without a title. The structure of the work is compared with that of the Daʿāʾim below: Yanbūʿ 1. [K. al-buyūʿ] (fol. 1v) 2. K. al-ḥawāla wa’l-kafāla (fol. 20r) 3. K. al-wakāla (fol. 28v) 4. K. al-muzāraʿa (fol. 34v) 5. K. al-shirb (fol. 42r) 6. K. al-ijāra (fol. 43v) 7. K. al-rahn (fol. 51v) 8. K. al-shirka (fol. 55r) 9. K. al-muḍāraba (fol. 56v) 10. K. al-shuf ʿa (fol. 63v) 11. K. al-taflīs (fol. 67r)

Daʿāʾīm 1. K. al-buyūʿ wa’l-aḥkām fīha

119. Gacek, Catalogue, vol. 1, p. 52, no. 64; Cortese, Zāhid ʿAlī Collection, pp. 83–84, no. 67. 120. Cf. Ivanow, Ismaili Literature, p. 33, no. 67. 121. Fyzee, ‘Qadi an-Nuʿman’, p. 19, no. 4. 122. Ivanow, Ismaili Literature, p. 33, no 67.

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12. K. al-ḥajr (fol. 67v) 13. K. al-maʾdhūn (fol. 68v) 14. K. al-aymān wa’l-nudhūr (fol. 72v) 15. K. fīʾl-awliyāʾ (fol. 75r) 16. K. al-aṭʿima (fol. 76r) 17. K. al-ashriba (fol. 77r) 18. K. al-libās (fol. 78r) 19. K. al-ṣayd (fol. 78v) 20. K. al-dhabāʾiḥ (fol. 80r) 21. K. al-nikāḥ (fol. 82r) 22. K. al-ṭalāq (fol. 92r) 23. K. al-mafqūd (fol. 100v) 24. K. al-ʿitq (fol. 101v) 25. K. al-ʿaṭāyā (fol. 106v) 26. K. al-waṣiyya (fol. 109r) 27. K. al-farāʾiḍ (fol. 112v) 28. K. al-diyāt (fol. 119r) 29. K. al-ḥudūd (fol. 133v) 30. K. al-surrāq wa’l-muḥāribīn (fol. 137v) 31. K. al-ridda wa’l-bidʿa (fol. 139r) 32. K. al-ikrāh (fol. 140r) 33. K. al-ghasb wa’l-taʿaddī (fol. 141v) 34. K. al-wadīʿa wa’l-ʿāriya (fol. 142r) 35. K. al-laqīṭ (fol. 143r)

2. K. al-aymān wa’l-nudhūr

3. K. al-aṭʿima 4. K. al-ashriba 5. K. al-ṭibb 6. K. al-libās 7. K. al-ṣayd 8. K. al-dhabāʾiḥ 9. K. al-ḍaḥāyā wa’l-ʿaqāʾiq 10. K. al-nikāḥ 11. K. al-ṭalāq 12. K. al-ʿitq 13. K. al-ʿaṭāyā 14. K. al-waṣiyya 15. K. al-farāʾiḍ 16. K. al-diyāt 17. K. al-ḥudūd 18. K. al-surrāq wa’lmuḥāribīn 19. K. al-ridda wa’l-bidʿa

20. K. al-ghasb wa’l-taʿaddī 21. K. al-ʿāriya wa’l-wadīʿa 22. K. al-luqṭa wa’l-laqīṭa wa’l-ābiq

31

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36. K. al-qisma (fol. 144r) 37. K. al-shahādāt (fol. 146v) 38. K. al-daʿwā wa’l-bayyināt (fol. 150r) 39. K. al-iqrār (fol. 153r) 40. K. al-ṣulḥ (fol. 157r) 41. K. mā ʿalā’l-mutawallī li’lqaḍāʾ bayna’l-nās (fol. 161r)

23. K. al-qisma wa’l-bunyān 24. K. al-shahādāt 25. K. al-daʿwā wa’l-bayyināt

26. K. ādāb al-quḍāt bayna’lnās

The Kitāb al-yanbūʿ seems to have been composed during the reign of al-Manṣūr.123 However, Lokhandwalla124 raises doubts about its authenticity because, even if it is usually attributed to al-Nuʿmān, there are many reasons to conclude legitimately that he is not the author.125 Lokhandwalla bases his radical conclusion on three interesting observations. The first is that ‘all the legal works of Nuʿmān … [follow] a certain pattern. [The] division … [into] … section[s], and [the] … arrangement of material and method of treatment in his works … [have] a definite uniformity. The Yanbūʿ is in complete contrast to any of Nuʿmān’s legal works’ (p. 34). His second observation is that ‘the Yanbūʿ like Nuʿmān’s Iqtiṣār, is the exposition of law without the trammels of isnāds, but the material and the language of the Iqtiṣār can be traced in any of his other books, whereas [the] material, language and style of the Yanbūʿ are remarkably unmatched’ (p. 34). Thirdly, Lokhandwalla observes that ‘Nuʿmān’s Ikhtiṣār … was composed during the reign of al-Muʿizzlidīni’llah. If the Yanbūʿ was Nuʿmān’s composition, Nuʿmān would have proudly mentioned it in the list he has provided … there; for the Yanbūʿ, as a text book of substantive law, is one of the best available amongst the Ismāʿīlīs’ (p. 35). The Kitāb al-yanbūʿ presents another peculiarity, because it refers to the authority of the caliph who preceded al-Muʿizz. As a matter 123. Lokhandwalla, ‘Introduction’, p. 33. 124. Ibid., pp. 34–36. 125. According to Poonawala (Biobibliography, p. 54, n. 6), ‘both Ivanow and Fyzee are of the opinion that this book is ascribed to Nuʿmān, but their arguments are not convincing’.

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of fact, ‘it quotes at several places the authority of Imām Manṣūr’ (p. 35). While Fyzee (Compendium, p. xxix; a passage also reported by Lokhandwalla, ‘Introduction’, p. 35) states that ‘considering its style and composition it is definitely later than the Daʿāʾim but the reason why the decrees of Imām Manṣūr are so often cited but not those of his son Imām Muʿizz cannot be determined with certainty’, Lokhandwalla believes that ‘the Yanbūʿ could not have come after the Daʿāʾim, for the simple reason that the Daʿāʾim had already been accorded an authoritative position. The style of the Yanbūʿ by no means indicates that it is earlier or later than the Daʿāʾim. There were many Mālikī treatises on law … (p. 35) which adopted a style similar to the Yanbūʿ. If it was composed during the reign of al-Muʿizz the authority quoted would have been that of Muʿizz rather than that of Manṣūr’ (p. 36). Lokhandwalla, therefore, concludes that ‘the Yanbuʿ appears to be an attempt on the part of some enthusiastic Ismāʿīlī author to give a practical demonstration and conclusiveness to the Fatimid theory of law, and so he quoted opinions from Manṣūr and laid down the law accordingly’ (p. 37). Comparing the arrangement of the material in the Yanbūʿ and the Daʿāʾim, one can note a remarkable uniformity in the order of the subjects, contrary to the opinion of Lokhandwalla. In fact, the different chapters on buyūʿ in the Yanbūʿ are more logically put under a single heading (Kitāb al-buyūʿ waʾl-aḥkām fīha) in the Daʿāʾim. Moreover, two further chapters are added in the Daʿāʾim: Kitāb al-ṭibb after Kitāb al-ashriba and Kitāb al-ḍaḥāyā wa’l-ʿaqāʾiq after the Kitāb al-dhabāʾiḥ; whereas some chapters in the Yanbūʿ are absent in the Daʿāʾim: Kitāb al-maʾdhūn, Kitāb fīʾl-awliyāʾ, Kitāb al-mafqūd (included in Kitāb al-nikāḥ of Daʿāʾim), Kitāb al-ikrāh, Kitāb al-iqrār and Kitāb al-ṣulḥ. Lastly, a few chapters in the Daʿāʾim have slightly different, but more accurate, titles: Kitāb al-luqṭa wa’l-laqīṭa wa’l-ābiq, instead of Kitāb al-laqīṭ; Kitāb al-qisma wa’lbunyān, instead of Kitāb al-qisma; Kitāb ādāb al-quḍāt baynaʾl-nās, instead of Kitāb mā ʿalā’l-mutawallī li’l-qaḍāʾ bayna’l-nās. On these premises, one can hardly maintain that the Yanbūʿ is in complete contrast to any of al-Nuʿmān’s legal works, and it may be supposed that it preceded the Daʿāʾim. Starting from this range of opinions, we can proceed to ascertain the possible chronological progression of the available legal works of al-Nuʿmān, based on an analysis of their contents.

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Mukhtaṣar al-āthār (or Kitāb al-ikhtiṣār li-ṣaḥīḥ al-āthār ʿan al-aʾimmat al-aṭhār or Ikhtiṣār al-āthār) and Daʿāʾim al-Islām The present text of the Mukhtaṣar al-āthār126 exists in the version produced by al-Nuʿmān’s grandson, Ḥusayn b. ʿAlī b. al-Nuʿmān. No other earlier works of al-Nuʿmān’s are reported to have been used officially for public instruction. It enjoys more or less equal respect with Daʿāʾim al-Islām as an authoritative and official code of the Fatimids and the Ismailis, and it is considered by the Ismailis to be the second most reliable work on Ismaili law after the Daʿāʾim.127 However, there is no unanimity among scholars about which of the two was composed first, although we can assume that both were composed during the reign of al-Muʿizz. Fyzee believes the Mukhtaṣar al-āthār was written after the Daʿāʾim. He bases this premise on the observation that al-Muʿizz asked al-Nuʿmān to abridge the Daʿāʾim for the use of officials and judges at a later date, and that the Mukhtaṣar al-āthār has the same arrangement as the Daʿāʾim, but is shorter by about half, and substitutes the chapter on īmān with the chapter on ṭahāra. Yet Fyzee128 does not fail to note that ‘it is very curious that in the introduction to this work nothing is mentioned about its being the abridgment of 126. Ivanow, Ismaili Literature, pp. 32–33, no. 65; Brockelmann, GAL, supplement no. 1, p. 325; Sezgin, GAS, vol. 1, p. 576, no. 1. It is mentioned in some ancient Arabic sources; see Poonawala, ‘Works and Sources’, p. 110, no. 2; p. 111, no. 8; Poonawala, Biobibliography, pp. 54–55, no. 7. I used the copy of the Mukhtaṣar al-āthār from the Vatican Library: Vat. Vida 1104, 1315 AH, vol. 2, 149ff. Other copies are available at The Institute of Ismaili Studies, London; see Gacek, Catalogue, pp. 77–78, no. 95; Cortese, Descriptive Catalogue, pp. 53–54, no. 83/901 and 84/936; Cortese, Zāhid ʿAlī Collection, pp. 120–121, no. 103. 127. Poonawala, ‘Ismaʿili Jurisprudence’, pp. 123–124. 128. Fyzee, ‘Qadi an-Nuʿman’, p. 25. Fyzee, in his later work (‘The Fatimide Law of Inheritance’, Studia Islamica, 9 (1958), p. 61), states that ‘the relation between these works has not yet been definitely established but it seems tolerably clear a) that the Īḍāḥ was the original source, now lost; b) that the Daʿāʾim came next, to define and consolidate the law; and c) that the Mukhtaṣar al-āthār, for judges, the Iqtiṣār, for students, and the Ṭahāra and the Yanbūʿ were later productions by other hands’. Poonawala (‘Ismaʿili Jurisprudence’, p. 138, n. 35) rejects Fyzee’s statement that the Mukhtaṣar, Iqtiṣār and Muntakhaba were all abridgments of the Daʿāʾim.

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the Daʿāʾim. According to the introduction, the book was composed in 348, and ʿAlī b. al-Nuʿmān was permitted to teach it’. Ivanow,129 on the contrary, doubts that the Mukhtaṣar al-āthār was written after the Daʿāʾim. He notes that between the compilation of the Daʿāʾim around 349/960130 under the order of al-Muʿizz (who ascended the throne in 341/953), and the compilation of the Mukhtaṣar al-āthār in 348/959, which is the date of its composition indicated in its introduction, there is a very short temporal gap. Ivanow wonders whether the name of al-Muʿizz mentioned in the Mukhtaṣar al-āthār represents only a ‘symbolical’ reference to him. The doubts raised by Ivanow are upheld by Lokhandwalla,131 who notes that the introduction of the Mukhtaṣar al-āthār does not mention the Daʿāʾim, although it enumerates all his earlier works. According to Lokhandwalla, this is an indication that the Mukhtaṣar al-āthār was written before the Daʿāʾim, because al-Nuʿmān would always make reference to his earlier compilations. Poonawala132 agrees with Lokhandwalla that it was composed before the Daʿāʾim, and thus was not an abridgment of the latter; he dates its composition as 348/959, about a year before the Daʿāʾim. There is hardly any doubt among scholars about the fundamental importance of the Daʿāʾim,133 the last work on jurisprudence to be 129. Ivanow, Ismaili Literature, pp. 32–33, no. 65. 130. Poonawala, ‘Ismaʿili Jurisprudence’, p. 127. 131. Lokhandwalla, ‘Introduction’, pp. 21–26, no. 6. 132. Poonawala, ‘Ismaʿili Jurisprudence’, p. 138, n. 35; See also Poonawala, ‘Ismaʿili Jurisprudence’, p. 127. 133. Sezgin, GAS, vol. 1, pp. 572 and 576, no. 3; Goriawala, Descriptive Catalogue, pp. 19–21. According to Fyzee (‘Qadi an-Nuʿman’) ‘It is generally one of the earliest books taught to the initiate in Ismailism (p. 24) … We have also a letter by al-Ḥākim bi’l-lāh, dated 20th Ḏū’l-Qaʿda, 391/12th October, 1001, to Hārūn b. Muḥammad, dāʿī of the Yemen, which makes the Daʿāʾim the paramount authority in legal questions among Ismāʿīlīs’ (p. 22). Fyzee (‘The Study of the Literature of the Fatimide Daʿwa’, in George Makdisi, ed., Arabic and Islamic Studies in Honor of Hamilton A.R. Gibb [Leiden, 1965], p. 235) also speaks about the Daʿāʾim being ‘the chief textbook’, and about al-Nuʿmān as ‘the Founder of the science of law and the greatest Ismāʿīlī jurist’. Further on (p. 246), he lists the Daʿāʾim among the four books on which the Fatimid science is founded. Stern (ʿAbū’l-Qāsim al-Bustī and his Refutation of Ismāʿīlism’, Journal of the Royal Asiatic Society (1961), p. 24) writes: ‘[the] Daʿāʾim al-Islām by the Qāḍī al-Nuʿmān

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written by al-Nuʿmān. But, what is also highly relevant is its genesis, as described in the ʿUyūn al-akhbār, which sheds light on the dynamics of the creation of Ismaili literature. In short, in order to explain the differences in reported traditions, and consequently the erroneous, innovating opinions arising from them, al-Muʿizz spoke to a number of dāʿīs about correct opinions and legal propositions, and how his community ought necessarily to follow closely the previous generations. For this purpose, he commanded al-Nuʿmān to compose the Daʿāʾim al-Islām, and outlined to him a plan for his work regarding the ‘roots’ (uṣūl) and the ‘branches’ (furūʿ) of the law, and the sound sources to be followed. Fyzee states that ‘Qāḍī an-Nuʿmān composed the book as planned by Imām Muʿizz, and used to get it revised chapter by chapter and paragraph by paragraph by Muʿizz, who rejected what was unsound and corrected and retained what was right’.134 This is why the Daʿāʾim, unlike any other of al-Nuʿmān’s works, neither mentions the name of the author nor refers to his earlier works on law. This may be the reason why al-Bustī has ascribed the Daʿāʾim to the Fatimid Imam al-Muʿizz.135 Furthermore, al-Muʿizz officially recognised the Daʿāʾim as a legal code of the state.136

… is the standard law-book of the Ismāʿīlīs’. For al-Hamdānī (‘Unknown’, pp. 368–369), ‘The Daʿāʾim is regarded as the standard work of Fiqh by the Daʿwat throughout its literature’. Lastly, Madelung (‘Ismāʿīliyya’, vol. 4, p. 204) says that Fatimids considered the Daʿāʾim to be the canonical corpus of their school. The Ismāʿīlī fiqh was set up mainly by al-Nuʿmān whose work, the Daʿāʾim al-Islām, became the authorised exposition of the Ismāʿīlī law. The Daʿāʾim is al-Nuʿmān’s most mentioned work in the juridical classical literature; see Poonawala, ‘Works and Sources’, p. 110, nos. 2 and 5; p. 111, nos. 7 and 8; p. 112, nos. 1 and 2; p. 113, no. 4; p. 114, nos. 1, 9 and 11; pp. 114–115, no. 6; p. 115, no. 7; Poonawala, Biobibliography, pp. 56–57, no. 16 (‘This book, Daʿāʾim al-Islām, has remained a source of paramount authority for the Ismāʿīlīs in their legal matters’) (p. 57). 134. Fyzee, ‘Qadi an-Nu’man’, p. 22. ‘The episode, narrated by Dāʿī Idrīs, in his ʿUyūn which occasioned the compilation of the Daʿāʾim by Nuʿmān, points clearly to the intention of al-Muʿizz’ (Lokhandwalla, ‘Introduction’, p. 28). See also Stern, ʿAbū’l-Qāsim’, p. 24; Waḥīd Mīrzā, ‘Avant-propos’, p. xxx. 135. See Poonawala, ‘Works and Sources’, p. 112, no. 2. 136. Poonawala, ‘Ismaʿili Jurisprudence’, pp. 119 and 126–129.

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VIII. The structure and contents of the chapter on inheritance in the Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim In the Minhāj, the Prologue (Muqaddimāt) states the grounds upon which a person can claim an inheritance and lists the categories of heirs (fols. 1v–2r). Next, the material is divided into twenty sections (faṣls),137 apparently without internal coherence, according to the following plan:138 Section 1: The shares fixed in the Qurʾan (fols. 2r–3v). Section 2: The nearest among the agnates (fols. 3v–4v). The case of a full, a consanguine and a uterine sister, although not directly connected to the doctrine of agnation,139 is solved here by analogy to the case of a full and a consanguine brother. The rule is that a full sister bars a consanguine sister from inheriting, while the Qurʾanic share of one-sixth is allotted to the uterine sister. Section 3: The four types of male heirs who render four types of female heirs agnates (fols. 4r–4v). This section also contains rules on impediments to claiming an inheritance and on a manumitted male or female slave (also in Section 16). Section 4: The direct descendants and the parents (fols. 4v–7r). Cases regarding descendants from the second degree onwards are also solved. Section 5: Direct descendants inheriting in the presence of spouses 137. The headings in the three manuscripts considered are not always the same. Ms A has bāb instead of faṣl in nos. 9, 15, 16, 18 (also Ms B), 19 (also Mss B and C), 20; while Mss B and C have faṣl bāb in nos. 15, 18, 20. 138. For a complete treatment of the Imāmī and Ismāʿīlī law of inheritance, see Cilardo, Scuole giuridiche ismailita e imamita. 139. The agnatic kinship (taʿṣīb) is a blood tie based exclusively on the male line. Proximity is the basic principle: the nearest male excludes the most remote, while males on the same degree of kinship inherit on an equal footing. This category of agnates is called ʿaṣaba bi-nafsihi, that is agnates iure proprio. A second category of agnates is called ʿaṣaba bi-ghayrihi (agnates because of another), a kind of heirs that refers to Qur’an 4:11 and 4:176, where it is stated that a son or brother will have twice the share of his daughter or sister. A third category of agnation is referred to as ʿaṣaba maʿa ghayrihi (agnates with another). One or more full or consanguine sisters are considered agnates when one or more daughters, or one or more female grandchildren ex filio, are present.

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(fols. 7r–8r). Section 6: Spouses inheriting in the presence of parents (fols. 8r–8v). Section 7: Direct descendants, son’s descendants, spouses and parents (fols. 8v–9v). Section 8: Brothers and sisters. The paternal uncle, the paternal uncle’s son, the paternal aunt, the maternal uncle and the maternal aunt shall not inherit in the presence of brothers and sisters (fols. 9v–11v). Notwithstanding this incipit and apart from the statement immediately following that ‘a grandfather holds the same status as a brother in the inheritance; he receives the same share as a brother’, this section is completely devoted to brothers, sisters and their descendants. Section 9: Brothers and sisters inheriting in the presence of parents (fols. 11v–13r). The first part and last sentence of this section refers to the first class,140 while the remaining part concerns the second class including cases concerning brothers, sisters and a paternal grandfather. Section 10: Paternal uncles, brothers and sisters (fols. 13r–14r). Section 11: Paternal and maternal uncles and aunts and their descendants (fols. 14r–15r). Sections 10 and 11 contain rules concerning the second and the third classes. Section 12: The inheritance of the hermaphrodite (fols. 15r–16r). Section 13: The foundling (laqīṭ) and those related to him (fol. 16r). Section 14: The mulāʿana (wife repudiated through a sworn allegation of adultery) (fols. 16r–17r). Section 15: Drowned persons and those who die in a natural disaster (fols. 17r–17v). Section 16: The inheritance of a slave manumitted through a written contract, and of a slave partially manumitted who desires the manumission from the remaining part (fols. 17v–18r). Section 17: Rules to be applied to heirs who are in their mother’s wombs (fols. 18r–19r). Section 18: The inheritance of the husband and wife in a case of revocable repudiation, which gives rise to legal retreat, inasmuch as conjugal life may be restored (fols. 19r–19v). Section 19: The calculation to obtain shares which are not fractional numbers (fols. 19v–23v). 140. For further discussion on classes of heirs, see Chapter 2, Part I.

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Section 20: The inheritance of the ahl al-dhimma: protected Christians, Jews and Mazdeans (fols. 23v–26r). At the end of the manuscript, the author informs the reader that this is a synopsis (mukhtaṣar) of inheritance law and whoever speculates on this subject ought to follow its method. Therefore, all the cases (farāʾiḍ) should be solved following these rules (fol. 26r). In the Minhāj, many subjects are treated in several places, but the logical criteria followed in the succession of the subjects is clearly linear: beginning from general questions (Prologue, Sections 1–3) to the application of the principle of proximity, moving on to the relatives by kin (Sections 4–11), and to the examination of particular cases (Sections 12–18), before ending with the way to obtain the exact calculation of the shares (Section 19) and the inheritance of the ahl al-dhimma (Section 20). However, the exposition is elementary, the procedure adopted casuistic, although this is generally found in similar works, and few general rules are provided. At the beginning of the manuscript, the author states that the inheritance system is based ‘on the authority of the Family of the Prophet’ (fol. 1v). The Iqtiṣār (pp. 132–136), by its very nature, is an abridgment: there are no isnāds nor even the names of the imams from whom the doctrines are derived. Al-Numʿān introduces the chapter on inheritance with the words: ‘It was transmitted to us from ahl al-bayt’. He relates the doctrines, which he considers reliable and confirmed (thābit); there is no mention of less reliable or conflicting doctrines. Rules are formulated under the form of sayings. A few pages are devoted to inheritance, under the title Dhikr al-farāʾiḍ, without any other sub-division. This results in a very confused presentation, since no logical organisation can be perceived. The exposition follows this order: first, the succession of the descendants, then the radd; then, in sequence, the position of the ascendants, the spouses, the brothers/sisters, the grandfather and grandmother, and the dhawū’l-arḥām (relatives, both on the father’s or mother’s side). Then the doctrine on the ʿawl is presented, followed by a series of short rules on various matters, such as ibn al-mulāʿana (a child of a wife repudiated through a sworn allegation of adultery), al-laqīṭ (foundling), al-ḥamīl (unborn child), al-ḥaml (pregnancy), the difference of religion, the slave and the case of a person converted

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or manumitted before the division of the estate. The chapter closes with the doctrines on homicide, the rules regarding the hermaphrodite, persons dying at the same time, the repudiated woman, the manumitted slave, and the acknowledgment of a person as a co-heir. The Kitāb al-farāʾiḍ (fols. 112v–119r) of the Yanbūʿ expressly states that there are ten chapters, but only nine bāb are presented. In spite of being organised into chapters, the subdivision of the material is not always consistent, and the number of chapters could be increased. No Shiʿi authority is quoted. At the end of the first chapter, Bāb mīrāth al-walad (fols. 112v–113v), the preliminary steps in order to determine the exact amount of the estate to be allotted to the heirs are inserted ex abrupto; that is, the payment of the funeral expenses, debts and legacies. The second chapter, entitled Bāb mīrāth al-abawayni (fols. 113v–114r), is followed by Bāb mīrāth al-zawjayni (fol. 114r), Bāb al-kalāla (fols. 114r–115r) and Bāb mīrāth al-jadd (fols. 115r–115v). The sixth chapter is entitled Bāb mīrāth dhawī’l-arḥām (fols. 115v– 116v) and is followed by Bāb ibṭāl al-ʿawl (fol. 116v). Then, suddenly, a series of questions are treated regarding the walad al-mulāʿana, walad al-zinā (illegitimate child), al-laqīṭ, al-ḥamīl and al-janīn (foetus) (fols. 116v–117r), which could have been presented under the title Bāb masāʾil shattā. A further instance of the disordered nature of the Yanbūʿ is seen when, after the statement of the rule regarding the laqīṭ, a case out of context is presented and solved regarding two men who have had sexual intercourse with a slave woman in the same intermenstrual period, when one of the two is her master, and a child is born (fol. 117r). Thereafter, the author examines the questions of impediments to inheritance. This has no title (fols. 117r–118r), although it could aptly have been called Bāb al-mawāniʿ. Then the eighth chapter, Bāb al-khunthā (fols. 118r–118v), and the ninth, Bāb ākhir wa’l-gharqā wa’l-ḥarqā wa-man qutila fi maʽraka fa-lam yuʽlam ayyuhuma sabaqa mawtuhu (fols. 118v–119r), follow. Lastly, various questions are examined in a section without a title (fol. 119r). These are questions pertaining to patronage, the sāʾiba (manumission of a slave freed from the bond of patronage), a person who had died but left no heir and a slave partially freed. The Mukhtaṣar al-āthār (fols. 117r–124v) has only four dhikrs (chapters) under the general title Jimāʿ abwāb al-farāʾiḍ. The first regards the shares of the descendants, parents, spouses, grandfather,

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grandmother and brothers (fols. 117r–119v). The second concerns the succession of the dhawū’l-arḥām and the ʿaṣaba (agnates), and the prohibition against recourse to the ʿawl, and ḥajb (exclusion) (fols. 119v–121v). The third includes some particular cases, such as the inheritance of ibn al-mulāʿana, walad al-zinā, al-laqīṭ, al-ḥamīl, al-janīn, the difference of religion, the Mazdeans, apostates from Islam (murtadds) and slaves (fols. 121v–122v). The last chapter regards the succession of a murderer and the attribution of the compensation due to the heirs of the victim (diya), the hermaphrodite, persons dying at the same time, the mukātab (a slave manumitted through a written contract), the repudiated wife, the manumitted slave, the person who has no natural heir but acknowledges someone as an heir, and some general questions related to the preliminary operations to be carried out before the division of the estate, that is, the payment of burial expenses, debts and bequests; a mukātab partially freed; a person who died and did not leave an heir; and cases of acknowledgment of an heir (fols. 122v–124v). The subdivision of the subjects in the Mukhtaṣar al-āthār appears more logical and rational than that of the Minhāj and Iqtiṣār. This exposition, on the one hand, is characterised by a thorough treatment of each item, but on the other, is characterised by the absence of any controversy against divergent doctrines. The names of the imams are never quoted. Only twice is it said: ‘All of this is the statement of ahl al-bayt’ (fols. 121v, 124v). The subdivision of the subjects in the Daʿāʾim (vol. 2, pp. 365–400) seems more logical and rational than that of the preceding works. Its Kitāb al-farāʾīḍ contains nine faṣls disposed according to a progressive evolution of the material: the first section is devoted to the Dhikr mīrāth al-awlād (pp. 365–370); the second section regards the succession of parents, descendants and brothers (pp. 370–372); the third is devoted to the succession of the spouses as unique heirs, or in the presence of other heirs (pp. 373–374); the fourth concerns the succession of brothers, grandfathers and grandmothers (pp. 374–378); the fifth, the inheritance of the dhawū’l-arḥām, the ʿaṣaba and the qarābāt (distant kindred) (pp. 379–380); the sixth, the amount of the shares (mablagh al-sihām) and the prohibition against the ʿawl (pp. 381–383). The seventh is devoted to the persons who can inherit and those who have no right to the inheritance,

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i­ ncluding special cases (pp. 384–392). The eighth section contains a refutation by al-Nuʿmān of the solution of six cases (nos. 1389–1394), as maintained by his opponents (pp. 392–397). The last section treats the division of the shares, suggesting some mathematical operations for such purposes (pp. 397–400). The doctrines in the Daʿāʾim refer to the most important early authorities of the Shiʿi school, such as ʿAlī, Abū Jaʿfar al-Bāqir and Abū ʿAbd Allāh al-Ṣādiq.

Chapter 2

Differences among al-Nuʿmān’s five Ismaili works, and a comparison of their doctrines with Imāmī and Sunni doctrines on inheritance

The doctrines expressed in the Minhāj sometimes differ from those found in the other four works by al-Nuʿmān (the Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim). A close analysis of each one reveals a chronological development of Ismaili doctrine, even though Ismaili fiqh became fully mature over quite a short period of time. Such analysis also tells us about other schools of law as well, and brings into focus, for instance, the many divergences that exist among the Imāmīs themselves, which are more numerous than those that exist between the Imāmīs and the Ismailis. This latter fact substantiates the idea that Imāmī doctrine was subject to an internal development. Generally speaking, the opinions of al-Kulaynī and Ibn Bābawayh (d. 381/991), represent the most ancient position of the Imāmī school, while those of al-Ṭūsī characterise the prevalent accepted doctrine, which was further developed by al-Muḥaqqiq al-Ḥillī (d. 676/1277), and who proceeded to create new rules. I. The system of dividing heirs into classes Imāmīs and Ismailis divide the relatives into three classes. The first class is composed of the direct ascendants (father and mother), by direct children and any other descendant, either a male or a female of any degree. The second class includes ascendants other than those of the first degree (grandfathers and grandmothers of any degree) and collaterals limited to full, consanguine and uterine brothers 43

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and sisters and their descendants. The last class comprehends the remaining collaterals, that is, paternal and maternal uncles and aunts who are full brothers or sisters of the father or the mother; paternal and maternal uncles and aunts who are consanguine brothers or sisters of the father or the mother; paternal and maternal uncles and aunts who are uterine brothers or sisters of the father or the mother; if these relatives are not present, their descendants take their place, according to the previous order. In the Minhāj, al-Nuʿmān does not explicitly mention that he divides heirs into classes, as it is for the Imāmīs. However, following the Sunni system, he seems to solve cases according to the rules of total exclusion (ḥajb al-ḥirmān) or partial exclusion (ḥajb al-nuqṣān). Al-Nuʿmān’s method seems like a mix between the two opposing systems. As a matter of fact, the final doctrine maintained by him does not strictly reflect the system of classes. The form of exposition characterising the Minhāj sometimes recalls a Sunni text. For instance, al-Nuʿmān simply explains that there are three kinds of heirs who have the right to claim an inheritance on the grounds of kinship: firstly, ascendants, that is his father and grandfather; secondly, descendants, that is his child and child’s child, however remote; thirdly, those who stand in the same degree as the deceased, that is his brothers and sisters (fol. 1v). Absent is any mention of the principle of proximity,1 thus reflecting a kind of presentation which is common to all the schools of law, except the Imāmī school. The above characteristic of the Minhāj is evident also in the way al-Nuʿmān includes the agnates among the heirs, because the Ismaili school does not admit agnation. He lists the categories of heirs as: heirs by quota who are in no way excluded, relatives on the maternal side, and agnates (fol. 2r). This particularly brings to mind the classification of the Ḥanafī school of law. Moreover, in Section 2, he lists the agnates as a Sunni work usually does, but omits the paternal grandfather, who represents the most controversial case in the 1. For the Shiʿis, the principle of proximity plays a key role both in the classification of heirs (three different classes) and within each class of heirs (degree of relationship). For Imāmīs and Ismailis the principle of proximity is no longer valid only for agnates, as it is for the remaining law schools, but it is followed for all blood relatives (dhawū’l-arḥām): the next of kin among them is entitled to inherit with the exclusion of the most distant heirs (system of classes), even if they are agnates.

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Islamic law of inheritance.2 A rudimentary sketch of the division of the heirs into classes, absent in the Minhāj, Iqtiṣār, Yanbūʿ3 and Āthār, appears for the first time in the Daʿāʾim,4 indicating a doctrinal evolution in the Ismaili school of law. This evolution is characterised by a movement away from a Sunni point of view (in the Minhāj) to one that resembles an Imāmī doctrine. At an early stage in its development, Ismaili doctrine was similar to the Ḥanafī and Ḥanbalī doctrine in its policy that relatives were to be considered as a whole. As a matter of fact, the Ḥanafī and Ḥanbalī schools, contrary to the Mālikī and Shāfiʿī schools, in the absence of heirs by quota and agnates, admit to the inheritance the dhawū’l-arḥām, defined as those relatives who are neither quota-sharers nor agnates, corresponding to the third class of the Imāmīs and Ismailis. This is attested by the fact that al-Mahdī disapproved of jurists’ exclusion of the uterine heirs from inheritance.5 The final Ismaili position shows that this viewpoint represented an intermediate stage between the Sunni rules and the fully elaborated Imāmī doctrine, as exemplified by the solution of a case concerning the first class of heirs to whom all the Ismaili works fail 2. See Agostino Cilardo, ‘The Position of the Grandfather with Regard to the German or Consanguine Brothers in the Islamic Law of Inheritance. A Reconsideration’, Studies on the Islamic Law of Inheritance, AIUON, vol. 50, suppl. no. 63 (1990), pp. 1–32. 3. For instance, the Yanbūʿ enunciates the principle that the closest children exclude the most remote and that the share to be allotted to them is that of their ascendant, as they represent their ascendant (fols. 113r and 113v); or the parents exclude any kind of brothers (fol. 114r); or else, brethren of any kind are excluded by descendants and one of the parents (fol. 114v); the paternal grandfather is considered as a full or consanguine brother, with the consequence that a son of a brother/sister inherits the share of his father/mother in his presence; or else one-sixth or one-third is allotted to one or more uterine brothers/sisters and the remainder to the paternal grandfather; or one-half to the husband, one-third to two uterine brothers and the remainder to the grandfather (fol. 115r); moreover, a uterine brother/sister has right to the whole estate in the presence of paternal and maternal uncles or their descendants (fol. 114v). A complete outline of the rules governing the third class is present in Bāb mīrāth dhawī’l-arḥām (fols. 115v–116v). 4. al-Nuʿmān, Daʿāʾim, vol. 2, p. 379, no. 1355. 5. Poonawala, ‘Ismaʿili Jurisprudence’, pp. 117–118. See also Lokhandwalla, ‘Origins’, p. 10.

