STUDIES ON IBADISM AND OMAN Biited by ABDULRAHMAN AL SALIMI AND HEINZ GAUBE VOLO IBADI JURISPRUDENCE. ORIGINS, DEVELOPMENTS AND CASES: O = Georg Olms Verlag Hildesheim : Ziirich - New York 2015IBADI JURISPRUDENCE ORIGINS, DEVELOPMENTS AND CASES EDITED BY BARBARA MICHALAK-PIKULSKA AND REINHARD EISENERThis book is protected by copyright. No part of this book may be used, other than ithin the narrow limits of copyright legislation, without the prior consent of the publisher: ‘This particularly applies to reproduction in any form including microfilm, to translation, and to storage and processing in electronic systems. Bibliographic information published by Die Deutsche Nationalbibliothek Die Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de. Printed on durable and acid-free paper Cover design and Typesetting: Wei-Freiburg GmbH ~ Graphik & Buchgestaltung, Printed in Germany © Georg Olms Verlag AG, Hildesheim 2015 © Ministry of Endowments and Religious Affairs, Muscat, Oman © Sheikh Abdullah Bin Mohammed Al Salimi All rights reserved wwwolms.de ISBN 978-3-487-15150-2Table of contents ‘word by His Exellency Sheikh Abdullah Bin Mohammed Al Salimi . duction by the editors . ‘The Origins and the Formation Period of Ibadi Jurisprudence John Wilkinson: Contextualizing. The Development of Ibadi Fiqh ferd Madelung: Aqwal Qatada and the Shu‘aybiyya and Nukkar ..... Again Gaiset: Takfir Re-examtined: Polemic and Ambiguity in the Sources on the Mubakkima . Agostino Cilardo: The tad Law of Inheritance: Preliminary Notes on the Formation of the Ibadi School Abdulrahman Al Salimi: Early Islamic Theological Influence in Jurisprudence. An Ibadt Perspective Danylo Radivilov: Early Omani Siyar: Sin and Repentance in Ibads Legal Theory .. Yohei Kondo: The Development of Ibadl Jurisprudence in Oman in the 3/98 and 4°/ 10" Centuries: A Preliminary Study of Some Marriage Issues .. ngeliki Ziaka: The Roots of the Usil al-Fiqh in the Ibadt Madhhab: A Comparison Between Aba Sa'd al-Kudamt and Ibn Baraka... 0.0.00. 00.ceccee eee Developments in Doctrinal and Regional Context Mustafa Badjou: The Concept of litihad According to the Ibadt School of Jurisprudence Hossein Modarressi: Common Ibadi/ Sbr‘te Legacy: Examples From the Ritual Law .. Mohammed Ech-Cheikh: On the Relationship between Islamic Jurisprudence and Theology: ‘The North African Ibadism Case oe Latifa Gucndoua: The Ibadiyya Doctrine in North Africas The Example of tbe Rustamid State Cyrille Aillet and Mohamed Hassen: The Legal Responsa Attributed to Affab b. Abd al-Wabbab (208-58/ 823-72). A Preliminary Study . Miklos Muranyis Ibadism and Malkiim. Notes on Some Hitherto Unknown Manuscripss Leonard Chiarelli: The Ibadi Communities in Muslim Sicily ; . Ibrokhim Sabirovich Usmanov: The Portiait ofthe Ibadts in the Works of Scholars of Ma ward’ al-Nabr. Hilal Al Hajri and Khalid Al Balushi: Omani Classical Poetry and Discourse Deviation ......... Ihadt Jurisprudence in Practice Valerie J. Holfinan: Ihadt Scholars on Association and Dissociation, from the 10" to the 21° Century Donglas Leonard: A Basis for Oman’s Religious Tolerance: A Review of the Late 19" and Early 20" Century Ibadi Jurisprudence of Naar al-Din al-Salimt from Oman and Mubammad Atfayyash from North Africa Regarding Coexistence with Jews and Christians Stefan Schreiner: Jewish Law in Ibadi Context—the Case of Levirate and Temporary Mariage Some Remarks on Carsten Niebubr’s Observations .. 04-04 Roswitha Badry: A Matter of Limited Female Agency: Oman’s Personal Status Law and badi Jurisprudence on Kbul‘ and Other Forms of Divorce Initiated and/or Consented ro by Women Abdulsattar Othman: The Buile Environment in Ibadi Law of the 5-6" Centuries H (u'*-12" AD) 15 25 aL 4l 35 B 8 % 103 M1 121 127 137 “7 159 167 13 195 au 225 241Mathias Rohe: Water and the Law in Oman . Ahmed Abou-El-Wafa: Ibadt Jurisprudence and the Law of the Sea Amal Ghazal: Ibadi Jurisprudence: Responses to Modernity The Authors 249 257 265 23The Ibadi Law of Inheritance: Preliminary Notes on the Formation of the Ibadi School Agostino Cilardo 1. Introduction Ik is well-known that diverging opinions exist about the formation of the Ibadi madbbab. On the one hand, Schacht states that the Sunni schools do not differ from heterodox schools more than the former differ from each other; and chat for a long time the ancient sects remained in such close contact with the orthodox community that they adopted the law as ic was developed in the orthodox schools, introducing only some modifications required by their own particular political and dogmatic postu- On the other hand, Rubinacci maintains that the in the formation of the law, Indeed, itis possible that exactly che first definitions for- mulated by the Khirijis and the questions debated by them gave impulse to the formation of the Iraqi school, Subsequently there was a doctrinal Kharijt development parallel to that of the Sunnis, even if the Kharijs ‘mained in a close contact with the orthodox community during the 2" and 3" centuries.’ For a long time I have been interested in the Islamic law of inheritance, including the law of the Ibadi school. ‘The Tbadi sources I studied there have been al-Mudaw- wana I-kubra by Abii Ghanim (d. ca 200/815); Mukbiasar al-kbisal by Ibn Qays (d. ca 520/126); al-Mukbtasar by al-Basyawi (d. ca 5/1 century); Kitab al-jami* by Ibn Baraka (d. ca 5/11 century); al-Musannaf by al-Kindi (A. 557/162); Kitab al-nil wa shift? al~‘alil by al-Mus‘abt ({. 1223/1808), and its commentary by Atfayyash 1332/1914), Sharb al-nil wa sbifit’ al-‘altl Although, Ibadr legal literature has until recently only been examined to a limited degree the appearance of im- portant new sources which are now available could shed light on the most ancient Ibadi doctrine, and therein on the formation of the Ibadi school. 2. Sources 2.1 Aba I-Sha‘tha’ Jabir b. Zayd al-Azdi (4. 93/711) ‘The earliest source concerning Jabir’s doctrines is Rasail al-imam Jabir b, Zayd al-Aadi including 18 letters con taining Jabir’s replies to his followers, They also exami some legal issues. Jabir’s Rasa! contains three passages regarding the in- heritance; the first is in Risala no. 3,4 addressed to Tarif b. Khulayd, concerning the inheritance of a man who has died leaving no heir, except for his mother, who was a slave. The second is in Rivala no. 16 addressed to ‘Abd al-Malik b. al-Muhallab, dealing with the assessment of the estate inherited by a minor who is under the cutor- ship of his father. ‘The last is in Rivala no. 17,° also ad~ dressed to ‘Abd al-Malik b. al-Muhallab, concerning the inheritance of a patron from his manumitted slave 2.2 al-Rabi‘ b. Habib b. ‘Amr al-Azdr I-Farahidi |-Basri (d. between 180/796 and 190/806) ‘The doctrines of Jabir were also transmitted by al-Rabr, to whom some works are attributed. The one is Athar al~ Raby‘ ‘an Dumam ‘an Jabir b, Zayd? Recently al-Khardsf edited a book entitled Min jawabat al-imam Jabir b, Zayd, a collection of two rivayat going back to Jabir b. Zayd, embodied in a unique work by al-Khardst The first is the rivaya of Aba Sufra ‘Abd al- Malik b. Sufra; the second is the riwaya of Habib b. Abr Habib. However, al-Khariisi does not specify where these two rivayar actually are A comparison between the edited text by al-Kharast and the MS of thar al-Rabt‘ clearly shows that al- Kharagi edited a copy of the thar: ‘The incipit of the MS is the same as it is in the edited text: “Aba Sufra ‘Abd al-Malik b. Sufra related to us; he said: al-Haytham aINO CILARDO related to us on the authority of al-Rabit b. Habib, from Dumam b. al-Sa'b, from Jabir b. Zayd al-Andi (may God be pleased with him) ..”