II)
INHERITANCE
With regard to a client (mawla,),
all Ibadhi scholars, with the exception of Abu Nuh al-Dahhan,
held that the property of a client who had no relatives was to
be inherited by his people and not by his partron.155 If there
were kinsfolk of the deceased client the estate was to go to
them, but if he had no heir belonging to his tribe, the estate
was to go the members of his race present in his country at the
day of his death, males and females receiving equal shares. If
his parents were of different races, some Ibadhi scholars held
that his property should go to his father's people. According
to Abu al-Hawari, it should be divided into three shares, two
thirds of his father's people, and one third to his mother's.
The Shaikhs of Jabal Nufusah held that whoever of the client's
people arrived first should take the estate.156 The other
Islamic schools held that if the client had no asabah, his
patron who had manumitted him was his heir; if the patron was
not alive, his asabah should inherit the client's property, and
if there were none of the latter to be fond his property should
go to the public treasury (bait al-mal).157
II)
PENAL LAW
The main distinguishing feature
of the Ibadhi school, in this respect, is the suspension of the
fixed punishments (hudud), with the exception of the death
penalty (apart from death by stoning), during secrecy (kitman).158
Apart from this peculiarity, two other points may be mentioned
here:
ii)
Of all the Islamic
schools, the Ibadhis alone imposed fixed measures according to
which fixed sums are to be paid as a compensation for inflicting
bodily injuries less grave than al-damiyah, when no amount is
prescribed in the Sunnah. The other Islamic schools left such
cases to the decision of the hukumah which estimates the penalty
- namely by how much the injury in question would reduce the
value of a slave, which would then determine the percentage of
the blood money payable.159 Ibadhi scholars, in order to avoid
any unjust decisions by the hukumah, established a special
measure for assessing the injuries and fixing the sum which
should be paid by way of compensation for them. The unit for
assessing the injuries is the rajibah, the end joint of the
thumb, i.e. about one inch.160
ii)
In case of qisas, if a
man is to be killed in retaliation for a woman, half of the
blood wit of the man should be paid back by the waliy of the
woman to the relatives of the man.161 This is also the attitude
of the "Twelve Shiis.162
Apart from the examples given
above, the Ibadhis, in many aspects of their legal system, agree
or disagree with one or more of the other Islamic school,
otherwise there is not much difference between the Ibadhis fiqh
and Sunni fiqh in general. Although Ibadhis in some points hold
the same views as "Twelve" Shiites, they also disagree with them
over others. Mutah, for example, is one of these points on
which Ibadhis hold the same view as Sunnis and Zaidi branch of
Shiites, while the "Twelve" Shiites consider it lawful.163
However some of those points
were discussed at an early stage, in the Ibadhi sources, such as
the Mudawwanah of Abu Ghanim. In a number of cases Abu Ghanim
confronted his teachers with opinions of non-Ibadhi scholars,
but heir answer usually was, "There is nothing in what they
say. They told lies and were mistaken in narrating. We do not
follow this narration. Our jurists do not acknowledge this
narration, etc....."164 without adducing any arguments in
support of their contentions. In certain cases, such as the
case of umm al-walad and the case of the mukatab, their
arguments and proofs were given in detail.165 The other Islamic
scholars are referred to by the expression, "The jurists of our
people." Abu Ghanim, on hearing from Abu al-Mu’arrij in person
that Abu Ubaidah said, "Each prayer in which the Fatihah was not
recited is incomplete," said, "O, Abu al-Mu’arrij, this is the
saying of our people." Abu al-Mu’arrij said, "Your people say a
great deal of truth, the Muslims (i.e. Ibadhis) did not
contradict them about their correct opinions, but they
contradicted them where they were mistaken and told lies.166
Ibadhis always considered
themselves as the true Muslims, and their laws as the true
religion of Islam, regarding their schools as the true
representative of the authentic Sunnah and superior to other
Islamic schools. The modern Ibadhi Shaikh Muhammad Yusuf
Atfaiyish expressed this view in the following words: "Our
schools is correctness bearing the possibility of error, and the
schools of our adversaries are erroneous bearing he possibility
of correctness."167
However, this Ibadhi view of
non-Ibadhi schools of law did not prevent one of their
outstanding scholars from introducing a new principle to Ibadhi
jurisprudence stating that Ibadhi muftis are allowed to borrow
laws from non-Ibadhi schools in cases where there were no
opinions reported from Ibadhi authorities.168 |