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to apply the principle of proximity. In fact, they allot a share to a grandmother (Class II) in the presence of the father of the deceased person (Class I), based on the well-known tradition of the Prophet that was rejected by Imāmīs but accepted by Sunnis. According to this tradition, the Prophet allotted one-sixth to the grandmother while her son (the father of the deceased) was still alive. The doctrinal evolution is clear. Out of the five Ismaili sources examined here (the Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim), the Minhāj presents the most rudimentary and confused exposition on this matter, while the Daʿāʾim represents the final and most sophisticated elaboration. As far as the parents are concerned, al-Nuʿmān correctly relates the Prophetic tradition in the Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim,6 but not in the Minhāj (fol. 15r), where he quotes it inaccurately, implying that a grandmother is not excluded in any way in the presence of descendants (awlād) and ‘other heirs’ (ghayru-hum). According to the Minhāj, the Prophet allotted one-sixth to the maternal grandmother (al-jadda min qibal al-umm), in the absence of the mother, and in the presence of the descendants of the deceased person (awlād al-mayyit) and ‘other heirs’. Al-Nuʿmān thus subscribes, here, to the Sunni doctrine which states that the mother excludes any grandmother from an inheritance.7 Such a doctrine is rejected by the Iqtiṣār (p. 133), Yanbūʿ (fol. 113r) and Āthār (fol. 118v), which extend the implication of the ḥadīth to allow a grandmother to inherit in the presence of both parents or one of the two. Contradicting the previous position, the Minhāj also relates this doctrine as it seems one can infer from another passage: ‘Only parents, spouses and grandmothers can inherit in the presence of a descendant (walad)’ (fol. 4v), where a walad is either a male and a female descendant. In contrast to the Minhāj, the Daʿāʾim is very clear and consistent 6. al-Qāḍī Abū Ḥanīfa al-Nuʿmān, Kitāb al-Iqtiṣār, ed. Muḥammad Waḥīd Mīrzā (Damascus, 1376/1957), p. 134; al-Qāḍī Abū Ḥanīfa al-Nuʿmān, Yanbūʿ, MS 1262 (ArI, ZA), fol. 115v, Library of The Institute of Ismaili Studies; al-Nuʿmān, Āthār, fol. 118v; al-Nuʿmān, Daʿāʾim, vol. 2, p. 378, no. 1352. 7. As for the father, Sunnis believe that the maternal grandmother is not excluded by the father, while Ḥanafīs, Mālikīs, Shāfiʿīs and Zaydīs maintain that the father excludes the paternal grandmother, contrary to Ḥanbalīs, Ẓāhirīs and Ibāḍīs. See Cilardo, Scuole giuridiche sunnite, pp. 325–327.

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about this case, as it quotes no other rule for a grandmother except that which is contained in the ḥadīth (vol. 2, p. 378, n. 1352), thus implying that the final doctrine of the Ismaili school admits that the sole exception to the principle of proximity regarding the first class of heirs is based on the Prophetic tradition. The Minhāj (fol. 4v), Iqtiṣār (p. 133), Yanbūʿ (fol. 113r) and Āthār (fol. 118v) follow a Sunni doctrine in stating that a grandmother may inherit in the presence of descendants. This principle, however, is never considered in the Daʿāʾim, which represents the final position of the Ismaili school. In the Yanbūʿ (fol. 113r–113v), two cases are solved according to this Sunni doctrine, but some recourse is made to the Shiʿi doctrine which reject the proportional reduction of the shares of all the heirs. The first case concerns the walad (descendant), parents, wife and grandmother. In this instance, the inheritance is divided accordingly: two-sixths to the parents, one-sixth to the grandmother, one-eighth to the wife and the remainder to the walad. The second case considers the presence of the husband instead of the wife. Although, on the one hand, a Sunni rule is applied to the grandmother, on the other, only the walad suffers a reduction of his share, which is in keeping with the rule of the Imāmīs and Ismailis. Thus, the Ismaili school partly follows a Sunni doctrine, unlike the Imāmīs8 who state that both grandfathers and grandmothers are excluded from an inheritance by the parents and descendants of a deceased person. However, Imāmīs recommend that parents give ascendants one-sixth of their share under certain conditions. Sometimes the Minhāj adheres to the Sunni principles of agnation by upholding doctrines different from those found in the other Ismaili works and in the Imāmī school. So, two exceptions to the 8. al-Kulaynī, al-Uṣūl min al-kāfī. al-Furūʿ min al-kāfī. al-Rawḍa min al-kāfī, ed. ʿAlī Akbar al-Ghaffārī (Tehran, 1388–1389/1967–1968), vol. 7, pp. 114–115, nos. 11–16; Ibn Bābawayh, Kitāb man lā yaḥḍuruhu’l-faqīh (Najaf, 1377–1378/1957–1959), vol 4, p. 205, no. 683; al-Ṭūsī, al-Istibṣār fī-mā ikhtalafa min al-akhbār, ed. Ḥasan al-Mūsawī al-Khurāsānī (2nd ed., Najaf, 1376/1957), vol. 4, pp. 162–163, nos. 613–618; al-Ṭūsī, Tahdhīb al-aḥkām (Najaf, 1377–1382/1957–1962), vol. 9, pp. 310–312, nos. 1114– 1120; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ al-Islām fī masāʾil al-ḥalāl wa’l-ḥarām, ed. ʿAbd al-Ḥusayn Muḥammad ʿAlī (Najaf, 1389/1969), vol. 4, pp. 25–26/ French trans. Amédée Querry, Recueil de lois concernant les musulmans schyites (Paris, 1871–1872), vol. 2, pp. 345–346, nos. 163–165.

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principle of proximity, not present in the Iqtiṣār, Yanbūʿ,9 Āthār, Daʿāʾim or the Imāmī works, are found in the Minhāj (fols. 13r–14r). These concern the third class of heirs, where the agnation principle is important, because a relative on the paternal side has right to a double share with respect of a relative on the maternal side; and the first bars the second from the inheritance in some cases. The first regards a paternal uncle who is a consanguine brother of the father, and a paternal uncle who is a uterine brother of the father. Here, the Minhāj states the whole estate shall be allotted to the former, even though both are related to the same degree. According to the Minhāj, the reason for this is that there is no analogy between this case and that of a full or consanguine brother and uterine brothers and/or sisters, who are on the same degree, because uterine brothers and/or sisters are Qurʾanic heirs whereas the paternal uncles are not. This implies that a full or consanguine brother does not exclude uterine brothers and/or sisters, contrary to the case of paternal uncles. Later on, however, this rule was not followed in the case of a son of a paternal uncle who is a consanguine brother of the father, and a son of a paternal uncle who is a uterine brother of the father. Both sons were deemed to have the right to inherit: the Minhāj stated that the first had a right to two-thirds of the inheritance and the latter, one-third. This attribution is justified in the Minhāj by the principle of proximity, which allows the assertion that each one of them shall receive the share of the relative through whom his father is related to the deceased; that is, the father and the mother in the case under examination. The second exception to the principle of proximity is in regard to the case of a son of a paternal uncle who is a full brother of the father, and a paternal uncle who is a consanguine brother of the father. According to the Minhāj, even if the latter is the closer relative of the deceased, he is totally excluded from the inheritance in favour of the former, but with some inconsistency it is stated that if any heir is present, even if a maternal uncle, the paternal uncle’s son is excluded.10 9. The first case is solved according to the usual rules governing the third class of heirs: one-sixth goes to the paternal uncle who is a uterine brother of the father, and the remainder to the paternal uncle who is a consanguine brother of the father (fol. 116r). The Iqtiṣār, Āthār and Daʿāʾim do not solve this particular case, but only expound the principle of proximity. 10. Variations in the application of the principle of proximity to some

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Another case of the rejection of the principle of proximity in the Minhāj concerns the descendants of uterine brothers/sisters and a paternal grandfather. The Minhāj states that there is no explicit text (naṣṣ) on this case and that the former are excluded by the grandfather (fols. 12v and 13r), thus applying the agnation principle of the Sunni doctrine, but deviating from the Imāmī rule followed in the Yanbūʿ11 and Daʿāʾim.12 Many times, however, the Minhāj and the other Ismaili sources agree with the Imāmī rather than the Sunni doctrine, as on the question of how many brothers and/or sisters cause the mother to be partially excluded from an inheritance, thus reducing her share from one-third to one-sixth. The Sunni schools do not make a distinction between male and female siblings, such that in the presence of any two or more of these the mother is partially excluded from the inheritance. In the Minhāj, however, al-Nuʿmān maintains the following Imāmī doctrine: Neither a brother nor one or two or three sisters causes a reduction in the mother’s share from one-third to one-sixth; but only two or more brothers, or a brother and two sisters, because two sisters are considered like a brother, as if there were two brothers, [causes a reduction]. On the one hand, they cause a reduction in a mother’s share from one-third to one-sixth; on the other, they allow the father’s share to be increased from four-sixths to five-sixths, but they [brothers/sisters] do not receive anything (fol. 12r).

particular cases also existed in the Imāmī school; See Ibn Bābawayh, Kitāb man, vol. 4, pp. 200–201, 212, 222; Ibn Bābawayh, al-Muqniʿ wa’l-Hidāya (Tehran, 1377/1957–1958), pp. 174–175; al-Ṭūsī, Istibṣār, vol. 4, pp. 170–171, no. 644; al-Ṭūsī, Tahdhīb, vol. 9, p. 326, n. 1172, and p. 327, no. 1174; al-Ṭūsī, Kitāb al-khilāf (Najaf, 1956), vol. 2, p. 257, masʾala 11; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 30/Querry, Recueil, vol. 2, p. 352, no. 210. 11. The Yanbūʿ (fol. 115r) more clearly states that a brother’s son inherits the share of his father, while a sister’s son inherits the share of his mother in the presence of a grandfather, thus, fully accepting the system that allows the estate to be shared among heirs in the second class. Later on, the Yanbūʿ (fols. 115v–116v) lists the rules governing the principle of proximity. 12. al-Nuʿmān, Daʿāʾim, vol. 2, pp. 377–378, no. 1350. Al-Nuʿmān’s Iqtiṣār (pp. 134–135) and Āthār (fols. 120r–120v) do not solve this particular case, but only expound the principle of proximity.

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On the typology of siblings excluding the mother, we find a divergence in the Ismaili sources. For the Iqtiṣār (p. 133), Yanbūʿ (114r), Āthār (fol. 118v) and Daʿāʾim (vol. 2, p. 372), which follow the Imāmī doctrine, only two full or consanguine brothers, or a full or consanguine brother and two full or consanguine sisters, cause the partial exclusion of the mother, reducing her share of the inheritance from one-third to one-sixth, even if the brothers and sisters are excluded from that inheritance; uterine siblings, whatever their number, do not bar the mother from inheriting. The Minhāj (fol. 12r), on the contrary, does not make any such distinction between the types of brothers or sisters who exclude the mother from an inheritance. This is in keeping with Sunni doctrine. A fully defined system of classes was the final result of both Imāmī and Ismaili doctrinal development. But we have traces of earlier diverging opinions in the Imāmī school itself. For instance, according to Imāmī and Ismaili doctrine, descendants from the second degree onwards can inherit in the presence of the parents, just like the descendants of the first degree. However, Ibn Bābawayh,13 who represents a non-final elaboration of the Imāmī doctrine maintains an abandoned doctrine in his school, according to which the descendants from the second degree onwards can inherit only if the parents are not present. Moreover, in the Imāmī school there is a divergence between al-Kulaynī and Ibn Bābawayh on whether to apply the principle of proximity to the case of one or more uterine brothers/sisters and to male as well as female children of a full brother/sister. Against a negative answer from al-Kulaynī, Ibn Bābawayh states that he found no reference to this doctrine in the sources and confirms the application of the principle of proximity.14 Further, the Imāmī school abandoned the opinion of al-Kulaynī15 that the descendants of brothers/sisters do not always take the same place as the ascendants of brothers/sisters, much the same way that the descendants of the children do not always take the same place as the ascendants of the children. Also, there are divergences between 13. Ibn Bābawayh, Kitāb man, vol. 4, p. 201. See also al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 24/Querry, Recueil, vol. 2, p. 344, no. 150. 14. Ibn Bābawayh, Kitāb man, vol. 4, pp. 200–201 and 201–202; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, pp. 28–29/Querry, Recueil, vol. 2, pp. 349–350, no. 188. See a similar case in Ibn Bābawayh, Muqniʿ, p. 173. 15. al-Kulaynī, Uṣūl, vol. 7, p. 108.

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al-Kulaynī and al-Ṭūsī on whether grandfathers and grandmothers of the second degree onwards may be allowed to inherit.16 Moreover, Ibn Bābawayh, contrary to the final doctrine of his school, maintains that the position of the grandfather cannot be completely analogous to that of brothers.17 The lack of any reference to the classes in the Minhāj, the evident stylistic similarity to Sunni works and the many exceptions to the principle of proximity, allow us to conclude that the Minhāj represents an early elaboration of the Ismaili doctrine, which was based more on Sunni principles than Imāmī ones.

A Summary Comparison of the Doctrines of Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim System of classes: The Minhāj, Iqtiṣār, Yanbūʿ and Āthār do not explicitly mention the division of the heirs into three classes, but cases seem to be solved according to the principle of the total exclusion or partial exclusion. However, the Minhāj shows the most rudimentary and confused exposition. The Daʿāʾim clearly treats of the three classes of heirs. Agnation doctrine: The Minhāj provides an ambivalent and confused exposition, while in the Yanbūʿ, Āthār and Daʿāʾim there is a clear rejection of agnation. The Iqtiṣār does not even mention the agnates. Radd doctrine: The Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim rigidly exclude the husband and the wife from radd, while the Minhāj shows doctrinal uncertainty on the subject. ‘Awl doctrine: The Minhāj, Yanbūʿ, Āthār and Daʿāʾim maintain the same doctrine, affirming the principle that ‘shares cannot be reduced’. The Iqtiṣār is silent on this topic.

16. al-Kulaynī, Uṣūl, vol. 7, pp. 114–115, no. 16; p. 117; al-Ṭūsī, Tahdhīb, vol. 9, pp. 312–313, nos. 1121–1123; al-Ṭūsī, Khilāf, vol. 2, p. 274, masʾala 74; pp. 275–276, masʾala 78. 17. Ibn Bābawayh, Kitāb man, vol. 4, p. 208, no. 705.

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Impediments 1) Difference of religion. a) The Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim have the same doctrine regarding those belonging to a single nonIslamic denomination: each relative has the right to inherit from the other. b) The Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim also agree concerning the doctrine that non-Muslim heirs never inherit from Muslims nor do they exclude Muslims from inheriting, but Muslims have the right to inherit from their non-Muslim relatives, completely excluding their non-Muslim co-heirs. However, only the Minhāj relates an odd doctrine according to which both unbelievers and Muslims have the right to inherit from an unbeliever. c) The Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim maintain that an unbeliever who converted to Islam before the division of the estate is allowed to inherit according to his right. If, instead, he converted after the division of the estate, he is excluded from inheriting. The Minhāj is silent on the subject. d) The Yanbūʿ, Āthār and Daʿāʾim agree that the consequence of apostasy is a loss of all civil rights. The Minhāj and Iqtiṣār are silent on this topic. e) The Minhāj, Yanbūʿ and Daʿāʾim admit both licit and illicit kinship and marriage as titles to inherit. The Iqtiṣār and Āthār are silent on this subject. 2) Homicide. The Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim maintain that there is no distinction between premeditated murder and manslaughter, both voluntary and involuntary. The Minhāj makes a distinction between the two kinds of homicide. Moreover, according to the Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim, the diya is inherited according to the usual rules: all the heirs (including husbands and wives), except uterine brothers and sisters, inherit it. The Minhāj is silent. 3) Slavery. The Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim follow the general principle that a slave does not inherit from his relative who is free, and vice-versa. The Daʿāʾim, however, adds that when the deceased leaves only a slave relative, the latter shall

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be freed using the proceeds of the estate; the rest, if there is any, shall be given to the freed slave as an inheritance. The Minhāj relates only the solution of this case of a slave as sole heir. Only the Āthār admits the reciprocal right of a patron and his manumitted slave to inherit from each other, while the Minhāj, Iqtiṣār, Yanbūʿ and Daʿāʾim exclude a manumitted slave from the inheritance of his patron, even if the latter did not leave any blood relative. Only the Yanbūʿ considers the case of the sāʾiba, that is a slave freed fromthe bond of patronage, who can choose his own patron. Particular cases 1) Hermaphrodite. A progressively complex doctrine emerges regarding the determination of the sex of the hermaphrodite. The Minhāj represents the earliest stage, while the Iqtiṣār occupies an intermediate position; the Yanbūʿ and Āthār represent a further progress. Finally, the Daʿāʾim is the last doctrinal stage. 2) Foundling. The Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim maintain the same doctrine that only direct children, children’s children and the husband or wife can inherit from him. 3) Walad al-mulāʿana. The Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim agree that only the maternal relationship is proven. Moreover, only the Āthār and Daʿāʾim state that the same juridical consequences mentioned above apply only to the father if he renounces the liʿān. 4) Walad al-zinā. The Yanbūʿ, Āthār and Daʿāʾim equate the status of the walad al-zinā with the walad al-mulāʿana. The Minhāj and Iqtiṣār are silent on this issue. 5) Persons who drowned or died in a natural disaster, and it cannot be ascertained which one of them died first. The Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim agree that each relative should be deemed as having the right to inherit from the other. 6) The rights of a child in the womb. The Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim maintain that the pregnancy of a wife causes the freezing of the estate until she gives birth. 7) The inheritance of a husband and wife in the case of an

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i­ rrevocable repudiation. a) A husband, who irrevocably repudiates a wife suffering from a fatal disease, dies before her: The Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim agree that the woman should inherit from her husband, except if she has re-married. b) A husband with a fatal disease who irrevocably repudiates a wife dies after her: The Minhāj, Iqtiṣār, Yanbūʿ and Āthār do not examine this case, while the Daʿāʾim mentions it almost as an inconsequential afterthought, because the five Ismaili sources apply the general principle that an irrevocable repudiation causes the interruption of the reciprocal rights of husband and wife. II. Agnation doctrine

Faced with the complete acceptance of agnation by the Sunnis and its full rejection by the Imāmīs, al-Nuʿmān provided an ambivalent and confused exposition on the subject in the Minhāj. There, agnation is considered to be a basis on which one has the right to claim an inheritance.18 The manuscript provides a flawed definition of the agnates (ʿaṣaba),19 in Section 1, because it omits to mention the most important of them (male descendants, father, paternal grandfathers), even if then (Section 2) proceeds to give a complete list of the agnates iure proprio (ʿaṣaba bi-nafsihi), or agnates for themselves, the true agnates, who have the right to inherit according to the principle of proximity, omitting, however, the grandfather.20 This acceptance of 18. ‘There are three established categories of heirs: heirs by quota, who are never excluded from an inheritance, relatives on the maternal side and agnates’ (fol. 2r). 19. ‘As for the agnates, they are the grandfather’s descendants (that is, paternal uncles and their descendants) and the father’s descendants (that is, a brother and his descendants); in other words, males only’ (fol. 3v). 20. ‘The nearest among the agnates is the son; then the son’s son, however low; then the father; then the full brother; then the consanguine brother; then the full brother’s son; then the consanguine brother’s son; then the paternal uncle who is a full brother of the father; then the paternal uncle who is a consanguine brother of the father; then the son of a paternal uncle, who is a full brother of the father; then the son of a paternal uncle, who is a consanguine brother of the father; then according to this order; the patron follows; and, lastly, the patron who signed a contract of clientage’

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agnation and listing of the agnates resembles a Sunni treatise and brings to mind a Mālikī composition, because of the position of the paternal grandfather in the list of agnates and the wide debate regarding his right in the inheritance in the presence of full and/or consanguine brothers. Ḥanafīs list the paternal grandfather after the father and before full or consanguine brothers, while Mālikīs equate a paternal grandfather and full or consanguine brothers, which is exactly the rule applied by al-Nuʿmān, even if he omits to mention the grandfather in his list of agnates. However, later on al-Nuʿmān erroneously mentions the sister, or the sister’s descendants, and uterine relatives among the agnates.21 Furthermore, al-Nuʿmān mentions the Qurʾanic rule (4:12, 176) on the ʿaṣaba bi-ghayrihi (agnates because of another),22 significantly ignoring, however, the late terminology of ʿaṣaba bi-nafsihi, ʿaṣaba bi-ghayrihi and ʿaṣaba maʿa ghayrihi (agnates with another: daughter/s inheriting in the presence of full or consanguine sister/s). Finally, al-Nuʿmān presents a list, close to that of the Mālikī doctrine and in contrast to the system of classes, of additional persons who have the right to inherit: ‘If heirs by quota, relatives on the maternal side and agnates have become extinct, the estate shall be given to his patron; then to his patron’s agnates; then to those relatives on the [deceased’s] maternal side to whom no share is allotted in the Book of God; finally to the Public Treasury’ (fol. 4r). However, al-Nuʿmān does not go so far as to admit one of the consequences of the agnation doctrine. Thus, in the case of a full, a consanguine and a uterine sister inheriting together, he maintains that a uterine sister shall be apportioned one-sixth because she belongs to the [category of] maternal half-siblings, to whom God apportioned (fol. 3v). 21. ‘But if she [the wife] leaves agnates, such as a brother, or a brother’s descendants, or a sister, or a sister’s descendants, or a paternal uncle, or a paternal uncle’s descendants, or one of her kindred belonging to agnates or relatives on the maternal side, the nearest to the deceased person among them shall receive the remainder. If, instead, she leaves no relatives, the remainder shall be given to the Public Treasury’ (fol. 7v). 22. ‘Four types of male heirs render four types of female heirs agnates: sons, sons’ sons, full brothers and consanguine brothers. They are the only males who make their sisters agnates, whereas among the remaining male agnates, only males inherit the estate’ (fol. 4r).

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no more than more than one-sixth in His Book. The remainder shall be allotted to the full sister as [an] inheritance and proportional increase (radd), because she is the nearest to the deceased person, as she is his full sister. The consanguine sister does not receive anything in her presence (fol. 3v–4r).

Thus, al-Nuʿmān rejects the Sunni doctrine which, under certain conditions, allows consanguine sisters to inherit in the presence of full sisters. There is no uncertainty in the Yanbūʿ,23 Āthār (fol. 119v–120r) and Daʿāʾim about the doctrine of agnation.24 In fact, in the latter work agnates are cited only to reject the Sunni doctrine of agnation. In these three works, agnates are to be considered like any other relative, and their share of the inheritance should only be based on their proximity to a deceased person, be they male or female. For this reason, for instance, both paternal and maternal grandfathers and grandmothers have the right to inherit on identical grounds. In the Iqtiṣār, agnates are not even mentioned. In conclusion, the Ismaili conception of the doctrine of agnation in the Minhāj is at a germinative stage, even preceding that of the Iqtiṣār, and represents an intermediate position between the Mālikī doctrine and the final elaboration of the Ismaili school. III. Radd doctrine The general principle of radd accepted by Ismailis and Imāmīs25 is that each heir shall be given the share fixed in the Book and the 23. The Yanbūʿ refutes the doctrine of agnation and upholds the principle of proximity (which is peculiar to the system of classes) in the solutions of some cases. For example, in the case of (1) a full sister and a consanguine brother, it allots the whole estate to the sister; (2) two sons of a paternal uncle, where one of them is a uterine brother of the deceased person, it states that the son who is the uterine brother of the de cuius has the right to the whole estate; (3) two sons of a paternal uncle, where one of them is the husband of the deceased person and the other is her uterine brother, the husband has the right to one-half and the uterine brother to the remainder (114v). 24. al-Nuʿmān, Daʿāʾim, vol. 2, pp. 365–366, no. 1329; pp. 379–380, nos. 1357, 1359–1360. 25. The final radd theory formed only gradually in the Imāmī school and there are many divergences among the Imāmī jurists. See al-Kulaynī,

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remainder shall return to the heir by kinship according to his proximity to the deceased.26 The affirmation of this principle in the Ismaili milieu may go back to the beginning of the fourth century of the hijra, at a time when al-Marwazī (d. 303/915–916), the first Fatimid qāḍī, issued an order which upheld the right of a daughter to inherit the whole of her father’s estate, to the exclusion of the ʿaṣaba, in the absence of a son. To this rule may be connected the report by al-Kindī27 that al-Muʿizz ordered his qāḍīs to allot a daughter the entire estate if a brother or a sister of the deceased is not present. But for Imāmīs and Ismailis, a daughter (a Class I heir) causes the exclusion of a brother or a sister (Class II heirs) of the deceased; thus their presence does not damage the daughter’s right to inherit in any instance, and she has the right to inherit the whole estate by share and radd. According to the Sunni doctrine, however, if a brother or a sister of the deceased are present, one-half shall be apportioned to a daughter and one-half to a full or consanguine brother as befits an ʿaṣaba bi-nafsihi, or to a full or consanguine sister as befits an ʿaṣaba maʿa ghayrihi. A husband and a wife are, however, excluded from the doctrine of radd. But for the Imāmīs, the exclusion of the husband is not so peremptory. In the absence of any other heir he is entitled to receive the remainder,28 as is the case in the Ḥanafī school. For the wife, Uṣūl, vol. 7, p. 123; Ibn Bābawayh, Kitāb man, vol. 4, pp. 199–200; p. 242, no. 774; al-Ṭūsī, Tahdhīb, vol. 9, pp. 322–323, nos. 1157–1158; al-Ṭūsī, Istibṣār, vol. 4, pp. 168–169, no. 637; al-Ṭūsī, Khilāf, vol. 2, pp. 258–259, masʾala 15; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, pp. 27–28, 30, 40 and 59/Querry, Recueil, vol. 2, p. 349, nos. 184–185; p. 351, no. 201; p. 362, nos. 292–293; p. 380, no. 382. 26. The Yanbūʿ (fol. 113r) applies the doctrine of radd to the case of an only daughter, who has the right to one-half of the inheritance and to the remainder by raḥim (blood relationship); and to the cases of one or both parents and one or more daughters (fols. 113v–114r). 27. al-Kindī, Wulāt wa-quḍāt, p. 587. See also Ḥasan and Sharaf, al-Muʿizz, p. 200. 28. al-Kulaynī, Uṣūl, vol. 7, pp. 125–126, nos. 1–7; Ibn Bābawayh, Kitāb man, vol. 4, pp. 191–192, nos. 666–667; Ibn Bābawayh, Muqniʽ, pp. 170–171; Ibn Bābawayh, Hidāya, p. 83; al-Ṭūsī, Khilāf, vol. 2, pp. 253–254, masʾala 3; p. 301, masʾala 130; p. 306, no. 151; al-Ṭūsī, Istibṣār, vol. 4, pp. 148–149, nos. 558–563; al-Ṭūsī, Tahdhīb, vol. 9, pp. 294–295, nos. 1050–1056; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, pp. 10–11, 18 and 59/Querry, Recueil, vol. 2, p. 328,

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Imāmī sources present three different doctrines:29 (a) the remainder is due to the wife if no other relative is present, as in the Ḥanafī school of law; (b) the imam has a right to the remainder, as in the Mālikī school; (c) the remainder is due to the imam if he is present, but if he is in a state of concealment, the remainder shall be allotted to the wife. This latter rule resembles the Mālikī doctrine with an Imāmī nuance. The Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim adhere to a rigid principle, excluding both the husband and the wife from radd.30 The Iqtiṣār simply enunciates the principle that relatives, except spouses, have a right to radd: neither husband nor wife shall in any case receive more or less than their Qurʾanic shares, without adding anything more. In contrast, the Minhāj shows doctrinal uncertainty on the subject, which is a clear mark of its chronological precedence. In the Minhāj, there is no doubt that a wife cannot in any case receive the remaining part, so, if there are neither relatives nor agnates, the remainder of the inheritance shall be allotted to the Public Treasury (bayt al-māl) (fols. 7v–8r). However, the doctrine of Minhāj seems inconsistent as regards the husband. On the one hand, it states that he shall receive one-half of the estate and the remainder (‘If a woman dies and does not leave either a child or a son’s child, her husband shall receive half the estate and what[ever] remains’). On the other hand, further on, it states that if a wife leaves no agnatic relatives or uterine relatives, ‘what remains shall be given to the Public Treasury [and] her husband shall not be given more than one-half’ (fol. 7v).

nos. 13–15; p. 338, no. 94; p. 380, no. 382. 29. al-Kulaynī, Uṣūl, vol 7, pp. 126–127, nos. 1–5; Ibn Bābawayh, Musnad al-Imām Riḍā (Beirut, 1403/1983), vol. 2, pp. 434–435, no. 11; Ibn Bābawayh, Kitāb man, vol. 4, pp. 191–192, nos. 666–667; Ibn Bābawayh, Muqniʿ, pp. 170 and 171; Ibn Bābawayh, Hidāya, p. 83; al-Ṭūsī, Tahdhīb, vol. 9, pp. 295–296, nos. 1056–1058; al-Ṭūsī, Istibṣār, vol. 4, pp. 149–151, nos. 564–569; al-Ṭūsī, Khilāf, vol. 2, p. 301, masʾala 130; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 18/Querry, Recueil, vol. 2, p. 338, no. 94. 30. al-Nuʿmān, Iqtiṣār, p. 132; al-Nuʿmān, Yanbūʿ, fol. 114r; al-Nuʿmān, Āthār, fols. 3v, 118r; al-Nuʿmān, Daʿāʾim, vol. 2, p. 373, no. 1341; pp. 393–394, no. 1390 (where the author refutes the opposite doctrine).

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IV. ʿAwl doctrine Contrary to the Sunnis, who maintain that the shares of all the heirs are subject to reduction, the Minhāj imperatively states that ‘shares cannot be reduced’ (fol. 9r),31 in accordance with the practices of Shiʿis. In fact, only the heirs with the weakest juridical right to claim an inheritance, that is, the children and full or consanguine brothers and/or sisters, shall suffer a reduction of their share. These same heirs (that is, descendants, full and consanguine brothers and sisters), who have the privilege of receiving more in certain circumstances when they are residuary heirs, are the very ones whose shares will be reduced. For this reason, one cannot properly speak of ‘proportional reduction’ (ʿawl) of all the shares, but only of a diminution (naqṣ) of some of the shares, because the general principle is that Qurʾanic ‘shares shall not be proportionally reduced’.32

31. See also the Yanbūʿ, fols. 113r and 116v. The two cases of either a male or female descendant, parents, grandmother and the husband or wife are solved accordingly: two-sixths to the parents, one-sixth to the grandmother, one-quarter to the husband, and the remainder to the descendants; two-sixths to the parents, one-sixth to the grandmother, one-eighth to the wife, and the remainder to the descendants (fols. 113r– 113v). 32. al-Nuʿmān, Minhāj, fols. 2r–3r; al-Nuʿmān, Yanbūʿ, fols. 114r and 116v; al-Nuʿmān, Āthār, fols. 120v, 121r and 121v; al-Nuʿmān, Daʿāʾim, vol. 2, pp. 381–382, no. 1362; al-Kulaynī, Uṣūl, vol. 7, pp. 79–80, nos. 1–3; pp. 80–81, nos. 1–7; p. 82, nos. 1–4; pp. 101–102, no. 3; p. 103, no. 5; Ibn Bābawayh, Kitāb man, vol. 4, pp. 187–189, nos. 654–657; Ibn Bābawayh, Hidāya, p. 82; Ibn Bābawayh, Muqniʿ, pp. 167–168; Ibn Bābawayh, ʿIlal al-sharāʾiʿ (Najaf, 1383/1963), pp. 567–569; al-Ṭūsī, Khilāf, vol. 2, pp. 281–282, masʾala 81; al-Ṭūsī, Tahdhīb, vol. 9, pp. 247–251, nos. 958–970; p. 286, no. 1038; pp. 319–320, no. 1148; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, pp. 11, 19–20 and 59/Querry, Recueil, vol. 2, p. 328, no. 16; p. 339, nos. 103–109; p. 379, nos. 378–379. Al-Ḥillī gives a more defined elaboration of the subject, because he tries to formulate general principles. In this context, he observes that cases requiring the application of naqṣ always occur when a husband is present (al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 59/Querry, Recueil, vol. 2, p. 379, nos. 378–379).

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V. Impediments to inheritance Difference of religion a) As regards relatives belonging to a single non-Islamic denomination, Imāmīs33 and Ismailis,34 following the Mālikī and Ḥanbalī doctrine,35 state that each relative has the right to inherit from the other, but heirs belonging to different denominations have no reciprocal right of inheritance. However, later, the Imāmī al-Ḥillī36 changed this doctrine. In adherence to the Ḥanafī37 and 33. al-Kulaynī, Uṣūl, vol. 7, pp. 142–143, nos. 1–5; Ibn Bābawayh, Kitāb man, vol. 4, pp. 243–245, nos. 776–789; Ibn Bābawayh, Hidāya, p. 87; Ibn Bābawayh, Muqniʿ, p. 176; al-Ṭūsī, Khilāf, vol. 2, p. 259, masʾala 16–17; al-Ṭūsī, Tahdhīb, vol. 9, pp. 365–368, nos. 1302–1308 and 1312–1313; p. 370, no. 1321; p. 372, no. 1329. So it is explained in a series of cases in the Imāmī sources: al-Ṭūsī, Istibṣār, vol. 4, pp. 189–193, nos. 706–724; al-Ṭūsī, Tahdhīb, vol. 9, pp. 365–366, nos. 1302–1305 and 1307. 34. al-Nuʿmān, Minhāj, fols. 23v–26r; al-Nuʿmān, Iqtiṣār, p. 135; al-Nuʿmān, Yanbūʿ, fols. 117r–117v; al-Nuʿmān, Āthār, fols. 122r–122v; al-Nuʿmān, Daʿāʾim, vol. 2, pp. 385–386, no. 1369. 35. ʿAbd Allāh Muḥammad al-Jubūrī, Fiqh al-Imām al-Awzāʿī (Baghdad, 1397/1977), vol. 2, p. 150; Mālik b. Anas, Muwaṭṭaʾ (ed. Yaḥyā b. Yaḥyā), vol. 3, pp. 119–121, nos. 1127–1131; al-Zurqānī, Sharḥ on Mālik b. Anas’ Kitāb al-muwaṭṭaʾ, ed. Yaḥyā b. Yaḥyā, vol. 3, pp. 119–121; Saḥnūn, al-Mudawwana al-kubrā (Cairo, 1323–1324/1905), vol. 8, p. 97; Khalīl b. Isḥāq, al-Mukhtaṣar, trans. I. Guidi and D. Santillana, Il ‘Mukhtaṣar’ o Sommario del diritto malechita (Milan, 1919), vol. 2, p. 839, no. 29; al-Sarakhsī, Kitāb al-mabsūṭ (Cairo, 1324–1331/1906–1913), vol. 30, p. 31; al-Khiraqī, al-Mukhtaṣar, in al-Mughnī, vol. 7, p. 165; Ibn Qudāma, al-Mughnī (Cairo, 1341–1348/1922–1930), vol. 7, pp. 167–168; Ibn Qudāma, al-ʿUmda fī fiqh imām al-sunna Aḥmad b. Ḥanbal al-Shaybānī (Cairo, 1385/1965–1966), p. 84; Ibn Qudāma, al-Kāfī fī fiqh al-Imām Aḥmad b. Ḥanbal (Damascus, 1964), vol. 2, p. 556. 36. al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 13/Querry, Recueil, vol. 2, p. 331, nos. 33–34. 37. al-Shaybānī, Kitāb al-siyar al-kabīr (see al-Sarakhsī, Sharḥ), vol. 4, pp. 138–139; al-Sarakhsī, Sharḥ in Kitāb al-Siyar al-kabīr (Hyderabad, 1335–1336/1916–1918), vol. 4, p. 139; al-Sarakhsī, Mabsūṭ, vol. 30, p. 30; al-Qudūrī, al-Mukhtaṣar (Cairo, 1367/1948), p. 123; Mālik b. Anas, Kitāb al-muwaṭṭaʾ, ed. al-Shaybānī, with the sharḥ by ʿAbd al-Ḥayy al-Laknawī (2nd ed., Cairo 1387/1967), p. 255, nos. 728–729; ʿAbd al-Ḥayy al-Laknawī, Sharḥ on Kitāb al-muwaṭṭaʾ, ed. al-Shaybānī, p. 255; Ibn Qudāma, Mughnī, vol. 7, p. 167.