. However, besides some minor differences existing between the edited text and the MS, there are some omissions in the edited text; this may be an indication that al-Khardst used a MS different from that present in al-Maktaba I-Bariniyya (Jerba) which I considered. Moreover, al-Kharust does not follow the or- der of the MS, but he arranges the material according to its contents and put it under the same heading. In so doing, on the one hand, the approach to the text is facilitated, while on the other, a responsum treating, dif- ferent issues has been included by al-Kharasi under a particular heading, according to his own choice. Besides, some responsa are included in more than one chapter. Lastly, the important legal maxim “The one who doesn't inherit doesn't exclude’, present in the Athar‘ is omitted by al-Kharusi In the Bab fi murach of the Jawabat seven badiths on the inheritance are present; two of them concern a simi- lar subject. The issues, some of them also treated in the Awgal Qatada, regard the inheritance of the walad al- ‘mula‘ana,? the consequences of a repudiation given by the husband during his illness from the inherit of view," the case of an heir who can claim based on two cies of kinship,” che case of a child who receives as inheritance his mother who is a slave,” the inheritance of a foundling,” the attribution of the estate in the case of a Muslim marrying a kitabiyya." \ Some other responsa, dealing with the law of inheri- tance and present in the dthar, are included by al-Kharast in chapters other than Bab fi l-miratb. In Bab fi I-nikab three questions are solved, the one concerning the in- heritance of a widow when her dower has not been de termined,® the second regarding the inheritance of an umm walad from her free husband," the third referring to the inheritance of a widow married and repudiated by her husband while he was ill.” In the Bab fi I-mamalik wa Hig two issues are treated, the one regarding the inheri- tance of the patronage of a mukatab," the other concern- ing the inheritance from a mukatab.” In the chapter entitled Bab al-wasaya wa [-bibat al- Kharasi gathers four responsa regarding the bequest, pre sent in different places of the Athar. The first regards a man who bequeaths his mukataby the second concerns aman who bequeaths his goods in favour of his umm walad, chen he dies and the wnm walad has no other child other than the one she got from him; the third treats the case of a man who makes a bequest in favour of people other than his relatives; the last responsum lists some circumstances when a Muslim cannot dispose of his whole property, but he can only bequeath one third of it 4g, in his/her illness; in a case whereby a man is engaged in a war, during a pestilence, etc.) 2.2.1 Futya Rabi‘ b. Habib Another work of al-Rabt‘ is Futya [-Rabt‘ 6. Habib,** where a responsum about the inheritance of a Christian who converted to Islam is present. 2.3 Qatada b. Ditama I-Sadast (d. 118/736) Qatada, a ‘successor’, was in his time one of the pre-em- inent personalities of Basra, where he spent his life. He ‘was a pupil of two prominent Basran scholars, al-Hasan and Ibn Strin (both died in 10/728). Moreover, Qatada transmitted the responsa from another Basran exponent, the Ibadi Jabir b. Zayd. His collection of legal responsa and traditions, Aqual Qazada,* is divided into seven parts. In Part 5: 46~67 the responsa of Qatada on inheritance are present, besides «wo statements of Jabit, the one regarding a bequest of eman- cipation,* and the other concerning, the inheritance of a walad al-mula‘ana.” Part 4: 78-80 includes the Kitab al-mirath wa I-wasiyya by Jabir and some responsa of Aba “Ubayda and al-Rabi (Part 4: 67-88). Part 5: 88-105 exam- ines a number of cases solved by Jabir, which are related on the authority of ‘Amr b, Harim. Lastly, part 6: 105-131 contains further statements of Jabir reported either on the authority of Amr b, Harim and ‘Amr b. Dinar 3. Case~studies ‘The methodology followed in the analysis of the selected case-studies examined hereafter is based on a compara~ tive approach, Doctrines elaborated in Basra will be com- pared to those developed in Kufa and in Medina between the end of the 1 century H and the middle of the 2° century H. Thereafter they will be analyzed with refer~ ence to the final elaboration of the various law schools. 3.1 Inheritance of the walad al-mula‘ana “On the authority of Jabir b. Zayd about a husband who falsely accused his wife of having had an illicic inter‘THE IBADI LAW OF INHERIT PRELIMINARY NOTES ON THE FORMATION OF T! course; but the spouses didn’t utter the sworn allegation of adultery, they didn't take their case before the judge, d they didn't withdraw their allegation; then one of she cwo died.—He answered: The surviving spouse will inherit from the other”** This report, transmitted also by Qaeada,** but not found anywhere else in the traditionistic and legal lit- czature, concerns the obvious rule that, if the prescribed procedure of lian has not been completed, the Ian does not produce its effects. Since there has been no li‘dn, the spouses keep their right to inherit from each other. In act, there is no divergence on the fact that l'dn, once its procedure is completed, causes the interruption of the conjugal tie; thus spouses have no longer a reciprocal right to inherit. Conversely, if one of the spouses dies be- fore the completion of such a procedure, they can claim inheritance from each other.” Another hadith is reported by Qatada” on the author- icy of Jabir: “He was asked about the inheritance of a wwalad al-mula‘ana. They related from Jabir b. Zayd that he said: The inheritance of a walad of spouses who had recourse (0 the fan is allotted to his father” (walad al- yaucala'anayn miratbubit l-abibi). The wording of this marn implies that a parental bond berween the husband and the disowned son still persists. ‘This hadith reports an ancient doctrine no longer fol- lowed by any other law school afterwards. This means that the attribution of paternity of a walad al-mula‘ana ‘was a controversial topic at the end of the 1* century H. As a matter of fact, Jabir was not the only one who supported this doctrine. In fact, it was shared by an- other ‘successor’, Ibrahim al-Nakha't (d. 96/715), as it is clearly shown in a hadith reported by ‘Abd al-Raazaq (d 211/826)>* “al-Nakha‘t and al-Sha‘bi (4. 