Ya Ali Madad!
Hi folks, I believe this is an amazing forum that has been well managed. Keep up the amazing work!
(1) In the Ismaili Constitution of 1998, I see that there is Article 15 which talks about the personal law. It says that "the personal law applicable to Ismailis will be the personal law as has evolved within the Shia Imami Ismaili School of Thought of Islam." Where can I find this personal law that is applicable to us Shia Ismailis? is there a document, like the Ismaili Constitution, that I can refer to, for the personal law that is applicable to us?
(2) Specifically, is there any law that has been prescribed for us Ismailis with respect to succession ? Like, can Shia Ismaili of India create a will for his entire property? i.e. can he dispose off his entire property through testamentary disposition? Note that for Sunni Muslims, as per the Muslim personal law of Shariat, they can only dispose off 1/3rd of their property through a will. However some lawyers friends have told me that in India, Ismaili Khojas are governed by the Hindu Law when it comes to succession and ability to make wills.
(3) In India, there is this "The Muslim Personal Law Application Act 1937", it says that when the parties are Muslims, the personal law applicable to them will be the Muslim Personal Law (Shariat). So, does this imply that the Shariat law will be applicable on us Ismailis too?
Would be of great help if I could get answers to these 3 questions. Thanks!
[Request] Searching for Personal Law of Shia Ismailis
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qwerty_rover
- Posts: 1
- Joined: Sun Aug 23, 2020 10:15 am
1) Beside the Ismaili Constitution which binds all Ismailis, there are 2 more legal documents of importance:
A) The Rules and Regulation which applies to Ismailis under Councils of different countries or regions - these Rules and Regulations are signed by the Imam. Keep in mind that they say that a Farman made after the date of signature of those documents by the Imam will superceed the document and the Farman becomes at that point the guiding line, not those documents.
B) There are also Guidelines which are area specific, written for/by individual Councils and not signed or approved by Imam. As the title suggest, these are guidelines, not authority.
2) As specified in the Constitution, the Law of the Land prevails. There was a jugement ( Fidahusein Pirmahomedalli vs Bai Monghibai on 11 October, 1935) under British - whether a Khoja of the Shiah Ishna Ashari sect can dispose of the whole of his property by a testamentary disposition.
Today no Khoja Ismaili is bound by any Hindu rules of succession. If the Law of the Land allows you to bequest your fortune to your cats, nobody can stop you from doing so, though it would be a stupid thing to do
3) There are a variety of Muslim Law and a variety of interpretations. Ismaili follow their own interpretation of Muslim Law. In Kenya there is beside the State Courts, the Qadi Court but Ismailis have their own Counciliation and Arbitration Boards. Before the 1986, the old Ismaili Constitution had boards called "Tribunal". The Ismaili Constitution is a dynamic document adapting itself constently in words and in spirit to the changing times and state of world affairs and regional situation.
My 2 cents worth (in Zimbabwe dollars of course)
Admin
PS: Read the following:
https://indiankanoon.org/search/?formIn ... succession
A) The Rules and Regulation which applies to Ismailis under Councils of different countries or regions - these Rules and Regulations are signed by the Imam. Keep in mind that they say that a Farman made after the date of signature of those documents by the Imam will superceed the document and the Farman becomes at that point the guiding line, not those documents.
B) There are also Guidelines which are area specific, written for/by individual Councils and not signed or approved by Imam. As the title suggest, these are guidelines, not authority.
2) As specified in the Constitution, the Law of the Land prevails. There was a jugement ( Fidahusein Pirmahomedalli vs Bai Monghibai on 11 October, 1935) under British - whether a Khoja of the Shiah Ishna Ashari sect can dispose of the whole of his property by a testamentary disposition.
Today no Khoja Ismaili is bound by any Hindu rules of succession. If the Law of the Land allows you to bequest your fortune to your cats, nobody can stop you from doing so, though it would be a stupid thing to do
3) There are a variety of Muslim Law and a variety of interpretations. Ismaili follow their own interpretation of Muslim Law. In Kenya there is beside the State Courts, the Qadi Court but Ismailis have their own Counciliation and Arbitration Boards. Before the 1986, the old Ismaili Constitution had boards called "Tribunal". The Ismaili Constitution is a dynamic document adapting itself constently in words and in spirit to the changing times and state of world affairs and regional situation.