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Shāfiʿī38 schools, he maintained that all unbelievers belonging to different non-Islamic denominations have a reciprocal right to inherit from each other in the same manner as Muslims belonging to different schools of law. b) As for the relation between Muslim and non-Muslim relatives, for Imāmīs39 and Ismailis,40 non-Muslim heirs never inherit from Muslims nor do they exclude Muslims from inheriting, as is generally stated also in the Sunni schools.41 But, contrary to the Sunnis, Imāmīs and Ismailis maintain that Muslims have the right to inherit 38. al-Nawawī, Minhâdj aṭ-ṭâlibîn, le guide des zélés croyants. Manuel de jurisprudence musulmane selon le rite de Châfi’î, tr. L.W.C. van den Berg (Batavia, 1882–1884) vol. 2, p. 243; Ibn Qudāma, Mughnī, vol. 7, p. 167. 39. al-Kulaynī, Uṣūl, vol. 7, p. 146, no. 2; Ibn Bābawayh, Kitāb man, vol. 4, p. 243, no. 778; p. 244, nos. 781–786; Ibn Bābawayh, Muqniʿ, p. 176; al-Ṭūsī, Tahdhīb, vol. 9, p. 284, no. 1027; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, pp. 11–12/Querry, Recueil, vol. 2, p. 329, nos. 22–23. 40. al-Nuʿmān, Minhāj, fols. 4r, 23v, 23v–25r and 25v–26r; al-Nuʿmān, Iqtiṣār, p. 135; al-Nuʿmān, Yanbūʿ, fols. 117r and 117v; al-Nuʿmān, Āthār, fols. 122r–122v; al-Nuʿmān, Daʿāʾim, vol. 2, pp. 385–386, no. 1369. The Yanbūʿ (fol. 117v) also relates that if the only relative is a kāfir, the estate shall be allotted to the bayt al-māl, as it is also stated by al-Nuʿmān in the Daʿāʾim (vol. 2, p. 392) and al-Muḥaqqiq al-Ḥillī in the Sharāʾiʿ, vol. 4, p. 12/ Querry, Recueil, vol. 2, p. 330, no. 26. 41. al-Jubūrī, Fiqh, vol. 2, p. 148; al-Sarakhsī, Mabsūṭ, vol. 30, p. 30; al-Qudūrī, Mukhtaṣar, p. 123; Mālik b. Anas, Muwaṭṭaʾ (ed. Yaḥyā b. Yaḥyā), vol. 3, p. 121, no. 1131; al-Zurqānī, Sharḥ muwaṭṭaʾ, vol. 3, p. 121; Mālik b. Anas, Muwaṭṭaʾ (ed. al-Shaybānī), p. 255, nos. 728–729; al-Laknawī, Sharḥ muwaṭṭaʾ, p. 255; Saḥnūn, Mudawwana, vol. 8, p. 97; Ibn Abî Zayd al-Qayrawânî, La Risâla ou épître sur les éléments du dogme et de la loi de l’Islâm selon le rite mâlikite, ed. Léon Bercher (5th ed., Alger, 1960), pp. 280–281; al-Shāfiʿī, Kitāb al-umm (Cairo, 1321–1325/1903–1908), vol. 4, pp. 2–4 and 13–16; al-Shāfiʿī, al-Risāla [al-jadīda], in Kitāb al-umm, vol. 7, p. 25; al-Shāfiʿī, al-Risāla [al-jadīda], ed. Aḥmad Muḥammad Shākir (Beirut, 1358/1939), p. 65, no. 216; pp. 168–169, no. 472; p. 172, no. 478; p. 455, no. 1244; al-Shāfiʿī, Tartīb Musnad al-Imām al-Muʿaẓẓam wa’lMujtahid al-Muqaddam Abī ʿAbd Allāh Muḥammad b. Idrīs al-Shāfiʿī, ed. Muḥammad Zāhid b. al-Ḥasan al-Kawtharī (Cairo, 1369–1370/1950– 1951), vol. 2, p. 190, no. 676; al-Muzanī, al-Mukhtaṣar, in the margins of al-Shāfiʿī’s Kitāb al-umm, vol. 3, p. 139; al-Subkī, Fatāwā al-Subkī (Cairo, 1356/1965), vol. 2, p. 243; al-Nawawī, Minhâdj, vol. 2, p. 243; Ibn Qudāma, Mughnī, vol. 7, pp. 165–166; Ibn Qudāma, al-Muqniʿ fī fiqh Imām al-sunna Aḥmad b. Ḥanbal (2nd ed., Cairo, 1382/1962–1963), vol. 2, p. 448.

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from their non-Muslim relatives, completely excluding their nonMuslim co-heirs. Therefore, if a non-Muslim leaves relatives who are unbelievers and relatives who are Muslim, the estate should be allotted to the latter, even if the unbelievers are the closest relatives.42 The Ismaili Iqtiṣār (p. 135), Yanbūʿ (fols. 117r–117v), Āthār (fols. 122r–122v) and Daʿāʾim (vol. 2, pp. 285–286, no. 1369), simply enunciate this principle; only the Minhāj (fols. 23v–25r; 25v–26r) relates an odd doctrine according to which both unbelievers and Muslims have the right to inherit from an unbeliever. However, it does specify that a non-Muslim heir does not bar a more remote Muslim heir from inheriting, whereas a non-Muslim heir is excluded from the inheritance in the presence of a closer Muslim heir. Thus, the rule of representation, although rejected by all the schools of law, is applied in the Minhāj when the heirs of an ahl al-dhimma (protected nonMuslims) consist of both Muslims and ahl al-dhimma. If all of the heirs are related to the deceased to the same degree, the estate shall be divided among them according to the usual rules; so a Muslim shall receive the same share as an unbeliever. If a Muslim heir is more remotely related to the deceased than, for example, a Christian heir, both have the right to inherit; and the Muslim shall receive the share which would have been allotted to his relative if that relative had been alive to inherit; that is, he represents his relative. For instance, if the heirs are a Christian child and a Muslim maternal uncle, the maternal uncle shall receive the share that his mother would have inherited, that is one-third, even though he is more remotely related to the deceased than the deceased’s offspring. Moreover, a Christian child cannot cause the reduction of the share of his Muslim mother from one-third to one-sixth; that is, a Christian child does not bar either his Muslim mother or her Muslim relatives from inheriting. In the same manner, a Christian child does not bar a Muslim father and a Muslim grandfather’s children from inheriting. The general principle is that an unbeliever does not bar a Muslim from inheriting: whoever is the closer relative of the deceased bars the more remote, except if the latter is a Muslim. However, this rule does not apply if the closest heir is a Muslim and the most remote is a Christian. In this case, one makes recourse to the usual Islamic 42. al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 12/Querry, Recueil, 2, p. 329, no. 24.

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principle: the nearest heir bars the more remote one from inheriting. Thus, the estate shall be divided only among the Muslim relatives. For instance, if a Christian dies and leaves a Muslim son and a Christian son’s son, the whole estate shall be due to the Muslim son; or, if a person leaves a Muslim brother and a Christian brother’s son, the Muslim brother shall receive the whole estate. Sunni doctrine generally admits a diriment impediment to inheritance between Muslim and non-Muslim co-heirs. However, Sunni sources keep the opinion of Muʿādh and Muʿāwiya that a Muslim shall inherit from a kāfir (unbeliever), but not vice-versa.43 Moreover, some Sunni ḥadīth literature relates cases in which a Muslim inherited from a non-Muslim only because the unbeliever had no heir of his own denomination.44 Undoubtedly, Imāmī scholars developed this minority Sunni reference to create a new rule; the Minhāj applies the same, adapting the above reference, but keeping a more archaic phase, which precedes even that of the Iqtiṣār. c) The doctrine on the conversion to Islam is the same for Imāmīs,45 Ismailis46 and Ḥanbalīs (although Ibn Ḥanbal himself did not agree with it).47 Accordingly, an unbeliever who converted to Islam before the division of the estate is allowed to inherit according to his right. If, instead, he converted after the division of the 43. al-Dārimī, al-Musnad al-Jāmiʿ or al-Sunan (Medina, 1386/1966), vol. 2, p. 267, no. 2999; al-Bayhaqī, al-Sunan al-kubrā (Hyderabad, 1354–1356/1925–1927; repr. Beirut, 1406/1986), vol. 6, pp. 254 and 255; al-Sarakhsī, Mabsūṭ, vol. 30, pp. 30–31; Ibn Qudāma, Mughnī, vol. 7, p. 166. For the theoretical basis of this doctrine, see the two latter references. 44. ʿAbd al-Razzāq, al-Muṣannaf (Karachi, 1390–1392/1970–1972), vol. 6, p. 19, no. 9870; vol. 10, pp. 247–248, no. 19002; p. 344, nos. 19314–19315; Abū Dāwūd al-Sijistānī, Kitāb al-sunan (Beirut, 1970), vol. 3, p. 85, nos. 2912–2913; al-Bayhaqī, Sunan, vol. 6, pp. 254 and 255. 45. al-Kulaynī, Uṣūl, vol. 7, p. 144, nos. 3–4; Ibn Bābawayh, Kitāb man, vol. 4, p. 237, no. 758; Ibn Bābawayh, Muqniʿ, p. 179; al-Ṭūsī, Khilāf, vol. 2, pp. 259–260, masʾala 18; al-Ṭūsī, Tahdhīb, vol. 9, pp. 336–337, no. 1211; pp. 369–370, nos. 1317–1318 and 1320; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 9, p. 12/Querry, Recueil, vol. 2, p. 330, no. 27. 46. al-Nuʿmān, Iqtiṣār, p. 135; al-Nuʿmān, Yanbūʿ, fol. 117v; al-Nuʿmān, Āthār, fol. 122v; al-Nuʿmān, Daʿāʾim, vol. 2, p. 386, no. 1370. 47. al-Khiraqī, Mukhtaṣar, vol. 7, p. 171; Ibn Qudāma, Mughnī, vol. 7, pp. 172–173; Ibn Qudāma, Muqniʿ, vol. 2, p. 448; Ibn Qudāma, Kāfī, vol. 2, p. 556.

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estate, he should be excluded from the inheritance. In contrast, the remaining schools consider the time of death of the relative to be relevant.48 The Imāmī al-Ḥillī49 provides a more detailed exposition on this subject. The Minhāj says nothing on this subject, whereas the highly abridged Iqtiṣār does. This might be a further indication of the former’s earlier elaboration. d) For Imāmīs,50 three Ismaili sources51 and Sunnis, the consequence of apostasy is a loss of all civil rights.52 Al-Ḥillī further develops the Imāmī doctrine which distinguishes between the apostasy of a person who was a Muslim by birth and that of a person who became a Muslim although born into another religion, imputing a stricter consequence to the first. Based on this distinction, al-Ḥillī53 48. al-Jubūrī, Fiqh, vol. 2, p. 148; Saḥnūn, Mudawwana, vol. 8, pp. 98–99; Khalīl, Mukhtaṣar, vol. 2, pp. 839–840, no. 30; Ibn ʿĀṣim, Traité de droit musulman. La Tohfat d’Ebn Acem, texte arabe avec traduction française, commentaire juridique et notes philologiques by O. Houdas and F. Martel (Alger, 1882), pp. 894–895, no. 1686; al-Shāfiʿī, Umm, vol. 6, p. 77; Ibn Qudāma, Mughnī, pp. 171–172. 49. al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 12/Querry, Recueil, vol. 2, p. 330, no. 28. He relates three doctrines that are incompatible. The first is that an unbeliever who converted to Islam is excluded by the presence of even one Muslim heir, but has precedence over the imam. The second doctrine is that, if the conversion to Islam occurs before the transfer of the estate to the bayt al-māl, the converted has the right to inherit. The third doctrine is that an unbeliever who converted to Islam is always excluded from the inheritance by the imam. 50. Ibn Bābawayh, Kitāb man, vol. 4, p. 242, nos. 771–772; al-Ṭūsī, Khilāf, vol. 2, pp. 293–294, masʾala 110; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 13/Querry, Recueil, vol. 2, pp 331–332, nos. 36–37. 51. al-Nuʿmān, Yanbūʿ, fol. 117v; al-Nuʿmān, Āthār, fol. 122v; al-Nuʿmān, Daʿāʾim, vol. 2, p. 386, no. 1372. 52. al-Jubūrī, Fiqh, vol. 2, p. 149; al-Shāfiʿī, Umm, vol. 4, pp. 13–16; al-Muzanī, Mukhtaṣar, vol. 3, pp. 150–151; al-Nawawī, Minhâdj, vol. 2, p. 243; al-Ṭaḥāwī, al-Mukhtaṣar, ed. Abū’l-Wafāʾ al-Afghānī (Cairo, 1370/1950), p. 123; al-Khiraqī, Mukhtaṣar, vol. 7, p. 170; Ibn Qudāma, Mughnī, vol. 7, pp. 170–171; Ibn Qudāma, Muqniʿ, vol. 2, p. 450; Ibn Qudāma, Kāfī, vol. 2, p. 556; Ibn Qudāma, ʿUmda, p. 84; Abū’l-Layth al-Samarqandī, Khizānat al-fiqh wa-ʿuyūn al-masāʾil, ed. Ṣalāḥ al-Dīn al-Nāhī (Baghdad, 1385–1386/1965–1967), vol. 1, p. 416. 53. al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 12/Querry, Recueil, vol. 2,

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modifies the Imāmī rule (that Muslims have the right to inherit from their non-Muslim relatives to the exclusion of their nonMuslim co-heirs), introducing his own specific doctrine that, if an unbeliever has no Muslim heirs left, but only unbeliever relatives, the latter have the right to inherit from him only if the deceased was an unbeliever in origin (aṣlī). On the contrary, if the deceased is a murtadd, but a Muslim by birth, the imam has the right to inherit from him to the exclusion of his heirs who are unbelievers. However, according to a rarely followed (shādhdha) report, in this case his heirs who are unbelievers inherit from him too. On this issue, nothing is said in either the Minhāj or the Iqtiṣār. Is this again a mark of their earlier composition? e) In the Imāmī school, there are three doctrines concerning the inheritance of Muslims who converted to Islam from Mazdaism.54 The first is that Mazdeans inherit only on the grounds of kinship and marriage licit for the sharīʿa, as stated in an isolated Sunni doctrine.55 The second doctrine is that they can inherit on the grounds of kinship whether or not their birth was legitimate, but cannot inherit on the grounds of marriage if that marriage was deemed illicit under sharīʿa law. This doctrine, although followed both in early times and by later scholars (mutaʾakhkhirūn), like al-Faḍl b. Shādhān (d. 260/874), Ibn Bābawayh (d. 311/923) and al-Mufīd (d. 413/1022), did not prevail among mainstream Imāmīs.56 Among Sunnis, this was the doctrine of the Ḥanafīs and the Ḥanbalīs.57 The third, quite pp. 329–330, no. 25. 54. Cilardo, Scuole giuridiche ismailita e imamita, pp. 42–44. 55. al-Bayhaqī, Sunan, vol. 6, p. 260; al-Sarakhsī, Mabsūṭ, vol. 30, pp. 34–35. 56. al-Kulaynī, Uṣūl, vol. 7, p. 145; Ibn Bābawayh, Kitāb man, vol. 4, pp. 248–250, no. 804; Ibn Qudāma, Muqniʿ, p. 179; al-Ṭūsī, Istibṣār, vol. 4, pp. 188–189, nos. 704–705; Ibn Qudāma, Tahdhīb, vol. 9, pp. 364–365, nos. 1299–1301; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, pp. 52 and 53–54/Querry, Recueil, vol. 2, pp. 373–375, nos. 358 and 361–363. 57. al-Qudūrī, Mukhtaṣar, p. 123; al-Ṭaḥāwī, Mukhtaṣar, pp. 150–151; al-Sarakhsī, Mabsūṭ, vol. 30, pp. 33–34; Ibn Qudāma, Mughnī, vol. 7, pp. 178–181; Ibn Qudāma, Kāfī, vol. 2, pp. 557–558 ; Ibn Qudāma, Muqniʿ, vol. 2, p. 451. Al-Shāfiʿī (Umm, vol. 4, p. 12; al-Muzanī, Mukhtaṣar, vol. 3, pp. 154–155; al-Nawawī, Minhâdj, vol. 2, pp. 246–247) considers which title gives one the greatest right to inherit.

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rudimentary, doctrine which was maintained by al-Ṭūsī,58 prevalent in the Imāmī school and present in the Minhāj (fols. 25r–25v), Yanbūʿ (fol. 117v) and Daʿāʾim (vol. 2, 386, no. 1371), but not present among the Sunnis, admits inheritance by those of both licit and illicit kinship and marriage. The Iqtiṣār and the Āthār are silent on the subject. Homicide The most rigid and ancient doctrine, followed in the Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim59 and the earliest Imāmī scholars, such as al-Kulaynī and Ibn Bābawayh (who attribute this doctrine to al-Faḍl b. Shādhān al-Nīsābūrī),60 maintains that there is no distinction between premeditated murder and manslaughter, both voluntary and involuntary: they are diriment impediments to the killer inheriting both the estate and the diya. This doctrine is followed by Abū Ḥanīfa, al-Shāfiʿī, Ibn Ḥanbal and their schools.61 Al-Ṭūsī,62 58. al-Ṭūsī, Istibṣār, vol. 4, pp. 188–189, nos. 704–705; al-Ṭūsī, Tahdhīb, vol. 9, pp. 364–365, nos. 1299 and 1301; p. 365; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, pp. 52–53/Querry, Recueil, vol. 2, pp. 373–374, nos. 358–360. 59. al-Nuʿmān, Iqtiṣār, p. 136; al-Nuʿmān, Yanbūʿ, fol. 117v; al-Nuʿmān, Āthār, fol. 122v; al-Nuʿmān, Daʿāʾim, vol. 2, p. 386, no. 1375. 60. al-Kulaynī, Uṣūl, vol. 7, pp. 140–142, nos. 1–7, 10; Ibn Bābawayh, Kitāb man, vol. 4, pp. 233–234; al-Ṭūsī, Tahdhīb, vol. 9, p. 377, no. 1348; p. 378, no. 1352. This doctrine is applied in a series of cases in al-Ṭūsī, Tahdhīb, vol. 9, p. 378, nos. 1353–1354; p. 381, nos. 1362–1363. 61. al-Tirmidhī, Kitāb al-sunan o al-jāmiʿ al-ṣaḥīḥ (Cairo, 1384– 1387/1965–1967), vol. 3, p. 288; Abū Yūsuf, Kitāb al-Āthār, ed. Abū’l-Wafa (Hyderabad 1355/1936), p. 161, no. 736; al-Samarqandī, Khizāna, vol. 1, p. 416; al-Sarakhsī, Mabsūṭ, vol. 30, pp. 46–47; al-Shāfiʿī, Umm, vol. 4, pp. 2–4; vol. 7, pp. 298–299; al-Shāfiʿī, Risāla [al-jadīda], vol. 7, p. 25; al-Shāfi‘ī, Risāla [al-jadīda], p. 65, no. 216; pp. 170–172, nos. 475–478; al-Muzanī, Mukhtaṣar, vol. 3, p. 139; vol. 5, pp. 153–154; al-Bayhaqī, Sunan, vol. 6, p. 221; al-Jurjānī, Kitāb al-kifāya fī maʿrifat al-farāʾiḍ wa-qismat al-mawārīth (for Ms, see Brockelmann, GAL, supplement no. 1, p. 505, no. 6), fols. 4r–4v; al-Nawawī, Minhâdj, vol. 2, p. 244; Ibn Ḥanbal, al-Musnad (Cairo, 1313/1895; repr. Beirut 1405/1985), vol. 1, pp. 305–306, nos. 346–348; al-Khiraqī, Mukhtaṣar, vol. 7, p. 161; Ibn Qudāma, Mughnī, vol. 7, p. 162; Ibn Qudāma, Kāfī, vol. 2, p. 560; Ibn Qudāma, Muqniʿ, vol. 2, pp. 460–461; Ibn Qudāma, ʿUmda, p. 84. 62. al-Ṭūsī, Istibṣār, vol. 4, pp. 193–194, nos. 725–727; al-Ṭūsī, Tahdhīb,

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al-Ḥillī63 and the Minhāj (fol. 4r), however, make a distinction between the two kinds of homicide, stating that only premeditated homicide causes the killer to be excluded from inheriting both the estate and the diya, while manslaughter only causes his exclusion from inheriting the diya, which he has to pay himself. This is also the opinion of Mālik (d. 179/795) and his school.64 As a matter of fact, the question was debated at the time of Mālik, but he preferred that the one who kills accidentally, inherits from the dead person’s property and not inherit from the blood money. Thus this doctrine was a still widespread and firm doctrine at the time of al-Nuʿmān, because it dates back to the second century. Al-Ṭūsī65 and al-Ḥillī66 make a further distinction with reference to premeditated homicide. They state that homicide contrary to law causes the exclusion of the killer from inheriting the estate and the diya, whereas homicide which is licit because it has been fulfilled in obedience of an order causes the killer to be excluded only from inheriting the diya. But such a distinction arises only in a political context rather than as a juridical rule. In accordance with the most ancient doctrine, attributed by Sunni sources to Ibn Masʿūd and based on a strict interpretation of the Qurʾanic verses mentioning simply the heirs without any qualification,67 some Imāmīs68 believe that the presence of a murderer, who has been barred from inheriting because of his vol. 9, pp. 379–380, no. 1359; al-Ṭūsī, Khilāf, vol. 2, pp. 260–261, masʾala 22. 63. al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, pp. 13–14/Querry, Recueil, vol. 2, p. 332, nos. 38 and 40–41. 64. al-Tirmidhī, Sunan, vol. 3, p. 288; Mālik b. Anas, Muwaṭṭaʾ (ed. Yaḥyā b. Yaḥyā), vol. 4, pp. 196–197, no. 1686; al-Zurqānī, Sharḥ muwaṭṭaʾ, vol. 4, pp. 196–197; Khalīl, Mukhtaṣar, vol. 2, p. 839, no. 28; al-Sarakhsī, Mabsūṭ, vol. 30, p. 47; al-Shāfiʿī, Umm, vol. 7, p. 298; al-Muzanī, Mukhtaṣar, vol. 5, pp. 153–154; al-Jubūrī, Fiqh, vol. 2, p. 147. 65. al-Ṭūsī, Khilāf, vol. 2, p. 260, masʾala 22. 66. al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 13/Querry, Recueil, vol. 2, p. 332, nos. 38–39. Further distinctions are made by al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 14/Querry, Recueil, vol. 2, pp. 332–333, nos. 42–46. 67. ʿAbd al-Razzāq, Muṣannaf, vol. 10, p. 279, no. 19102; al-Dārimī, Musnad, vol. 2 p. 254, nos. 2900–2901; al-Bayhaqī, Sunan, vol. 6, p. 223; al-Shāfiʿī, Umm, vol. 7, p. 166; Ibn Qudāma, Mughnī, vol. 7, p. 192. 68. al-Kulaynī, Uṣūl, vol. 7, p. 142; Ibn Bābawayh, Kitāb man, vol. 4, p. 232, no. 741; p. 234; al-Ṭūsī, Tahdhīb, vol. 9, pp. 380–381, no. 1361.

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actions, also causes the exclusion of other relatives from the inheritance of either the estate or the diya, or both. In contrast, other Imāmīs,69 in accordance with all the other schools of law,70 follow a less rigid doctrine which maintains that a murderer does not cause the exclusion of any heir. Neither of these doctrines is present in the Ismaili sources considered here. For Imāmīs71 and according to the Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim72 (although nothing is said in the Minhāj), the diya is inherited according to the usual rules: all the heirs (including husbands and wives), except uterine brothers and sisters, inherit it. But, according to an abandoned opinion found in Sunni ḥadīths, it is not only uterine siblings who are excluded, but also spouses.73 This doctrine is not found in the remaining schools of law, which treat the diya in the same way as any other part of the estate, thus admitting all the heirs to its inheritance.

69. al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 14/Querry, Recueil, vol. 2, p. 332, no. 43. 70. Mālik b. Anas, Muwaṭṭaʾ (ed. Yaḥyā b. Yaḥyā), vol. 3, p. 121, no. 1131; al-Zurqānī, Sharḥ muwaṭṭaʾ, vol. 3, p. 121; al-Shāfiʿī, Umm, vol. 7, p. 166; al-Muzanī, Mukhtaṣar, vol. 3, p. 139; al-Khiraqī, Mukhtaṣar, vol. 7, p. 192; Ibn Qudāma, Mughnī, vol. 7, pp. 192–193; Ibn Qudāma, Kāfī, vol. 2, p. 539. 71. al-Kulaynī, Uṣūl, vol. 7, p. 139, nos. 2–6; p. 140, no. 8; p. 141, nos. 8–9; Ibn Bābawayh, Kitāb man, vol. 4, p. 232, nos. 743–744; al-Ṭūsī, Tahdhīb, vol. 9, pp. 375–376, nos. 1338–1340 and 1342–1343; p. 378, nos. 1353–1354; p. 381, nos. 1362–1363; al-Ṭūsī, Istibṣār, vol. 4, pp. 194–195, nos. 728–731; al-Ṭūsī, Khilāf, vol. 2, pp. 361–362, nos. 300–301, masʾala 127; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 14/Querry, Recueil, vol. 2, p. 333, no. 48. Further distinctions are made by al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 14/Querry, Recueil, vol. 2, p. 333, nos. 47–49. 72. al-Nuʿmān, Iqtiṣār, p. 136; al-Nuʿmān, Yanbūʿ, fol. 117v; al-Nuʿmān, Āthār, fol. 122v; al-Nuʿmān, Daʿāʾim, vol. 2, p. 387, no. 1376. 73. ʿAbd al-Razzāq, Muṣannaf, vol. 9, pp. 397–398, nos. 17764–17765; p. 399, no. 17770; al-Dārimī, Musnad, vol. 2, p. 273, nos. 3046–3047; al-Dāraquṭnī, al-Sunan (Medina, 1386/1966), vol. 4, p. 77, nos. 31–32.

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Slavery Imāmīs74 and four Ismaili works (the Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim)75 agree on the general principle, also followed by the remaining schools of law,76 that a slave does not inherit from his relative who is free, and vice-versa. However, following an isolated and abandoned Sunni doctrine,77 the Imāmī jurists of the fifth and seventh centuries78 and the Daʿāʾim79 maintain that when the deceased leaves only a slave relative, the latter shall be freed using the proceeds of the estate; the rest, if there is any, shall be given to the freed slave as an inheritance. Al-Ṭūsī80 adds that if the value of the estate is not sufficient to free the slave, the inheritance shall be allotted to the imam. 74. al-Kulaynī, Uṣūl, vol. 7, pp. 149–150, nos. 1–4; Ibn Bābawayh, Kitāb man, vol. 4, p. 247, nos. 796–797; Ibn Bābawayh, Muqniʿ, pp. 178–179; al-Ṭūsī, Istibṣār, vol. 4, pp. 177–178, nos. 668–671; al-Ṭūsī, Khilāf, vol. 2, p. 260, masʾala 19; al-Ṭūsī, Tahdhīb, vol. 9, pp. 335–336, nos. 1206–1209; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 14/Querry, Recueil, vol. 2, p. 333, no. 50. 75. al-Nuʿmān, Iqtiṣār, p. 135; al-Nuʿmān, Yanbūʿ, fol. 117v; al-Nuʿmān, Āthār, fol. 122v; al-Nuʿmān, Daʿāʾim, vol. 2, p. 386. no. 1373. The Yanbūʿ (fol. 117v) enunciates the principle, common to all the law schools, that a free relative is not excluded by a slave relative, as it is clearly related in some Imāmī sources (Ibn Bābawayh, Kitāb man, vol. 4, p. 198, no. 674; p. 247, no. 798; al-Ṭūsī, Khilāf, vol. 2, p. 262, masʾala 24; al-Ṭūsī, Tahdhīb, vol. 9, p. 282, no. 1021; 284, no. 1027). The Yanbūʿ (fol. 117v) also shares with the Imāmī al-Muḥaqqiq al-Ḥillī (Sharāʾiʿ, vol. 4, 14–15/Querry, Recueil, vol. 2, pp. 333–334, nos. 54–55) the doctrine that, if a slave is freed after the death of his relative, but prior to the division of the relative’s estate, he has the right to inherit. 76. al-Qayrawānī, Risâla, pp. 280–281; Khalīl, Mukhtaṣar, vol. 2, p. 838, no. 26; al-Shāfiʿī, Umm, vol. 4, pp. 2–4; vol. 7, p. 166; al-Shāfiʿī, Risāla [al-jadīda], vol. 7, p. 25; al-Shāfiʿī, Risāla [al-jadīda], p. 65, no. 216; p. 170, no. 473; al-Muzanī, Mukhtaṣar, vol. 3, p. 139; al-Nawawī, Minhâdj, vol. 2, p. 244; Ibn Qudāma, Mughnī, vol. 7, pp. 130–131; Ibn Qudāma, Kāfī, vol. 2, p. 558; Ibn Qudāma, ʿUmda, p. 84. 77. al-Dārimī, Musnad, vol. 2, p. 269, no. 3008. 78. al-Ṭūsī (d. 460/1067), Khilāf, vol. 2, p. 260, masʾala 19; al-Ṭūsī, Tahdhīb, vol. 9, p. 333, no. 1196; p. 335, no. 1205; al-Muḥaqqiq al-Ḥillī (d. 676/1277), Sharāʾiʿ, vol. 4, p. 15/Querry, Recueil, vol. 2, p. 334, no. 56. 79. al-Nuʿmān, Daʿāʾim, vol. 2, p. 386, no. 1374. 80. al-Ṭūsī, Khilāf, vol. 2, p. 260, masʾala 19.

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Al-Ḥillī81 considers this rule the most correct, but he also relates an anonymous opinion that the slave is free to the extent of the percentage of the estate and has the chance to pay what remains in order to became completely free. The Minhāj does not relate the general principle, only the solution of the case of a slave as sole heir, which is solved according to the Daʿāʾim, but with this addition: ‘If, however, the estate is not sufficient for his redemption, he cannot claim his inheritance’ (fol. 4v), without any comment. The oldest Imāmī doctrine,82 the Ismaili Āthār (fols. 123v, 124r) and Minhāj (fols. 4r-4v)83 follow a rigid line of reasoning, maintaining the reciprocal right of a patron and his manumitted slave to inherit from each other, as a logical consequence of likening the patronage relationship to a natural one. Thus, a patron inherits from his manumitted slave if the latter leaves no heir; and, a manumited slave inherits from his patron if the latter leaves no heir. This doctrine, however, was abandoned by the Sunni, the Imāmī and the Ismaili schools of law. In fact, an Imāmī doctrine maintained by jurists of the fifth and seventh centuries,84 also followed in the Ismaili Iqtiṣār (p. 136), Yanbūʿ (fols. 106r and 119r) and Daʿāʾim,85 and similar to that of the remaining schools of law, excludes a manumitted slave from the inheritance of his patron, even if the latter did not leave any dhawū’l-arḥām (blood relatives). Among al-Nuʿmān’s works, only the Yanbūʿ (fols. 106r and 119r) considers the case of the sāʾiba, that is a manumission of a slave freed from the bond of patronage, who can choose his own patron. In such a case, the new patron is subject to the rules governing the 81. al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 15/Querry, Recueil, vol. 2, p. 334, no. 57. 82. Ibn Bābawayh, Kitāb man, vol. 4, p. 224. 83. Treating of the title giving right to the inheritance, al-Nuʿmān (fol. 2r) cites only the patron. Also, in the list of the agnates only the patron is mentioned (fol. 3v). This might suggest that a manumitted slave is excluded from the inheritance of his patron. But later on (fols. 4r–4v) al-Nuʿmān clearly states that if a man or a woman dies and does not leave an heir, but a manumitted slave, either a male or female, the estate shall be allotted to the manumitted slave. 84. al-Ṭūsī, Khilāf, vol. 2, p. 286, masʾala 91; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 37/Querry, Recueil, vol. 2, p. 358, no. 259. 85. al-Nuʿmān, Daʿāʾim, vol. 2, p. 391, nos. 1384–1385.

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­ atronage; one of them is that he inherits from his manumitted p slave. This formulation can be found in the late Imāmī Sharāʾiʿ.86 However, the other Imāmī sources87 add that, if the sāʾiba does not choose a patron, his patronage is incumbent on the imam, who can either directly exercise his right or transfer it to another person. VI. Particular cases A hermaphrodite The common accepted rule by all the schools of law is that an ambiguous hermaphrodite is allotted half the share of a male heir and half the share of a female heir, subject to the ascertainment of his or her predominant sex. However, what is to be noted here is the relevance of the proofs confirming a hermaphrodite’s primary sex as either male or female.88 The Minhāj (fols. 15r–16r) accepts only the two generally admitted proofs, common to the Sunnis, concerning, firstly, the determination of the orifice from which the urine first flows; and secondly, which of the two orifices the urine first stops flowing out of. The sex of the hermaphrodite is determined according to the orifice from which the urine stops flowing last. If this test proves inconclusive, the sex of the hermaphrodite is considered ambiguous. Another proof, based on the counting of the ribs of the hermaphrodite, is rejected in the Minhāj, but is followed by the Imāmīs. If the number of ribs on the right side is greater than that on the left, the hermaphrodite is considered predominantly male; if, however, the number of ribs on the right side is equal to the number on the left, the hermaphrodite is considered predominantly female. The reason given by al-Nuʿmān in the Minhāj for his rejection of this proof is quite singular. He does not deny the authority of the 86. al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 36/Querry, Recueil, vol. 2, p. 357, no. 248. 87. al-Kulaynī, Uṣūl, vol. 7, p. 171, nos. 2 and 4–6; p. 172, nos. 8–9; al-Ṭūsī, Istibṣār, vol. 4, p. 199, nos. 746–748; pp. 199–200, no. 749; al-Ṭūsī, Tahdhīb, vol. 9, p. 394, nos. 1406–1407; p. 395, nos. 1409–1411; p. 396, no. 1415; al-Ṭūsī, Khilāf, vol. 2, p. 303, masʾala 139. 88. See Agostino Cilardo, ‘Historical Development of the Legal Doctrine Relative to the Position of the Hermaphrodite in the Islamic Law’, The Search. Journal for Arab and Islamic Studies, 7 (1986), pp. 128–170.