103/721) diverged about the inheritance of a walad al-mula‘ana. Thus they sent to Medina a messenger to be informed about this question. He then returned back and referred on the au- thority of the people of Medina that, when a husband ut- tered the lian against his wife at che time of the Prophet, he separated them. Then the woman got married and gave birth to children, After that, her son, who occa sioned the lian, died. His mother inherited from him one sixth and his [uterine] brothers one third. The re~ mainder was proportionally divided among his brothers and his mother. ‘The mother received one third and the brothers two thirds in total” ‘This solution lets us implicitly understand that the father who disowned his son became a stranger for him. However, @ variant of this badidh present in Ibn Abt Shayba (d. 235/849)” is even more explicit: “Al-Sha'bi said: Ibrahim b. Yaaid [al-Nakha‘i] was not of my opin- ion regarding the ibn al-mula‘ana. I said: He is attrib- uted to his mother, while Ibrahim said: He is atcribuced to his father...” ‘The structure of the previous two haditbs cleatly shows the kind of reasoning used in order to give more impor- tance to a doctrine with respect to the other. In fact, the detriment proof of al-Sha'bi was the decision made by the highest authority in Islam, the Prophet. A similar strong traditionistic support to the doctrine of Jabir and al-Nakha'i was absent. Once the doctrine maintained by al-Shs'bi became generally followed, the subsequent sources merely repeat it, like the amplified version of this hadith present in al- Bukhari with a Medinense isnad: Malik—Nafi—Ibn “Umar. At the end, this was the doctrine the law schools agreed on. In fact, it is reported that this was the state~ ment of ‘Alf, Zayd b. Thabit, al-Zuhet and Sulayman b, ‘Yasar, and it was maintained by the Hanafis and al-Shafit." Qatada” relates another hadith on the authority of Jibir: “He was asked about the inheritance of a walad al- mula‘ana. He answered: If he (the husband] consummac- ed the marriage, the child is attributed to him and his [child's] inheritance shall be allotted co the agnates of his father. If, however, he didn’t consummate the marriage, the child is attributed to his mother and his inheritance shall be given to the agnates of his mother” The distinction between a consummated marriage and a non consummated marriage is important in this context because the l'an must have a strong rationale, In fact, it makes no sense uttering fan when the mar- riage has not been consummated, Islamic law as is well- Known, has elaborated rigid rules regarding the attribu- tion of paternity. Besides the doctrine of Jab, in the Basran milieu there were a number of different views about the inheritance of a walad al-midla‘ana. al-Rabi’, when asked about the in- heritance of a walad al-mula‘ana, answered chat his estate shall be allotted to the agnates of his mother. But the ‘uncertainty about the solution to be given in this case is, well rendered by the final statement of al-Rabi‘ ‘wa-llab a'lam (God knows best).” Moreover, the doctrine of Jabir was not shared by Qatida, who agreed with the Kafan doctrine. In fact, he believed that the estate of a walad al- ‘mula‘ana shall be given to his mother, as itis attested in some haditbs present in the Musannaf by ‘Abd al-Razzaq* ‘The analysis of these most ancient sources clearly shows that there was no unanimity in Basra; those sourc- es render also clearly what was Jabir's and al-Nakha‘’s view. However, some later jurist tried to include Jabir and al-Nakha't among those jurists who supported the oppo~ site doctrine, This was made by the Hanbali Ibn Qudama 4. 620/1223),” who included them in a list of authorities living at the end of the 1* cencury ~ beginning of the 2! BAGOSTINO CILARDO century H (al-Hasan al-Basri, Ibn Sirin, ‘Aq’, al-Sha‘bi, Hammad, al:Thawr, al-Hasan b. $alih), who maintained that the inheritance of a walad al-mula‘ana shall be divid- ced allotting the one-third of the estate to his mother and the remainder ‘to the agnates, or, as itis better specified by al-Darimt,® ‘to the agnates of his mother’ his solution is nothing but the most widespread doc- trine followed at Jabir’s time, which can already be found in a badieh present in the Kitab al-fara’id by Sufyan al- “Thaw (d. 161/778)" As a demonstration of the general acceptance of this solution, it is noteworthy that this tra~ dition is reported on the authority of Hisham b. ‘Urwa (d. 146/763), reliable Medinense tradicionist, who trans~ mitted this hadith on the authority of al-Hasan al-Bagrt (d. 0/727). In fact, this was the doctrine followed in Kafa in the Sunni circle (al-Sha'bi, Hammad, al-Thawrt) and in the Zaydi circle as well (al-Hasan b. Salih, a Zaydi theologian), in Basra (al-Hasan al-Basri, Ibn Sirin), in Medina (Hisham b. “Urwa), in Mecca (Aw), but it was not supported by Jabir and al-Nakha‘. Thus the belated information of Ibn Qudama cannot be considered rel able. It might be that he assimilated the position of Jabir b. Zayd and al-Nakha'i co that of the other Basran schol- ars. But this is in contrast to their view that the inherit- ance of a walad al-mula‘ana should be attributed to his father, as attested in the previous ancient sources. [As far as the Ibadi doctrine is concerned, al-Basyawi and Ibn Qays do not examine the issue of the inheritance of the walad al-mudla‘ana. al-Mus‘abi® has a very short presentation of this subject, but he ignores the doctrine of Jabir and shares the generally followed doctrine that the only family tie of a walad al-mula‘ana is with his mother, his uterine brothers and his mother's relatives. Even Atfayyash,” in his commentary to the work of al- Mus‘abi, does not add any historical information. Jabir's doctrine was thus abandoned in the Ibadi school. 3.2 Repudiation Given by the Husband During his Illness ‘Three hadiths are transmitted on the authority of Jabir on this issue; two are in Jawabar and one in Awgal Qatada: On the authority of Abi [-Sha‘tha’ regarding a man who re~ puctiated his wife during bis illness: She inbeits from kim as long as she isin the period of waiting. If, however, her “dda terminated, she has no right to inberitance.** On she auchority of Aba I-Sha‘tha? regarding a man who re- ed bis wife during his illness, before the consummation. of the marriage. He answered: She bas right to a balf dower, but she bas no right to inberitance and she doesn’ enter into the ‘idda.