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Al-Warijlani mentioned that the
Ibadhi scholars were familiar with all kinds of qiyas, including
'Istihsan (preference) which was practised by Ibadhi authorities
in a number of cases. The importance of ra'y and qiyas in the
Ibadhi school was pointed out by al-Warijlani in al-'Adl wa al-insaf.
108 It was a recognized principle among Ibadhis that the Sunnah
judges over Qur'an, and ra'y judges over Sunnah. The
application of this principle appeared in the rules and law as
laid down by Ibadhi authorities for the stage of secrecy (maslak
al-kitman) of their community. 109
On grounds of analogical
reasoning Ibadhis regarded the stage of secrecy of their
movement as identical with the corresponding stage of the
Prophet's life and the Muslim community during the Meccan
period. Therefore, they suspended all legal punishments (hudud)
and confined their execution to the authority of the Imam of the
'manifest state'. 110
Friday services were also
suspended in places other than the 'seven capitals' (al-'amsar
al-sub'ah).111 There is a disagreement of opinion regarding
jihad: some scholars allowed it and others prohibited it. 112
The death penalty other than by
stoning (rajm) was valid during both stages of secrecy and
manifestation. This punishment covered the following: a) the
apostate (al-murladd); b) the defamer of Ibadhi views (al-Ta'in
fi al-din); c) blood offenders (al-junah); and, d) those who
rejected the authority of the shari'ah and refused to restore
the rights of other people, (mani'u al-haqq); all these were to
be killed either by whip or by weapon except for the blood
offenders; it was up to the next of kin to the condemned (waliy
al-dam) to decide how the punishment should be carried out.
The unproven allegation of a
wife's adultery (li'an), and the denial of the paternity of a
child, born by the wife accused of adultery (li'an) by her
husband, as a result of li'an, was also suspended during kitman.
As for the duty of ‘association’
(walayah), both 'walayah' with individuals (walayat al-'shakhs)
and 'walayah' with the people of the Capital (walayat al-baidah)
were also suspended during secrecy (kitman).
All these rules and laws which
suspended many laws derived from the Qur'an and Sunnah, were
based only ra'y and analogical reasoning.113 According to al-Warijlani,
"All or most of the laws of secrecy (ahkam al-kitman) are based
on 'preference'." 114 |