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amīr al-muʾminīn on whom this tradition is based, but asserts that no one can decide in the same manner as he did, except the imam. The Iqtiṣār, Yanbūʿ and Āthār do not mention the proof based on the counting of ribs. The Minhāj does not mention the proof based on the drawing of lots89 to determine the gender of a hermaphrodite when the outcome of the previous test (observing the orifice from which urine flows) is ambiguous, although the Iqtiṣār (p. 136), the Yanbūʿ (fols. 118r–118v) and the Āthār (fols. 122v–123r) do. The two latter works relate a further set of proofs: that is, if the hermaphrodite’s urine can be projected onto the wall in front of which he or she is urinating, then that person is considered male; if not, the person is considered female. Lastly, the Daʿāʾim90 accepts the proofs based on the counting of the ribs and the drawing of the lots91 but it does not relate the last above-mentioned proof found in the Yanbūʿ and the Āthār.92 From this outline, there emerges a progressively complex and contradictory doctrinal change regarding the determination of the sex of the hermaphrodite in the Ismaili sources. The Minhāj seems to represent the earliest stage of the formulation of this Ismaili doctrine, which was similar to that of the Sunni position as it is not only fully compatible with the Sunni doctrine, but also contrasts with the Imāmī rule, which was followed in the Daʿāʾim (the counting of the ribs). Since the Iqtiṣār accepts an Imāmī rule (drawing lots), it can be concluded that this work represents an intermediate stage in the development of Ismaili doctrine, which fell somewhere 89. ‘Male’ is written on one sheet and ‘female’ on another; God will reveal His will about the prevalent sex of the hermaphrodite in the drawing of the lot. 90. al-Nuʿmān, Daʿāʾim, vol. 2, pp. 387–388, no. 1377. 91. al-Nuʿmān, Daʿāʾim, vol. 2, p. 390, no. 1381. 92. To read more about this proof, see al-Kulaynī, Uṣūl, vol. 7, pp. 56–59; Ibn Bābawayh, Kitāb man, vol. 4, pp. 237–238, nos. 759–760; pp. 239–240, no. 763; Ibn Bābawayh, Hidāya, pp. 85–86; Ibn Bābawayh, Muqniʿ, p. 177; al-Ṭūsī, Istibṣār, vol. 4, p. 187, nos. 701–702; al-Ṭūsī, Tahdhīb, vol. 9, p. 354, nos. 1269–1270; pp. 356–357, nos. 1273–1277; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, pp. 44–45, 47/Querry, Recueil, vol. 2, pp. 365–366, nos. 321–322; p. 369, no. 336. Al-Ṭūsī (Khilāf, vol. 2, p. 297, masʾala 116) has a different set of proofs.

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between the Sunni position and the Imāmī doctrine. The Yanbūʿ and Āthār go further in admitting another Imāmī rule (the proof of the wall). Finally, the Daʿāʾim seems to represent the last doctrinal stage, reflecting a balance between the Imāmī and the previous Ismaili position. None of the Sunni schools accept the proof based on the drawing of the lots, or the counting of the ribs, or the proof of the wall. In the earliest Sunni sources, only the common accepted proofs are mentioned.93 But it is remarkable that some late Sunni scholars borrow two proofs found in Imāmī and Ismaili sources: that is, the proof of the wall, present in al-Bayhaqī (d. 458/1066) and Ibn Qudāma (d. 620/1223),94 and the proof based on the counting of ribs, present in Ibn Qudāma.95 A foundling (laqīṭ) and those who are related to him The Ismaili sources (the Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim)96 unanimously support a rule, common to Mālikīs and Ḥanbalīs,97 that only direct children (descendants of the first degree, directly linked to the deceased person), children’s children and the husband or wife of a former foundling can inherit from that person for the simple reason that the laqīṭ’s other relatives are unknown. Imāmīs,98 however, like the Shāfiʿīs,99 believe that the person who found the laqīṭ has the right to walāʾ (patronage) over him; thus, that person has the right to inherit from the laqīṭ as a consequence of such a juridical tie. 93. See Cilardo, Scuole giuridiche sunnite, pp. 560–563. 94. al-Bayhaqī, Sunan, vol. 6, p. 261; Ibn Qudāma, Mughnī, vol. 7, p. 115. 95. Ibn Qudāma, Mughnī, vol. 7, p. 115. 96. al-Nuʿmān, Minhāj, fol. 16r; al-Nuʿmān, Iqtiṣār, p. 135; al-Nuʿmān, Yanbūʿ, fol. 117r; al-Nuʿmān, Āthār, fol. 122r; al-Nuʿmān, Daʿāʾim, vol. 2, p. 384, no. 1365. 97. Saḥnūn, Mudawwana, vol. 8, pp. 76–77; Abū Dāwūd al-Sijistānī, Kitāb masā’il al-Imām Aḥmad b. Ḥanbal, ed. Muḥammad Rashīd Riḍā (Cairo, 1353/1934), p. 219; Ibn Qudāma, Mughnī, vol. 7, p. 279. 98. al-Ṭūsī, Khilāf, vol. 2, p. 303, no. 138. The other Imāmī sources do not mention this rule because they probably include it in the general principle which allows a man to obtain patronage from another person. 99. al-Shāfiʿī, Umm, vol. 4, p. 8.

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Walad al-mulāʿana (a child of a wife repudiated through a sworn allegation of adultery) Imāmī100 and Ismaili (the Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim) sources101 agree on the doctrine, common to the Sunni law,102 that only the maternal relationship is proven, because the children of a mulāʿana have no recognised father. Thus, the inheritance rules to be applied to a mulāʿana and to her children are the usual ones, except that a reciprocal right of inheritance no longer exists between the husband and the repudiated wife, or between the father, or his relatives, and the children he has disowned. As a result of this, the only heirs of children of a mulāʿana are their children, spouses, uterine brothers and sisters, and the remaining heirs on the maternal side. In the Imāmī sources103 and two Ismaili works, the Āthār and 100. al-Kulaynī, Uṣūl, vol. 7, pp. 160–161, nos. 1–2, 4 and 6; pp. 161–162; Ibn Bābawayh, Kitāb man, vol. 4, pp. 234–237, nos. 749–757; Ibn Bābawayh, Hidāya, pp. 86–87; Ibn Bābawayh, Muqniʿ, pp. 177–178; al-Ṭūsī, Khilāf, vol. 2, pp. 304–305, masʾala 146; al-Ṭūsī, Tahdhīb, vol. 9, pp. 338–339, nos. 1217–1220; p. 341, no. 1226; al-Ṭūsī, Istibṣār, vol. 4, pp. 179–182, nos. 675–684; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, pp. 42–43/Querry, Recueil, vol. 2, pp. 363–364, nos. 301–306; pp. 364–365, nos. 310–314. The Imāmīs (al-Kulaynī, Uṣūl, vol. 7, pp. 160–161, nos. 3, 5, 8; al-Ṭūsī, Istibṣār, vol. 4, pp. 179–181, nos. 676–678, 681; al-Ṭūsī, Tahdhīb, vol. 9, pp. 339–342, nos. 1219, 1221–1225, 1228–1229) stress that the woman repudiated in this way is prohibited to the husband ‘until the day of the resurrection’ or ‘she will never be licit to him’. 101. al-Nuʿmān, Minhāj, fols. 16r–17r; al-Nuʿmān, Iqtiṣār, p. 135; al-Nuʿmān, Yanbūʿ, fol. 116v; al-Nuʿmān, Āthār, fol. 121v; al-Nuʿmān, Daʿāʾim, vol. 2, p. 282, no. 1062. 102. al-Ṭaḥāwī, Mukhtaṣar, pp. 149–150; al-Qudūrī, Mukhtaṣar, p. 123; Khalīl, Mukhtaṣar, vol. 2, p. 838, no. 26; al-Shāfiʿī, Umm, vol. 4, p. 12; al-Muzanī, Mukhtaṣar, vol. 3, pp. 152–153; al-Shaybānī, al-Ḥujja fī ikhtilāf ahl al-Kūfa wa-ahl al-Madīna (For Ms, see Brockelmann, GAL, vol. 1, p. 180, no. 11; supplement 1, p. 291, no. 11; Sezgin, GAS, vol. 1, p. 432, no. 12), fol. 199r; Mālik b. Anas, Muwaṭṭaʾ (ed. Yaḥyā b. Yaḥyā), vol. 3, p. 123, no. 1133; p. 193, no. 1234; al-Zurqānī, Sharḥ muwaṭṭaʾ, vol. 3, pp. 123 and 193; al-Samarqandī, Khizāna, vol. 1, p. 416; Ibn ʿĀṣim, Traité, pp. 250–257, nos. 498–513; p. 898, n. 1553; Ibn Qudāma, Mughnī, vol. 7, pp. 121–129; Ibn Qudāma, Kāfī, vol. 2, pp. 528–529; Ibn Qudāma, Muqniʿ, vol. 2, pp. 409–410. 103. al-Kulaynī, Uṣūl, vol. 7, pp. 160–161, nos. 3, 5 and 7–10; Ibn

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Daʿāʾim,104 the same juridical consequences mentioned above apply only to the father if he renounces the liʿān, whether in relation to an existing walad or to a child still in the womb. As a matter of fact, such an acknowledgment of paternity restores the right of the child, and of those related to him, to inherit from his father, but not vice-versa. This is contrary to the Sunni doctrine, which states that a permanent impediment remains with reference to the reciprocal right of the father and the child to inherit, and to the restoration of conjugal life. The absence of this last rule in the Minhāj, Iqtiṣār and Yanbūʿ may be a sign that they were compiled earlier than the Āthār and Daʿāʾim. Walad al-zinā (illegitimate child) Based on an incoherent form of reasoning, because the analogy is between two non-comparable situations (the child of a mulāʿna is legitimate, while the other is illegitimate), the Ismaili Yanbūʿ, Āthār and Daʿāʾim,105 following the Imāmī scholars al-Kulaynī106 and Ibn Bābawayh,107 and in accordance with the Sunni doctrine,108 equate the status of the walad al-zinā with the walad al-mulāʿana.

Bābawayh, Kitāb man, vol. 4, pp. 235–236, no. 749; p. 237, nos. 755 and 757; Ibn Bābawayh, Muqniʿ, p. 177; al-Ṭūsī, Istibṣār, vol. 4, pp. 179–180, nos. 675–678; al-Ṭūsī, Tahdhīb, vol. 9, pp. 339–341, nos. 1221–1225; pp. 341–342, no. 1227; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, pp. 16 and 43/Querry, Recueil, vol. 2, p. 335, no. 65; p. 364, nos. 307–309. 104. al-Nuʿmān, Āthār, fol. 121v; al-Nuʿmān, Daʿāʾim, vol. 2, p. 282, no. 1062. 105. al-Nuʿmān, Yanbūʿ, fols. 116v–117r; al-Nuʿmān, Āthār, fols. 121v– 122r; al-Nuʿmān, Daʿāʾim, vol. 2, p. 384, no. 1364. 106. al-Kulaynī, Uṣūl, vol. 7, p. 164, no. 4. 107. Ibn Bābawayh, Kitāb man, vol. 4, p. 232, no. 740; p. 235; Ibn Bābawayh, Muqniʿ, p. 178. 108. al-Shaybānī, Ḥujja, fols. 199r–199v; al-Qudūrī, Mukhtaṣar, p. 123; Mālik b. Anas, Muwaṭṭaʾ (ed. Yaḥyā b. Yaḥyā), vol. 3, p. 123, no. 1133; p. 193, no. 1234; al-Zurqānī, Sharḥ muwaṭṭaʾ, vol. 3, pp. 123 and 193; Saḥnūn, Mudawwana, vol. 8, pp. 95–96; al-Shāfiʿī, Umm, vol. 4, p. 12; al-Muzanī, Mukhtaṣar, vol. 3, pp. 152–153; al-Samarqandī, Khizāna, vol. 1, p. 416; Ibn Qudāma, Mughnī, vol. 7, p. 129; Ibn Qudāma, Muqniʿ, vol. 2, pp. 409–410.

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Al-Ṭūsī109 considers this doctrine to be rarely followed (shādhdh); while al-Ḥillī110 states that it has been generally rejected, because the right to inherit must be based only on licit ties of relationship. For this reason, the prevalent Imāmī doctrine111 maintains that an illegitimate child has no natural relationship, both with reference to the father and the mother, and their relatives. This is a view which is also found in an isolated opinion attributed to the Zaydī theologian, al-Ḥasan b. Ṣāliḥ.112 However, if the father acknowledges the illegitimate child, then a true relationship is created between the two as a consequence.113 The silence of the Minhāj and the Iqtiṣār on this matter may be taken as an indication that they were elaborated before the Yanbūʿ, Āthār and Daʿāʾim. Persons who drowned or died in a natural disaster Imāmī sources, except for some uncertainty manifested in works by al-Mufīd and al-Ṭūsī,114 and all five Ismaili works by al-Nuʿmān (the Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim)115 agree that if relatives have perished together by drowning or in a natural disaster, and it cannot be ascertained which one of them died first, then each relative should be deemed as having the right to inherit from the other, thus allowing the deceaseds’ heirs to inherit their estate in this way. This doctrine is also maintained by the Ḥanbalī school116 and 109. al-Ṭūsī, Istibṣār, vol. 4, pp. 183–184, nos. 689–690. 110. al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 44/Querry, Recueil, vol. 2, p. 365, nos. 316–319. 111. al-Ṭūsī, Tahdhīb, vol. 9, p. 344, no. 1237; al-Ṭūsī, Istibṣār, vol. 4, pp. 182–183, nos. 685–688. 112. Ibn Qudāma, Mughnī, vol. 7, pp. 129–130. 113. al-Ṭūsī, Istibṣār, vol. 4, p. 184, nos. 691–692. 114. al-Kulaynī, Uṣūl, vol. 7, pp. 136–138, nos. 1–7; Ibn Bābawayh, Kitāb man, vol. 4, p. 225, nos. 713 and 716; Ibn Bābawayh, Muqniʿ, p. 178; al-Ṭūsī, Khilāf, vol. 2, p. 262, masʾala 23; al-Ṭūsī, Tahdhīb, vol. 9, pp. 359–363, nos. 1281–1298; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, pp. 49–51/Querry, Recueil, vol. 2, pp. 371–373, nos. 347–356. 115. al-Nuʿmān, Minhāj, fols. 17r–17v; al-Nuʿmān, Iqtiṣār, p. 136; al-Nuʿmān, Yanbūʿ, fol. 118v; al-Nuʿmān, Āthār, fols. 123r–123v; al-Nuʿmān, Daʿāʾim, vol. 2, pp. 390–391, no. 1382. 116. Abū Dāwūd al-Sijistānī, Masāʾil, p. 218; al-Khiraqī, Mukhtaṣar, vol. 7, p. 186; Ibn Qudāma, Mughnī, vol. 7, pp. 186–192; Ibn Qudāma, Kāfī, vol.

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was followed earlier by al-Nakhaʿī, Shurayḥ and Dāwūd al-Ẓāhirī,117 representing a minority opinion in the Sunni school. In contrast, the prevalent Sunni doctrine118 states that these victims have no reciprocal right to inherit. The rights of a child in the womb The Ismaili sources (the Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim),119 agreeing with the Mālikī doctrine,120 maintain that the pregnancy of a wife causes the freezing of the estate until she gives birth in order, first, to verify whether the child is born alive, then to ascertain the child’s sex. Imāmīs,121 however, in accord with the remaining Sunni schools,122 prescribe that if the deceased left a son, then one must freeze the share of two sons, while dividing the rest among the existing heirs; if, instead, the deceased left a daughter, then she has the right to immediately inherit one-fifth of the estate, while the remaining four-fifths should be frozen. Al-Ḥillī123 changes this doctrine 2, pp. 548–549; Ibn Qudāma, Muqniʿ, vol. 2, p. 447. 117. See Cilardo, Scuole giuridiche sunnite, pp. 532–533. 118. al-Shaybānī, Siyar, vol. 4, pp. 136–137; al-Sarakhsī, Sharḥ siyar, vol. 4, pp. 136–137; al-Qudūrī, Mukhtaṣar, p. 123; al-Sarakhsī, Mabsūṭ, vol. 30, pp. 27–29; Abū Dāwūd al-Sijistānī, Masā’il, p. 218; Mālik b. Anas, Muwaṭṭaʾ (ed. Yaḥyā b. Yaḥyā), vol. 3, pp. 121–123, no. 1132; al-Zurqānī, Sharḥ muwaṭṭaʾ, vol. 3, pp. 121–123; Khalīl, Mukhtaṣar, vol. 2, p. 840, no. 31, and n. 174; Ibn ʿĀṣim, Traité, pp. 898–899, no. 1690; al-Nawawī, Minhâdj, vol. 2, p. 244; Ibn Qudāma, Mughnī, vol. 7, pp. 186–192; Ibn Qudāma, Muqniʿ, vol. 2, pp. 446–447, n. 1; al-Jubūrī, Fiqh, vol. 2, p. 151. 119. al-Nuʿmān, Minhāj, 18r–19r; al-Nuʿmān, Iqtiṣār, p. 135; al-Nuʿmān, Yanbūʿ, fol. 117r; al-Nuʿmān, Āthār, fol. 122r; al-Nuʿmān, Daʿāʾim, vol. 2, p. 385. 120. Khalīl, Mukhtaṣar, vol. 2, p. 840, no. 32; Ibn ʿĀṣim, Traité, pp. 896–897, no. 1689. 121. al-Ṭūsī, Khilāf, vol. 2, p. 300, no. 125; al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 48/Querry, Recueil, vol. 2, p. 370, no. 343. 122. al-Samarqandī, Uyūn, vol. 2, p. 334, no. 1655; al-Qudūrī, Mukhtaṣar, p. 123; al-Sarakhsī, Mabsūṭ, vol. 30, p. 52; Ibn Qudāma, Mughnī, vol. 7, pp. 194–195; Ibn Qudāma, Kāfī, vol. 2, p. 555; Ibn Qudāma, ʿUmda, p. 84; Ibn Qudāma, Muqniʿ, vol. 2, pp. 441–442. But there are divergences in the Ḥanbalī school. 123. al-Muḥaqqiq al-Ḥillī, Sharāʾiʿ, vol. 4, p. 48/Querry, Recueil, vol. 2,

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and maintains that the part to be frozen is the smallest share due to the heirs. As for the proofs necessary to ascertain whether the foetus is alive at birth, the Imāmī sources are more complex than the Ismaili ones.124 But the Ismaili Yanbūʿ (fol. 117r) introduces a new element, admitting the midwife as a witness in order to prove that the child was born alive. The inheritance of a husband and wife in the case of an irrevocable repudiation A revocable repudiation does not definitively interrupt the rules of inheritance associated with conjugal life; thus, both spouses have the right to inherit from each other during that period. An irrevocable repudiation, however, cuts any kind of marital tie between spouses, as is admitted by all schools of law.125 The following question arises when a husband, who irrevocably repudiates a wife suffering from a fatal disease, dies before her: should the above-mentioned rule be applied? While Abū Ḥanīfa and his companions, al-Shāfiʿī and the Ḥanbalīs give a positive answer,126 Mālik,127 the Imāmīs128 and the Ismailis (the Minhāj, Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim)129 take the opposite view. They believe that p. 370, no. 342. 124. See Cilardo, Scuole giuridiche ismailita e imamita, pp. 238–240. 125. Ismailis: al-Nuʿmān, Minhāj, fol 19r–19v; al-Nuʿmān, Iqtiṣār, p. 136; al-Nuʿmān, Āthār, fol. 123v; al-Nuʿmān, Daʿāʾim, vol. 2, p. 391, no. 1383. Imāmīs: al-Kulaynī, Uṣūl, vol. 7, pp. 133–134, nos. 1–3; Ibn Bābawayh, Kitāb man, vol. 4, p. 228, no. 723; al-Ṭūsī, Tahdhīb, vol. 9, p. 381, nos. 1362–1363; pp. 383–384, nos. 1368–1370; al-Ṭūsī, Khilāf, vol. 2, pp. 294–295, masʾala 111. Sunnis: Ibn Qudāma, Mughnī, vol. 7, p. 217; Ibn Qudāma, Kāfī, vol. 2, p 560; Ibn Qudāma, Muqniʿ, vol. 2, p. 451; Ibn Qudāma, ʿUmda, p. 85. 126. Ibn Qudāma, Mughnī, vol. 7, pp. 217–219; Ibn Qudāma, Kāfī, vol. 2, p. 561; Ibn Qudāma, Muqniʿ, vol. 2, pp. 451–455. 127. al-Qayrawānī, Risâla, pp. 282–283; Ibn Qudāma, Mughnī, vol. 7, pp. 218–219. 128. al-Kulaynī, Uṣūl, vol. 7, p. 134, nos. 4–7; Ibn Bābawayh, Kitāb man, vol. 4, p. 228, nos. 724–727; al-Ṭūsī, Khilāf, vol. 2, p. 294, no. 111; al-Ṭūsī, Tahdhīb, vol. 9, pp. 385–386, nos. 1375–1378. 129. al-Nuʿmān, Minhāj, fol 19v; al-Nuʿmān, Iqtiṣār, p. 136; al-Nuʿmān, Yanbūʿ, fol. 94r; al-Nuʿmān, Āthār, fol. 123v; al-Nuʿmān, Daʿāʾim, vol. 2, p.

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the woman should inherit from her husband, except if she has re-married, because of the possibility that the husband may have unlawfully repudiated her. The opposite case, whether a husband with a fatal disease might inherit from his irrevocably repudiated wife, if she has died before him, is not even examined in the Minhāj, Iqtiṣār, Yanbūʿ and Āthār, because it is evident that an irrevocable repudiation causes the interruption of their reciprocal rights; this statement is only quoted in the Daʿāʾim130 and in the Khilāf,131 almost as an inconsequential afterthought.

391, no. 1383. 130. al-Nuʿmān, Daʿāʾim, vol. 2, p. 391, no. 1383. 131. al-Ṭūsī, Khilāf, vol. 2, p. 294, no. 111.

Conclusion

In light of the evidence presented, can it be concluded that the Minhāj is an Ismaili work? The answer is yes, even if it contains many Sunni influences. Can the work be attributed to al-Nuʿmān? Presumably, yes. As there are no historical data specifying the exact time of composition of the Minhāj, the period of its composition can be estimated only by comparing its contents with the other works produced by al-Nuʿmān. In formulating a chronology of the Ismaili works, I would say the Minhāj was composed first, followed by the Iqtiṣār, then the Yanbūʿ, then the Āthār and finally the Daʿāʾim. Justifications for such a sequence can be drawn from an internal analysis of the Ismaili works themselves. One such method, but not the strongest, is to examine the omissions characterising the Minhāj which would allow us to imagine a more archaic treatment of the subject. For instance, some rules which are found in the Iqtiṣār, Yanbūʿ, Āthār and Daʿāʾim are absent in the Minhāj; examples include the rules regarding al-ḥamīl,1 the consequences of manumitting a slave before and after the division of the estate,2 and the acknowledgment of a person as an heir (iqrār).3 Many other cases are omitted from the Minhāj, but are found in the Āthār and Daʿāʾim, particularly the case of al-murtadd (apostate),4 the rule that the diya 1. al-Nuʿmān, Iqtiṣār, p. 135; al-Nuʿmān, Yanbūʿ, fol. 117r; al-Nuʿmān, Āthār, fol. 122r; al-Nuʿmān, Daʿāʾim, vol. 2, pp. 384–385, no. 1367. On the meaning of ḥamīl, see Ibn Bābawayh, Maʿānī al-akhbār (Najaf, 1391/1971), pp. 258–259. 2. al-Nuʿmān, Iqtiṣār, p. 135; al-Nuʿmān, Āthār, fol. 122v; al-Nuʿmān, Daʿāʾim, vol. 2, p. 386, no. 1370. In the same context, the Āthār and Daʿāʾim also mention the case of a mushrik who embraces Islam. 3. al-Nuʿmān, Iqtiṣār, p. 136; al-Nuʿmān, Āthār, fol. 124r; al-Nuʿmān, Daʿāʾim, vol. 2, p. 392, no. 1387. 4. al-Nuʿmān, Yanbūʿ, fol. 117v; al-Nuʿmān, Āthār, fol. 122v; al-Nuʿmān, Daʿāʾim, vol. 2, p. 386, no. 1372.

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is inherited by the ahl al-mīrāth (heirs) (except the uterine siblings),5 the allotment of the estate to the bayt al-māl in the absence of any heir,6 and the operations to be performed before shares can be allocated to the heirs.7 Applying this same method of examination of the cases omitted from the Āthār but present in the Daʿāʾim allows us to envisage that the Āthār preceded the Daʿāʾim and represented an intermediate stage in the elaboration of the Ismaili doctrine. In particular, this applies to the case of al-mushtarak (a child conceived by a woman who has had sexual intercourse with two men in the same inter-menstrual period) in the mother’s womb,8 and the case of a slave who is the sole heir.9 If this analysis is correct, it may prove that Ivanow was right to doubt that the composition of the Daʿāʾim preceded that of the Āthār, and definitively disprove the theory, held by Muḥammad Waḥīd Mīrzā, that the Āthār and the Daʿāʾim are the same work.10 However, the chronological sequence Minhāj – Iqtiṣār – Yanbūʿ – Āthār – Daʿāʾim is justified primarily on the evolution of the Ismaili doctrine itself. The Daʿāʾim represents its furthest and final point of evolution,11 the Yanbūʿ and Āthār its intermediate position, and the Minhāj its most archaic phase. For instance, in the following cases where there is no correspondence between the doctrines of the Minhāj and those of the Yanbūʿ and Āthār, it is clear that the doctrinal stage of the Minhāj is rudimentary: for example, the radd doctrine for spouses is uncertain in the Minhāj, doctrines on homicide as a diriment impediment to inheritance and the proofs 5. al-Nuʿmān, Iqtiṣār, p. 136; al-Nuʿmān, Yanbūʿ, fol. 117v; al-Nuʿmān, Āthār, fol. 122v; al-Nuʿmān, Daʿāʾim, vol. 2, p. 387, no. 1376. 6. al-Nuʿmān, Yanbūʿ, fol. 119r; al-Nuʿmān, Āthār, fol. 124v. al-Nuʿmān (Daʿāʾim, vol. 2, pp. 391–392, no. 1386) adds that, if the ahl al-kufr are present, they are to be considered as not existing. 7. al-Nuʿmān, Yanbūʿ, fol. 113v; al-Nuʿmān, Āthār, fol. 124r; al-Nuʿmān, Daʿāʾim, vol. 2, p. 392, no. 1388. 8. al-Nuʿmān, Daʿāʾim, vol. 2, p. 384, no. 1366. 9. al-Nuʿmān, Daʿāʾim, vol. 2, p. 386, no. 1374. 10. Waḥīd Mīrzā, ‘Avant-propos’, pp. xxxv, 13. 11. This is seen, for example, in the great uncertainty in the earlier Ismaili works about the proofs fit to establish the prevalent sex of a hermaphrodite, and the definitive refusal of the doctrine on the reciprocal right to inherit between a patron and a client.

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to which a hermaphrodite must be submitted are not definitively stated. Thus, I agree with Poonawala’s statement that ‘Nuʿmān in the Daʿāʾim was moving towards a moderate and reconciliatory position compared to his earlier views’.12 These considerations provide clues to the method followed by al-Nuʿmān in the composition of his works. He created no new rules, but only took into consideration the pre-existent law, both Sunni and Imāmī, choosing from them whatever he deemed, or the Fatimid caliph considered, to be the best solutions to various cases. If this is true, one can hardly accept the opinion of Lokhandwalla,13 who wonders how much al-Nuʿmān’s works did influence the Ithnāʿasharī doctrines, adding, oddly enough, that an answer to his question would require a close study of the works of al-Kulaynī, Ibn Bābawayh, al-Ṭūsī and al-Ḥillī [sic!]. I believe that it may be the contrary: both the Ithnāʿasharī and Ismaili schools are the products of the late third and first half of the fourth centuries, but there is no doubt that Imāmī and Ismaili schools are independent of each other, and that the comparison must be made among the authors who lived until the time of al-Nuʿmān, the founder of Ismaili fiqh, and not with those who came after, like al-Ṭūsī and al-Ḥillī. If in the eyes of an Imāmī scholar the Daʿāʾim and, to a lesser extent, the other three works appear to be a mere case of ikhtilāf (difference of opinion) in the Imāmī school, a deeper analysis leads to the conclusion that the works of al-Nuʿmān were completely autonomous, and a result of the re-elaboration of previous Sunni and Imāmī law literature. The originality of Ismaili fiqh resides in this work of discernment, itself subject to change in accordance with an evolving historical situation, which sometimes leads al-Nuʿmān to reject, based on ‘Sunni’ arguments, certain doctrines specific to the Imāmīs. There are two examples of this. The first regards the entitlement of the first-born child to certain personal effects of the deceased which are, therefore, excluded from the estate;14 the second concerns the exclusion of a wife from the inheritance of certain goods included

12. Poonawala, ‘Ismaʿili Jurisprudence’, p. 137, n. 23. 13. Lokhandwalla, ‘Introduction’, p. 8. 14. al-Nuʿmān, Daʿāʾim, vol. 2, pp. 394–396, no. 1393. See Cilardo, ‘Peculiarities’, pp. 132–134.

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in the estate.15 These two doctrines are refuted in the Daʿāʾim, but ignored in the Minhāj, Iqtiṣār, Yanbūʿ and Āthār (another clue indicating the more recent composition of the Daʿāʾim). Al-Nuʿmān also applies Sunni doctrine, in opposition to the rigid Imāmī system of classes, by allowing a grandmother to inherit, notwithstanding the presence of her son. It seems that the Daʿāʾim represents the zenith in the elaboration of the Ismaili doctrine. Thus, it is not by chance that the Daʿāʾim, and not the Yanbūʿ or Āthār, became the official code of the Fatimid state. The Yanbūʿ is undoubtedly an Ismaili work, and its doctrine does not differ much from that of the Iqtiṣār, Āthār and Daʿāʾim. However, the arrangement of the subjects and its exposition appear more rudimentary than the Daʿāʾim’s. Therefore, I believe that the Yanbūʿ could have been written before the Daʿāʾim.16 But I do not agree with Lokhandwalla who questions al-Nuʿmān’s authorship of the work. His hypothesis that it was written by ‘some [anonymous] enthusiastic Ismāʿīlī author’17 seems unsound, because Ismaili sources relate enough information about the activities of jurists and qāḍīs under the Fatimids for the author of a work of law such as this to be unknown. The most serious question posed by Lokhandwalla18 is why al-Nuʿmān does not mention the Yanbūʿ in his later works. It is probable that it really was composed during the reign of al-Manṣūr (334–341/946–953) and was indeed based on his authority, but that its importance was superseded by the later works composed by al-Nuʿmān under the authority of al-Muʿizz, and it therefore fell into oblivion; there is precedence for arriving at such a conclusion, since this was also the fate of the Minhāj. The Minhāj often agrees with the Mālikī doctrines, and this sheds light on the contentious question about al-Nuʿmān’s formative theological underpinnings. Why not see the Minhāj as a first attempt by a jurist, who was profoundly skilled in Mālikī law, to codify the very controversial field of inheritance law, during the first period of 15. al-Nuʿmān, Daʿāʾim, vol. 2, pp. 396–397, no. 1394. See Cilardo, ‘Peculiarities’, pp. 134–136. 16. Cf. Lokhandwalla who says, ‘The style of the Yanbūʿ by no means indicates that it is earlier or later than the Daʿāʾim’ (‘Introduction’, p. 35). 17. Lokhandwalla, ‘Introduction’, p. 37. 18. Lokhandwalla, ‘Introduction’, pp. 35 and 36.

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the Fatimid caliphate, when Abū Ṭāhir al-Dhuhlī, a Mālikī qāḍī in Egypt after Fatimid conquest, was continuing to apply Mālikī law, but who also was forced to follow a not yet definitively fixed Ismaili doctrine in the field of succession? Generally speaking, the composition of a complete manual of law precedes the composition of books on one of its particular fields. However, in the Minhāj we have a text on succession law that is antecedent to the manuals of Ismaili law. This apparent anomaly can be justified based on the need to regulate an important institution of the Qurʾan, such as inheritance law, which assures correct rules for the transmission of property causa mortis. Therefore, the Minhāj is neither completely adherent to the Sunni nor to the Imāmī doctrine, nor is it completely original; rather, it represents a rudimentary Ismaili doctrinal position. But another hypothesis may be advanced: that the Minhāj is a part of one of the lost law works of al-Nuʿmān. If the Iqtiṣār is more recent than the Minhāj and it was composed in the same period as al-Muntakhaba, during the reign of the ImamCaliph al-Qāʾim from 322/934 to 334/946, then the Minhāj belongs to a previous period of Fatimid rule. Might it be a remnant of the Kitāb al-īḍāḥ? Only a comparison between these two works could confirm this hypothesis, but this is presently impossible since only fragments of the Kitāb al-īḍāḥ are extant. Leaving aside any consideration about the highly elaborated exposition and style present in the Yanbūʿ, Āthār and Daʿāʾim, ignoring the fact that the doctrines and cases are widely justified there, that the terminology is more accurate19 and that some incomplete and uncertain rules are clearly specified,20 all the above considerations lead to one conclusion: the doctrine of the Minhāj is characteristic of an early stage in the evolution of the Ismaili school of law. It reflects the temporal fact that the Ismaili doctrine was not yet definitively fixed and contains many remnants of the previous Mālikī milieu. Furthermore, no Zaydī influence seems to emerge. 19. For a child not yet born (al-mawlūd) the term al-janīn (foetus) is used (Yanbūʿ, fol. 117r; Āthār, fol. 122r; Daʿāʾim, vol. 2, p. 385, no. 1368). 20. It is stated not only that a Muslim has the right to inherit from a kāfir, not vice-versa, but also that kuffār belonging to the same denomination have the right to inherit from each other, but one group of ahl al-milla cannot inherit from people belonging to a different group of ahl al-milla, except Muslims (Iqtiṣār, p. 135; Yanbūʿ, fol. 117r–117v; Āthār, fol. 122r–122v; Daʿāʾim, vol. 2, pp. 385–386, no. 1369).

Note on the edition

Description of the Minhāj al-farāʾiḍ The present edition of the Minhāj al-farāʾiḍ is based on the manuscript in the Fyzee Collection (Ms A).1 It is composed of 33 folios2 and contains two tracts. The first is the Minhāj al-farāʾiḍ, a short tract which is divided into bābs and faṣls with a short doxology at the beginning and some corrections in the margins. This tract runs from folios 1r to 26r.3 The remaining folios, 26v to 32v,4 contain another small tract entitled Kitāb ḥayrat al-fiqh ʿalā’l-madhāhib ahl al-bayt which deals ‘with the difficulties in regards to some questions of law. The work is anonymous. Questions are set and answers are given to them’.5 Neither the date nor the name of the copyist is given. The size of both the tracts is 8 inches x 5 inches and the manuscript has been ‘affected by water and [contains] loose folios’.6 It is copied in a medium-sized Naskhī hand. A few modifications have been introduced in the edited text for consistency. However, these do not change its meaning. So, the ‫ى‬ used as a support for a ‫ ء‬is written in the manuscript with the two diacritic points in words such as ‫اقربائها‬, ‫ف رائض‬, ‫سائر‬, ‫مسائل‬, ‫خمسمائة‬, ‫مائة‬. Or the preposition ‫ على‬is sometimes written as ‫ ثالث ;علي‬and ‫ ثالثة‬are usually without the ‫ بنو;ا‬is written as ‫ امرء ;بنوا‬as ‫ام رأ‬. In some َ cases the ‫ ي‬has no diacritic points, such as in ‫با ِق ى‬, ‫ َب ِن ى‬, ‫أع ِن ى‬, ‫ذ ِوى‬, ‫أش َت ِرى‬, ‫أُ ْع ِطى‬, or, on the contrary, the ‫ ى‬is written with diacritic 1. Muʿizz Goriawala, A Descriptive Catalogue of the Fyzee Collection of Ismaili Manuscripts (Bombay, 1965), pp. 25–26, no. 39. 2. Not 30 folios as mentioned in Goriawala, ibid. 3. Not 1b to 24a as mentioned in Goriawala, ibid. 4. Not 24b to 30b as mentioned in Goriawala, ibid. 5. Goriawala, A Descriptive Catalogue, p. 26. 6. Goriawala, A Descriptive Catalogue, p. 26.