** Jabir b, Zayd was asked about a man who repudiated bis wife three times in the same time; then one of she two died during her “dla. Does the surviving spouse inberit from the deceased? —He answered: No, he doesn't, except if be repudi~ ated her while be was ill in order to cause barm to her. In this case she inberits from her husband, if be died during this disease before the expiration of ber ‘dda. Umar b, al- Khagtab decided in this way. ‘These three reports maintain essentially the same doc- trine: Jabir solves the two opposite cases ofa wife repudi- ated after or before the consummation of the marriage. In the first case a deadly disease of the husband attenu~ ates his legal capacity, but the right of the repudiated wife persists as long as she is still with him during her period of waiting, In the second case marriage is not per- fect without its consummation; thus it does not produce all its effect. "This doctrine was prevalent among the scholars of the rand 2” centuries H, even if divergent opinions are at~ tested for that time.” While law schools agreed on the rules to be applied to a consummated marriage (the re- pudiated wife has the right to her husband's inheritance as long as she is in her period of waiting), divergences remained about the persistence of her right to inherit after the expiration of her ‘idda or when marriage has not been consummated. The Hanafi al-Sarakhsi (d. 1483/1090)" clearly states that if the husband has died before the consummation of the marriage or after the expiration of her dda, the woman has no right co his in= heritance. This was the doctrine followed by Aba Hanifa and his companions, and the most ancient statement of al-Shafi'.” On the contrary, Malik and his school, and the Hanbalites, admitted that the woman keeps her right to inherit from her previous husband also if her repudi- ating husband has died before the consummation of the marriage or after the expiration of her ‘ida. In sum, Jabir shares the doctrine of the Kifiyyan. However, the Ibadi manuals of al-Basyawi, Ibn Qays, al- Musabi have no reference to this issue.LAW OF INHERITANCE: PRELIMINARY NOTES ON THE FORMATION OF T 3.3 Inheritance of a Heir Who Can Claim. Inheritance Based on Two Ties of Kinship In his Jawabat Jabie solves this case: On the authority of Aba |-Sha‘tha? regarding a woman who died and left two sons of ber paternal uncle; one of them is her bushand and the other is ber uterine brother—He answered: Her bushand bas the right ro a one-balf and her uterine brother to the remainder —The Kafiyytn said: The busband bas the right to a one-balf and her uterine brother, who isthe son of ber paternal uncle, to a one-sixth, while the remainder shall be divided among them in two parts. This was the statement of ‘Alt and Ibn Mas‘ad. ‘The diverging solutions of Jabir and the Kafiyyan were about the application of the agnatic rule, which is one of the basic principles followed by the Sunni schools; chat is, what remains afeer the allotment of the shares to the heirs by quota shall be given to the nearest agnate. The appli- cation of such a principle by Jabir demonstrates his rudi~ mentary reasoning, In fact, he considers the one (husband) only as an heir by quota and the other (uterine brother) only as an agnate. He fails to consider that also the uterine brother is an heir by quota. Moreover, both are agnates of the same degree (two sons of a paternal uncle), chus both having the right to ehe same amount of the remainder as, agnates. On the contrary, the anonymous Kifyyan consider the qualification of the two sons of her paternal uncle as heirs by quota first, then their qualification as agnates. One can see in these two opposite solutions the debate about the pre-eminence to be given either to the ancient pre-Islamic principle of agnation or to the new Qur’anic quota system. In another report, present in the Awgal Qaraday* Jabir sets out a general principle confirming and explaining his previous solution: He was asked about a woman who left two sons of ber pa- ternal uncle; one of them was ber husband and the otber ber uterine brother. He answered: Te busband inherits because of his ticle of marriage, while her brother inkerits based on his relationship (qaraba). A man, who bas two ties of re- lationship (qarabatani), is more entitled to the inberitance than the one who has only a bond of kinship. ‘The husband has a unique tie of relationship (6on of her paternal uncle); thus he inherits only based on his title of marriage. On the contrary, the other relative is both a son of her paternal uncle and a uterine brothers thus he has two ties of kinship; as a consequence he has a pre- ‘eminence over the husband; therefore he only receives nains as agnate. Lastly, in another report from Jabir, present in the Awgal Qatada,? the general principle is applied: ‘As regards a woman who died and lefé two sons of ber pater~ nal uncle and one of them is ber husband, ber busband bas the right to the one-half, while the remainder shall be divided among them on an equal footing Jabir agrees with the solution of the Kiiyyi, but their ‘motivation is different. Jabir simply applies his general principle, In fact the husband has the right toa one-half of the estate based on his title of marriage. For the rest, both have a single bond of kinship; thus they should di- vide the remainder into two parts, because of their com= mon title of agnation. ‘The Ibadi scholars Aba Ghinim (d. 200/815), Aba [-Hawart (d. ca 3/9! century), Huwwart (d. ca 3/9" century), Ibn Baraka (d, ca '*/1* century) and al-Basyaw? (4. ca s/n century) have nothing on this issue. Ibn Qays (d. 520/126) and al-Mus'abi (d. 1223/1808)" share the doctrine of the ‘Kafans’, but they do not give any historical reference. In any case, the solution of Jabir was abandoned in the Ibadi school. 3.4 Inheritance of the dhawn !-arham “Three references to Jabir ace in the Aqual Qaeada. The first one concerns a question Jabir was asked about a man who had died and did not leave any heir, except his pa- ternal and maternal aunts. Jabir answered that the first can claim the two thirds of the estate and the latter the one-third:* In the second report the above solution is traced back to ‘Umar through an isnad including Qaeada as transmitter.” Both reports make clear that, according to Jabir, che distant kindred are allowed to the inheri~ tance when heirs by quota and agnates are not present, to the exclusion of the public treasury. The third case solved by Jabir is as follows: Jabir b. Zaya was asked about a man or a worman belong ing to the non-Arabs (‘ajarn) who converted to Islam at the death of one of them [‘ajam] and he didn't leave any beir by quota nor ‘asaba, but it was known that be left only women on the paternal or on the maternal side among bis relatives, —He answered: His inheritance shall be allotted to them. Even if he/sbe is the only relative present, either a ‘male or a female, he/she is more entitled to the inheritance. God decided that ‘kindred by blood are nearer 10 one an- other according to the decree of God’, if they are Muslims. ‘Verily, God knows every thing’ (Q. 8:75). It is preferable 4AGOSTINO CILARDO to follow the order of God. ‘Umar b. al-Khatpab, about the case of the inberitance of a man of whom neither an heir by quota nor a kindred by blood were known, except «a paternal and a maternal aunt, decided to attribute the two thirds to the paternal aunt and the one-third to the ‘maternal aunt* “This doctrine was well-known in Iraq. It was maintained in Basra by Jabir b. Zayd, al-Hasan al-Basri and others, and it was also followed in Kafa as well by Aba Hanifa, as it is attested in the ewo very ancient works by al- Shaybani, al-flujja fi ikitilaf abl al-Kafa wa abl al-Madina and the Muwafta’*® This doctrine has remained either in the Ibadi school and in the Hanafi school.