My 2 cents worth (in Zimbabwe dollars of course)
Admin
PS: Read the following:
https://indiankanoon.org/search/?formIn ... succession
MSMS made the following statement in his Memoirs which may be worthy of reflection in this regard :
Ismailism has survived because it has always been fluid. Rigidity is contrary to our whole way of life and outlook. There have really been no cut and dried rules; even the set of regulations known as the Holy Laws are directions as to method and procedure and not detailed orders about results to be obtained. In some countries-India and Africa for example-the Ismailis have a council system, under which their local councillors are charged with all internal administrative responsibility, and report to me what they have done. In Syria, Central Asia and Iran, leadership, as I have said, is vested in hereditary recommended leaders and chiefs, who are the Imam's representatives and who look after the administration of the various jamats, or congregations.
From all parts of the Ismaili world with which regular contact is politically possible a constant flow of communications and reports comes to me. Attending to these, answering them, giving my solutions of specific problems presented to me, discharging my duties as hereditary Imam of this far-scattered religious community and association-such is my working life, and so it has been since I was a boy.
Much of the work of the Ismaili councils and of the Imam's representatives nowadays is purely social, and is concerned with the proper contractual arrangement of matters such as marriage and divorce. On the subject I should perhaps say that nowhere in the world where Ismailis are now settled is there any persecution of them or interference with their faith and customs, except if and when the general laws of the country are contrary to institutions, such as plurality of wives. It is generally overlooked that among Ismailis no one can take a second wife or divorce his first wife for a whim or-as is sometimes falsely imagined in the West-some frivolous or erratic pretext. There are usually, to our way of thinking, some very good reasons for either action. To beget children is a very proper need and desire in every marriage; if after many years of married life there is still no issue, often a wife herself longs to see her home brightened by the presence of children with all the laughter, hope, joy and deep contentment that they bring with them. In other instances there is so profound a difference of character that a divorce is found to be the best solution for the happiness of both parties. But in every case whether a second wife is taken or a divorce is granted-the various councils or (where there are no councils) the representatives of the Imam have an absolute duty to safeguard the interests of the wife; if a second wife is taken, it is a matter of seeing that full financial protection is assured to the first wife, or if there is a divorce, of seeing that there is a generous, adequate and seemly monetary settlement. It is important that it should be realized among non-Muslims that the Islamic view of the institution of marriage-and of all that relates to it, divorce, plurality of wives and so on-is a question solely of contract, of consent and of definite and mutually accepted responsibilities. The sacramental concept of marriage is not Islam's; therefore except indirectly there is no question of its religious significance, and there is no religious ceremony to invest it with the solemnity and the symbolism which appertain to marriage in other religions like Christianity and Hinduism. It is exactly analogous to-in the West -an entirely civil and secular marriage in a registry office or before a judge. Prayers of course can be offered-prayers for happiness, prosperity and good health-but there can be no religious ritual beyond these, and they indeed are solely a matter of personal choice. There is therefore no kind of marriage in Islam, or among the Ismailis, except the marriage of mutual consent and mutual understanding. And as I have indicated, much of the work of the Ismaili councils and of the Imam's representatives in all our Ismaili communities is to see that marriages are properly registered and to ensure that divorce, though not a sin, is so executed that the interests of neither party suffer from it, that as much protection as possible is given to women, and most of all, that the maintenance of young children is safeguarded.
http://www.ismaili.net/Source/0016b.html
Ismailism has survived because it has always been fluid. Rigidity is contrary to our whole way of life and outlook. There have really been no cut and dried rules; even the set of regulations known as the Holy Laws are directions as to method and procedure and not detailed orders about results to be obtained. In some countries-India and Africa for example-the Ismailis have a council system, under which their local councillors are charged with all internal administrative responsibility, and report to me what they have done. In Syria, Central Asia and Iran, leadership, as I have said, is vested in hereditary recommended leaders and chiefs, who are the Imam's representatives and who look after the administration of the various jamats, or congregations.
From all parts of the Ismaili world with which regular contact is politically possible a constant flow of communications and reports comes to me. Attending to these, answering them, giving my solutions of specific problems presented to me, discharging my duties as hereditary Imam of this far-scattered religious community and association-such is my working life, and so it has been since I was a boy.
