SHARIAsource

In 1986, the Aga Khan IV promulgated a global Ismaili Constitution, which brought the social governance of the Ismaili community under one umbrella. It was envisioned as a document which could harness the best in individual creativity while creating an ethos of group responsibility. The global Constitution, amended in 1998, covers a range of topics including authority over the community, family and personal law, dispute resolution mechanisms, and the formation of institutions relevant to the community. 

Nurani v. Nurani was a case adjudicated by the Court of Appeal at Nairobi in 1982. The Court held it had concurrent jurisdiction with the Ismaili Council for Kenya, through its sectarian tribunal. Thus, this tribunal had the first right to issue a decision on issues arising from the couple's divorce since both the husband and wife had submitted to its jurisdiction. In this decision, the Court contextualized the role of the sectarian tribunal within the context of Kenya's pluralist legal system.

In TSJ v. SHSR, decided by the High Court of Kenya at Nairobi, the Court found that the Kenya Ismaili Conciliation and Arbitration Board did not have the jurisdiction to adjudicate upon a matter of divorce despite the fact that both husband and wife had initially submitted to its jurisdiction. The Court held that either it, or the Kadhis' Courts, could have exclusive jurisdiction in this matter.  

The Khoja Case, also known as the Aga Khan Case, is one of the rare cases profiling the Shia Imami Nizari Ismaili community (henceforth “Ismailis”). Decided in the High Court of Bombay in 1866 by the Honourable Sir Joseph Arnould, this case was brought by a series of Ismaili plaintiffs who argued that the Ismaili Community was a Sunni community, and therefore did not owe allegiance to the Aga Khan as its leader. The Court held that the Ismaili Community was in fact a Shi’a community, that the Aga Khan was the authoritative head of the community, and therefore, that he had the right to exercise his traditional modes of authority.

Ibn Ḥārith al-Khushanī recorded the following case as a ḥikāya, an anonymous report: A Christian appeared before the judge Aslam b. ʿAbd al-ʿAzīz, petitioning to be executed. But he was rebuked because he had committed no crime. The text explains that the Christian’s behaviour was motivated by his desire to die in imitation of Jesus, as an act of virtue (faḍīla), although—as our source points out—Jesus himself did not seek martyrdom. In response to the judge’s admonishment, the Christian explained that he would not in truth die. While his shibh, or likeness (i.e., a body that resembled his body), might perish, his real self would ascend to the heavens upon execution. The judge aimed to disprove this theory by ordering the Christian flogged. Thus, the judge illustrated that the Christian could indeed suffer pain and likewise would suffer death if a sword were to cut his neck.

Translation

Ibn Ḥārith said: I heard someone recounting that a Christian went [to the judge] asking to be put to death. Aslam reprimanded him asking him: “Woe unto you! Who provoked you to ask for your own death if you have committed no crime?” The stupidity and ignorance of the Christian led him to take upon himself a virtuous act (faḍīla) when nothing of the kind was attributed to Jesus, son of Mary – God bless Muḥammad and Jesus. The Christian told the judge: “You assume that if you execute me I would be the one killed.” The judge asked him: “Who else could be the one killed?” The Christian answered: “A likeness of me (shibhī) that was cast on a body is what you will execute, while my real self in that same hour will directly go to heaven.” Aslam then told him: “We lack sufficient information to have an opinion on the [outcome] that you argue for,[1]but you lack what it takes to make you realize that you are deceiving yourself. There is however a way to reveal what is right to us and to you.” The Christian asked the judge: “What could that be?” The judge Aslam summoned his court assistants (aʿwān) and told them: “Take the whip,” then ordered them to strip the Christian which they did, and then ordered them to beat him. When the Christian felt the flogging he became agitated and screamed. Aslam asked him: “On which back is the flogging taking place?” “On mine!” said the Christian. Aslam told him: “In the same way the sword will cut your neck, don’t be deluded into believing otherwise.”

Ibn Ḥārith al-Khushanī recorded the following case as a ḥikāya, an anonymous report: A Christian appeared before the judge Aslam b. ʿAbd al-ʿAzīz, petitioning to be executed. The anecdote offers insight into the historical role of judges during a period of religious dissent in the Umayyad Caliphate, while the author's narrative voice demonstrates past judicial approaches to rationality, humor, and violent penalization. 

This text is part of Maribel Fierro, The Judges of al-Andalus, forthcoming.

In this excerpt from his chronicle, Ibn al-Athīr reports that a group of Ismāʿīlī bāṭinīs were executed via immolation in the year 494/1101. An eminent local Shāfiʿī jurist apparently gave his support to this punishment. In his chapter comparing earthly justice with heavenly justice in the early Islamic imagination in Justice and Leadership in Early Islamic Courts, Christian Lange cites this example of punitive burning to make the point that judges viewed their own function in adjudication along lines similar to divine judgment: in spite of the circulation of ḥadīths such as “Only the Lord of Fire punishes with fire,” rulers and judges had no qualms about burning criminals.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.