* Later on it was also followed by Ibn Hanbal and his school and by the Zaydis. It should be noted that the Ibadi jurists of later generations expanded much the implications of the case solved by Jabir, and this was done in adherence to the development in the Hanafi school. I refer to the establishment of the list of dhawi -arbam, according to their proximity. The question of the proximity of the hawii I-arham to their deceased relative was highly con- troversial among those scholars admitting their right to inherit. Three distinct groups formed: the abl al-rabim, the abl al-qaraba and the abl al-tanzil. The abl al-rapim followed a rough criterion, aban- doned by scholars, according to which both the most mote and the closest dha rabim have the same right. he abl al-qaraba, among them Abo Hanifa, al- Shaybani and Aba Yusuf; believed that the estate must be attributed to the closest relative according to the or- der established for the fara'id. On the contrary, the abl ‘i, among whom were the Hanbalt school and the Zaydi school,® attributed to the single dha rabim the same right of the heir to whom he is related, with~ out considering his proximity. ibn Qays® agrees with the abl al-garaba. al-Basyaw?” indifferently maintains the doctrine of abl al-qaraba and abi al-tanzil. On the contrary, al-Mus‘abi follows the doctrine of the abl al-tanzil. The Medinense school exchded the dhawa [-arbam from the inheritance, even if there was in Medina the opposition of Ibn Shihab al-Zuhri, who adhered to the Iragian doctrine, as attested by al-Shaybam In sum, it seems that there was a convergent devel- opment in the Ibigi and Hanafi schools on this sub- cect in the first two centuries H, in opposition to the 7 jurists followed the Iraqi doctrine, even if they do not mention any author ity of the past. Moreover, they agreed on the subsequent developments in the Hanafi and Hanbali schools in no particular order al-ta Medinense school. The later 3.5 Inheritance of a Patron from His Client 3.5.1 The Patron Has the Right to Inherit from His Client ‘The general principle is that, when a client has died, his estate shall be divided among his quota sharers; then, if something remains or if the heirs by quota are not present, agnates can claim inheritance; if, however, the agnates of a deceased person are not present, the remainder shall be allotted to his patron, ifany. A patron has the right t0 in- herit from his client, because he is considered as his agnate. This doctrine is based on the well-known and wide~ spread Prophetic badith reported on the authority of ‘Abd Allah b, Shaddad b al-Had in the most ancient sourc- es, like Aba Hanifa (4. 150/767)? Sufyan al-Thawri (4 161/778)" and Aba Yasuf (d. 182/798)" on the authority of Aba Hanifa, This hadith, with some minor variants, is quoted in a number of works." ‘The case submitted to the decision of the Messenger of God was as follows: The daughter of Hamza manu- mitted her slave; then the slave died leaving his daughter. Muhammad attributed a one-half to the client’s daugh- ter, as her Quranic share, and a one-half to the daughter of Hamaa because of patronage. ‘The above matn is supported also with the following isnad: Qacada—Jabir b. Zayd—Ibn ‘Abbas, a itis attested in a hadith related by al-Daraqutnt (d. 385/995)” How- ever, al-Daraqutni’s attribution to Jabir of this doctrine seems quite strange, since Jabir supported the opposite doctrine, as it is related in the most ancient Ibadi sources. ‘Thus this information cannot be considered reliable. Allowing the patron to inherit from his client in the absence of his heirs by quota and agnates was the most prevalent doctrine, since it was maintained by most scholars living in different geographical centres, during the first two centuries H, such as Shurayh,* al-Hasan,” al-Zuhri,” Ibn Tawas, Ma‘mar and Ibn Mas‘ad,* Aba. Burda," al-Hakam and ‘Ali 3.5.2 The Patron Has Not the Right to Inherit from His Client ‘The most ancient Ibadi sources contain two reports go- ing back to Jabir. The first is present in his Risala no. 17." while the following being, a similar, but larger report is related by Qatada" on his authority Jabir b, Zayd was asked about a man who manumisted {fa slave), Then the client (mu‘taq) died and left neitherPRELIMINARY NOTES ON THE FORMATION OF T! 2 lscenddant nor any other blood relative whose place was awh. Does the patron who manumitted bim inberit from im?—He answered: No, he does not, unless he bequeathed «a part of bis goods in bis favour; this is licie. Ir is also licie 10 bequeath the whole estate in his favour. But if be [tbe cli- ent] didn't leave any heir and be didn’e bequeath anything cicher in favour of bis patron or of anyone, bis goods should be given as alms.—He said: In fact, they maintained that a client of ‘Abd Allah b. ‘Umar b, al-Kbagtab [d. 73/ 603] died and left a one hundred thousand Dirham, Ton Umar asked whether be had a descendant or any relative they knew about bis place, or whether there was any Muslim among his blood relatives, but they didn't find any consanguine or uter~ ine kin nor any of those asked by bim. Ibn Umar thought reprebensble to inberit from him; thus be bought slaves and ‘manumitted them. When be freed one of them be said: He is a servant of God and an asset of God. The Risala no. 17 gives the additional information that Jabir did not ageee with Ibn ‘Abbas, who is reported to have stated that the property of the client will go to his patrons, if the manumitted slave did not leave any kind of heir. ‘The solution given by Jabir reflects an ancient stage in the development of the jurisprudence and an attempt to innovate with respect to a well established pre-Islamic rule drawn from the legal maxim: al-wala? lubma ka- lubmat al-nasab. This maxim implies the patron’s and his client's reciprocal right to inherit, Most scholars wanted to preserve the ancient pagan rule; however, they unani- mously excluded the right of the client to inherit from his patron; vice-versa, the right of the patron to inherit from his client was generally preserved. ‘The solution of Ibn ‘Umar, followed by Jabir, constituted a break with the past. ‘There was a debate on this topic at the time of Jabir and the view of Jabir was not isolated. The same doc- trine was maintained in the stint milieu. As reported in the ancient work of Sufyan al-Thawri (d. 161/778), a contemporary of Jabir, Ibrahim al-Nakhat I-Kafi (d, 96/715), a ‘successor, tried to re-interpret the hadith of Thn Shaddad.” As a matter of fact, Ibribim believed that the amount (1/2) given by the Prophet to che daughter of Hamza was not because of the patronage, but as food (ju‘ma), “Phe interpretation of Ibrahim was shared by a number of scholars, we do not know how many. In fact, following his