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points, such as ‫ مولى ;غرقي‬is generally written as ‫موال‬. The conjunction ‫ و‬is sometimes on a line, while the word that follows is put on the next line. The manuscript from the Fyzee Collection was collated using the two copies housed at The Institute of Ismaili Studies (London). One copy (Ms B) is listed in Cortese7 and was produced between the late 13th/19th and early 14th/20th centuries. It consists of one fly-leaf and forty-three leaves (excluding the flyleaf) with ten lines per page; 130 x 99/90 x 70 mm. The incipit is missing. The second copy (Ms C), also listed in Cortese,8 was copied by Ṭāhir b. ʿAbd ʿAlī, and is dated 5 Shaʿbān 1327/21 August 1909. It is composed of thirty-four leaves (six loose gatherings), with thirteen lines per page; 190 x 115/120 x 65 mm. The title and headings are in red. In the collation the same criteria as for Ms A were followed: that is, recurrent but negligible variations were not pointed out; for instance, ‫ ثالث‬and ‫ ثالثة‬are written usually without ‫ا‬. The three manuscripts have basically the same content. However, some text is missing from Ms A, thereby rendering it obscure. This missing text is found mostly in Ms B, thus it is the most complete and accurate copy of the three manuscripts. Ms B and Ms C are similar; in fact, their variants are mostly the same with respect to Ms A (their text is nearly coincident); but, of the two, Ms B is more respectful of the Arabic grammar, because it avoids writing, for instance, ‫واالبنته‬, or ‫فلالبن االبن‬, and similar grammatical misconstructions. It seems evident that Ms A and Mss B–C come from two different chains of transmitters.

7. Cortese, Descriptive Catalogue, p. 53, no 82/889. 8. Cortese, The Zāhid ʿAlī Collection, pp. 118–119, no 101.

al-Qāḍī Abū Ḥanīfa al-Nuʿmān Minhāj al-farāʾiḍ

(fol. 1r) THE COURSE OF INHERITANCE LAW (fol. 1v) Book on the course of inheritance law Praised be the Lord with a praise surpassing any praise of the laudators. God bless the Prophet Muḥammad, the Faithful, and his Family, the Noble and the Pure, and grant Them salvation! Prologues Inheritance law transmitted on the authority of the Family of the Prophet, blessings be upon Them There are three grounds on which a person has the right to claim an inheritance: kinship, legal title and that which is comparable to legal title and kinship.1 As far as kinship is concerned, it is established for three kinds of heirs: the first refers to those who are related to a deceased person, that is, a father and grandfather, however high. The second concerns those who are related to you [the deceased], that is, a child and child’s child, however low. The third regards those who stand in the same degree as you [the deceased], that is, brothers and sisters. As for legal title, it is established for two kinds: a title which may be broken [marriage] and a title which is permanent [patronage]. The former concerns the wife, the latter (fol. 2r) concerns the patron. As far as that which is comparable to kinship is concerned, the heir in this instance is someone who is acknowledged by the deceased, but whose relationship is not established.2 As for the status comparable to a legal title, it refers to a person who signed a contract of clientage.3 There are three established categories for heirs: heirs by quota, 1. Kinship refers to blood relationship; legal title pertains to marriage ties and patronage; a contract of patronage entered into between two free people is comparable to the legal title, while the acknowledgement of an heir is comparable to the kinship. 2. That is, there does not exist a blood tie between the acknowledged heir and the acknowledging deceased person. 3. It is permissible for a person who is not able to manage himself to create a bond of patronage submitting himself to another person.

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who are never excluded from an inheritance, relatives on the maternal side and agnates. Section 1. Mention of the fixed shares mentioned by God, be He exalted, in His Book There are six fixed shares: two-thirds, one-half, one-third, one-fourth, one-sixth and one-eighth. The share of two-thirds is apportioned to the father in the presence of the mother, when there are neither children nor sons’ descendants. It is also the daughters’ share if there are two or more. Likewise, it is the share of a son’s daughters. Lastly, it is the share of two full or consanguine sisters. One-half is allotted to an only daughter. It is also the share of an only son’s daughter and an only full (fol. 2v) or consanguine sister. Moreover, one-half is the share apportioned to the husband when his wife leaves no descendants nor sons’ descendants who are male. A son’s descendants are comparable to one or more direct descendants, be they males or females. One-third is the mother’s share when she does not leave children, or sons’ descendants, or two or more full or consanguine brothers. As a matter of fact, the latter causes the mother’s share to be curtailed from one-third to one-sixth, even if they are excluded from the inheritance in her presence. One-third is also the share of the uterine brothers and sisters if there are two or more, be they males or females, divided among them equally. One-fourth is the share of the wife when her husband does not leave children or his son’s children, be they few or many. Likewise, one-fourth is apportioned to the husband if his wife leaves children, or her son’s children. One-sixth is the share of the parents when children of their deceased child, or their grandchildren (fol. 3r), however low, are present. In this case, each parent shall be allotted one-sixth, while the remainder shall be distributed among their descendants. Moreover, one-sixth is the share of an only uterine brother or sister; one-sixth to one of them, whether male or female. One-eighth is the share of the wife when her husband’s children, or his son’s children, are present. On the one hand, wives, be they four or fewer, are not entitled to receive more than a quarter of their

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husband’s estate, divided equally among them, when their husband does not leave descendants. On the other [hand], they cannot receive less than one-eighth, to be divided equally among them, when their husband leaves descendants. They can claim only these two fixed shares. This is what God, be He praised, determined in His Book in favour of wives. Moreover, it is what God, be He exalted, apportioned as fixed shares to the heirs we mentioned. However, each of these shares is differentiated in manifold ways. As far as relatives on the maternal side are concerned, according to our Companions, God’s blessings be upon Them (fol. 3v), the principle to be followed is that, on the one hand, the closest of them to a deceased person debars the most remote; on the other, each heir is given the share established in the Book, while the remainder is added to [his share] because of his kinship, but not to spouses, who cannot claim an increase in their shares. As for the agnates, they are the grandfather’s descendants (that is, paternal uncles and their descendants) and the father’s descendants (that is, a brother and his descendants), in other words, males only. Section 2 The nearest among the agnates is the son; then the son’s son, however low; then the father; then the full brother; then the consanguine brother; then the full brother’s son; then the consanguine brother’s son; then the paternal uncle who is a full brother of the father; then the paternal uncle who is a consanguine brother of the father; then the son of a paternal uncle, who is a full brother of the father; then the son of a paternal uncle, who is a consanguine brother of the father; then according to this order; the patron follows; and, lastly, the patron who signed a contract of clientage. Paternal half-siblings have no right to [an] inheritance when full brothers, who are the nearest [relatives of the deceased], are present. Thus, if full brothers and consanguine brothers are present, the estate shall be allotted to full brothers, while nothing shall be given to consanguine brothers. Likewise, if sisters of different categories, that is, full, consanguine and uterine sisters, are present, according to our Companions, God’s blessings be upon Them (fol. 4r), a uterine sister shall be apportioned one-sixth because she belongs to the [category of] maternal half-siblings, to whom God apportioned no more than

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one-sixth in His Book. The remainder shall be allotted to the full sister as [an] inheritance and proportional increase (radd), because she is the nearest to the deceased person, as she is his full sister. The consanguine sister does not receive anything in her presence. Section 3 Four [types of] male [heirs] render four [types of] female [heirs] agnates: sons, sons’ sons, full brothers and consanguine brothers. They are the only males who make their sisters agnates, whereas among the remaining male agnates, only males inherit the estate. If heirs by quota, relatives on the maternal side and agnates have become extinct, the estate shall be given to his patron; then to his patron’s agnates; then to those relatives on the [deceased’s] maternal side to whom no share is allotted in the Book of God; finally to the Public Treasury. There are three impediments to receiving [an] inheritance: unbelief, slavery and premeditated murder. An unbeliever cannot inherit from a Muslim, but a Muslim can claim an inheritance from an unbeliever; this is because unbelief cannot debar Islam. According to our Companions, God’s blessings be upon Them, if a man (fol. 4v) or a woman dies and does not leave an heir, but a manumitted slave, either male or female, the estate shall be allotted to the slave. Likewise, if a person dies and leaves an heir who is a slave, and the slave’s price falls within the amount of the estate, the [freedom of the] slave shall be bought using this estate, and the remainder shall be allotted to him. If, however, the estate is not sufficient for his redemption, he cannot claim his inheritance. Section 4. Direct descendants and parents Only parents, spouses and grandmothers can inherit in the presence of a descendant, as in the cases illustrated below. If a man dies and leaves a son, the estate is allotted to him. If he leaves two sons, the estate shall be divided into halves. If he leaves three sons, the estate shall be divided into three portions. Then, this set order shall be followed; that is, if a man leaves a son and a daughter, the estate shall be divided into three parts, giving the male double the portion of the female: two shares to his son and one

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share to his daughter. If he leaves two sons and two daughters, the estate shall be divided into six parts, giving each male the portion of two females: two shares to each son and one share to each daughter. According to this rule (fol. 5r), if there are many sons and daughters, the inheritance shall be divided among them, giving each male double the portion of each female: two shares to each son and one share to each daughter. If a man leaves his father and a son, his father is allotted one-sixth, while the remainder shall be apportioned to his son; the denominator is six. Likewise, if he leaves his father and two sons, the denominator is six: one-sixth to his father, and the remainder shall be divided into halves between his sons. In the same manner, if he leaves his father and three or more sons, his father shall be given one-sixth, while the remainder shall be divided equally among his sons. If he leaves his father and a daughter, the father can claim one-sixth and the daughter one-half of the estate; what remains shall be added proportionally to the [share of the] father and daughter. If he leaves his father and two daughters, his father has the right to one-sixth and the two daughters to two-thirds, divided equally between them; what remains shall be added proportionally to the [share of the] father and daughters. If he leaves his father and three daughters, his father has the right to one-sixth and his daughters to two-thirds, divided equally among them; the remainder shall be added proportionally to the [share of the] father and daughters (fol. 5v). Then, this pattern shall be followed, that is, if there are many daughters, they cannot receive more than two-thirds, unless through the proportional increase of their share. In fact, God, exalted be His mention, determined a two-third share in favour of the daughters as a whole, to be divided equally among them, and fixed a one-sixth share in favour of the father; so the remainder shall be proportionally increased to them. If he [the deceased] leaves his father, a son and a daughter, the denominator is six: his father is allotted one-sixth, while the remainder shall be divided between his children, giving the male the share of two females. If a man leaves his father, two sons and two daughters, his father has the right to one-sixth, while the remainder shall be divided among his children, giving the male the share of two females. Then, this pattern shall be followed, that is, if the father and

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both male and female direct descendants, be they few or many, are present, the denominator is six: the father shall be given one-sixth, while the remainder shall be divided among the descendants, giving the male the share of two females. If a man leaves his parents and a son, the parents have a right to two-sixths, one-sixth to each; the remainder shall be allotted to his son. If he leaves his parents and two sons, his parents have a right to two-sixths, while the remainder shall be divided into halves between his sons. Then, this order shall be followed, that is, parents are allotted two-sixths, one-sixth to each (fol. 6r). [In this instance,] the father does not have pre-eminence over the mother. If a man leaves his parents and a daughter, his parents have a right to two-sixths as a determined share, one-sixth to each, and his daughter to one-half as a determined share. The remainder shall be added proportionally to [the share of] his parents and daughter; [here,] the denominator is five: three shares to his daughter, one share to his father and one share to his mother. If he leaves his parents and two daughters, the denominator is six: his parents shall be allotted two-sixths as a determined share, one-sixth to each, and his daughters two-thirds as a determined share, divided equally between them; in this way, the inheritance becomes complete. If [the deceased leaves] parents and three daughters, his parents are given two-sixths, divided equally between them, while his daughters are apportioned two-thirds, divided equally among them. If a man leaves his parents, a son and two daughters, his parents have a right to two-sixths, divided equally between them, while the remainder shall be divided among his children, giving the male a portion equivalent to that of two females. Then, this order shall be followed; that is, when male and female children, be they few or many, inherit in the presence of parents, the latter are allotted (fol. 6v) two-sixths, while the remainder shall be apportioned among the children, giving each male a portion equivalent to that of two females, even if the direct descendants who inherit in the presence of the parents are many. If no child is present, one-third of the estate shall be apportioned to the mother, and the remainder to the father. If a father inherits in the presence of a son’s son, the father has a right to one-sixth, and the son’s son to the remainder. The son’s descendants hold the same status as [the deceased’s] direct

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descendants, males for males and females for females; they debar parents in the same way as direct descendants. If a man leaves his parents and a son’s daughter, the latter has the right to a share of one-half and the parents to two-sixths, divided between them equally; the remainder shall be added proportionally to their shares. If a man leaves his parents, a son’s son and a son’s daughter, be they offspring of the same son or two different sons, his parents have a right to two-sixths, while the remainder shall be divided between his son’s son and his son’s daughter, giving the male double the share of the female. Then this pattern shall be followed, that is, what can be applied to parents who inherit in the presence of direct descendants is also applied when parents inherit in the presence of a son’s descendants. According to our Companions, peace be upon Them, the [deceased’s] daughter’s descendants (fol. 7r) are treated like a daughter. In fact, if the daughter’s descendants inherit in the presence of a son’s descendants, the estate shall be divided between them, giving the male a portion equivalent to that of two females, as in the case when a son’s son inherits in the presence of a daughter’s daughter, where the property shall be divided between them giving the male a share double that of the female. However, this rule cannot be applied if one of the two is related to the deceased to a lesser degree; in fact, in this case, the nearest [relation] to the deceased person is more entitled to receive the estate. Section 5. Direct descendants and spouses If a man dies and leaves his wife and a son, his wife has a right to one-eighth, and his son to the remainder. If he leaves his wife, a son and a daughter, his wife has a right to one-eighth, while the remainder shall be divided between his children giving the male a portion equivalent to that of two females. If he leaves his wife and a daughter, his wife has a right to one-eighth, and his daughter to the remainder. If he leaves his wife and two daughters, his wife has a right to one-eighth, while the remainder shall be divided into halves between the daughters; the denominator of this fraction is eight: his wife is allotted one-eighth if descendants are present, and the remainder shall be apportioned to the children of the deceased person, according to what we mentioned.

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If a woman dies (fol. 7v) and leaves her husband and a son, her husband has a right to one-quarter, and her son to the remainder. If she leaves her husband and a daughter, her husband is entitled to receive one-quarter and her daughter one-half as a determined share; the remainder shall be added only to [the share of] her daughter. If she leaves her husband and two daughters, her husband has a right to one-quarter and her daughters to two-thirds as their determined share; the remainder shall be added to [the share of] her daughters and divided equally between them. The same rule is applied to any direct descendant’s children who inherit in the presence of the husband or wife; as a matter of fact, they hold the same status as the direct descendant and debar the same heirs excluded from inheritance by the direct descendant. If a woman dies and does not leave either a child or a son’s child, her husband shall receive half the estate and what[ever] remains. But if she leaves agnates, such as a brother, or a brother’s descendants, or a sister, or a sister’s descendants, or a paternal uncle, or a paternal uncle’s descendants, or one of her kindred belonging to agnates or relatives on the maternal side, the nearest to the deceased person among them shall receive the remainder. If, instead, she leaves no relatives, the remainder shall be given to the Public Treasury. Her husband shall not be given more than a one-half share in any case. Likewise, if a man dies and leaves his wife, but neither male or female (fol. 8r) child, nor male or female son’s descendant[s], be they one or more, his wife shall receive one-quarter; as far as the remainder is concerned, if that man leaves one of his relatives on the maternal side or agnates, the nearest to him among them shall receive the remainder. If, however, he leaves none of the above, the remainder shall not be added to [the share of] his wife, but be given to the Public Treasury. On the one hand, his wives, be they four or fewer, share one-quarter of the estate when their husband does not leave a child or child’s child; on the other, they share one-eighth of the estate when he [does] leave them [that is, a child or child’s child]. Section 6. Spouses and parents If a man dies and leaves his wife and his father, his wife is entitled to one-quarter, and his father to the remainder. If he leaves his wife and his mother, his wife has the right to one-quarter and his mother

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to both one-third as a determined share and to the remainder as [an] increase because of her kinship. According to our Companions, God’s blessings be upon Them, if a man leaves his wife and his parents, his wife is entitled to one-quarter and his mother to one-third; what remains shall be given to his father. If a wife dies and leaves her husband and her father, her husband has a right to a share of one-half and her father to the remainder. If she leaves her husband and her mother, her husband is entitled to a share of one-half (fol. 8v) and her mother to both one-third as a determined share and the remainder because of her kinship. If a woman dies and leaves her husband and her parents, her husband is entitled to one-half, her mother to one-third as a determined share, and her father to the remainder. The denominator of this fraction is six: one-half to her husband, that is, three shares; one-third to her mother, that is, two shares; the remaining [one-sixth, that is,] one share, shall be allotted to her father. Section 7. Direct descendants, son’s descendants, spouses and parents If a man dies and leaves a son and a wife, his wife has a right to one-eighth and his son to the remainder. If he leaves a son’s son and a wife, his wife is entitled to one-eighth and his son’s son to the remainder. If he leaves his wife, a son and his father, his wife has a right to one-eighth, his father to one-sixth and his son to the remainder. If he leaves his wife, a daughter and his father, his wife is entitled to one-eighth, his father to one-sixth and his daughter to one-half as a determined share; the remainder shall be added proportionally to [the share of] his father and his daughter. If he leaves his wife, a son and his mother, his wife (fol. 9r) has a right to one-eighth, his mother to one-sixth and his son to the remainder. If he leaves his wife, a daughter and his parents, his wife has a right to one-eighth, his parents to two-sixths, divided equally between them, and his daughter to one-half; the remainder shall be added proportionally to [the share of] his parents and his daughter. If he leaves two daughters, his wife and his parents, his wife is entitled to one-eighth, his parents to two-sixths, divided equally between them, and his two daughters to the remainder, [which is] divided into halves. Likewise, if a woman dies and leaves her husband, her father and a

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son, her husband has a right to one-quarter, her father to one-sixth and her son to the remainder. If she leaves her husband, a daughter and her mother, her husband is entitled to a one-quarter share, her mother to one-sixth and her daughter to one-half as a determined share; the remainder shall be added proportionally to [the share of] her mother and her daughter. If she leaves her husband, her parents, a son and two daughters, her husband has a right to one-quarter, her parents to two-sixths and her children to the remainder, divided among them, giving the male double the share of a female. If she leaves her husband, her parents and two daughters (fol. 9v), her husband is entitled to one-quarter, her parents to two-sixths, and her daughters to the remainder, divided between them into halves. Then this pattern shall be followed. Shares cannot be reduced.4 Section 8. Brothers and sisters Neither a paternal uncle, nor a paternal uncle’s son, nor a paternal aunt, nor a maternal uncle, nor a maternal aunt inherit in the presence of [the deceased’s] brothers and sisters. According to our Companions, God’s blessings be upon Them, a grandfather holds the same status as a brother in the inheritance; he receives the same share as a brother, as in the cases illustrated below. If a man dies and leaves a full brother, the whole estate shall be apportioned to him. The same is true if he leaves a paternal consanguine brother. If he leaves a uterine brother, he has the right both to one-sixth and to the remainder. If, however, a deceased person leaves one of his relatives who can claim an inheritance in the presence of a uterine brother, the remainder shall be apportioned to him [that relative]; if not, the remainder shall be added to the [share of the] uterine brother because of his kinship. If there are a 4. The question of proportional reduction was much debated among the earliest scholars because it modifies the Qurʾanic order of fixed shares. If the amount of shares to be attributed to the heirs is greater than the estate available, Sunnis, Zaydīs and Ibāḍīs have recourse to the proportional reduction of all the shares. On the contrary, Ẓāhirīs, Imāmīs and Ismailis believe that Qurʾanic shares cannot be reduced. If the amount of shares to be attributed to the heirs is greater than the estate available, only children and full and/or consanguine brothers and/or sisters must suffer a reduction of their shares.

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full brother and a consanguine brother, the estate shall be allotted to the full brother; in fact, a consanguine brother does not receive anything in his presence. If there are three brothers of different categories, that is, a full brother, a consanguine brother and a uterine brother, the latter has a right to one-sixth as a determined share (fol. 10r), because he belongs to the maternal half-siblings and he has the right to a fixed share in the Book of God; the remaining part of the estate shall be apportioned to the full brother, while the consanguine brother receives nothing. If there is a full sister, she shall receive one-half as a determined share; if the deceased person also leaves an heir among those who can inherit in her presence, he is apportioned the remainder; if not [that is, the deceased does not leave an heir], the remainder shall be added to [the share of] the sister because of her kinship. The same rules are applied to a consanguine sister. If there is a uterine sister, she is allotted one-sixth as a determined share; if there is also an heir who can claim an inheritance in her presence, he shall receive the remainder; if not [that is, there is no heir], the remainder shall be added to her [share] because of her kinship. If there are three sisters of different categories, that is, a full sister, a consanguine sister and a uterine sister, the uterine sister has the right to one-sixth and the full sister to the remainder, while the consanguine sister does not receive anything. If there are a full brother and sister, the estate shall be divided between them, giving the male a portion equivalent to that of two females. If there are brothers and sisters, be they few or many, and they are the offspring of the same father and mother, the estate shall be divided among them, giving the male double the share of the female. The same rules are applied to a consanguine brother and sister: the estate shall be divided between them, giving the male double the share of the female. If there are many brothers and sisters (fol. 10v), but they are the offspring of the same father, [then] the estate shall be divided among them, alloting a male a portion equivalent to that of two females. But it is not the same with regard to uterine halfsiblings, that is, a uterine brother and sister, because they have the right to a fixed share which can be neither increased nor decreased, as in the case when [only] a uterine brother and [only] a uterine sister are present; in fact, they have a right to one-third, divided

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equally between them; a male has no pre-eminence over a female [in this case]. If there are two or more uterine brothers and sisters, [then] they share one-third; [here, too,] a male has no pre-eminence over a female; as a matter of fact, the one-third shall be divided equally among them, while the remaining part of the estate shall be apportioned among those relatives who can inherit in the presence of uterine half-siblings, if any; otherwise [that is, if there are no such relatives], the remainder shall be added to the [share of the] uterine half-siblings [and] divided equally among the males and females. If two full brothers, two consanguine brothers and two uterine brothers are present, the uterine brothers have a right to one-third, and the full brothers to the remainder; consanguine brothers do not receive anything, because they are excluded by full brothers. The same is true if there are many brothers of different categories: uterine brothers, be they two or more, shall receive one-third (fol. 11r), divided equally among them, while the remainder shall be apportioned to full brothers. If there are two full sisters, two consanguine sisters and two uterine sisters, the uterine sisters have the right to one-third as a determined share, and the full sisters to two-thirds as a determined share, while the consanguine sisters are excluded from inheritance. The same is the case when full, consanguine and uterine sisters are present, even if there are many of them; as a matter of fact, full sisters have a right to two-thirds and uterine sisters to one-third, divided equally among them, while consanguine sisters do not receive anything. If there are a full brother and sister, a consanguine brother and sister and a uterine brother and sister, the uterine brother and sister have a right to one-third, divided equally between them, while the remainder shall be apportioned to the full brother and sister [and be] divided between them, giving the male double the share of the female; the consanguine brother and sister do not receive anything. If there are a full brother’s son and a consanguine brother, the estate shall be allotted to the consanguine brother, because he is more closely related to the deceased person, while the full brother’s son does not receive anything. If there are a full brother’s son and a consanguine brother’s son, they are of the same degree; the most entitled (fol. 11v) [to the inheritance], however, is the full brother’s son, who, therefore, shall receive the whole estate. If there are a full

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brother’s son and a uterine brother, according to our Companions, God’s blessings be upon Them, the estate shall be allotted to the uterine brother, while the full brother’s son is excluded from the inheritance. If there are a consanguine brother’s son and a uterine brother, the uterine brother shall obtain the whole estate, while the consanguine brother’s son does not receive anything. If there are a full brother’s son and a consanguine brother’s son, the estate shall be apportioned to the former, as he is the nearest to the deceased person because of his mother. If there are a full brother’s son, a consanguine brother’s son and a uterine brother’s son, the latter shall receive one-sixth, that is, his mother’s share, while the full brother’s son shall receive the remainder. Then, this pattern shall be followed, however low their degree, on the condition that their degree is the same and none of them belongs to a lower degree; in this case, each of them represents the relative through whom [they are] related [to the deceased]. This is not the case if one of them is more remote; as a matter of fact, the nearest relative debars the more remote and is more entitled to receive the estate. Section 9. Brothers, sisters and parents If a man dies and leaves a brother and his parents (fol. 12r), his mother has a right to one-third and his father to the remainder. If he leaves two brothers and his parents, the inheritance of his brothers causes a reduction of his mother’s share from one-third to one-sixth [and his father has a right to the remainder]; but brothers do not receive anything, according to God’s Word, the Almighty and Sublime. As a matter of fact, if he [the deceased] leaves brothers, the mother has a right to one-sixth; thus the mother shall receive one-sixth and the father the remainder. If there are a brother, a sister and his parents, his mother shall receive one-third, and his father the remainder. Neither a brother nor one or two or three sisters causes a reduction in the mother’s share from one-third to one-sixth; but only two or more brothers, or a brother and two sisters, because two sisters are considered like a brother, as if there were two brothers, [causes a reduction]. On the one hand, they cause a reduction in a mother’s share from one-third to one-sixth; on the other, they allow the father’s share to be increased from four-sixths to five-sixths, but

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they [brothers/sisters] do not receive anything. If two brothers and a great or small number of sisters are present, the brothers and sisters do not receive anything in the presence of the father. If a brother and mother are present, the latter has the right to one-third and to the remainder; however, if a deceased person leaves a relative who can inherit in the presence of a mother, he can claim his due; if not [that is, the deceased leaves no such relative], the remainder shall be added to the [share of the] mother because of her kinship. If there are two brothers (fol. 12v), the mother can claim one-sixth as a determined share, and the remainder shall be added to her share because of her relationship to the deceased person. If an only brother, whether he be a full brother or a consanguine brother, and a grandfather, that is a father’s father, are present, the estate shall be divided equally between them. As a matter of fact, according to our Companions, God’s blessings be upon Them, a grandfather holds the same status as a brother. If two brothers and a grandfather are present, the estate shall be divided into three portions. If he [the deceased] leaves a full or consanguine brother’s son and a grandfather, the estate shall be divided equally between the two. Likewise, if there are many brothers, a grandfather shall be considered as one of them. The same rule must be applied if a brother’s sons and a grandfather are present; that is, any estate shall be divided equally among them. If he [the deceased] leaves a uterine brother and a paternal grandfather, the uterine brother has the right to one-sixth, and the grandfather to the remainder; but if there is a uterine brother’s son, the whole estate shall be apportioned to the grandfather; in fact, a uterine brother’s son does not receive anything in his presence. If brothers and sisters of different categories, that is, a full brother and sister, a consanguine brother and sister and a uterine brother and sister, are present, the maternal half-siblings shall be allotted one-third, divided equally between the male and the female. The remainder shall be apportioned to the full brother and sister and the grandfather, giving the male double the share of the female; the grandfather shall receive (fol. 13r) the same quota as a brother, while paternal brothers and sisters are excluded from the inheritance. Then, this pattern shall be followed: that is, be the brothers many or few, a grandfather holds the same status [for the share of an inheritance] as a brother.

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They [the Companions], God’s blessings be upon Them, related that the Messenger of God, God bless Him and grant Him salvation, let a brother’s son inherit in the presence of a grandfather, dividing the estate equally [between them]. However, if he [the deceased] leaves a full or consanguine brother’s son [and a grandfather], the estate shall be divided equally between the two, but not if the brother’s descendants are on the maternal side.5 This is because there is no explicit ruling on this matter. If a grandfather and a mother are present, the latter has the right to one-third as a determined share, while two-thirds are added to her [share] because of her kinship; a grandfather does not receive anything in the presence of a mother. Section 10. Paternal uncles, brothers and sisters If a man dies and leaves a paternal uncle and a brother, any property shall be apportioned to the brother. If a paternal uncle and a sister are present, the latter has the right to one-half as a determined share and to one-half because of the proportional increase, while a paternal uncle does not receive anything in the presence of [the deceased’s] sisters. If a brother’s son and a paternal uncle are present, the estate shall be allotted to the brother’s son. The same is the case if brothers and sisters are present; as a matter of fact, the estate shall be divided between them, giving the male double the share of the female. If, however, uterine brothers and sisters, be they few or many, and a paternal uncle are present (13v), the estate shall be divided equally among the female and male uterine half-siblings. If a uterine brother’s son and a paternal uncle are present, the estate shall be apportioned to the uterine brother’s son. As a matter of fact, a paternal uncle does not receive anything in the presence of brothers and sisters of any kind, because both the father’s offspring and mother’s offspring are more entitled [to the inheritance] than the grandfather’s offspring; in fact, a paternal uncle belongs to the grandfather’s offspring, while brothers and sisters may belong either to the father’s or the mother’s offspring. If a father’s full brother and a father’s consanguine brother are present, the estate shall be apportioned to the father’s full brother. 5. In this case, they are excluded and the grandfather inherits the whole estate.

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Likewise, if a father’s consanguine brother and a father’s uterine brother are present, the estate shall be apportioned to the father’s consanguine brother, while the father’s uterine brother does not receive anything. This case cannot be compared by analogy to a case where uterine brothers and sisters are present, because they are allotted a fixed share in the Book of God; it is not so, however, with regard to paternal uncles. In fact, the principle to be followed with regard to paternal uncles is that the nearest of them debars the most remote. If the sons of a father’s full brother and a father’s uterine brother are present, the estate shall be apportioned to the latter. If the son of a father’s full brother and the son of a father’s consanguine brother are present, the estate shall be apportioned to the son of the father’s full brother. If he [the deceased] leaves the son of his father’s consanguine brother and the son of his father’s uterine brother, the former has the right to two-thirds, and the latter to one-third, because the son of the father’s consanguine brother is related to [the deceased through] the father, while the son of the father’s uterine brother is related to [the deceased through] the mother; thus, each one of them must (fol. 14r) receive the same share [that would have been] allotted to the relative through whom he is related [to the deceased]. If a son and a daughter of a father’s full brother are present, the estate shall be divided between them, giving the male double the share of the female. The same solution applies if the son and the daughter of a father’s consanguine brother are present. But it is not the case if the son and the daughter of a father’s uterine brother are present, because a male has no pre-eminence over a female among the maternal half-siblings; in fact, the estate shall be divided equally between them, be they few or many. Section 11. Paternal and maternal uncles and aunts and their descendants If a man dies and leaves a paternal uncle and a maternal uncle, the maternal uncle has the right to one-third [of the inheritance] and the paternal uncle to two-thirds, because a paternal uncle is a father’s brother and a maternal uncle is a mother’s brother; thus, each one of them can claim the same share of the relative to whom he is related. In the same way, if a paternal aunt and a maternal aunt are present,

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the paternal aunt shall receive two-thirds and the maternal aunt one-third. If a paternal uncle’s son and a maternal uncle are present, the estate shall be allotted to the maternal uncle to the exclusion of the other. If a paternal uncle’s son and a maternal uncle’s son are present, the first has the right to two-thirds and the latter to one-third. If a paternal uncle’s daughter and a maternal uncle’s son are present, the former can claim two-thirds and the latter one-third. If a paternal uncle’s daughter and a maternal uncle’s daughter are present, the former has the right to two-thirds and the latter to one-third (fol. 14v). The same rule shall be applied if they [the heirs of the third class, that is, the uncle’s descendants] belong to a lower degree. As a matter of fact, each of them, when they belong to the same degree, are treated like their parents. If, however, one is [of a] lower [degree] than the other, the property shall be allotted to the nearest of them [that is, the one who is of the higher degree]. Then, this pattern shall be followed; that is, if a paternal aunt’s son and a maternal aunt’s son are present, the former is entitled to two-thirds and the latter to one-third. If a paternal aunt’s daughter and a maternal aunt’s daughter are present, the former can claim two-thirds and the latter one-third. If a grandfather and a paternal uncle are present, the estate shall be apportioned to the grandfather. The same is the case if a grandfather and a paternal aunt, or a grandfather and a maternal aunt, are present. If a paternal grandfather, i.e. father’s father, and a maternal grandmother, i.e. mother’s mother, are present, the grandmother is entitled to one-third and the grandfather to two-thirds. If there are two grandfathers, one being a paternal grandfather and the other a maternal grandfather, the one related to the father can claim two-thirds, while the one related to the mother is entitled to one-third. If a father’s mother and a mother’s father are present, the former has the right to two-thirds and the latter to one-third. Likewise, if they [that is, ascendants/grandparents both on the paternal and maternal side] are of the same degree, however high, the inheritance shall be divided between them according to this pattern; that is, these relatives can claim all these shares only if no heir more entitled than them is present, according to what (fol. 15r) we mentioned, following the principle of proximity.

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A grandmother is never debarred [from inheriting] because of the presence of direct descendants and other heirs, according to what was related on the authority of the Messenger of God, God bless Him and grant Him salvation, as he allotted one-sixth to a grandmother on the maternal side in the presence of the deceased person’s descendants and other heirs, when the mother has not survived. If two grandfathers, that is, a father’s father and a mother’s father, and two grandmothers, that is, a father’s mother and a mother’s mother, are present, the paternal grandfather and grandmother are entitled to two-thirds, distributed between them giving the male double the share of the female, while the maternal grandfather and grandmother have the right to one-third, divided equally between them. If a maternal uncle and aunt and a paternal uncle and aunt are present, the paternal uncle and aunt are allotted two-thirds, divided between them, giving the male a portion equivalent to that of two females, while the maternal uncle and aunt are entitled to one-third, divided equally between them. The principle is that those who are related to the mother shall divide the estate, among them, apportioning the same share to males and females. Section 12. Inheritance of the hermaphrodite If a man dies and leaves a son and a child who is a hermaphrodite, the son has the right to one-half of the estate and the hermaphrodite to one-third, while one-sixth shall be retained [until the hermaphrodite’s dominant gender can be ascertained]; the denominator of the fraction is six. If a liquid flows out of the vulva and the penis of the hermaphrodite at the same time (fol. 15v), he shall be considered ambiguous; if, however, it flows out first from the penis, the rule of a male shall be applied; thus, what remains, that is [the retained share of] one-sixth, after the attribution of the share to the son, shall be allotted to him. The denominator of the fraction is six. If, instead, the liquid flows out first from the vulva, the rule of a female shall be applied; in this case, the [retained share of] one-sixth shall be allotted to the son; in fact, the hermaphrodite can claim only the one-third [share] which he has already formerly received. If this situation does not occur [that is, the gender remains ambiguous], one has to look for which of the two sexes first ceases to urinate;

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having observed which of the two first ceases, the rule to be applied is that of the sex which did not cease. In the case where none of the two sexes first stops or first ceases to urinate, the hermaphrodite shall receive half the share apportioned to a male and half the share apportioned to a female. It is related on the authority of the Commander of the believers, God’s blessings be upon Him, that he decided a case in the same manner, unless he [alternatively] ordered a count of the ribs on the right and on the left; if the ribs on the right are more than those on the left, the rule [of inheritance] valid for a man shall be applied; if, however, the ribs on the right and on the left are equal in number, the rule valid for a female shall be applied. However, no one can decide in the same way as the Commander of the believers did, God’s blessings be upon Him, except the imam. As far as the other judges belonging to the people of the purity are concerned, they can judge (fol. 16r) only having recourse to the previous proof, because only the imam, peace be upon Him, can determine the number of ribs on each side. Section 13. The foundling (laqīṭ) and those related to him If a foundling dies and leaves his wife, she can claim one-quarter [of the inheritance], while the remainder shall be given to the Public Treasury. If he leaves a son and a wife, the latter has the right to one-eighth and his son to the remainder. If he leaves his wife and a daughter, his wife has the right to one-eighth and his daughter to one-half as a determined share; then the remainder shall be added to the [share of the] daughter. The rules to be applied to his children, be they males or females, however low, are the same usually applied to children. The same is true with regard to spouses, as only direct children, children’s descendants and a wife are entitled to receive an inheritance from a foundling. A female foundling is treated as a male foundling because her kinship is unknown. In fact, it is impossible to establish the tie of relationship of an abandoned person with reference to a father, a mother, brothers or sisters.

