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III) K.
Nikah al-Shighar by Abu Sa'id 'Abdullah b. 'Abd al-'Aziz:
This book is part of the
previous Ms. It is possible that the book was originally part
of al-Diwan al-ma'rud and, being narrated from 'Abdullah b. 'Abd
al-'Aziz, it was ascribed to him as in the case of K. Aqwal
Qatadah. The book consists of four parts. Part three is
missing in the Ms. of Cairo, and in one of the Mss., of al-Baruniyah.
The book is concerned with the
subject of marriage, divorce, and the legal problems connected
with both. It concludes with the following statement:
"This is the end of K. al-Nikah
of the sayings of Ibn 'Abd al-Aziz from Abi Nuh Salih al-Dahhan
and Abi Ubaidah Muslim b. Abi Karimah with the 'Athar that are
directed by analogy which does not leave any doubt in the minds
or be dubious to the people of understanding. It is called
K.al-Shighar; and al-shighar means that a man gives his daughter
in marriage to another man in exchange for the other's daughter
without fixing any dowry (mahr). If it is so, it is forbidden."
80
Attached to this book in the
same Mss. is K.al-Nikah of Jabir b. Zaid. Both works provide
the early and original Ibadhi opinions on the subject of
marriage, a subject on which Jabir b. Zaid, the founder of the
Ibadhi school, was described by Ibn ;Abbas as "The best
authority." 81
These above-mentioned works are
the backbone of Ibadhi jurisprudence in its first two
centuries. They contain a clear and detailed account of the
efforts made by early Ibadhi scholars in developing their
school.
The present study of the nature
of Ibadhi school of law and the methods adopted by its founders
is based mainly on those works, so a clear account can be given
of pure Ibadhi views before the possibility of any direct
contact between the Ibadhi school and other Islamic schools of
law founded later.
The role of Sunnah as the second
source of jurisprudence has already been mentioned. Individual
judgement, or ra'y is mentioned by Jabir b. Zaid on various
occasions. There is much evidence that he had recourse to
individuals judgement in delivering legal opinions. A number of
Ibadhi and Sunni sources reported a statement of his concerning
the recording of his opinions, which runs:
"To God we belong! They are
writing down the opinions which I may change tomorrow." 82
Jabir also denied himself the right of individual judgement
where the Companions had formulated their opinions.83 However,
those quotations indicate that Jabir used his own ra'y when
there was no opinions on the case reported from the Companions.
The precedence of opinions delivered by the Companions was a
recognised principle among the Ibadhi authorities. Jabir b.
Zaid expressed this view in one of his letters as follows:
"The juristic speculation (ra'y)
of those who were before us is better than the opinion we hold.
Yet again the successor recognises the superiority of his
ancestor. The most deserving such a right are the emigrants
who accompanied the Prophet of God (al-Muhajirun) and those who
followed them in good-doings: for they have witnessed and
learned. It is our duty to follow in their footsteps and follow
their tracks." 84 More evidence can be quoted to justify this
attitude of Jabir. 85 When the Companions differ between
themselves, Jabir retains the right to choose from their
opinions which ever he prefers. In such cases he usually
follows the opinion of his teacher Ibn 'Abbas.86
As for Abu 'Ubaidah Muslim b.
Abi Karimah, it is already mentioned that he accredited the
views of his school to the Companions 'Abdullah b. Mas'ud,
Abdullah b. Abbas and Abdullah b. Sallam, all of whom he
described as being "firmly rooted in knowledge" 87 (al-rasikhuna
fi al-'ilm). He also stated that "those who had intelligence
and understanding would not be interested in views and opinions
which emerged after the time of the Companions; it is the aim
only of those who became lax in their worship to be interested
in what happened after the Companions." 88
Although Jabir b. Zaid disliked
writing down his opinions for fear that he might change them, he
did not opposed using individual judgement in forming legal
opinion on matters which were not dealt with by the Qur'an or
Sunnah. His successor Abu Ubaidah discouraged the usage of ra'y
in forming legal opinions. When he was told that the people of
Oman deliver legal opinions on the basis of individual judgement,
he commented, "They will never be safe with cases of marriage
and blood-shed." 89
The approved method among early
Ibadhi authorities on the formulation of legal opinions was that
the decision in any legal case should be based in the first
instance on the Qur'an; if there was no ruling to be derived
from the Qur'an recourse should be to the Sunnah; if it was not
dealt with in the Sunnah, it should be taken from the consensus
of the Companions (ijma' al-Sahabah), and if the Companions
differed among themselves in their opinions then the utmost care
must be taken to choose the best of the Companions' opinions.
In any case, where there was no previous decision on the
question to be derived from the Qur'an, Sunnah, or opinions of
the Companions, the decision on the case should then be derived
from the opinions of the early authorities of the Ibadhi school,
and the soundest opinions must be followed. 90 |