interpretation, some jurists said to Ibrahim that they would adopt this solution of the Prophet (If the Messenger of God gave it to her as food, we will do the same’). It is noteworthy that the proof based on the Prophetic hadith of Iba Shaddad is balanced by another alleged opposite decision of the Prophet. Undoubtedly the interpretation of Ibrahim was a minority view. But, al-Sha'bi (d. between 103/721 and 110/728), a ‘Successor’, can be counted among the herents to this doctrine, based on what is related in the ancient work by Sufyin al“Thawe.”” To be noced that al- Sha‘bi, and Ibrahim b. Yazid al-Nakha‘i as well, were the most influential Kofan scholars at cheir time. ‘The denial of the right of a patron co inherit from his client is also confirmed by another hadith regarding the following case: a client (ghulam) died and left his mother and his patrons. al-Qasim b. ‘Abd al-Rahman attributed the whole estate to the mother,” with the exclusion of the patrons. ‘The exclusion of the patrons from the inheritance of their clients by Jabie, Ibrahim al-Nakha‘t and al-She'bt was such a severe break in respect to a deep-rooted: Arab rule that it aroused a strong reaction in Islamic circles, as is testified in the craditionistic literature “The sunni teaditionise ‘Abd al-Razzaq” keeps « hadith, on the authority of Abi Habib alIraqi, according to which Aba I-Sha'tha’ [Jabir] solved the case of the in- heritance of the mother and the patrons excluding the mother from the inheritance. This is at least a bizarre solution, being that the mother is a Quranic heir, but it is especially in contrast with what is reported from Ji in the most ancient Ibadt sources. This seems nothing but an attempt to discredit the figure of Jabir. Tbrahim suffered the same fate. There were reactions to his doctrine in the sunnt milieu. Ibrahim was accused by al-Bayhaqi of being wrong, while Sharik charged him of having introduced his own statement in the muatn of the badith of Ybn Shaddad; in fact, Sharik argues, if someone had heard something similar, he would have transmitted it. In other words, this means that there was no padieh supporting the view of Ibrahim, but his solution was only based on his own personal ra’y.% In fact, we do not know any report confirming Ibrahim's interpretation. Moreover, the following solution was attributed to Ibrahim: A woman bought her father and manumitted him; then he died leaving another daughter. ‘The two daughters have a right to 2/3 as their Quranic share, while the daughter who manumitted her father has the right to the remainder, because she is considered as ag- nate However, this alleged solution given by Ibrahim is in contrast with his doctrine, as it is reported by Sufyan al-Thawri (d. 161/778). Thus, the attribution to Ibrahim of such a solution seems nothing but a laver attempt to include him among the supporters of che opposite doctrine In sum, the picture that emerges from the analysis of the above examined sources shows that in different geo- graphical centres there was a minority group of scholarsAGOSTINO CILARDO. who maintained the exclusion of patrons from the inher~ icance of their clients, This view was supported at least by the Medinense ‘Abd Allah b. ‘Umar b. al-Khartab, the Basran Jabir b. Zayd and the Kafan Ibrahim al-Nakha't and al-Sha'bi. But their opposition was unsuccessful within che sunnt milieu. This debate took place prior to the formation of personal and nominative schools. Jabir represents the tradition of Basra, which was later aban- doned by the suant schools. ‘The view of Jabir cemained only in the Ibagt school, as is attested by al-Basyawi (d. ca 5'*/11™ century), Ibn Qays (d. ca 520/1126) and al-Mugiabi (d. 1223/1808). First of all, al-Basyaw?* and Ibn Qays* do not list the patron among the agnates, while al-Mus'abr’ does not mention the patron in the context of the law of agnation. ‘Then, Ibn Qays"” and al-Mus'abi* do not include the pa~ tronage among the titles giving the right to inheritance, bur only kinship and marriage. “Two interesting pieces of information are in al-Basyawt and al-Mus‘abi. al-Basyaw? states that this doctrine is ‘according to the statement of our Companions, while al-Mus'abi® informs that there was a divergence in the Tadi circle itselfat the time of Jabir. In fact, this doctrine was not shared by Aba Nob Salih al-Dahhan, one of the main personalities among the Basran Ibadis. In fact, he lived in Basra where he studied with Jabir and cooperated with Aba ‘Ubayda in the teaching of the Ibadi doctrine. ‘Aba Nah maintained chat the patron can inherit from his client, as ‘the others do’ (ka-ghayri-na), and ‘this is the most plausible’ doctrine (wa buwa l-anzar). 4, Conclusion “The present study is based on the most ancient primary Ibidi sources, precisely on che works of those scholars who founded the Ibadi jurisprudence, ive, Jabir and al- Rabi', However, the work of Qaida is also fundamental in order to discover the origins of the Ibadi law. In fact, even if Qacada is a sunnt, nevertheless he transmitted the Basran jurisprudence in its entirety, without any sectar- ian nuance. ‘This may be an indication that the real issues that splic the Islamic community, a least during the first two centuries H, were political in nature and that the debate on legal matters involved all Muslim scholars as such, regardless of political leanings. Basra was the milieu where Jabir worked. The debate existing at Jibir’s time comes to light based on analysis of the sources here examined. The solutions given by Jabir clearly show his archaic chinking, He proposed original solutions, which sometimes constituted a break with the past, which often were not followed, on which a consen- ‘sus was not created, In the case when Jabir’s doctrines ‘were in accordance with the Kafan doctrines, they be- came a common Iraqi heritage; if, however, they diverged, they were generally superseded by the Kafan doctrines. ‘The Ibadi doctrine began its formation in Basra at the end of the 1 century H. The analysis of the most ancient Tbads sources allows one to become acquainted with the debate on individual issues existing in different geograph- ical centres, prior to the formation of the law schools which took their name from their main exponent. The denomination of the schools were still geographical in Jabir’s time. ‘The debate took place among the scholars of Bagra and Kafa, prior to when the school of Basra was ab- sorbed into the school of Kafa and before the emergence within the Kafan school of pre-eminent personalities, such as Aba Hanifa, Zufar, Aba Yasuf and al-Shaybani. ‘As the doctrines developed in Basra were often unsuecess- ful, a personal school was not to form in Basra. ‘Ultimately the school of Jabir can be considered as one of the disappeared schools," like the schools of al-Awaa't (4.157/774)® and Sufyan al-Thawtt (d. 161/778), or the school of Dawad b. Khalaf (d. 270/884).