Much of the work of the Ismaili councils and of the Imam's representatives nowadays is purely social, and is concerned with the proper contractual arrangement of matters such as marriage and divorce. On the subject I should perhaps say that nowhere in the world where Ismailis are now settled is there any persecution of them or interference with their faith and customs, except if and when the general laws of the country are contrary to institutions, such as plurality of wives. It is generally overlooked that among Ismailis no one can take a second wife or divorce his first wife for a whim or-as is sometimes falsely imagined in the West-some frivolous or erratic pretext. There are usually, to our way of thinking, some very good reasons for either action. To beget children is a very proper need and desire in every marriage; if after many years of married life there is still no issue, often a wife herself longs to see her home brightened by the presence of children with all the laughter, hope, joy and deep contentment that they bring with them. In other instances there is so profound a difference of character that a divorce is found to be the best solution for the happiness of both parties. But in every case whether a second wife is taken or a divorce is granted-the various councils or (where there are no councils) the representatives of the Imam have an absolute duty to safeguard the interests of the wife; if a second wife is taken, it is a matter of seeing that full financial protection is assured to the first wife, or if there is a divorce, of seeing that there is a generous, adequate and seemly monetary settlement. It is important that it should be realized among non-Muslims that the Islamic view of the institution of marriage-and of all that relates to it, divorce, plurality of wives and so on-is a question solely of contract, of consent and of definite and mutually accepted responsibilities. The sacramental concept of marriage is not Islam's; therefore except indirectly there is no question of its religious significance, and there is no religious ceremony to invest it with the solemnity and the symbolism which appertain to marriage in other religions like Christianity and Hinduism. It is exactly analogous to-in the West -an entirely civil and secular marriage in a registry office or before a judge. Prayers of course can be offered-prayers for happiness, prosperity and good health-but there can be no religious ritual beyond these, and they indeed are solely a matter of personal choice. There is therefore no kind of marriage in Islam, or among the Ismailis, except the marriage of mutual consent and mutual understanding. And as I have indicated, much of the work of the Ismaili councils and of the Imam's representatives in all our Ismaili communities is to see that marriages are properly registered and to ensure that divorce, though not a sin, is so executed that the interests of neither party suffer from it, that as much protection as possible is given to women, and most of all, that the maintenance of young children is safeguarded.
http://www.ismaili.net/Source/0016b.html
Down load the following article on Ismaili Law, may be useful.
PDF iconDownload This Paper Open PDF in Browser Add Paper to My LibraryShare:
Authority and Plurality in Muslim Legal Traditions: The Case of Ismaili Law
American Journal of Comparative Law, Forthcoming
NUS Law Working Paper No. 2018/008
NUS - Centre for Asian Legal Studies Working Paper 18/02
21 Pages Posted: 19 Mar 2018 Last revised: 15 Aug 2019
Arif A. Jamal
National University of Singapore (NUS) - Faculty of Law
Date Written: February 15, 2018
Abstract
Islamic law is often said to be very pluralistic due to its interpretational variations. At the level of sources, however, accounts of Islamic law have generally emphasized the reliance on a set of major ‘roots’ of law, with other lesser sources. This paper discusses on the case of Nizari Ismaili law in historical as well as contemporary terms, elaborating its authority structure, especially the concept of Imamat and role of the Imam, as well as using it to strengthen the case that plurality in Islamic law can and should be extended to a plurality of sources as well as of rules.
Keywords: Ismaili, Islam, Imamat, plurality, authority, Muslim
Suggested Citation:
Jamal, Arif A., Authority and Plurality in Muslim Legal Traditions: The Case of Ismaili Law (February 15, 2018). American Journal of Comparative Law, Forthcoming, NUS Law Working Paper No. 2018/008, NUS - Centre for Asian Legal Studies Working Paper 18/02, Available at SSRN: https://ssrn.com/abstract=3141048
https://papers.ssrn.com/sol3/papers.cfm ... id=3141048
PDF iconDownload This Paper Open PDF in Browser Add Paper to My LibraryShare:
Authority and Plurality in Muslim Legal Traditions: The Case of Ismaili Law
American Journal of Comparative Law, Forthcoming
NUS Law Working Paper No. 2018/008
NUS - Centre for Asian Legal Studies Working Paper 18/02
21 Pages Posted: 19 Mar 2018 Last revised: 15 Aug 2019
Arif A. Jamal
National University of Singapore (NUS) - Faculty of Law
Date Written: February 15, 2018
Abstract
Islamic law is often said to be very pluralistic due to its interpretational variations. At the level of sources, however, accounts of Islamic law have generally emphasized the reliance on a set of major ‘roots’ of law, with other lesser sources. This paper discusses on the case of Nizari Ismaili law in historical as well as contemporary terms, elaborating its authority structure, especially the concept of Imamat and role of the Imam, as well as using it to strengthen the case that plurality in Islamic law can and should be extended to a plurality of sources as well as of rules.
Keywords: Ismaili, Islam, Imamat, plurality, authority, Muslim
Suggested Citation:
Jamal, Arif A., Authority and Plurality in Muslim Legal Traditions: The Case of Ismaili Law (February 15, 2018). American Journal of Comparative Law, Forthcoming, NUS Law Working Paper No. 2018/008, NUS - Centre for Asian Legal Studies Working Paper 18/02, Available at SSRN: https://ssrn.com/abstract=3141048
https://papers.ssrn.com/sol3/papers.cfm ... id=3141048