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Section 14. The son of a mulāʿana (wife repudiated through a sworn allegation of adultery) If a son of a mulāʿana dies and leaves his mother and a son, the former can claim one-sixth and his son the remainder. If he leaves his mother and a daughter, his mother has the right to one-sixth, as a determined share, and his daughter to one-half, as a determined share, while the remainder shall be added proportionally to [the share of] his mother and daughter; thus, the denominator of the fraction (fol. 16v) is four: three shares to his daughter and one share to his mother. If his mother, a son and a daughter are present, his mother is entitled to one-sixth, and his children to the remainder, giving the male double the share of the female. If he leaves his mother and a brother, the estate shall be apportioned to his mother, while his brother is excluded from the inheritance. In the same manner, if brothers and sisters, be they few or many, and his mother are present, the whole estate shall be allotted to his mother, because all of them belong to his mother’s descendants, because a father, to whom they could be related, does not exist. Brothers and sisters, as long as their mother is alive, neither debar her from the inheritance nor receive anything. In fact, if a man leaves his wife, his mother and a brother, his wife is entitled to one-quarter, and his mother to the remainder. If he leaves his wife, his mother and a son, his wife has the right to one-eighth, his mother to one-sixth, and his son to the remainder. If a daughter of a mulāʿana dies and leaves her husband and a brother, the former has the right to one-half and her brother to one-sixth as a determined share, because he belongs to the maternal half-siblings; the remainder shall be added to [the share of] her brother because of his kinship. If she leaves her mother, her husband and a daughter, her husband can claim one-quarter, her mother one-sixth and her daughter one-half; the remainder shall be added proportionally (fol. 17r) to [the share of] her daughter and mother. If she leaves her husband, a son and a daughter, her husband is entitled to one-quarter, while the remainder shall be divided between the children, giving the male double the share of the female. The paternity of a son of a mulāʿana is not established; thus, on the one hand, he cannot inherit from his father; on the other, his father cannot inherit from him. All the rules to be applied to a son of a mulāʿana are those

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usually applied to a son, except those rules concerning the father and relatives related to him. Section 15. Drowned persons and those who die in a natural disaster If two brothers drown and it is impossible to ascertain which of them has died first, each one of them inherits from his brother, as in the case when one owns one thousand dirham and the other five hundred dirham: one thousand dirham shall be divided among the heirs of the other, in the same manner [that] the amount of five hundred dirham shall be divided among the heirs of the brother who left one thousand dirham, [but] on the condition that an heir more entitled than the two brothers is not present. Likewise, if one of them leaves an estate and the other has none, the estate belonging to the first shall be divided among the heirs of the brother who did not leave anything. The same principle is followed if the drowned persons and those who died in a natural disaster are many; that is (fol. 17v), they [all] have the right to inherit from each other. The reason is that we are not aware whether they died at the same time or [whether] one of them died first by an hour or a breath. Thus, one of the two is deemed to have lived for a little more than his brother; therefore, we let him inherit from his brother. Then the latter is deemed to have died first; therefore, we let him inherit from his brother in the same manner as we did in the former case. In this way, the estate of the two brothers is distributed between their respective heirs, thus preventing the properties of the two brothers from being combined and then divided; but only the estate of each of the two shall be considered and divided between the heirs of his brother. Then, this pattern shall be followed. Section 16. The inheritance of a slave manumitted through a written contract (mukātab), and of a slave partially manumitted who desires the manumission of the remaining part A mukātab dies and leaves a son and an estate; if the goods which he has left can support and exceed what he should pay for his

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manumission, the remaining part of the mukātaba6 shall be paid to his patron, while the remainder [of the estate] shall be apportioned to his son. If, instead, what he has left is not enough to pay the remaining part of the mukātaba, the estate shall be given to his patron, and the patron has the right to the remaining part of the mukātaba, instead of the slave’s child. If, however, his estate is significant, it is used to pay the remaining part of the amount to the patron of his father. When (fol. 18r) the estate and the amount of the mukātaba are equivalent, the son does not inherit any portion of the estate, but he shall be freed. If a slave has stipulated a manumission by a conventional amount, but he did not pay anything and he leaves children, all the children are involved in the mukātaba of their father, unless their father is unable to pay it; in this case all the children shall revert [to being] slaves. If a mukātab has paid what is due, all the rules to be applied to his children are the same [as those] pertaining to an heir who leaves children and one of the spouses. As a matter of fact, the estate shall be divided among them apportioning the shares [as] determined by God. The rules to be applied to them are [the same as] those valid for free people, except if descendants, or wives, or other heirs, are not present; in this case, the estate shall be apportioned to the patron of the manumitted slave. If his patron is not alive, the estate shall be given to the patron’s heirs, except the wives/husbands of the person who manumitted the slave. As a matter of fact, they do not inherit anything, but the estate shall [then] be apportioned to the Public Treasury. Section 17. Rules to be applied to heirs as yet unborn If a man dies and leaves children and a pregnant wife, the inheritance shall be frozen in favour of the foetus [until the wife gives birth] (fol. 18v). If the woman gives birth to a child who is alive, showing movement by a breath, or a blink of his eyes, or something which lets us perceive that he is [indeed] alive, he shall receive inheritance as one of the heirs. If, instead, she gives birth to a stillborn child, 6. The term refers both to the written contract through which a slave is manumitted on payment of a sum and the amount specified in this contract for his emancipation.

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on the one hand, the stillborn child cannot inherit; on the other, the stillborn child does not prevent anyone from inheriting; so the estate shall be divided among the most entitled heirs. For example, if a man dies and leaves a son’s children, the latter are treated as direct descendants; that is, the estate shall be divided between them in the same manner as though direct descendants were present; but if a man leaves a pregnant wife, nothing shall be allotted to the heirs until the woman gives birth. If she gives birth to a son or a daughter, the latter debars a son’s children [from inheriting]; thus, they do not receive anything in the presence of a newborn child. Likewise, if a man dies and leaves brothers, sisters and a pregnant wife, the estate shall not be divided until the case of the unborn child becomes clear. As a matter of fact, if she gives birth to a son or a daughter, both cause the exclusion of brothers and sisters from the inheritance; in fact, on the one hand, the brothers and sisters do not receive anything in the presence of a child; on the other, a child causes the mother’s share to be decreased from one-quarter to one-eighth. If a wife miscarries a foetus whose physical constitution and movement are not evident, on the one hand, the foetus does not prevent [the deceased’s] brothers and sisters from inheriting (fol. 19r); on the other, the foetus does not impede his mother from receiving one-quarter [of the inheritance]. Then, this pattern shall be followed: that is, if the surviving wife is pregnant, the division of the estate is not permitted until the case of the unborn child becomes clear. If she gives birth to a child who shows a movement or a breath, even if for a moment, he can claim inheritance and his heirs can inherit from him. If, instead, the child comes out stillborn, neither he nor his heirs inherit. In the inheritance cases concerning a newborn child, his shape (ṣūra) is not taken into consideration, but only whether he is alive, whatever his form. His shape is considered only with reference to the manumission of his mother, if she is a slave. As a matter of fact, if his shape is evident, his mother is freed. But if she gives birth to a stillborn child and his shape does not become clear, his mother shall not be manumitted. All these cases are considered on account of the manumission of his mother, if she is a slave. Thus, if the child’s shape is evident, his mother shall be manumitted. All these cases must be taken into account according to these categories, even if the rules of

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the inheritance applied to them are different. Section 18. Inheritance of spouses when a repudiation occurs, which gives rise to the period of waiting, conforming to the customary practice, inasmuch as the restoration of their conjugal life is possible A man dies and leaves children (fl. 19v) and a repudiated wife; if her husband still had the right to restore conjugal life, she inherits his property. If, instead, she has been repudiated in a definitive manner, [that is,] in such a way that her husband no longer had the right to restore conjugal life, she cannot inherit anything from him. Likewise, if a [repudiated] woman dies and leaves children and her husband, the latter inherits from her if he still had the right to restore conjugal life. However, this is not the case if a husband repudiates his wife during his mortal illness. As a matter of fact, according to our Companions, God’s blessings be upon Them, if her husband repudiated her in a definitive way during his mortal illness, [and] then dies as a consequence of that illness during which he repudiated his wife, the woman is [nevertheless] entitled to inherit from her husband, except if she has re-married, in which case, she does not inherit anything from him. If this man recovers from that illness for a few days, then relapses and finally dies, his wife does not inherit anything from him. Section 19. Shares which are not fractional numbers If a share of one-half and the remainder are allotted [to an heir], the denominator of the fraction is two. The denominator of an inheritance case which contains a share of one-third and the remainder, or [a share of] one-third and two-thirds, is three. When a share of one-quarter and the remainder, or one-quarter, one-half and the remainder are mentioned, the denominator is four. When (fol. 20r) one-sixth and the remainder, or one-sixth, one-third and the remainder, or two-sixths and the remainder, or two-sixths, one-half and the remainder, or one-sixth and one-half [and the remainder] are mentioned, the division of the estate into six portions does not leave fractional numbers; the unit share is one-sixth. Then this pattern shall be followed. If the solution of an inheritance case

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includes the mention of two-thirds, the lowest denominator is three, unless [shares of] two-thirds and two-sixths are to be apportioned, like with the shares of daughters and parents: the first are entitled to two-thirds and the latter to two-sixths; or also when two-thirds, one-sixth and the remainder are to be apportioned. As a matter of fact, in all these cases, the denominator is six. Then this pattern shall be followed: that is, the denominator must be the lowest number, if possible, on the condition that the shares are whole numbers, and none of them is fractional. In any case, if the lowest denominator is a whole number, it is not necessary to have recourse to the highest denominator. If a case includes the mention of one-eighth and the remainder, the denominator is eight. However, if one-quarter and one-sixth, or one-quarter and two-sixths, are mentioned, there is no common denominator between them. In fact, if one-quarter and one-sixth meet, it [the denominator] might become ten [4+6]; however, neither one-sixth nor one-quarter would be whole numbers [in this case]. In this case, the method to be followed is that you have to look for a denominator which allows [the sum of] one-sixth and a quarter to become (fol. 20v) whole numbers. If you do not find such a denominator, you look for the factor they have in common. If you look for a factor which allows to have a whole number both with respect to a one-sixth and a one-quarter, we find that the divisor of a quarter is four, and the divisor of one-sixth is six; in this way, we find the divisor of the two fractions; the half of each of them is right. If you multiply the half of six by four, or the half of four by six, it is right. If, however, we verify that we cannot find whole numbers using the half of the divisors of the two fractions, we need to multiply six by four, or four by six; but the portions become numerous. Therefore, if we find that the half of each number is right, we multiply the half of six, that is, three, by four; the result is twelve. In this way the solution is right. For example, a woman dies and leaves her father, her husband and a son. Her father has a right to one-sixth, that is two shares; her husband to one-quarter, that is three shares; the remainder, that is seven shares, shall be apportioned to the son (fol. 21r). The sum is twelve. Similar cases must be solved in the same way. Likewise, if shares of one-eighth and one-sixth, or one-eighth and two-sixths, or one-eighth and two-thirds, must be distributed,

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and a divisor of one share does not permit whole numbers, you have to ascertain which divisor is right for both fractions. In fact, if we have shares of one-eighth and one-sixth, the number eight can be deduced from one-eighth and six from one-sixth; the sum of them is fourteen, from which, however, a whole one-sixth [share] and a whole one-eighth [share] cannot be deduced. Thus, you must follow the same method used for the previous case concerning one-quarter and one-sixth, because their halves are compatible. In fact, if you try to multiply the half of six by the whole of eight, or the half of eight by the whole of six, this is right. If the shares are one-eighth and two-thirds, they do not have any factor in common. As the divisor of two-thirds is three, the divisor of the two fractions have no common denominator which could impede the presence of fractional shares. This is because both have in common neither the third of the two divisors nor their half; thus you need to multiply (fol. 21v) one of the two divisors by the other, that is three by eight, or eight by three. For example, if a man dies and leaves two daughters and his wife, his daughters have a right to two-thirds and his wife to one-eighth, while the remainder shall be added to [the share of] his daughters because of their kinship, not as a determined share. This order shall be followed in similar cases. If a woman dies and leaves her husband, a son and two daughters, the denominator of the fraction is four: a quarter to her husband, while the remaining three shares shall be divided among her children in four parts, giving a male double the share of a female. However, four parts cannot be found from three as whole shares. As a son has the right to two shares out of four and each daughter to one share, the available three parts give rise to fractional shares. Thus the method to be followed is to ascertain which number is common to four and three; if it does not exist, you take the number of the shares which give rise to fractional numbers, that is the shares of the children, that is, four, and multiply it by the denominator of the fraction, that is four by four; the result is sixteen. [Thus,] a quarter, that is four shares, to [be given to] her [that is, the deceased’s] husband; six out of the remaining twelve shares shall be apportioned to her son and three shares to each daughter. The sum is sixteen; in this way the solution is right (fol. 22r).

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Likewise, if there are a wife, two daughters and the parents, the denominator of the fraction is eight, because one-eighth is mentioned as far as the wife’s share is concerned; two-sixths [and] one-sixth each are mentioned as far as the parents are concerned; and the remainder shall be divided into halves between the daughters. In such a way one-eighth and two-sixths shares cannot be a divisor of any of the two fractions, that is one-eighth and one-sixth. In fact, the denominator of one-eighth is eight, while the denominator of onesixth is six. For this, on the one hand, one-eighth and two-sixths shares cannot have eight as a divisor; on the other, two-sixths and one-eighth cannot have six as a divisor. But if you add eight, which is the denominator of one-eighth, and six, which is the denominator of one-sixth, the result is fourteen. However, not even in this way can you have a common denominator for both one-eighth and twosixths. Therefore, the method to be followed is to multiply the half of six by eight in order to find a common denominator that does not result in fractional shares. Or you have to multiply the half of eight by six; the result is twenty-four: one-eighth, that is three shares, to the wife; two-sixths, that is eight shares to parents, [or] four [shares] each; the remaining part shall be divided into halves between the daughters. In this way, the solution is correct. In the same manner, if a man dies and leaves his wife, a uterine brother, two consanguine brothers and two consanguine sisters (fol. 22v), the denominator of this fraction is four, because one-quarter, that is his wife’s share, is mentioned. In fact, his wife is entitled to one-quarter, the uterine brother to one-sixth, while the remainder shall be divided between the two brothers and the two sisters, giving the male double the share of the female. However, neither four nor six are common divisors of all these shares, because such division creates fractional numbers. Therefore, the method to be followed is to multiply the half of six, with reference to the one-sixth share, by four, with reference to a quarter share [to find a common denominator]. The result is twelve: [thus,] a quarter, that is three shares, to his wife, [and] one-sixth, that is two shares, to the uterine brother. [However,] the remaining seven shares cause fractional numbers if divided by six among the consanguine brothers and sisters, because each brother is entitled to two shares and each sister to one share. Therefore, the method to be followed is to multiply

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the number of shares to be given to the brothers and sisters, which give rise to fractional shares, that is six, by the denominator of the fraction, that is twelve. The product is seventy-two: a quarter, that is eighteen shares, to the wife; one-sixth, that is twelve shares, to the uterine brother; [and] the remaining forty-two shares shall be divided between the two brothers and the two sisters, giving the male double the share of the female, [that is] fourteen shares to each brother and seven shares to each sister. In this way the solution is correct. In the same manner, if a woman dies and leaves her husband (fol. 23r), three uterine sisters, three consanguine brothers and two consanguine sisters – the denominator of this fraction is two, because one-half, her husband’s share, is mentioned. If we apportion a share of one-half to the husband, a portion remains, which cannot be exactly divided among the remaining heirs. Therefore, the method to be followed is to multiply two, with reference to two halves which constitutes the denominator of the fraction, by three, because one-third, which is the uterine children’s share, is mentioned. The result is six: a half, that is three shares, to her husband, while uterine children are entitled to one-third, that is two shares out of the remaining three. However, two shares cannot be exactly divided among the uterine children, as there are three of them. Therefore, the method to be followed is to multiply the number of those heirs who cause fractional shares, that is, the three uterine children, by the denominator of the fraction derived from the first operation. The result is eighteen: a half, that is nine shares, to her husband; one-third, that is six shares, to the three uterine sisters, divided among them, giving two shares to each sister; the remaining three shares, however, cannot be exactly divided among the consanguine brothers and sisters. As there are three brothers and two sisters, eight shares are needed, because each brother is entitled to two shares and each sister to one share. Consequently, three cannot be exactly divided into eight. Therefore, the method to be followed is to multiply the number of shares to be given to the consanguine brothers and sisters (fol. 23v), which are eight, which causes fractional numbers, by eighteen, which is the denominator of the fraction after the second operation. The result is 144: [thus,] her husband is entitled to a half, that is, seventy-two shares; [her] uterine

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sisters to one-third, that is, forty-eight shares; as they are three, each of them shall receive sixteen shares; the remaining twentyfour shares shall be divided between the consanguine brothers and sisters, who are three brothers and two sisters, giving the male double the share of the female: [thus,] each brother is entitled to receive six shares and each sister to three shares. The sum is 144. In this way the solution is correct. Then this pattern shall be followed; that is, whenever the shares allotted to the heirs by quota are fractional numbers, you multiply the number of the shares which gives rise to fractional numbers by the denominator of the fraction; then this kind of operation shall continue until whole numbers are obtained. Section 20. The inheritance of the ahl al-dhimma: protected Christians, Jews and Mazdeans According to our Companions, God’s blessings be upon the whole Family of the Prophet, a Muslim inherits from a Christian, but not vice-versa. Likewise, the other protected non-Muslims do not inherit from them, as in the cases illustrated below. If a Christian dies and leaves a Christian son and a Muslim son’s son (fol. 24r), the estate shall be divided into halves between the Muslim son’s son and the Christian son. If he leaves a Christian son and a Muslim daughter, the estate shall be divided between them, giving the male double the share of the female. If he leaves a Christian son and a Muslim daughter’s son, the latter is entitled to one-third, that is, his mother’s share, while the remainder shall be allotted to the Christian son. In the same manner, if there are a Christian son and a Muslim daughter’s daughter, the latter shall receive her mother’s share, that is one-third. Likewise, if a daughter’s descendants and a son’s descendants are Muslim, they, however low, shall receive their parents’ share: a son’s children take the son’s share and a daughter’s children the daughter’s share. If a [Christian] man leaves a Christian son and a Muslim brother, the latter shall receive half of the estate because of Islam. In fact, the son has pre-eminence [to the inheritance] because of his kinship, but the brother has pre-eminence because of Islam; as both of them are males, the estate shall be divided into halves. If a Christian son and a Muslim sister are present, the latter has the right to one-third,

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and the son to the remainder. If a Christian son, a Muslim brother’s son and a [Muslim] brother’s descendants, however low, are present, the latter shall receive their father’s share; males are treated like males and females like females.7 If a Christian son and a Muslim paternal uncle are present, the estate shall be divided into halves, based on what we mentioned; that is, on the one hand, Islam gives pre-eminence both as far as kinship and title [marriage or patronage] are concerned; on the other, unbelief does not prevent Islam[ic heirs from inheriting]; for this, a paternal uncle shall receive a one-half estate. Likewise, a [Muslim] paternal uncle’s descendants shall receive half the estate, be they males or females. But if a [Muslim] brother’s descendants, whether males and females, or a [Muslim] paternal uncle’s descendants, whether males and females, are present, they are entitled to receive their father’s share, divided giving the male double the share of the female. If a Christian man dies and leaves a Christian son and daughter, and a Muslim daughter, the Muslim daughter is reckoned [together] with the brother and two sisters, as far as the attribution of her father’s estate is concerned, giving the male double the share of the female. If a Christian son and a Muslim father are present, the estate shall be divided into halves between them. The son does not partially debar his father from inheritance. As for the objection to the father receiving half the estate in this case, since the Islamic rule allows him only a share of one-sixth in the presence of a child, here the son does not partially debar his father. In fact, if we suppose that a person dies, but he does not leave any relative except his father, the father is entitled to receive the whole estate (fol. 24v). Then let us imagine the case considering kinship; if a person dies, but he does not leave anyone other than a son, the solution is that the son is entitled to receive the whole estate. Therefore, if [both] the father and son are present, we divide the estate into halves, based on what we mentioned. If a [Christian] man leaves a Christian son and his Muslim mother, the latter shall receive a [share of] one-third [of the inheritance] and the son the remainder. If he leaves a Christian daughter and a Muslim son, the daughter has the right to one-third and the son 7. For each degree, the share to be attributed to the heir is the quota fixed for his ascendant; moreover, the usual rule is followed, that is, each heir is treated according to his sex.

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to two-thirds. If he leaves a Muslim daughter and a Christian son’s son, the whole estate shall be apportioned to the daughter, because she is more entitled on account of proximity, kinship and Islam. If he leaves a Christian son’s son and a Muslim son’s son, the estate shall be divided into halves. If he leaves a Muslim son’s son and a Christian paternal uncle, the estate shall be allotted to the son’s son. If he leaves a Muslim paternal uncle and a Christian brother, the estate shall be divided into halves. Then this pattern shall be followed: that is, if someone among the grandfather’s descendants (that is, a paternal uncle and his sons), the father’s descendants (that is, a brother and his sons), and the direct descendants (that is, a son and his sons), or an heir belonging to one of the previous categories, and a Christian son, are present at the same time, the Christian son shall receive one-half; then one establishes who among the Muslim heirs of the different lines is the nearest [relation] to the deceased person, and he will be the only one entitled to receive the remaining part of the estate (fol. 25r). The rules to be applied to them are those valid for Islam: that is, on the one hand, males are treated like males and females like females; on the other, the nearest [relative of the deceased] debars the most remote from inheritance. If a Christian dies and leaves a Muslim brother and a Christian brother, the estate shall be divided into halves. If he leaves a Christian brother and a Muslim sister, the estate shall be divided between them, giving the male double the share of the female. If he leaves a Christian brother’s son and a Muslim sister, the estate shall be apportioned to the sister. If he leaves a Christian brother and a Muslim paternal uncle or a Muslim paternal uncle’s son, the estate shall be divided into halves between his brother and his paternal uncle, or his brother and his paternal uncle’s son. Then this order shall be followed: that is, if a Muslim heir is more remote[ly related to the deceased] than a Christian heir, the Muslim inherits in the presence of the Christian direct descendants, and receives his parents’ or grandparents’ [sic] share (ḥaqq abawayhi aw ajdādihi), as is [also] the case when a Christian child and a Muslim maternal uncle are present; in this case the maternal uncle shall receive his mother’s share, that is one-third, when the deceased person does not leave a Muslim child. On the one hand, this Christian child holds the same status as [a Muslim child when a deceased person leaves]

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no [Muslim] child [a Muslim child excludes a Christian child]; on the other, the mother’s share of one-third cannot be decreased because of the presence of a Christian child. Then this order shall be followed: that is, on the one hand, whoever of the Muslim heirs who is related to his mother shall receive his mother’s share; on the other, a Christian child does not debar from inheritance either his Muslim mother who is heir, or whoever of the Muslim heirs who is related to his mother. The same rule shall be applied to his father’s and grandfather’s children. Unbelief does not exclude [heirs of the] Islam[ic faith] from any right [of inheritance]. As far as the Mazdeans, who consider it lawful to marry their sisters, are concerned, their rule is valid for them. But if they wish Islamic rules to be applied to them, they can inherit (fol. 25v) based on both titles. For example, if a Mazdean dies and leaves a wife who is [also] his sister and another sister, his sister-wife shall receive a quarter [of the inheritance], and the remaining part shall be divided into halves between the two sisters. Likewise, if a Mazdean dies and leaves two daughters, one of whom is his wife, and a son, his wife shall receive one-eighth, then the wife [shall] share the [rest of the] inheritance with her sister and her brother, giving the male double the share of the female. What is lawful for them follows this pattern; this means that an heir inherits based on both titles, as in this and similar cases. But if a Mazdean dies and leaves a Muslim child or Muslim females, the rules we mentioned for Christians shall be followed. However, it is not so if a Christian dies and leaves a Muslim son and a Christian son’s son; in this case, the estate shall be apportioned to the Muslim son, while the Christian son’s son does not inherit anything. Likewise, if he leaves a Muslim brother and a Christian brother’s son, the Muslim brother shall receive the whole estate, while the Christian brother’s son does not inherit anything in his presence. If a Christian leaves Muslim descendants and Christian descendants, who are all of the same degree, the estate shall be divided between them; a Muslim child shall receive the same share as an unbeliever, and vice-versa. Likewise, if [Christian] brothers and sisters and both [Muslim] paternal uncles and aunts and [Muslim] maternal uncles and aunts, who are of the same degree, are present, the estate shall be divided

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equally between them (fol. 26r). The principle is that the nearest among them debars the most remote, except a Muslim. As a matter of fact, a Muslim, however low, cannot be excluded from inheritance because of the presence of protected persons who are nearest [in relation to the deceased], but [rather] he inherits in their presence. This is a summary for whoever wishes to speculate on this subject and follow its methodology. In this way, all that he needs shall be disclosed to him. As a matter of fact, all inheritance law is settled according to this pattern. Praise be to God and His blessings be upon His Messenger, our Lord, Muḥammad, the Faithful, and upon His noblest Family. Our plenitude is God, truly a defender, truly a patron, truly a protector. No power, no force, but in God, the Highest, the Sublime.

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Index

ʿAbd al-ʿAzīz b. Muḥammad b. al-Nuʿmān 22–23 Abū ʿAbd Allāh al-Ṣādiq 42 Abū ʿAbd Allāh al-Shʿ (alMuḥtasib) 5 Abū Ḥanīfa 66, 78 Abū Ṭāhir al-Dhuhlī 7, 8, 85 adultery 38, 39, 74–75, 110–111 agnation 1, 13, 37, 41, 44, 45, 47, 48, 49, 51, 54–56, 58, 92, 93, 94, 98 ahl al-bayt 6, 7, 11, 25, 39, 41, 87, 119 ahl al-dhimma 39, 62, 119–123 ahl al-mīrāth 82 ʿAlī b. Abī Ṭālib 42 ʿAlī b. al-Nuʿmān 8, 35 al-ʿAllāma al-Ḥillī 20 amīr al-muʾminīn 72 apostasy 41, 52, 64–65, 81 ʿaqār 14 ʿaṣaba 41, 54, 57 ʿaṣaba bi-ghayrihi 37, 55 ʿaṣaba bi-nafsihi 37, 54, 55, 57 ʿaṣaba maʿa ghayrihi 37, 55, 57 aṣlī 65 ʿawl 12–13, 39, 41, 59 awlād 46

awlād al-mayyit 46 al-Azhar 8 bāb 37, 40, 87 Banū Tamm 17 al-Bāqir, Abū Jaʿfar Muḥammad 42 basmala 30 bayt al-māl 58, 61, 64, 82 al-Bustī 35, 36 buyūʿ 30, 33 Cairo 8 children illegitimate 40, 75–76 unborn 38, 53, 75, 77–78, 82, 112–114; see also al-ḥamīl Christians 39, 62–63, 119–123 consanguine siblings 11, 13, 37, 43–44, 48, 50, 54, 55–56, 59, 92, 93–94, 100–106, 117–119 Cortese, Delia 24, 88 Daʿāʾim al-Islām 7, 9–14, 19, 21, 29–32, 33–39, 41–42, 45–54, 56, 58, 62, 66, 68, 69, 70, 72–79, 81–85 Dachraoui, Farhat 19 137

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dāʿī (s) 36 Dāwūd al-Ẓāhirī 77 De Sacy, Antoine Silvestre 5 dhawūʾl-arḥām 39, 41, 44, 45, 70 dhikr 40 Dhikr al-farāʾiḍ 39 Dhikr mīrāth al-awlād 41 diya 41, 52, 66–68, 81–82 drowning 38, 53, 76–77, 111 al-Faḍl b. Shādhān 65, 66 farāʾiḍ 39 faṣl(s) 37, 41, 87 Fatimids 2, 5–8, 9–10, 12, 15, 16, 17, 21, 33, 34, 35, 36, 84–85 Fihrist kutub al-Shīʿa 20, 21 Fihrist al-Majdūʿ 24, 29 fiqh 2, 9–15, 17, 19, 21, 22, 25, 26, 27, 28, 29, 36, 43, 83 foundlings 38, 39, 40, 53, 73, 109 furūʿ 36 Fusṭāṭ 7 Fyzee, Asaf A.A. 10, 11, 12, 13, 14, 18, 22, 23, 24, 25, 26, 27, 30, 33, 34, 36, 87, 88 ghayru-hum 46 Goriawala, Muʿizz 25 Gottheil, Richard 7, 8, 9, 19 ḥadīth 12, 17, 27, 46, 47, 63, 68 ḥajb 41 ḥajb al-ḥirmān 44 ḥajb al-nuqṣān 44 al-Ḥākim 23, 35 al-ḥamīl 39, 40, 41, 81; see also children, unborn

Ḥanafī school of law 3, 7, 10, 13, 14, 18, 44, 45, 46, 55, 57, 58, 60, 65, 66 Ḥanbalī school of law 7, 45, 46, 60, 63, 65, 66, 73, 76, 78 al-Ḥasan b. Ṣāliḥ 76 heirs, division into classes 43–51 hermaphrodites 38, 40, 41, 53, 71–73, 82, 83, 108–109 hilāl 7 homicide 40, 41, 52, 66–68, 82, 94 Ḥusayn b. ʿAlī b. al-Nuʿmān 34 husbands, irrevocable repudiation of wives 38, 54, 78–79, 114 ʿibādāt 3, 10, 30 Ibāḍī school of law 1, 7, 46, 100 Ibn Bābawayh 17, 18, 43, 50–51, 65, 66, 75, 83 Ibn Ḥanbal 63, 66 Ibn Khallikān 17, 18 Ibn Masʿūd 67 ibn al-mulāʿana 39, 41 Ibn al-Nadīm 20 Ibn Qudāma 73 Ibn Shahrāshūb 21 Ibn Taghrībirdī 18 ijmāʿ 14 ikhtilāf 83 ʿilm al-rijāl 20 imam(s) 6, 7, 9, 10, 14, 15, 16, 19, 21, 22, 23, 39, 41, 58, 64, 65, 69, 71, 72, 109 Imāmī school of law 1, 2,

index

3, 6–15, 17–22, 24–28, 37, 43–51, 54, 56–58, 60–61, 63–78, 83–85, 100; see also Ithnāʿasharī(s) īmān 34 Iqbāl, ʿAbbās 21 iqrār 81 Islam conversion to 63–64 law 1–3, 22, 45 Ismaili jurisprudence evolution 6 originality 9–15 isnād 27, 28, 30, 32, 39 istiḥsān 22 Ithnāʿasharī(s) 6, 9, 10, 12, 13, 14, 15, 17, 18, 21, 83; see also Imāmī school of law Ivanow, Wladimir 5–6, 9, 20, 23, 24, 27, 30, 35, 82 al-jadda min qibal al-umm 46 al-janīn 40, 41, 85 Jawhar 7 Jews 39, 119–123 jihād 14 al-Kāfī fī ʿilm al-dīn 9, 27 kalāla 1 Ḳayrawān 19 al-Kindī 7, 57 Kitāb al-farāʾiḍ 40, 41 Kitāb fī-hi al-radd ʿalā Aḥmad b. Surayj al-Baghdādī 26 Kitāb al-fihrist 20 Kitāb al-īḍāḥ 26–29, 85 Kitāb al-ikhbār 27–28, 29

139

Kitāb ikhtilāf uṣūl al-madhāhib 22–23 Kitāb al-ikhtiṣār (Ikhtiṣār alāthār) 34–36 Kitāb al-iqtiṣār 8, 21–22, 29, 30, 32, 37, 39, 41, 43, 45, 46–54, 56, 58, 62, 64, 66, 68, 69–79, 81–85 Kitāb al-ittifāq wa’l-iftirāq 25 Kitāb al-muqtaṣir 25 Kitāb al-ṣalāt 28 Kitāb al-yanbūʿ 29–33, 37, 40, 43, 45–54, 58, 62, 66, 68, 69, 70, 72–79, 81–82, 84, 85 al-Kulaynī 14, 27, 43, 50–51, 66, 75, 83 laqīṭ see foundlings liʿān 53, 75 Lokhandwalla, Shamoon T. 14– 15, 18, 22, 23, 26–27, 27–28, 29, 32–33, 35, 83, 84 mablagh al-sihām 41 Madelung, Wilferd 15, 28 madhhab 7, 9, 19, 23 al-Mahdī 7, 16, 26, 27, 45 Majūs 5 Mālikī school of law 3, 7, 14–15, 17, 18, 33, 45, 46, 55, 56, 58, 60, 67, 73, 77, 78, 84–85 al-Manṣūr 16, 32, 33, 84 manumission 37, 38, 40, 41, 53, 70–71, 81, 94, 111–112, 113 al-Maqdisī 9 al-Maqrīzī 8, 19 al-Marwazī 57