°* The strange forgetfulness by later Ibadis of the great legal value of the work of Jabir, the founder of Ibidism, may be explained by the fact that it was deemed superseded by the vievori- ous thinking of the Kafans. In sum, researching the most ancient [badi law means discovering a little-known jurisprudential tradition, which ‘was forgotten and pushed aside within the Sunni milieu, However, the later Ibadi jurists did not behave differently from the Sunais. In fact, they ignore their founding thers, even if they retain some element of their heritage.W OF INHERITANCE: PRELIMINARY OTES ON THE FORMATION OF Notes 1 summary ofthis debate in Cilardo 9goa: 79-8 12 ‘ography ition of the Raul, see Francesca 2002: 57-675 4g JES Rua $6, 10.30 $ Hoin Rasa 48, no 98. fable, Rawal 53-4, no. 26 i description ofthe hr, see Francesea 2002: 67-725 Francesca 2005: 243-6, a-Jamal-sabb,atribuced to al-Rabr' esa sepaeate analysis. Ake: Th igh 14 no. 5395 Qanhda, Aquat: 66, 1984: 184, 008. 54-5; Qatdda, Aqua 24, 184, m0. 536 14, 80.537. sf 15. 15,0539. 500.388 45, 0.397 86, no. 43 107 10. $00 12,0. v0, no. 484 104, no. 485 roo, no. 488 25 Rut 18:15 no, 489 Rab, F446, Fora description of dhe work of Qatida see Francesea 2002: 72-775 rancesa 20052 234-6 se Qurad, dgual 66, > Quads, Aqua: 66, 2 Rubr 984 4, 90" Qua, dal 6, See for instance, Hb Quam tga, VM: a; Khali, I $58; no. 26 ss Quads, Agu 6,, Abd al Ratiq 972, VI: 125, no. 12486 ib Abi Shayba 1979-8 Xl: 998-9, 0.97. Bkhact 1932-38, NX: 168. JF. See Suakhst 1906-13, XXIX: 18 se Quidda, Agu 79,80, Qaeda, goal 12, Abd al Raaig 752, VI 24, no. 124795 125, no reg. These ‘nus, with some variations ate also quoted by Ibn Ab Shayba tg79-8h Xk: jos. 1368-5, Daim’ 966, I: 262, nos, 2958-60 nd Bayhagh 1986, E338, -259, Tn Qutima i230, Il tam Dirim 966, T: 262, no. 2964 Sufyan aleThawet tg71 4o-H m0 8 Musab 186-8 1E: 385-6 Alyyath a4-s, VI 375-6. Rai 984 90.534 Rab (84:14 20.53 Qari, Aqua 4, ‘Ala al Razzi 1970-2, Xs 288-o, no. i137. Diverging opinions are transmitted, fr instance, in the ade laced by Sh 1950-4 typ nos 685-90 and Taya 990: 179, 0.127. Rubt 1984 > Rabi 984 RubT 19: 1 Rub 1984) abt gk: Rub 1984 448 Sueakhs! 1906-15, XXX: 60-6i. CE also Tbn Qudma 1962-5, I: sya Ibn Qualia 1964, U5, 5625 Tou Qulima 1965-6: 85 439. Ton Qudama 1962-3, It 43-4 Se Ton Quudama 1962-5, T 454, and note no 54 Rab 1984: 14,00. 536 6 7 m n n ” % 6 fo & & % Qari, Agua 79, Qatada, Agua 1, hn Qays 983: 2, ‘Mugabt 1887-8, I: 35, See also Atfayyash 1924-5, VIII: 370-2 Queada, Agua 66,.,, Quads, Agual:79,. Qaeads, Agua 12). ‘Bayhagi 1986, VI: 217, Shaybint Ms: fl. 99-2000, Malik 1967: 253-4 See also Malik 1967 (sharb by al-Laknawi): 333 Basyaw 1977: 149,» 176; Ibn Qays 1983: 2155 Musab 887-8, 380, 388-90; Atfayyash tga4-s, VIN: 4-22, “Tah 1950: i125 Qudar 948: 123; Sarakhst 06-1, XXX: 2-27, (66-7; Malik 1967 (barb by al-Lakenawi): 253; Shafi: 1903-08, VIE: 165-6; ShAB' 1952, I: 145-6; Ibn Quddama 1922-30, VIL 83 Iba Hanbal 1934: 28; Tha Qudama 1922-30, VI 8s; Ibn Qualia 962-3, Th 433-485 Ton Qudima 1964, I: 549-52 aya bo'Alt gig: 255 Ibo a Mutada 1947-9, V: 362-5 (Quidart i948: 125; Sarat 06-13, XXX: 4, 10-1 Ibn Qudioma 1922-0, VIE: 8. Khieagl t922~30, Vil: 85-6; Ibn Qudama 1922-30, VIL 86, hn Qudima 1962-3, 1: 4343 Ibn Qudama 1964, 1: 549-525, Ton Qudama 1965-¢ Zayd b. ‘All 1919: 3555 Ibn al-Muetada 1947-9, Ve 362-5, See ‘Abd al-Raziiq 1970-2, X: 283, nos. 195-6; Darin’ 1966, 1 265, no, 2985; Daraquen! 1966, 1V: 99-10, no. 100; Bayhagl 1986, Vi 217, 5 Sufyan al-Thawet 971: 40; Sarakhs! 1906-13, XXX: 4, 10-14; Khiragt 1922-30, VIL: 86; Ibn Qudama 1922-50, VII: 86; hn Qudama 1964, Il: 549. Tha Qays 98s: 25-5 Basyaw 1977 49. ‘Musabr 887-8, I: 388-38. Malik 1967: 254. However, the opposite dectrine according 0 ‘which nothing is alloceed to the paternal and maternal a! tributed to al-Zubst; ‘Abd al-Razzag 1970-2, Xi 28, 00.910 ‘Aba Hani o62: 234, no. 520. Sufyan alThawer 199%! 39, 9 ‘Aba Yasuf 1936: 169-70, no. 74 ‘Abd a-Rauzig 1970-2, IX: 22, nos. s6a10m16 th Abt Shaybs 1979-85, XI: 266-7, nos, 18-4, 1192 (this was also the solution of ‘Aba Bake; fbn Abs Shayba 1979-8, XI: 269, no. 1192; Ibn Hal 19342 219, 5 Dariml 1966, I: 270, 0. 3017; Ibn Maja I: 9 2734; Baphagy 986, VI 24, (vice; Sarakhst 1906-15, XXX: 440-41 (Sarakhst, XXX: gis, solves a series of case demonstrate the right ofa pateon co inheri fom his client); bn Abt Zayd al-Qayraveant 1y60: 284, 285; Ibn Qudama 1964 TH; s68- a-Bayhagt states that this badd is mursal. Some other badiths are reported by Aba Yasuf (1936: 169-71, nos. 772-6, 77, 7a) in order to demonstrate the eight ofa patron to inherit from his cen. Diaraqueat 1966, 1V: 85-84, no. 5 ‘Abd al-Raveaq 1970-2, IX: 22-3, no. 4625 Ton Abr Shayba 197 XI: 269, no, 1190) ‘Abd al-Raveiq 1970-2, IX: 23, no. s6214 “Aba al-Razaaq 1970-2, IX: 25,90. 6215 ‘Abd al-Razeag 1970-2, IX: 23, no. 16316, Ibn Abi Shayba 1979-85, XI: 267-8, no. 185; Bayhagi 1986, VI 8, ye ha Alb Shayba 1979-85, XI: 268, nos. 1186-8; Dario 1966, 1 270, nos. 3018-21 Abie, Rail 153-4, no, 26. Queada, Aqual: 15, 49AGOSTINO CILARDO 86 Sufyan al-Thawei 1974 394 8) This interpretation by al-Nakhat is reported by ‘Abd al-Razziq igzo-t, IX: 22, no, 2135 Ibm Abi Shaybs 1979-85, XI: 265, no. mig; Bayhaql 1986, VI: 24, 88 Abd al-Razedq 1970-2, IX: 22,0. 16212 85 Sufyan al-Thawe1 197 39,.-40, . The position of a-Sha‘bt is confirmed by badith present in Hbn Abt Shayba 1979-83, XI: 268, nos nity and Darin 1966, I: 270, no. 3023. go ‘Abd al-Razzaq 1970-2, IX: 21, no. 6205. 91. ‘Abo al-Rannaq 1970-2, 1X: 21, no, 16206, 92 Bayhagl 986, VE 24, 93 Ibn AbI Shaya 197 94 Basyae 977: 149 95, Thn Qays 98s 20 (96, Mus'ab 88-8, I: 382 97 Thn Qays 983: 206. 98 Misabt 887-8, T 386, 99. Basyaw 977: 149 too alMugabt 1867-8 I 387 ton Sexgin (i967, I: 516-24) lists 14 independenc madbabs, besides that of al“Tabart (Seagin 1967, I: 325-8, 522) to Sexgin 1967, I: 516-7, 00. 103 Seagin 1967, I 518-9, no 4 10g Sexgin 1967, I: 524, no 0 Xt: 590, os, 13603 Darimt 1966, Tl: Bibliography Primary Sources ‘Abd al-Raaziq 1970-72 ‘Abd al-Razzag b. Hammam al-Himyari: al-Musannaf ed, Habib a-Rahman al-A'gami, nvols., Karachi 1970-72. Aba Ghanim 1984 ‘Aba Ghinim, Bishr b. Ghanim al-Khurasani: Kitab al-Mudauwana |-kubra, ed. Muhammad b. Yasut ‘Axfayyash al-Tbadi LJazairi, 2 vols., Muscat 1984 Aba Hanifa 1962 ‘Aba Hanifa: Musnad al-imam Abi Hantfa, ed. Safwat al-Saqqa, Aleppo 1962 Aba Yasuf 1936 ‘Aba Yasuf Ya‘qab b. Ibrahim al-Angaet: Kitab al-azbar, ed. Aba I-Wafa, Haydarabad 1936. Atfayyash 1924-5 ‘Axfayyash, Muhammad b. Yasufi Sharb al-Nil wa sbifa? «l-alsl 10 vols., Cairo 1924-5. Basyawi 1977 al-Basyawi, Aba I-Hasan ‘Alt b, Muhammad: al-Mukbtasar, Muscat 1977. Bayhagi 1986 al-Bayhaqi, Ahmad b. al-Husayn: al-Sunan al-kubra. 10 vols, + index, Beirut 1986. Bukhari 1932-38 al-Bukhari, Muhammad b. Isma‘l: Sabib, with the sharb by al-Kirmant. 24 vols., Cairo 1932-38, Daraqutni 1966 al-Daraqutnt, ‘Alt b. ‘Umar: al~Sunian, ed. ‘Abd Allah, Hashim Yamant Madani, 4 vols., abMadina 1966. Darimi 1966 al-Darimi, ‘Abd Allah b. ‘Abd al-Rahman: al-Misnad al-jami or al-Sunan, 2 vols., Cairo 1966. Ibn Abi Shayba 1979-83 Ibn Abi Shayba, ‘Abd Allah b. Muhammad: al-Kitab al-musannaf ft -abadich wa -atbar, ed. ‘Abd al-Khalig ab-Afghant and ‘Amir al“Umri -A‘zami, 15 vols., Bombay 1979-83. Ibn Abi Zayd al-Qayrawani 1960 Ibn Abi Zayd al-Qayrawant: La Riséla ow Epiere sur les Aléments du dogme et de la loi de UIskim selon le rite malikite, par Léon Bercher, 5" ed., Alger 1960.TANC AW OF IN’ Ibn Baraka 1983 Thn Baraka, ‘Abd Allah b. Muhammad: Kitab al-jami’ 2 vols., Muscat 1983 Tbn Hanbal 1934 Ibn Hanbal, Ahmad b. Muhammad: Kitab masail al-imam Abmad, «aif Aba Dawad al-Sijistant, ed. Muhammad Rashid Rida, Cairo 1934. Tbn Maja 1972 Tbn Maja, Muhammad b. Yanid: Kieab al-sunan, ad ‘Abd al-Baqi, 2 vols. ed. Muhammad Fi Cairo 1972. hn al-Murtada 1947-9 Ibn al-Murtada, Ahmad b. Yahya: Kitab al-babr al-zakhkhar al-jami* -madbabib ‘lama’ al-amsar, ed. ‘Ald Allah Muhammad al-Siddiq and ‘Abd al-Hafiz Sad airo 1947-9. Tn Qays 1983 Ibn Qays, Aba Ishaq Ibrahim al-Hadrami: Mukbtasar al-kbisal, Muscat 1985 iyya, 5 vols., Tn Qudama 1922-30 Tbn Qudama, Muwaffag al-Din ‘Abd Allah b. Abmad: al-Mughni. 12 vols., Caito 1922-30. Ibn Qudama 1962-3, Thn Qudama: al-Mughni fi figh imam al-sunna Abmad b, Hanbal. 2* ed., 3 vols., Cairo 1962-3. Ibn Qudama 1964 hn Qudama: al-Kaft ft igh al-imam Abmad b. Hanbal. 3 vols., Damascus 1964. Thn Qudama 1965-6 Tn Qudama: al-Uinda fi figh imam al-sunna Abmad b, Hanbal al-Shaybant. Cairo 1965-6. Jabir, Risala Jabirb. Zayds Jawabat al-imam Jabir b, Zayd. Ms., al-Baroniyya, Fiqh Ibadi, no. 1, 64-91. Khalil 1919 Khalil b, Ishaq: al-Mukbeasar. Transl. by 1. Guidi and D. Santillana, 1! “Mukheasar” 0 Sommario del diritto malechita, 2 vols., Milan 1919. Khiragi 1922-30 al-Khiragi, ‘Umar al-Husayn: al-Mukbtasar. In: Thn Qudama al-Mugbni. 12 vols., Cairo 1922-30. PRELIMINARY NOTES ON THE FORMATION OF TH Kindi 1979-83 al-Kindi, AbU Bakr Ahmad b. ‘Abd Allah b. ‘Masa l-Samadi |-Nazawi: al-Musannaf, ed, ‘Abd al-Mun‘im ‘Amir and Jad Allah Ahmad, 10 vols., Muscat 1979-83. Malik 1967 Malik b. Anas: Muwatta’ al-imam Malik. Related by ‘Muhammad b. al-Hasan al-Shaybant. Wich the sbarb by ‘Abd al-Hayy al-Laknawi, ed. ‘Abd al-Wahhab ‘Abd al-Latif, 2" ed., Cairo 1960. ‘Mus'abi 1887-8 al-Mus'abi, ‘Abd al“Azi2 b. Ibrahim: Kitab al-Nil twa shift’ al-all, 2 vols., Cairo 1887-8. Qatada, Aqual Qatida b. Dima I Sadust: Aqual Qarada. Ms., al-Baraniyya, Fiqh Tbadi (not numbered), +140. Qudari 1948 al-Qudarr, Ahmad b, Muhammad: al-Mukbrasar Cairo 1948. Rabi 1984 al-Rabi‘ b. Habib: Min jawabat al-imam_ Jabir b. Zayd, ed, Said b. Khalaf al-Khartsi, Muscat 1984. Rabi’, Athar al-Rabit b. Habib: Arbar al-Rabi® ‘an Duman ‘an Jabir b. Zayd. Ms., al-Bardniyya, Figh Ibadt (not numbered), 1-32. Rabi, Futya al-Rabr‘ b: Habib: Furya Rabi! b, Habib. MS al-Baraniyya, Figh Ibadi (not numbered), 3249. Saralchsi 1906-13 al-Sarakhst, Muhammad b. Ahmad: Kitab al-mabsi. 30 vols., Cairo 1906-13. Shafi 1903-08 al-Shafii, Muhammad b. I Cairo 1903-08. Kitab al-umm. 7 vols., 1950-1 al-Shafitt Tartib musnad al-imam [...) al-Sha ed. Muhammad Zahid b. al-Hasan al-Kawthart, 2 vols., Cairo 1950-1. Shafit 1952 al-Shafit: Abkam al-Qur’an. (Collected by al-Bayhaqi) 2 vols., Cairo 1952.AGOSTINO CILARDO Shaybani Ms. al-Shaybani: al-Hujia ft ikblaf abl al-Kafa wa abl al- Madina. Ms.; cf. Brockelmann 1858-1902, I: 180, no. XI; Brockelmann 193742, I: 291, no. XI; Sexgin 1967, 1: 432, no. XI Sufyan al-Phawsi 1971 Sufyan al-Thawrt: Fruhislamisches Erbrecht nach dem Kitab al-Fara'id des Sufyan al-Thawrt, Edition und Kommentar von Hans-Peter Raddatz. In: Die Welt des idams 13 (1971) 26-78. Tahawi 1950 al-Tahawi, Ahmad b. Muhammad: al-Mukbtasar, ed. Aba LWaft’ al-Afghani, Cairo 1950. ‘Tayalisi 1990 al-Tayalisi, Abu Dawad Sulayman b. Dawad: Kitab al-musnad. Beirut 1990. Zayd b. AMT 1919 Zayd b, “Ali: Corpus Juris (Majma’ al-fgh], ed. E. Griffini, Milan 1919. Secondary Literature Brockelmann 1898-1902 Brockelmann, C.: Geschichte der arabischen Literatur. 2 vols., Weimar 1898-1902. Brockelmann 1937-42 Brockelmann, C.: Geschichte der arabischen Literatur. 3 Supplementbinde, Leiden 1957-42. Cilardo 1982. Cilardo, Aw: Un antico documento di diritto eredicario ‘musulmano. In: Annali dell stitwto Universitario Orientale di Napoli 42. (1982) 105-126. Cilardo 1986 Cilardo, A.: La rappresentazione nel diritto erediario musulmano. In: Atti del Congreso intermazionale su: Gli interscambi culturali socio-economici fin UAf Settentrionale e Europa Mediterranea (Amalfi, 5-8 dicembre 1983), Naples 1986, Ul: 931-94 Cilardo 19908 Cilardo, A.: Teorie sulle origin’ del divittoislamico, Istituto per 'Oriente, Rome 1990. Cilardo 1990b Cilardo, A.: The position of the grandfather with regard to the German or consanguine brothers in the Islamic law of inheritance. A reconsideration. In: Annali dell’Istituto Universitario Orientale di Napoli, Supplement no, 63 to vol. 50 (1990) 1-32. Gilardo 19900 Gilardo, A.: ‘The superimposition theory’ in the Islamic Law of Inheritance. 14" Congress of UEAI, Budapest, August 29-September 3, 1988. In: Annali dell Tuituo Universitario Orientale di Napoli, Supplement no. 63 tw vol. 50 {iggo) 33-41. Gilardo 19904 Gilardo, A: The position of the slave in the Islamic law of inheritance. Reconsideration (Conference of the School of Abbasid Studies, University of St, Andrews, Scotland, July 31 - August 5, 1989) In: Annali del Istituto Universitario Orien Supplemento no. 63 to vol. 50 (1990) 43-57 le di Napoli, Cilardo 1993, Cilardo, A.: Diritto ereditaria islamico delle scwole sgiuridiche ismailiza ¢ imamiea. Casstica Rome - Naples 1993THE IBADI LAW OF INHERITANCE; PRELIMINARY NOTES ON THE FORMATION OF THE IBADI SCHOOL Cilardo 1994 Gilardo, A.t Divito ereditario islamico delle scuole _giuridiche sunnite (banafta, malikita, shaftita hanbalita) e delle scuole giuridiche zaydita, zabirita ¢ ibadita. Casistica, Rome - Naples 1994. Cilardo 2000 Cilardo, A.: Some peculiarities of the law of inheritance. The formation of Imami and Isma‘ili law. 19" Congress of the Union Européenne des Arabisants et Islamisants; Halle, August jo-September 3, 1998. In: Journal of Arabic and ‘blamic Studies 3 (2000) 127-137 Cilardo 20058 Cilardo, A.: Inheritance in Islam and Shitism. I Encyclopaedia Iranica, XM, fase. 2, 2005, 131-140. Cilardo 2005b Cilardo, A.: The Qur‘anic term kalala. Studies in the Arabic language and poetry, hadith, tafsir and figh. Notes on the origin of the Islamic law. Edinburgh 2005. Cilardo 2012 Gilardo, A: The Early History of Inmaili Jurisprudence. Law under the Fatimid, A critical edition of the Arabic text and English translation of al-Qadt I-Nu'man'’ Minhaj al-faevid, Edited and ‘Translated by ‘A. Cilardo, London 2012. Francesea 2002 Francesca, E.: Teoria e pravica del commercio nellilam ‘medievale. I contratti di vendita e di commenda nel diritto ibadita, Rome 2002, Francesca 2005 Francesca, E.: Early Ibads jurisprudence: sources and. case law, In: Jerusalem Studies in Arabic and Islam 30 (2005) 231-263 Sexgin 1967 Sezgin, F.: Geschichte des arabischen Scbrificums. Vol I, Leiden 1967. 3