140

the ear ly history of ismaili jur isprudence

maẓālim 24 Mazdeans 39, 41, 65, 119, 122 Muʿādh 63 muʿāmalāt 3, 30 Muʿāwiya 63 al-Mufīd 65, 76 Muḥammad, the Prophet 6, 21, 26, 39, 46–47, 91, 105, 108, 115, 123 al-Muḥaqqiq al-Ḥillī 43, 60–61, 64–65, 67, 70, 76, 77–78, 83 al-Muḥtasib see Abū ʿAbd Allāh al-Shʿ al-Muʿizz 7, 8, 15, 16–17, 20, 21, 22–23, 32–33, 34–36, 57, 84 mukātab 41, 111–112 Mukhtaṣar al-āthār 23, 30, 34– 36, 37, 40–41, 43, 45–54, 56, 58, 62, 66, 68, 69, 70, 72–79, 81–85 Mukhtaṣar al-īḍāḥ 27, 28 mulāʿana 38, 39, 40, 41, 53, 74–75, 110–111 al-Muntakhaba 29, 85 Muqaddimāt 37 murtadd see apostasy muṣannaf 22 al-mushtarak 82 mūṣī 14 mutʿa 10 mutaʾakhkhirūn 65 Muʿtazilites 10 al-Najāshī 20, 22 al-Nakhaʿī 77 naqḍ 14 naqṣ 13, 59

naṣṣ 49 natural disaster 38, 53, 76–77, 111 Nizārī(s) 26 non-Muslims, inheritance 52, 60–66, 119 al-Nuʿmān, al-Qāḍī Abū Ḥanīfa on agnation 54–56 ʿawl doctrine 59 division of heirs into classes 43–51 doctrinal orientation 15–20 and the Fatimids 5–8, 16–17, 24 as founder of Ismaili jurisprudence 2, 6 on impediments to inheritance 60–79 juridical reasoning 21–24 radd doctrine 56–58 in ṭabaqāt literature 20–21 major works: comparison between 43–79 Daʿāʾim al-Islām 7, 9–14, 19, 21, 29–32, 33–39, 41–42, 45–54, 56, 58, 62, 66, 68, 69, 70, 72–79, 81–85 Kitāb al-iqtiṣār 8, 21–22, 29, 30, 32, 39, 41, 43, 45, 46–54, 56, 58, 62, 64, 66, 68, 69–79, 81–85 Kitāb al-yanbūʿ 29–33, 37, 40, 43, 45–54, 58, 62, 66, 68, 69, 70, 72–79, 81–82, 84, 85 Minhāj al-farāʾiḍ 1–3, 24–42, 43–79, 81–85, 87, 91–123 Mukhtaṣar al-āthār 23, 30,

index

34–36, 37, 40–41, 43, 45–54, 56, 58, 62, 66, 68, 69, 70, 72–79, 81–85 Poonawala, Ismail K. 6, 15, 17, 18, 23, 24–25, 29, 35, 83 proximity, principle of 37, 39, 44, 46, 47, 48–51, 54, 56, 57, 107, 121 qāḍī(s) 21–22, 57, 84 al-Qāʾim 16, 29, 85 qarābāt 41 qiyās 21, 22 radd 26, 39, 51, 56–58, 82, 94 al-Radd ʿalā Abī Ḥanīfa 26 al-Radd ʿalā Mālik 26 raʾy 21, 22 rijāl 20 al-Risāla al-miṣriyya fīʾl-radd ʿalā al-Shāfiʿī 26 sāʾiba 40, 53, 70–71 salaf 22 Sezgin, Fuat 25, 27 shādhdha 65 al-Shāfiʿī 66, 78 Shāfiʿī school of law 7, 8, 45, 46, 61, 66, 73, 78 sharīʿa 65 Shiʿa/Shiʿis/Shiism 1, 5, 6, 7, 8, 9, 10, 15–16, 17, 18, 19, 20, 21, 22, 24, 40, 42, 44, 47, 59 Shurayḥ 77 slaves 69–71; manumission 37, 38, 40, 41, 53, 70–71, 81, 94,

141

111–112, 113 sunna 14 Sunni(s) 1–3, 5, 7–8, 9, 11, 15, 17, 18, 19, 20, 22, 24, 25, 44–51, 54–57, 59, 61, 63, 64, 65–66, 67–78, 81, 83–84, 85, 100 Syria 26 ṭabaqāt 20–21 tafsīr 21 ṭahāra 34 Ṭāhir b. ʿAbd ʿAlī 88 taqiyya 17, 18 taʿṣīb 37 tawḥīd 9 thābit 28, 39 al-Ṭūsī 20, 21, 43, 51, 66, 66–67, 69, 76, 83 Tyabji 10 umma 14 unbeliever(s) 52, 61–65, 94, 122 al-Urjūza al-muntakhaba 29 uṣūl 10, 22, 36 uṣūl al-fiqh 19, 21 uterine siblings 11, 13, 37, 43– 44, 45, 48–50, 52, 55, 68, 74, 82, 92, 93, 100–103, 104–106, 117–118 ʿUyūn al-akhbār 24, 29, 36 Waḥīd Mīrzā, Muḥammad 2, 82 walāʾ 73 walad 46, 47, 75 walad al-mulāʿana 40, 53, 74– 75; see also children

142

the ear ly history of ismaili jur isprudence

walad al-zinā 40, 41, 53, 75–76; see also children walāya 19 waqf 14 waṣī(s) 14 waṣiyya 10, 14

wives, irrevocable repudiation by husbands 38, 54, 78–79, 114 Ẓāhirī school of law 1, 7, 46, 100 Zaydī school of law 7, 15, 17, 28, 46, 76, 85, 100

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LJK'& 5VU D)'$6 tUe $ÉÜ.@ 7.hJh'& RJS 5DoO Z' [$"T'& )hG 5Öc .b.,)H'& &pX RJS x9='& IëA'E `O?='$6 7#".6 27.hJh'& Ñ$="'& 1`S$4f' ã)c z)G~ \d .Z#!$#Y C9s RJS Z#".6 Z=0O 32s$T'& Z_ ã)('$6 76BAJc 206 $!E x9='& IëA' :`HY 7! `çO)('$c $ÉH"6E $É"6&E $É6; í), 5Öc x9='& IëAJc 7.H"6&E 47."6&E $É6; í), 5Öc .7..haVU& ïM \h! )GpJ' ]"T'&E &pX RJS Z_ .7..haVU& ïM \h! )GpJ' 7.H"6tU&E 7."6tU& 7.Tc 206 5$!E \3fHc g&N).hG E; &?a$G BàA.Js 6g]"T'&E 76tU& IVU& n! n4Hd& &~e .b.,)H'& [$"T'&E 7."T'& 7.6 \3fO 206 $!E x9='& IVU& R>3O :`HY 7! `çO)('& 9M&E \â' 75$Y9='& 7O?6ëAJc $É"6&E 7O?6; í), 5Öc .7..haVU& ïM \h! )GpJ' $!E 5$Y9='& 87O?6ëAJc 7."6&E 7O?6; í), 5Öc .76BAJc 206 $!E x9='& $4#"! 9 g5$Y9='& 5&?6VU& R>3O .b.,)H'& &pX RJS Z_ .5$(Äa 7."6tU& 7.Tc 206 .VU& RJS IVU& \ç(O tU gx9='& (fl. 6r) $4#"! 9M&E \â' $4#"! 9M&E \â' gã)('$6 105$Y9='& 7O?6ëAJc $ÉH"6E 7O?6; í), 5eE \â' g]"T'&E 7O?6VU& RJS D)O 206 $!E ã)('$6 /Ä"'& ]"TJ'E 11gx9='& Z#Y; `_BA_ ]"TJ' :`=4l 7! `çO)('& \3fHc óL4#Y 13C906 12Z#"! 9M&E R>3O 16:`HY 7! `çO)('$c 157.H"6E 7O?6; í), 5Öc .Z#Y ëA'E 14Z#Y IëA'E 5$hJh'& 7.H"6BA'E gx9='& $4#"! 9M&E \â' gã)('$6 175$Y9='& 5&?6VU& 4 uA: `S$4f' RJS: RJS deleted 2uA, B, C: 5$hJh'& 3uB, C: 206 $! uA: E & : & 5 6 deleted * B, C: 7."6&E 7.H"6&E uB, C: $4c uB: `"6tU&E * C: LH"6tU&E 7 8 uC: x9='& corrected as 5$Y9='& uA: IBAJc corrected as 7O?6BAJc 9 10 11 uA: 7.Y9='& corrected as 5$Y9='& uC: 5$Y9Y uA: $4#"! 9M&E \â' 12 13 14 x9='& on the mrg uA: $4#"! uC: zC906 uB, C: Z#='& 15 16 17 uA: 7.H"T'&E uA: `H='& uA: 7.Y9='& corrected as 5$Y9='& * B, C:

1

+*&)('& %$#"!

"

BA@?0 10a2DL 3^] h#T=0 gK''JXHG3 .mO@7: RQ! "P0 l7J#3 kO@# j"*#3 UDf': 2V> 2#00 .K!SG3 15K!A@: RQ! "P0 n2+#3 14mO@7: K!3 K!30 13m> "X"= K!3 KP /K!3 8 (!0 16K!3 K!30 K-,!> M%L #6'! *,=!d 5EFb 3;: .B60/+:h g6 6 B)>#6'! *f=!d 5EFb 3;: .th s `!8(' Z+" oFM A@! 5#4(' Z+" oFMh g6 *%! *7,#)6 B)>#4(' Z+" oFM h g6 *%! rFT(*6 3*G+G(' 7B)>#60/(! ?6F(' `!8++: 1*g% 3&L&NM -,L;: W9=!8(' 8!2 `!8(' ?% _+^(' $(! oA@!2 P(DE! .9M&.(*6 %B, C: 3210/+ .-,+ *)('& 4 %B, C: B'/6 %C: 6 1

%A: .4, repeated on the mrg 5 6 %B, C: @?>=6 %B, C: A(?>=6 2

3

%C: + 9 8 7 6 5

+*&)('& %$#"!

Åô

.bJÄ'& 9'E LTf8O $! 5?Tf8OE bJÄ'& 9'E pl-O %Eo'& 5Öc 76& 9'E tUE 9'E $#' v.'E ],$! 9s m;)4'& ]a$G 5Öc 4 E; ]lVU& 3E; èVU& DtUE; 2E; èVU& \h! `TÄS $#' 5$G 5Öc .206 $!E /Ä"'& qE~ E; `TÄ3'& 7! $#*$6)s; 7! 79M; E; Z3'& 6DtUE; E; Z3'& 5E; ]lVU& DtUE; 7! 9M; $#' 7âO Z' 5eE .$#.'e 8Z#6)s; $Xpl-O g`.0T'& &Epl; g$MCVU& Ld?6 $ÉÜ.@ /Ä"'& RJS %Eo'& D&oO tUE .} $4'& ].6 R'e 206 $! D).c Ñ$6)sVU& C?Gp'& 7! 9'E L' 7âO Z'E `dEÇ í),E \d)'& [$! &~e i'pGE .z?d?'& 7! g)hG; E; 11]a$G m9M&E 10g^$akU&E C?Gp'& 7! 76& 9'E tUE 9^$akU&E (fl. 8r) qE~ 7! Ñ$6)sVU& 7! 129M; L' 5$G 5e g206 $!E ón6)'& pl-, `dEo'& 5Öc RJS D)O BAc 9M; L' 7âO Z' 5eE .L.'e Z#6)s; `.0T'& pl; g`TÄ3'& E; $MCVU& 14 7#aED $! 13E; $É36C; 7õG m?="'& i'pGE .} $4'& ].6 R'e 2s$T'& D)OE `dEo'& 2c Ñ$G)@ 7XE g9'E 9'E tUE 9'E \d)J' 7âO Z' &~e n6)'& 2c Ñ$G)@ 7õ#c 16 .9'E 9'E E; 9'E \d)J' 155$G &~e 74h'& [ì] 17 \Äc 7O?6VU& n! `dEo'&E %Eo'& $É!;E `dEÇ í), 5Öc .IëAJc 206 $!E n6)'& `dEoJJc $É6;E `dEÇ í),E [$! \dC 1

2 3 uA: bJÄ'& 9'E LTf8O $! 5?Tf8OE on the mrg uA, C: E uC: E 4 5 6 7 8 uB, C: E uC: E uC: DtUEtU&E uC: 9M&E u A : 9 10 $#.'e Z#6)s; Z#6)0' $X9l-O: Z#6)s& on the mrg uA: ^$atU& tUE uA: ^$aBA'E 11 corrected as ^$atU& tUE * C: ^$akU&E C?Gp'& 7! 76& 9'E tUE omitted uA: 9 M & E 12 13 14 5$G uA: 9M; on the mrg uC: E uA: $#aED corrected as 7#aED 15 16 uA: 5$G on the mrg uA: 9'E 9'E E& on the mrg * B: 9'E E& 9'E 17 76& * C: 76& 9'E &9'E uA: \Äc repeated on the mrg

1

ÅÅ

+*&)('& %$#"!

$".'&?! 9"S .ZM)'$6 `.0T'& VU& RJS D)OE ã)('$6 jJh'& ëA'E n6)'& `dEoJJc 206 $!E jJh'& ëA'E n6)'& `dEoJJc 7O?6;E `dEÇ í), 5Öc Z#.JS LJK'& [&?JQ 206 $!E /Ä"'& %EoJJc $É6;E $ÉdEÇ 1](JlE ],$! m;)4'& ]a$G 5Öc .IëAJc $!E ã)('$6 jJh'& ëA'E (fl. 8v) /Ä"'& %EoJJc $É!;E É$dEÇ ]G), 5Öc .IëAJc %EoJJc 7O?6;E $ÉdEÇ ](JlE m;)4'& ],$! 5Öc .ZM)'$6 VU& RJS D)O 206 :`HY 7! `çO)('& 2zpX \Q;E óIëAJc 206 $!E `çO)('$6 jJh'& ëA'E /Ä"'& Z#Y 320TOE g5$4#Y ?XE jJh'& ëA'E gZ#Y; `_BA_ ?XE /Ä"'& %EoJ' .IëA' 5?â.c [î] \Äc 4 7O?6VU&E 7.dEo'&E 76tU& 9'EE bJÄ'& 9'E 76tU& 76& í), 5Öc .76BAJc 206 $!E 74h'& `dEoJJc `dEÇE $É"6& í),E [$! \dC $É6;E $É"6&E `dEÇ í), 5Öc .76tU& 576BAc 206 $!E 74h'& `dEoJJc `dEo'&E $É6;E $ÉH"6E `dEÇ í), 5Öc .76BAJc 206 $!E x9='& IëA'E 74h'& `dEoJJc RJS D)O 206 $!E ã)('$6 /Ä"'& ]"TJ'E 6x9='& IëA'E 74h'& `dEoJJc 7 (fl. 9r) `dEoJJc $É!;E $É"6&E `dEÇ í), 5Öc .$4#!$#Y C9s RJS ]"T'&E IVU& `dEoJJc 7O?6;E $ÉH"6E `dEÇ í), 5Öc .76BAJc 206 $!E x9='& ëA'E 74h'& RJS D)O 206 $!E /Ä"'& ]"TJ'E `O?='$6 $4#".6 5$Y9='& 7O?6ëA'E 74h'& `dEoJJc 7O?6;E `dEÇE 7.H"6& í), 5Öc .Z#!$#Y C9s RJS ]"T'&E 7O?6VU& 4 5 uC: `(JlE 2uC: pX 3uC: 206E uB, C: 5&?6VU&E 5$dEo'&E uC: 7 6 B A J c 6 uC: x9='& IëA'E 74h'& `dEoJJc $6;E $H"6E `dEÇ í), 5Öc .76BAJc 206 $!E omitted 7 uC: $#!$#Y

1

+*&)('& %$#"!

ÅF

i'pG .5$(Äa 7.H"T'& 7.6 206 $!E `O?='$6 1$4#".6 5$Y9='& 7O?6ëA'E 74h'& 206 $!E x9='& IëA'E n6)'& %EoJJc $É"6&E $É6;E É$dEÇ ](JlE m;)4'& ],$! &~e ]"TJ'E x9='& ëA'E n6)'& %EoJJc 4$É!;E $ÉH"6E $ÉdEÇ ]G), 5Öc 3.76BAJc 5Öc 7.$4#!$#Y C9s RJS ]"T'&E 6VU& RJS D)O 206 $!E ã)('$6 5/Ä"'& D)O 206 $!E 5$Y9='& 7O?6ëA'E n6)'& %EoJJc 7.H"6&E 8$É"6&E 7O?6;E $ÉdEÇ ]G), 7.H"6&E 7O?6;E $ÉdEÇ 10]G), 5Öc .7..haVU& ïM \h! )GpJ' 97.H"T'&E 76tU& 7.6 Z_ .5$(Äa 7.H"6tU& 7.6 206 $!E 115$Y9='& 7O?6ëA'E n6)'& %EoJJc (fl. 9v) .`'-=4'&} ?3, tU .b.,)H'& &pX RJS [ñ] \Äc 12 [&?lVU&E m?lkU& tUE } $ê'& tUE `43'& tUE Z3'& 76& tUE 14Z3'& [&?lVU&E m?lkU& n! 13^)O tU 2c èVU& `'o"46 9f'& 5; 16Z#.JS LJK'& [&?JQ $".'&?! 159"S .`'$ê'& :i'~ ).=(, .m?lkU& pl-O $4G pl-O 17g^&).4'& 7! $Él; í), 5Öc .L' 18LJG } $4'$c VU&E IVU& 7! $Él; í),E [$! \dC VU& 7! èëAJc VU& 7! $Él; í), 5Öc 21.L' LJG 20} $4'& 19i'pâc IVU& 2

uC: $4#".6 omitted 2uB, C: i'pGE $_BA_& [$"T'& 3uB, C: 76BA' D)O 4uB, C: $6;E 5 6 uB, C: x9='& IëA'E ã)('$6 /Ä"'& ]"TJ'E uB, C: IVU& 7 8 9 uC: $#!$#Y uB, C: 7."6&E uB, C: [$"T'&E 7."T'& 7.6 206 $!E 10 11 12 uC: `G), uC: 5$Y9Y uA: [&?lVU&E m?lkU& omitted 13uA: ^)O tU 14 15 16 on the mrg uA: Z3'&E: E deleted uB, C: 9"SE uA: Z # . J S 17 omitted uB, C: ^&).4'& 2c èVU& n! ã?3O (B: èVU& omitted) èVU& `'o"46 9f'& 18 19 uB, C: LJG omitted uA: i'pâc on the mrg * C: i'pGE 20uA: } $4'$c 21 uB: this case is omitted

1

Å{

+*&)('& %$#"!

L3! pl-O 5; Ç?fO 74! Ñ$6)sVU& 7! 9M; ].4J' 5$G 5Öc ó206 $!E x9='& 7! è; 5$G 15Öc .ZM)'$6 VU& 7! èVU& R'e `.0T'& [DC tUeE gL' `.0T'& ]a$G 7! èVU& pl-O tUE VU&E IVU& 7! èëA' } $4'$c IVU& 7! è;E VU&E IVU& ZX9M; 5?s)(H! m?le `_BA_ ]a$G 5Öc .$ÉÜ.@ VU&E IVU& 7! èVU& n! IVU& x9='& VU& 7! èëA' 5Öc VU& 7! j'$h'&E IVU& 7! 2a$h'&E VU&E IVU& 7! 2s$T'&E LJK'& I$HG 2c |E)3! Z#Y L'E `'BAâ'& 9'E 7! LaVU (fl. 10r) 2ã)('$6 .$ÉÜ.@ IVU& 37! èVU& pl-O tUE VU&E IVU& 7! èëA' } $4'& 7! 5$G 5Öc .ã)('$6 /Ä"'& pl-, ]lVU& 5Öc ;E IVU ]l; ]a$G 5Öc 5 [DC tUeE `.0T'& R>3.c 4$Ü.@ ]lVU& n! pl-O 5; Ç?fO 74! ^C&E ].4J' VU& 7! ]a$G 5Öc .IVU& 7! ]lVU& ]a$G &~e i'pGE .ZM)'$6 ]lVU& R'e Ç?fO 74! 9M; $#3! 5$G 85Öc óã)('$6 x9='& 7VU& 7! ]lVU& 6R>3Hc [&?l; ^BA_ 7G 5Öc .ZM)'$6 $#.'e 9[DC tUeE `.0T'& pl-.c $Ü.@ pl-O 5; 5Öc VU& 7! 11`h'$h'&E IVU& 7! 10`.a$h'&E VU&E IVU& 7! 7X&9Me [$s)(H! 7! ]lVU& pl-, tUE VU&E IVU& 7! ]lëA' 2s$T'&E x9='& VU& 7! ]lëA' .$ÉÜ.@ IVU& ïM \h! )GpJ' $4#".6 } $4'$c VU&E IVU& 7! ]l;E è; 5$G 5Öc ;E 9M&E I; 7! &?a$GE 5E).hG E; 5?J.Js g[&?l;E m?le 5$G 5Öc .7..haVU& ]l;E è; 5$G &~e i'pGE .7..haVU& ïM \h! )GpJ' Z#".6 } $4'$c gm9M&E m?lkU& &E)hG 125Öc .7..haVU& ïM \h! )GpJ' $4#".6 } $4'$c IVU& 7! 2 3 uC: 5Öc .èVU& R'e `.0T'& [DC uA: `çO)('$6 uC: 7! èVU& pl-O tUE VU&E IVU& 4 5 6 7 twice uA: $Ü.@ omitted uB, C: D)O uB, C: R>3.c uA: R > 3 H c 8 9 10 VU& 7! ]lVU& on the mrg uA: $c uB, C: DC uB, C: 2a$h'&E 11 12 uB, C: j'$h'&E uB, C: 5eE

1

+*&)('& %$#"!

Åá

ïM \h! )GpJ' Z#".6 } $4'$c 9M&E IVU 5?a?âO $! (fl. 10v) 936 [&?lVU&E $4#' 5VU gVU& 7! ]lVU&E èVU& 2"3O gVU& 9'E i'pG v.'E .7..haVU& 5Öc VU& 7! ]l;E è; 5?âO $! \h! å0"O tUE 9OoO 5; Ç?fO tU $ÉcE)3! $É4#Y 5$G 5Öc .RhaVU& RJS 1)Gp'& \ç(O tU g`O?='$6 $4#".6 jJh'& ]lVU&E èëA' )Gp'& \ç(O tU gjJh'& 2c Ñ$G)@ Z#c $4#s?c $4c 27."_tU& 7! [&?l;E m?le 7! 9M; ].4J' 5$G 5e g} $4'& 2s$6E `O?='$6 Z#".6 jJh'$c gRhaVU& RJS 7.6 2s$T'& Z#.JS DC tUeE 3`.0T'& pl-.c Z#3! pl-O 5; Ç?fO 74! Ñ$6)sVU& .`O?='$6 RhaVU&E 4)Gp'& 5Öc VU& 7! 5&?l;E IVU& 7! 5&?l;E VU&E IVU& 7! 5&?l; 5$G 5Öc 5&?lVU& pl-O tUE VU&E IVU& 7! 7O?lëAJc 206 $!E jJh'& VU& 7! 7O?lëA' 6 )hG 5e i'pGE 5.VU&E IVU& 7! 5&?lVU& $4#TfM 9s $4#aVU $Ü.@ IVU& 7! jJh'& 7g$4#s?c $4c 7."_& &?a$G &~e gVU& 7! m?lkU& pl-.c 5?s)(H4'& m?lkU& 5$G 5Öc .VU&E IVU& 7! m?lkU& 9R'e nc9O 2s$T'&E `O?='$6 8Z#".6 (fl. 11r) ã)('$6 jJh'& VU& 7! 7.HlëA' 5Öc VU 5$Hl;E IVU 5$Hl;E ;E IVU 5$Hl; i'pGE .IVU& 7! 5$HlVU& ú0YE ã)('$6 5$hJh'& VU&E IVU& 7! 7.HlëA'E 12 g5)hG 5eE 11gVU& 107!E IVU& 7!E VU&E IVU& 7! [&?lVU& 5$G 5e 14 7#".6 13jJh'& VU& 7! [&?lëA'E 5$hJh'& VU&E IVU& 7! [&?lëA' 5?â.c IVU& 7! ]l;E è; 5$G 5Öc .$ÉÜ.@ IVU& 7! [&?lVU& pl-O tUE `O?='$6 2 3 uB: )Gp'& \çc tU * C: )GpJ' \çc tU uC: 7..hatU& uA, B, C: `.0T'& pl-.c 4 5 omitted uC: C?Gp'& uB, C: this case is treated after the following 6 7 9 sentence uC: m)hG uA: $#s?c $4c 7."_ 8uB: $4#".6 uC: R'& omitted 10 11 uC: 7! omitted uA: VU& 7!E IVU& 7!E on the mrg * B: VU& 7!E IVU& 7!E 14 omitted 12uA, B, C: &E)hG 13uA: jJh'& on the mrg uA: 7#".6 omitted

1

Åé

+*&)('& %$#"!

ëA' ]lVU&E èëA' 5Öc VU& 7! ]l;E è;E IVU& 7! ]l;E è;E VU&E )GpJ' $4#".6 VU&E IVU& 7! ]lVU&E èëAJc 206 $!E `O?='$6 $4#".6 jJh'& .$ÉÜ.@ IVU& 7! ]lVU&E èVU& pl-O tUE 7..haVU& ïM \h! 7! èëA' } $4'& 5Öc 3IVU& 7! 2è;E VU&E IVU& 7! è; 76& 5$G 5Öc .$ÉÜ.@ VU&E IVU& 7! èVU& 76& pl-O tUE 7>T6 ].4'& R'e I)s; LaVU IVU& fl.) $4XtUE;E 5?>T'& 2c $O?HY& 90c IVU è; 76&E ;E IVU è; 76& 5$G 5Öc ;E IVU è; 76& 5$G 5Öc .LJG } $4'& pl-O gVU&E IVU& 7! èVU& 76& (11v 76& 4ú0=OE VU& 7! èëA' } $4'& 5; Z#.JS LJK'& [&?JQ $".'&?! 9"3c VU è;E 7! èVU& 5Öc 5VU& 7! è;E IVU& 7! è; 76& 5$G 5Öc .VU&E IVU& 7! èVU& è; 76& 5$G 5Öc .$ÉÜ.@ IVU& 7! èVU& 76& pl-O tUE gLJG } $4'& Ç?8O VU& R'e I)s; 6LaVU VU&E IVU& 7! èVU& 76tU } $4'$c IVU è; 76&E ;E IVU 76& 5Öc VU è; 76&E IVU è; 76&E ;E IVU è; 76& 5$G 5Öc 7.VU$6 ].4'& IVU& 7! èVU& 76& zpl-O 2s$T'&E gL!; b.Äa gx9='& pl-O VU& 7! èVU& gm9M&E `dCD RJS 5?a?âO $! 8936 g&?J(Y 5eE gb.,)H'& &pX RJS Z_ .VU&E 9 bT=, 7! :M Z#"! 9M&E \G pl-.c )löU& 7! } oa; Z#"! 9M&E 5?âO tU 5?âOE 936 7! bf8O I)s 7! 5Öc óZ#"! 9M&E 936 &~e i'pG v.'E óL6 10 .L.c } $4'$6 :M; 1

2 uB, C: VU& 7! uC: èVU&E 5 6 uB:  èVU&: è deleted uC: La; 8 9 uA: C906 uA: bTY

1

4 uB: I; 7! uB, C: ú0YE 7 uA: the same case is solved also above 10 uB, C: L"! 3

+*&)('& %$#"!

Åì

[ò] \Äc 7O?6VU& n! 3[&?lVU&E 2m?lkU& 5Öc .IëAJc 206 $!E jJh'& ëA' 5Öc $É!;E (fl. 12r) $É6;E $Él; í),E \dC iJX 5e 4 tUE gx9='& R'e jJh'& 7! VU& 5$Tf8O 7O?lVU& 5Öc $É!;E $É6;E 7O?l; í), pl-Hc x9='& 5L!ëAc m?le L' 5$G 5Öc .\dE oS LJK'&} ?s 2c $ÉÜ.@ 5&pl-O VU& 5Öc ;E 6I;E ]l;E è; 5$G 5Öc .IVU& zpl-O 2s$T'&E x9='& VU& R'e jJh'& 7! VU& 8]l;E è; bf8O tUE IVU& 7zpl-O 206 $!E jJh'& pl-, tUe $#Tf8O tUE [&?l; ^BA_ tUE 95$Hl; tUE ]l; tUE è; tUE x9='& $a?â.c 9M&E è; `'o"46 5$HlVU& 115?â.' 5$Hl;E è; E; $4#s?c $4c 105&?l; `36C; 7! IVU& 5&).8OE x9='& R'e jJh'& 7! $4#!; 5$Tf8OE 7O?l; $4c [&?l;E 5&?l; 125$G 5Öc .$ÉÜ.@ 5&pl-O tUE x&9Y; `=4l R'e x&9Y; ëA' 5Öc ;E è; 5$G 5Öc .$ÉÜ.@ IVU& n! 5Epl-O BAc Z#aED $! E; Z#s?c L0M 2>S; $ÉÜ.@ VU& n! pl-O 5; Ç?fO 7! ].4J' 5$G 5Öc ó206 $!E jJh'& 15 x9='& 14ëAJc (fl. 12v) 5&?l; 5$G 5eE .ZM)'$6 206 $! VU& 13RJS DC tUeE .].4'& 7! $#6)06 $#.JS D)O 206 $!E ã)('$6 Ñ&?Y 5$(Äa $4#".6 } $4'& 5Öc gIVU& 16$6; 2"3O g9dE 9M&E è; 5$G 5Öc 1

2 3 uA: I$6 in the text and on the mrg uA: z?ltU& uC: m&?lVU&E 4 5 6 7 uA: tU uC: L!ëAJc uA: &E corrected as I&E uA: pl$O 8 9 uA: ]l;E on the mrg uA: ]l; tUE è& tUE omitted * B: 5$Hl; tUE omitted * 10 11 12 C: ]l; tUE omitted uA: 5&?ltU& uA: 5?âH' uC: 5$G on 13 14 15 16 mrg uC: R'& uA: BAc uB: $!E x9='&: $!E deleted uC: I;

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Z#.JS LJK'& [&?JQ $".'&?! 19"S 5Öc .IVU& 7! E; VU&E IVU& 7! èVU& 5$G 76& 3í), 5Öc 2.$É_BA_; Z#".6 } $4'$c 9dE 5&?l; 5$G 5Öc .èVU& `'o"46 9f'& .5$(Äa èVU& 76&E 9f'& 7.6 } $4'$c 4&N9dE IVU& 7! E; VU&E IVU& 7! è; 9f'&E èVU& ?"6 i'pGE .Z#' è-G 9f'& 5?âO m?lkU& )hG 5e i'pGE 7! èëA' 5Öc IVU& 7! 5&N9dE VU& 7! $Él; í), 5Öc .`O?='$6 Z#".6 } $4'$c LJG } $4'& 5Öc VU& 7! èVU& 76& 5$G 5Öc 6.9fJJc 206 $!E x9='& VU& 7 [&?l;E m?le 5$G 5Öc .$ÉÜ.@ VU& 7! èVU& 76& L3! pl-O tUE .9fJ' èVU&E IVU& 7! ]lVU&E èVU&E VU&E IVU& 7! ]lVU&E èVU& \h! g5?s)(H! $!E `O?='$6 RhaVU&E )Gp'& 7.6 jJh'& VU& 9'E R>3O LaÖc gVU& 7! ]lVU&E ïM \h! )GpJ' Z#".6 9f'&E VU&E IVU& 7! ]lVU&E èVU& R'e nc9O 206 m?lkU& ú0YE 8m?lkU& C?GpG ^&).4'& 7! 9f'& (fl. 13r) pl-OE g7..haVU& 9f'& } o".c &?Ä0a 10E; &ED&Ç 5e b.,)H'& &pX RJS Z_ .IVU& 7! 9[&?lVU&E .èVU& 5$â! 12 11 R>S; ZJYE L.JS LJK'& RJQ LJK'&} ?YC 5; Z#.JS LJK'& [&?JQ &E)G~E IVU E; ;E IVU è; 76& í), 5Öc .5$(Äa $4#".6 } $4'& 9f'& n! èVU& 76& 15 .)Tê'& L6 DCE $! LaÖc VU& 9'E tUe `O?='$6 14è; 76& 137.6E 9f'& 7.6 \3f.c pl-O tUE 17I)0'$6 5$hJh'& $#.'e D)OE ã)('$6 jJh'& ëAJc 16;E 9d 5$G 5Öc .$ÉÜ.@ VU& n! 9f'& 3 4 uB: $a9"S: $a deleted 2uB: ^BA_; uB: è& í),: è& deleted uC: 9dE 5 6 7 8 uC: 9dE uB, C: 9fJ' uC: 9f'& n! [&?l;E uA: m?ltU& omitted 9 10 11 uC: m&?ltU&E uB, C: 5&E uB: 5; &E)G~E * C: )G~E 12 13 14 uC: L'WE instead of ZJYE uB: 7.6E: E twice uB, C: èVU& 2"6 15 uA: å " ' & 16 17 uA, B, C: $!&E &9d uA: I)0'$6 on the mrg

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[Åô] 1 \Äc 2 [&?lVU&E m?lkU&E `!?43'& ]lëAJc 3]l;E ZS 5$G 5Öc .èëA' } $4'$c $Él;E $É4S í),E \dC iJX 5e 5$G 5Öc .$ÉÜ.@ [&?lVU& n! Z3'& pl-O tUE D)'$6 /Ä"'&E ã)('$6 /Ä"'& 7.6 } $4'$c 4[&?l;E m?le 5$G 5e i'pGE èVU& 76tU } $4'$c ZSE è; 76& BàA.Js g[&?l;E m?le 5$G 5Öc .7..haVU& ïM \h! )GpJ' [&?lVU&E 5m?lkU& VU& 7! [&?lVU&E m?lkU 7.6 } $4'$c (fl. 13v) 7ZSE VU& 7! g&N).hG E; 6&?a$G .`O?='$6 8^$akU&E C?Gp'& 7.6 Z3'& pl-O tUE VU& 97! èVU& 76tU } $4'$c ZSE VU& 7! è; 76& 5$G 5Öc 7! R'E; IVU& DtUE; 5VU $ÉÜ.@ ]a$G 5?>6 10q; 7! [&?lVU&E m?lkU& n! 9f'& DtUE; 7! Z3'& 5VU 119f'& DtUE; 7! R'E; VU& DtUE;E 9f'& DtUE; .VU& DtUE; 7! E; IVU& DtUE; 7! 12&?a?âO 5; 5?JêO tU [&?lVU&E m?lkU&E 5Öc 15.VU&E IVU& 7! Z3J' } $4'$c IVU 14ZSE ;E IVU 13ZS 5$G 5Öc VU& 7! Z3J' v.'E IVU& 7! Z3J' } $4'& i'pâc VU 17ZSE IVU 16ZS 5$G [&?lVU&E m?lkU& 5VU VU& 7! [&?lVU&E m?lkU& 19R'e &pX x$0O tUE 18.$ÉÜ.@ `!?43'& 5Öc .`!?43'& i'pG v.'E LJK'& I$HG 2c ?J3! ã)c Z#' VU& 7! 2 3 uA: \Äc repeated twice uC: m&?lVU&E uA, B, C: $Hl&E $4S 4 5 6 uC: ZSE [&?l;E [?le uC: [?le uC: &?a$G omitted 7 u A : Z S E omitted * C: Z3'&E 8uA: C?Gp'&E ^$akU& 7.6 } $4'$c 9uC: Z3'& 7!: Z3'& deleted 10 12 uC: q; omitted 11uB: 9f'& DtUE; 7! R'E; VU& DtUE;E omitted uA: 5 ? â O 13 14 15 corrected as &?a?âO uA, B, C: $4S uA, B, C: $4SE uA: Z3'&E tU&E: Z3'&E 16 17 18 19 deleted uA, B, C: $4S uA, B, C: $4SE uB: ù.@ uC: R'EtU&

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..-, $# +*)( 1'&% $# "! $,3 12! 410/ 3.:763 $# 5->; =2B;3 .R, '&HG( QK;3 +CPO 2; 20"O tU 5$G 5Öc ón>0"O Z' qp'& Zâ86 L' /ÄaE )Gp'& b.Äa /Äa Rh"ê'& pl-.c LTM$Q 5ED 9$4X9M; :TY 5?âO .RhaVU& b.Äa 10 La; tUe i'~ \h46 ZâM La; L.JS LJK'& [&?JQ 7."!ü4'& ).!; 7S qECE ¢BA1; [D&Ç 5Öc ó)=OVU& b"f'&E 74OVU& b"f'& 2c ¢BA1VU& 11936 )!; ¢BA1; 12[?HY& 5eE ó\d)'& ZâM L4âM 5$G )=OVU& RJS 74OVU& ba$f'& $! \h46 Zâ8O 5; 9MVU v.'E .RhaVU& ZâM L4âM 5$G 13)=OVU&E 74OVU& \X; m$çs 7! z).< $!;E ó$!kU& tUe 14L.JS LJK'& [&?JQ 7."!ü4'& ).!; L6 ZâM C90O tU 7.T"f'& 169S 5VU R'EVU& `'-=4'$6 tUe (fl. 16r) 5?4â8O BAc 15)X$°'& .BA='& L.JS $!kU& tUe L.JS 9M; \G

2 4 uB, C: x9='& uB: ]sE 2c * C: ]sE 2c $3! 3uC: &?0TY uB, C: D)Hc 5 6 uA: )°H".Jc $3! i'pG: $3! deleted * B: )°H".Jc i'pG uC: Ñ $ > 0 a & 7 8 9 uA: n>0"O tU 5$G 5Öc on the mrg uA: 9M; uB: 5?âO tUE LTM$Q \Ts 10 11 12 $4X9M; :TY omitted uC: L'WE L.JS uA, B: D936 uC: [?HY 13 14 15 uB, C: )=OVU& RJS uC: L'WE L.JS uB: )X$°'& \X; m$ç0'& 7! * C: 7! 16 7O)X$°'& \X; 7! z$ç0'& uA: D9S

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[Å{] 1 \Äc L6 \ÄHO 7!E ú.0J'& í), 5Öc .} $4'& ].TJc 2206 $!E n6)'& `dEoJJc `dEÇ í),E ú.0J'& [$! 5Öc 74h'& `dEoJJc $ÉH"6E `dEÇ í), 5Öc .76BAJc 206 $!E 74h'& `dEoJJc `dEÇE $É"6& 7! DtUEVU& 2c Z#4âME 3.]"T'& R'e `.0T'& D)O Z_ ã)('$6 /Ä"'& ]"TJ'E Lae tUe 4`dEo'&E %Eo'& ZâM i'pGE .$"4â8G g&?J(Y 5eE g^$akU&E C?Gp'& i'pGE .`dEo'&E bJÄ'& 7! DtUEVU& DtUE;E DtUEVU& tUe ú.0J'& 7! ^)O tU tUE ; tUE I-6 I)0HO 5; ú.0J'& C90O tU .b="'& `'?#f! $#aVU 5`>.0J'& .[&?lVU$6 tUE m?lkU$6 [Åá] \Äc `"SBA4'& 676& í), 5Öc .76BAJc 206 $!E 8x9='& 7ëAJc $É"6&E $É!; /JlE [$! `"SBA4'& 76& RJS D)O 206 9$!E ã)('$6 /Ä"'& ]"TJ'E ã)('$6 x9='& ëAJc $ÉH"6E $É!; :`36C; 7! (fl. 16v) ^&).4'& \Q; 5?â.c ó$4#!$#Y C9s RJS ]"T'&E VU& ëAJc 11]"6E 76&E ; 5$G 5Öc .9M&E 10Z#Y ëA'E Z#Y; `_BA_ ]"TJ' $Él;E $É!; í), 5Öc .7..haVU& ïM \h! )GpJ' ]"T'&E 76tU& 7.6 206 $!E x9='& E; &?a$G BàA.Js g[&?l;E m?le &?a$G 5e i'pGE 12.èVU& ú0YE ëA' } $4'$c uA: \Äc repeated on the mrg 2uC: 206 omitted 3uA: ]"T'& R'& `.0T'& D)O Z_ ã)('$6 on the mrg * B: ZM)'$6 ]"T'& 4uB, C: $"4â8G `.dEo'&E `dEo'& 5uB: `>.0J'& 2c * C: 2c ú.0J'& 6uA: 7! 7uA: BAc 8uC: ã)('$6 x9='& 9uC: $!E ã)('$6 x9='& ëAJc 10 12 uC: Z#Y omitted 11uA, B, C: $H"6E $"6&E $!& uC: èëA'&

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I; 2$"#X v.'E VU& 9'E 7! Z#JG Z#aVU LJG ëA' } $4'& 5Öc 1;E g&N).hG tU Z#aÖc £.3, Z#!; ]!&D $! [&?lVU&E m?lkU&E .L.'e 4Z#T=a \ÄH.c $!E n6)'& `dEoJJc $Él;E $É!;E `dEÇ í), 55Öc .$ÉÜ.@ $#3! 5Epl-O tUE $#a?Tf8O 206 $!E x9='& ëA'E 774h'& `dEoJJc $É"6&E $É!;E `dEÇ í), 65Öc .ëAJc 206 .76BAJc 9 8 /Ä"'& %EoJJc $Él;E $#dEÇ ](JlE ],$! `"SBA4'& ]"6 ]a$G 5Öc 5Öc .ZM)'$6 èVU& RJS D)O 206 $!E VU& 9'E 7! LaVU ã)('$6 x9='& èëA'E 206 $!E /Ä"'& ]"TJ'E x9='& ëA'E n6)'& %EoJJc $ÉH"6E 11$ÉdEÇE $É!; 10]G), $É"6&E $ÉdEÇ 14]G), 5Öc 13.$4#!$#Y C9s RJS VU&E 12]"T'& (fl. 17r) RJS D)O v.'E .7..haVU& ïM \h! )GpJ' ]"T'&E 76tU& 7.6 206 $!E n6)'& %EoJJc $ÉH"6E $!;E .^C?O tUE IVU& 7! ^)O BAc L.'e b=H".c |E)3! I; `"SBA4'& 76tU .IVU$6 \ÄHO 177!E IVU& `#d 7! 16tUe 15$"!$âM; n.4fG L4âM n.4d 3

2 3 4 uA, B, C: $!& uB, C: $"X$X uA: I; on the mrg uC: Z#Y 5 6 uA: 5$G 5$c: 5$G deleted uA: 5$G 5$c: 5$G deleted * B, C: 5$G 5$c 7 8 uA: n6)'& `dEoJJc: n6)'& deleted and corrected as 74h'& on the mrg uA: 5$G 5$c `"SBA4J' 9'E tU deleted in the text, and corrected as ],$! `"SBA4'& ]"6 ]a$G 5Öc on the mrg * B, C: `"SBA4J' 9'E tU 5$G 5Öc 9uB: $dEÇ * C: `dEÇ corrected as $dEÇ 10 12 uA: í), corrected as ]G), 11uB: $dÇE & uC: ]"6tU& corrected as ]"T'& 13 14 15 uC: $#!$#Y uC: í), uB: $"!$âM; n.4fâc $#!$âM; n.4d * C: 16 L4âM n.4fâc $"!$âM; n.4d uA: tU 17uA: 7! tUE

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[Åé] 1 \Äc D)'& ]8, [?4O 7!E 2Rs)§'& 7! 5$4#"! 9M&E \G ^).c gtûUE; [$! $4#O; C9O Z' gÑ$4'& 2c 4$s)< 35&?l; ZXCD 6`*$4=4l iJ4O )löU&E ZXCD /'; iJ4O 9M&E 5?âO $! \h! L.l; /Jl qp'& èVU& `_CE RJS 7O?lVU& 9M; í), qp'& /'VU& 7Z=0.c Z' &~e gZXCD /'; í), qp'& `_CE RJS 9`*$4=4ê'& Z=0OE ZXCD 8`*$4=4l Z'E ûtU$! $4#"! 9M&E í), 5e i'pGE .$4#"! } $4'$6 :M; ?X 7! 10$"#X 7âO í)HO Z' qp'& `_C?' Z=0O 7O?lVU& 9M; í), qp'& } $4'$c $ÉÜ.@ )löU& í)HO 11 fl.) LaÖc $É!DC [?4O 74.cE Rs)§'& 2c n4Hd& &~e b.,)H'& &pX RJSE .$ÉÜ.@ ; $É3! ]sE 2c $,$! $É3.4d; qC9a tU $aVU i'~E $Éç36 Z#ç36 ^)O (17v •$S $4X9M; 5; 90H3.c v("6 E; 12`S$=6 LTM$Q \Ts [?4'$6 :TY $4X9M; 14 ^C?"c tûUE; [$! ?X z$"_CE qp'& 5; 90H3O Z_ 13L_C?"c `°8' L.l; 936 $É3.4d 16$4#H_CE RJS ?=0! i'~ n! 7O?lVU& } $!E .tûUE; z$"_CE $4G 15z$l; $4#"! 9M&E \G } $! plüO 7â'E 18$4=0OE 175tU$4'& n4fO 5; ).< 7! .b.,)H'& &pX RJS Z_ .L.l; `_CE RJS Z=0OE

3 uA: I$6 on the mrg * B, C: I$6 \Äc 2uB: $s)§'&. C: Ñ$s)§'& uA: 5$a&?l& 4 5 6 uB: $s)§'& * C: Ñ$s)< uB: Z#"! corrected as $4#"! uC: `*$=4l 7 8 9 10 uB: Z=0O uC: `*$=4l uC: `*$=4l uB, C: $"X$X 11 12 13 uB: $s)§'& * C: Ñ$s)< uA: `S$Y uA: L_C?.c 14 15 16 17 uA: ^C?.c uA: z$l; twice uA, B, C: $4#.H_CE uA: 7.'$4'& 18 uB: Z=0OE

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[Åì] 1 \Äc 3 R3=O ?XE Lç36 P?H34'&E b,$â4'& 2^&).! LsC `.06 :HS 2c \ç(OE 4LHT,$â! ?0O í), qp'& } $4'& 5$G 5Öc tûU$!E $É"6& í),E [$! b,$â! tU 206 qp'& 5$G 5Öc .76tU& zpl-O 2s$T'&E ztU?! R'e 6LHT,$â! `.06 5äD; 9'E RJS LHT,$â! `.06 R'?4J'E R'?4J' } $4'& 5Öc LHT,$â! 7`.0T6 ?0O } $4'& (fl. 18r) 5$G 5Öc .L.6; 9R'?! } $! `.06 2c R3Y 8)TG &~Öc .b,$â4'& .&N)M 76tU& 5?âOE $ÉÜ.@ } $4'& 7! 76tU& ^)O tU LaÖc Ñ&?Y `T,$â4'&E 5Öc DtUE; b,$â4J' 5?âOE `T,$â4'& 7! $ÉÜ.@ DüO Z'E í?J44'& b,?G 5Öc Ñ&D; 7S &Nod$S 10ZX?6; 5?âO 5; tUe Z#.6; `T,$â! 2c 5?3=O DtUEVU& n.4d L.JS bfO $! b,$â4'& äD; &~Öc .P)'& R'e Z#JG zDtUE; nd).c 11LHT,$â! Z#".6 Z=0O LaÖc %&EÇVU&E DtUEVU& 7! í)HO qp'& ^C&?'& 7! Z#4âM n.4fc 7! L' ^C&E tU 5?âO 5; tUe C&)MVU& Zâ8G Z#4âME LJK'& +*&)c RJS 5Öc .b,$â4'& 13ztU?! R'e } $4'& nd)O LaÖc ZX).< tUE 12[$dEo'& tUE DtUEVU& &?a$G 167Op'& %&EÇVU&E 15[$dEo'& tUe ztU?! `_C?' } $4'$c 14$É.M ztU?! 7âO Z' .} $4'& ].T' } $4'& 5?âOE $ÉÜ.@ 5?_)O tU Z#aÖc L.â'$4'

2 3 uA: I$6 in the text and on the mrg uC: ^&).4'& uB: $3=O 4 uC: L T , $ â ! 5 6 7 uB: &D; corrected as äD; uC: LT,$â! uB: `.06 8uC: )TG; 9 12 uA: tU?! 10uA: z?6& 11uC: `T,$â! uA: `dEo'& corrected as [$dEo'& 13 14 15 uC: z R'?! uC: m$.M uA: 5$dEo'& corrected as [$dEo'& 16 uB: qp'& [$dEo'&E %Eo'& tU& * C: 7Op'& [$dEo'&E %Eo'& tU&

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[Åî] 1 \Äc Z#,$#!; 5?>6 2c &?a$G &~e `_C?'& ZâM 2 (fl. 18v) ó^&).4'& /s?O \48J' 5Öc `J!$M `dEÇE &NDtUE; í),E [$! \dC Ñ2r6 E; 4L.".S +4§6 E; v("6 `G)8'& L.c 7.TH, 3$É.M N&9'E m;)4'& [9'E 5Öc LaÖc $ÉH.! 6L,9'E 5eE .`_C?'& `J4d 2c ^&).4'& pl-O LaÖc 2M 5La; L6 ZJ3O $4! 7.'EVU& `_C?'& 7.6 ^&).4'& Z=0OE L0M 77! &N9M; bf8O tUE L' ^&).! tU DtUE; `'o"46 76tU& DtUE; 5Öc 76tU& DtUE; í),E [$! \dC 5?âO 8$! \h! 5$G 5Öc .bJÄ'& DtUE; ^&).! Z=0O $4G Z#".6 ^&).4'& Z=0O gbJÄ'& LaÖc É$H"6 E; $É"6& [9'E 5Öc óm;)4'& 9J, RHM Z#.'e nc9O BAc `J!$M m;)!& \d)J' \dC [$! &~e i'pGE .$ÉÜ.@ D?'?4'& n! 5Epl-O 9BAc 76tU& DtUE; bfM 9s )!; 7.THO 5; R'e ^&).4'& Z=0O BAc `J!$M 11m;)!&E 10[&?l;E m?le í),E tUE [&?lVU&E m?lkU& 5$Tf8O $4#aÖc 13$ÉH"6 E; $É"6& [9'E 12]a$G 5Öc ó9'?'& 17 VU& 5$Tf8O i'pGE $ÉÜ.@ 16$4#"! 5$G 7! n! 15[&?lVU&E 14m?lkU& pl-O .74h'& R'e n6)'& 7! tUE m?lkU& bf8O tU LaÖc LHG)M tUE L0Jl 7.THO tU $É>0Y ]>0Y; 5Öc &pX RJS Z_ .n6)'& 7! VU& bf8O tUE (fl. 19r) ^&).4'& 7! 18[&?lVU& 3 uA: \Äc repeated on the mrg 2uA, B: \48'& uC: m$.M 4uC: L".S 5uB, C: L6 La; 6 8 uB: L,9'E 5Öc * C: L,9' 5Öc 7uB, C: 7S uC: $4Jh! 7.'E& 9 10 11 uB, C: tUE uA: 5&?l&E corrected as [&?l&E uB, C: L,;)!& 12 13 14 15 uC: $Ha$G uB: $H"6& uC: [?lkU& uA: [&?lVU&E m?lkU& pl-O tUE on 16 17 the mrg uB, C: $4#3! instead of $4#"! 5$G 7! n! uB, C: $4#!& 18 uC: m&?lVU&

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7.THO 5; R'e ^&).4'& Z=s Ç?fO BAc `J!$M ].4'& m;)!& ]a$G &~e .b.,)H'& ó^C?OE ^)O LaÖc m9M&E 1`S$=6 v("HO E; í)8HO N&9'E [9'E 5Öc ó9'?'& )!; .^C?O tUE ^)O BAc $ÉH.! 9'?'& %)l 5eE 2 LHO?.M )TH3O $4aeE óD?'?4'& mC?Q )TH3, 5; ^&).4'& `'-=! 2c v.'E ]a$6 &~e LaÖc `!; ]a$G &~e VU& :H3' m)TH3! mC?Ä'& $4aeE .5$G $! /.G .L!; :H3, BAc gL,C?Q 7.TH, 4Z'E $ÉH.! 3[9'E 5eE gLaÖc .L!; ]0HS L,C?Q L,C?Q ]a$6 &~e LaÖc .`!; ]a$G &~e VU& :H3' m)TH3! \*$=4'& zpX n.4dE 2c ](JHl& 5eE |$"QVU& zpX RJS m)TH3! \*$=4'& zpX n.4dE .L!; ]0HS 5 .^&).4'& [Åñ] 6 \Äc m93'& 7PBA† $4#".6 PBA>'& nsE &~e 7.dEo'& ^&).! 8 $4#' `3d)'& ]!&D $! `"='&E `3dC $#.JS \d)J' 5$G 5Öc `0'$† 9m;)!&E (fl. 19v) &NDtUE; /JlE [$! \dC `3dC $#.JS \d)J' :TO Z'E L"! ]a$6 ]a$G 5Öc .$#dEÇ } $! 7! ^), $#aÖc 5Öc $ÉdEÇE &NDtUE; ](JlE 10m;)4'& ],$! &~e i'pGE .$ÉÜ.@ L"! ^), tU $#aÖc L1)! 2c $#0J† &~e i'pG v.'E .$#"! ^)O LaÖc `3dC $#.JS \d)J' 5$G Z_ L"! 12]a$6E L1)! 2c 11$#0J† &~e Z#.JS LJK'& [&?JQ $".'&?! 9"S LaÖc 2 uB, C: `S$Y uA: L,?.M * B: L,$.M L,?Q $4aeE * C: L,?Q )TH3, $4aeE 3 4 5 uB, C: L,9'E 5eE instead of [9'E 5eE gLaÖc uB, C: Z' 5&E uB: ^&C?'& * 6 C: ^C&?'& uA: I$6 in the text and on the mrg * B: I$6 * C: I$6 \Äc 7 8 11 uC: PBA>'& uC: $#' 9uC: m;)!& 10uB: m;)!tU& uA: L,;)!& %Eo'& :J† ~e 12 on the mrg * B, C: L,;)!& \d)'& :J† &~& uA: ]a$6

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m;)4'& %EoH, 5; tUe L"! ^), m;)4'& 5Öc $#.c $#0J† 2H'& `J3'& 2c 1\d)'& [$! 4 D$S Z_ 3$É!$O; `J3'& 7! ¶)6 9s \d)'& &pX 5$G 5Öc .$ÉÜ.@ 2L"! ^), tU $#aÖc .$ÉÜ.@ L"! ^), tU $#aÖc [$! Z_ ã)4'& L.'e [Åò] 5 \Äc ^&).4'& 8$#"! 7ßÄO 2H'& 6`cE)34'& $#='& Z#Y \GE .7.4#Y 7! LJQ; 5?â.c 206 $!E /Ä"'$6 &N)TH3! 5?âO Z#Y \G Z#Y \GE .`_BA_ 7! LaÖc 115$hJh'&E jJh'& 10E; 206 $!E 9jJh'$6 &N)TH3! 5?âO 12 fl.) \GE .`36C; 7! LJQ-c 206 $!E /Ä"'&E n6)'& E; 206 $!E n6)'& )G~ L.c 5$Y9='& E; 206 $!E jJh'&E x9='& E; 206 $!E x9='& 13)G~ L.c Z#Y (20r 16 $#3.4fc /Ä"'&E x9='& E; 15206 $!E 14/Ä"'&E 5$Y9='& E; 206 $!E \GE .b.,)H'& &pX RJS ?#c óx9='& z)G~ 5?âOE `H='& `4=s 7! ßÄO n4HfO 5?âO 5; tUe `_BA_ 7! tUe C$ÄHl& L' v.Jc 7.hJh'& )G~ L.c 5?âO Z#Y 5$hJh'& [$"TJ' 5?âO LaÖc g7O?6VU&E [$"T'& Z#Y \h! 5$Y9='&E 5$hJh'& 19 n.4fc g206 $!E 18x9='&E 5$hJh'& 5?âO $! \h!E ó5$Y9='& 177O?6ëA'E 2 uA: %Eo'& on the mrg * B, C: %Eo'& uB: $#"! 3uA: $O& corrected as $!$O& 4 5 uA: D$S on the mrg uA: I$6 in the text and on the mrg * B, C: I$6 6 7 8 uC: |E)34'& uB: ßÄ, tU uA: $#.c 9uB: jJh'& L.c )TH3! * C: 10 12 jJh'& L.c jJh'$6 )TH3! LJQ; uB: E 11uA: 5$hJh'& E; uC: E; twice 13 14 uC: Z#='& )G~ uC: /Ä"'&E 5$Y9='& E; 206 $!E instead of x9='& E; 206 $!E /Ä"'&E 5$Y9='& E; 206 $!E 5$Y9='& E; 206 $!E jJh'&E 15uA: 5$Y9='& E; 206 $!E 5$Y9='& E; 206 $!E /Ä"'&E on the mrg 16uB, C: $! n.4fc 17uC: 5$hJh'& 7O?6ëA'E: 5$hJh'& deleted 18 uB: 5$Y9='&E corrected as x9='&E 19uA: i'~ n.4fc i'~: the second

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5; 936 \sVU& 7! Ld&)l& 7â!; $! b.,)H'& &pX RJS Z_ ó`HY 7! 5?âO i'~ ®JTO BAc \sVU& 7! L' ßQ 5Öc )=â'& L.c n0O tU $! +*&)('& 2\*$=! 1ßÄ, .)hGVU& 3R'e `'-=! \GE .`.a$4_ 7! LJQ; 5?â.c 206 $!E 74h'& )G~ $#.c `'-=! \GE .`'-=4'& zpX 7! ßÄO 5tU 4LaÖc 5$Y9='&E n6)'& E; x9='&E n6)'& )G~ $#.c n6C 6tUE x9Y m)r3'& 2c v.'E m)rS ).Ä.c x9='&E n6)'& n4Hd& &~Öc $É!$#Y (fl. 20v) n6)'&E x9='& $#"! %)êO `'-=! )ÄT, 5; L.c Ld?'$c ß.8Q $É!$#Y n6)'&E x9='& $#"! %)êO $! $#='& 7! 9f, Z' &~Öc ó`8.8Q L.c 5?âO $4! $ÉÜ.@ )ÄT, 5e ói'~ \h! 8Ñ2r6 5$0(HO \X 7)ÄTHc `8.8Q x9='& %)ê!E `36C; 7! n6)'& %)ê! $a9d?c ß.8Q n6CE ß.8Q x9Y [DC; 5Öc .$4#"! 9M&E \G /Äa ßÄO 7.H'-4='& 9%)ê! $a9d?c `HY 7! `HY 2c L6)çHc 11`36CVU& /Äa E; `36C; 2c L6)çHc 10`H='& /Äa pl-, 5; 5; 14$"fHMtU 7."_tU& %)ê! 7! /Ä"'& $"' 13ßÄO Z' ?'E 12óßÄO i'~ 5Öc pÜ".M óÑ&odVU& $".JS 16)hâHc `H='& 2c 15`36CVU& E; `36CVU& 2c `H='& I)ça 2c g`_BA_ ?XE g`H='& /Äa $"6)çc $É8.8Q $É(Äa 9M&E \â' $a9dE 17&~Öc ]G),E ],$! m;)!& \h! `'-=4'& ßÄ, Ld?'& &pX 7!E .)rS 2"_& C$Äc `36C; gZ#Y; `_BA_ ?XE gn6)'& %EoJ'E g5$4#Y ?XE gx9='& IëAJc $É"6&E $ÉdEÇE $É6; 2 i'~ is on the mrg 1uC: ßJÄ, uB: )*$Y 3uA: tU& deleted in the text and corrected as 2'& on the mrg 4uA: LaÖc 5$Y9='&E n6)'& E; on the mrg 5uA: BAc: | 7 deleted * B, C: BAc instead of tU LaÖc 6uA: E x9Y on the mrg uB: ) Ä T H . c 8 9 uC: Ñ2@ uC: %)ê! $a9d?c `HY 7! x9='& %)ê!E `36C; 7! n6)'& 10 11 omitted uA: x9='& uA: n6)'& corrected as `36CtU& and repeated also on 12 13 14 the mrg uA, C: ßÄO i'~ 5Öc omitted uC: ßJÄO uC: 5$fHMtU 15 16 17 uC: [$36CVU& uC: 5)hâHc uB, C: $4Jc

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3 4 uB, C: 76BA' 5?âO 2uB: qofO uA: 74h'& E; on the mrg uC: $ h J h ' & E 5 6 7 8 uA, C: 9fO uC: L1)c uC: 7! )°"Hc uA, B, C: 9 10 11 7.H'$=4'& uA: $34d& : the first & deleted uB: $Ha$G $H34d& uA: x 9 Y 12 13 E ß.8Q on the mrg uB, C: tUE; omitted uC: n6&)'& 14 15 16 17 uA: $#Y uC: $#(Äa uA: %$H8.c uB, C: DC 18 19 uB, C: iJX uB: 7.H"T'&E

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g5$4#Y 76BA' `36CVU& 5VU `8.8Q 1$#=6 `_BA_ 7! `36CVU& %)ê, BAc )ÄT, 5; 3Ld?'$c ó$4#.JS `_BAh'& )=â",E gZ#Y $4#"! 2m9M&E \G 7.H"TJ'E g7O)=â"4'& D9S pl-Hc i'~ :(HO Z' &~Öc gÑ2r6 `_BAh'& n! `36CVU& :(HO \X 2c `36C; 2XE g`çO)('& 5\Q; 2c 4$#6)ç,E g`36C; ?XE gDtUEVU& $#Y ?XE 76BA' g)rS 7$"_& 206E g`36C; 2XE gn6)'& %EoJ' :)rS `HY 6[C$Äc `36C; .`'-=4'& ßÄ, $#"!E )rS `HY [C$Äc ó`_BA_ ]"6 8\â'E `HY 10 `.a$4_ 7! `çO)('& zpX \Q-c 5&?6;E 95$H"6&E `dEÇ i'pGE (fl. 22r) 9M&E \â' 145$Y9='& 7O?6ëA'E 74h'& 13`dEoJ' 125VU 74h'& )G~ $#.c 115VU 7! 5$d)êO tU 5$Y9='&E 74h'&E ó5$(Äa 7.H"T'& 7.6 206 $!E x9='& $4#"! \Q;E `.a$4_ 7! 74h'& \Q;E 15óx9='&E 74h'& 2"3O g7.4#='& 9M; 74h'&E 5$Y9='& tUE `.a$4_ 7! 5$Y9='&E 74h'& %)êO tUE `HY 7! x9='& %)ê! 2XE 17`H='&E 74h'& %)ê! 2XE `.a$4h'& 16]34d 5Öc `HY 7! tUE 74h'& tU 19$#"! %)êO BAc g)rS `36C; n.4f'& 5?â.c 18gx9='& $4#s$(,tU 22`.a$4_ 2c L6)ç,E `H='& 21/Äa pl-, 205; L.c Ld?'$c ó5$Y9='& `36C; 5?â.c `H='& 2c L6)çHc 23`.a$4h'& /Äa E; g|$ÄaVU& `8Q 2c \â' `.a$4_ ?XE 24g5$Y9='& 7O?6ëA'E g`_BA_ ?XE g74h'& m;)4JJc :7O)rSE 2 3 uA, C: $#Y uC: 9M&E uB: L.c Ld?'$c $4#.JS * C: L.c Ld?'& 2c $#.JS 4 5 uB, C: $#6)çHc uA: \Q& omitted 6uA: [C$Äc omitted 7 8 uA, B: 2"_& uB: \â' 2XE :2X deleted 9uC: $H"6&E 10uA: 74h'& 11 uB, C: 5; `çO)('& zpX \Q;E 12uB: i' 5VU: i' deleted 13uC: %EoJ' 14 15 17 uA: x9='& uC: 74h'&E x9='& 16uC: 734d uA: `.a$4h'& ]34d 5Öc 18 19 `H='&E 74h'& %)ê! 2XE omitted uA: 7.Y9='& uA: $4#"! 20 21 22 uA: 5; omitted uA: /Äa omitted uA: `.a$4h'& 2c $#6)ç,E `H='& pl-, 23 24 uC: $4#s$(,tU `.a$4h'&: $4#s$(,tU deleted uC: 5$hJh'& in the text, but

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._'-=4'& §x, 2$4#"!E è5$(x` 7.G"S'& 7.6 206 $!E f_36C; $4#"! 19L&E 7! 7.Gk;E 37N?k;E w UT& 7! $|k;E _cE{ ã),E [cC Z$! &vd h'oFE :L ?WE m6)'& )Fv $#.b 5UT _36C; 7! _éN)('& ÑoW [P-b (fl. 22v) èHUT& 7.GkUT&E 7N?kUT& 7.6 206 $!E z9='& w UT& 7! ÖàA'E m6)'& l;)4I' :l;)4'& 7! sTE _36CUT& 7!w $#='& ÑoW m.4c %)á, BAb è7..g`UT& çL [g! 4)FoI' _#c 7! _G='& /x` ok-, 5; K.b Kc?'$b 6èY#.IRw $#='& 5C$=Å`sT _G='& $#"! l;)4I' :)qR 72"^& ).x, QGL m6)'& _#c 7! _36CUT& 2b K6)é,E z9='& sT _3SX 206E f5$4#X ?WE fz9='& w UT& 7! ÖàA'E f_^BA^ 8?WE fm6)'& [Å'E 7.4#X 76& [Å' 5UT _GX QIR HUT& 7! Z&?kUT&E l?kjT& 7.6 §x, f_GX ?WE 11f7N)=Å"4'&w $#X D9R H)é, 5; 10K.b Kc?'$b 9è$|4#X \"6 :7.3SXE 137.G"^& 5?ÅGb 12fl)qR $G"^& 2WE _éN)('& [P; 2b $#6)éGb 16 $"^& ?WE z9='& w UT& 7! ÖàA'E 15f)qR _.`$4^ ?WE m6)'& $#"! 14l;)4I' 7..g`UT& çL [g! )FoI' 177.GkUT&E 7N?kUT& 7.6 5?36C;E 5$"^& 206E f)qR ._'-=4'& §x, $#"!E è_3SX \"6 [Å'E )qR _36C; 76& [Å' 5?Å.b 7! Z&?k; 18]BA^E (fl. 23r) |$cE{ \F),E l;)!& \,$! &vd h'oFE 5UT 7.4#X 7! _éN)('& ÑoW [P-b èHUT& 7! 7.Gk;E l?kd _^BA^E w UT& 21 206 /x"'& %En'& $".>R; &v~b è%En'& :L 20?WE /x"'& )Fv 19$#.b 1 2 4&B8S)( on the mrg "A, B: 8K(N omitted "B: &%$# 3"C: 6LQra`(N 4 6 7 "C: +9^F) omitted 5"C: h&á1b` "C: &%=F@ "A: &$Å( 8 9 10 11 "C: Q{N omitted "A, C: 4&3%B "C: H=V omitted "C: 6L+Sá3)( 12 13 14 "A, B, C: +f@ 0$Å( "A: 6=$Å( "B: ( Ae+3F): ( deleted 15 16 17 "A: z=1&3Å Q{N +f@ z=1&3Å Q{N "B, C: 0$Å( "A: R(Qrb`(N * C: 6=:r(N 18 19 20 "A: zÅYXÅ corrected as oYXÅ "C: &3=V "C: Q{ omitted 21"A: 0V instead of 0Z5

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@"9 5* 54+?/ >(=< ;: ,47 ,98027 6543210/ .- ,+* )('& %$ #"! .- 8ED CPON0/ (ML @"9 5* @?KJ? I7 C @=&(H0/ GF: 2BED C54B"A0/ 2"+* 2@?KJ? ZYXD C@?KJ? 8ED WU+0/ 2"+* )DVO0 :@T! 1(4UT7 CSR$/ Q%$D: Q%$D: 54X ;2\U& %$ 54B"A0/ ;: %$[ C;2B"! 8ED PON0/ SR$/ 3Q%$DR$ SR$/ Q%$D: #ED C5&(A`+B0/ Q_^ >(=< ;: ,47 ,98027 6@?KJ? #"]R$ SR$/ )DVO0 :(e^ @4]2B? d2U7 cDR$/ 4 b24\]%$/ _aX @=&(H0/ GF: I7 C@?KJN0/ 6 f K J ? 5 4 X @ T ! 8 E D C P O N 0 / S R $/ 5Q % $D R $D C @ a A < 8 E D C W U + 0 / 2 " + * 54X jU< %$ @?KJ? IYX 9C;2B"! 82"+* ig: G`0 7SR$/ 5* h/8gR$/ ;2B"! 5X/ G`0 ;R$ @4]2B? ZO^ ;2Tg:D k8g[ @?KJ? 10#ED C>R$/ Q%$D: >(=< ;: ,47 ,98027 6@4]2B? ZO^ jU< %$ @?KJ?D 12C#"! i+X 11G`0D I7 13#"!: @4]2B? #ED (fl. 23v) C>R$/ Q%$D: #ED C5&(A`+B0/ S2"! Q_^ @aXd:D @l2* (4UT7 6I]2N0/ 14b24\]%$/ _aX @=&(H0/ GF: 8ED C(e^ @4]2B? PON0/ SR$/ Q%$DR$D C;8a1!D 15;2+?/ 8ED WU+0/ 2"+* )DVO0 :54aXd:D @aXd: IYXD C(e^ @T! ig: G`0 16@?KJ? #ED ;8aXd:D @4]2B? 8ED n- GN* (MmO0 ;2Tg:D k8g[ @?KJ? #ED >R$/ Q%$D: 54X ;D(e^D @l2* q4Bp0/ d2U7 6#"!: @?KJ? ig: G`0D #"!: @T! o: G`0 17544N]R$/ h(A`]/ 2BOM .s4* =< ;:.#987"! &%$6 54' 32.1 0/!.-"! 1,+* )(' &%$#"! .@EFE> &%$#"! L.KJ I* )"H %$8C G2 FED: %C )(' BA @?:.-"! [MN] 3 ,O< WUV7"!T 5U$F"!T SR%O8"! @CQ"! ,+* 4P!.FC 6 ;C P.: B(#7"! I* 3F]"! ,+* 5;F\7[* B$F(' Z(Y"! X!U(> %8F"!UC 48' ;C IUA.: `_ @CQ"! 7,+* ./%6 b"QaT B(#7"! ;C =^!.O8"! P.: `_T =^!.O8"! :b"f .F#-JT 8.B$8C IUA.: IU7(#7"!T %edFc ;F7(#7"! 10 ;2! ;F2 h%7"%< 9%e7(#C (fl. 24r) ;2! ;2!T %eF^!.O^ %e82! g.JT X%C =^!.O^ h%7"%< @7(#C %eD82T %eF^!.O^ %e82! g.J Ii< .I%-O^ =^!.O8"!T 11B(#7"! ;2`_! 14 %e7(#C 13382 ;2!T %eF^!.O^ %e82! g.J Ii< .;FFj^m_! lk ,jC .aQ(" 12%7$8F2 I%a !fH b"QaT .=^!.O8"! ;2on< =s2 %CT qZC* 15rk qp(j"! 38]"! ;2on< qp(j"! %$C* 18rk QutJ 38]"! 38]< @7(#C 382 382T 17=^!.O^ 16;2! B$F2* rk ITQutF< ;F7(#C 19!U^%a !fH ;2`_! 5`_T*T 38]"! 5`_T* b"QaT 2 3 vA: wQ+ instead of ,+* vA: .FKD: vA: P!.FC x%2 4 P!.F7"! x%2 on the mrg * B, C: x%2 ,O< vC: P!.F7"! 6 7 ;F\7[* omitted vA: ;C omitted vB, C: ,+* omitted 8 vA: B$8C IUA.: `_ instead of B$8C IUA.: IU7(#7"!T %dFc ;F7(#7"! ;C B$8C IUA.: IU7(#7"!T %dFc ;F7(#7"!v;C (C: B$8C deleted) B$8C IUA.: `_ 10 12 vB: ;2`_! corrected as ;2! 11vC: B(#7"!T vA: 13 14 15 16 vC: %D82 vA: B(#C vC: Zsk vA: 17 18 and %82! interlinear vA: %F^!.O^ vA: rk omitted 19 vA, B: %^%a * C: !U^ I%a 1

in the text and 5 vB, C: IUA.: `_ * B, C: 9 vA: B ( # C B$8F2 * C: %$8F2 ;2! in the text

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