By Eirik Hovden
The Zaydī imāms[1] styled themselves as rulers of all Muslims and upheld that the imamate was the only legitimate form of sovereign government. The Zaydī imamate consisted of a fully-fledged Islamic state theory, which was elaborated in separate treatises as well as at the beginning of the chapter called Kitāb al-siyar (chapter on governance-, international- and war law) in fiqh works. Contrary to most Sunnī contexts, Zaydīs sought to implement this state theory in various small polities since the late-ninth century in areas located a safe distance from the Abbasid Caliphate, such as the Caspian regions of today's Iran and the highlands of Yemen. In common with Ibāḍīs, Zaydīs upheld the right and duty of political activism through the imamate, but contrary to Ibāḍīs, Zaydīs required that imāms belonged to Ahl al-Bayt (descendants of the Prophet), specifically to lineages of the Prophet's two grandsons Ḥasan and Ḥusayn. In contrast to the Twelver-Shīʿīs, the Zaydī imāms ruled only during their lifetime and were considered fallible. Zaydīs largely allowed for the principle that every scholar is correct and increasingly also engaged with, and to some degree gradually accepted, Sunnī ways of thinking in fiqh and ḥadīth. Despite this diversity, which constantly took new shapes, a distinct Zaydī legal school (madhhab) developed, usually representing itself as the madhhab of the Ahl al-Bayt. From their subjects, Zaydī imāms first and foremost demanded loyalty in matters of war and tax-paying, while for example, ritual law was a private matter of choice, especially after the imamate in Yemen expanded into the Shāfiʿī lowlands.
In the highlands of Yemen, Zaydī imāms effectuated their rule and succeeded one another from 284/897 until 1962.[2] After the first Ottoman occupation of Yemen ended (1045/1636), the imamate took a more dynastic form, which, in theory, should not have happened.[3] The imāms increasingly handed the role of religious authority over to court scholars, a process culminating with al-Shawkānī (d. 1250/1834), as described by Bernard Haykel.[4] However, at the time of Imām al-Mutawakkil ʿAlā Llāh Ismāʿīl b. al-Qāsim (d. 1087/1676), the main protagonist of this essay, the effective transition towards a classical Sunnī division between sultanic and scholarly authority was far from certain or accepted among the Zaydīs of Yemen, a process in need of future studies to be better understood. Imām al-Mutawakkil Ismāʿīl did style himself as a scholar according to the Zaydī ideal, at least claiming to have enough scholarly qualities to fulfil the role of imām. His known authorship is, however, mainly limited to uṣūl al-fiqh and a few legal treatises and fatwās (legal opinions). In legal matters, we can assume a strong role of the court scholars around him.[5]
In addition to being leaders of the military and the state administration, Zaydī imāms were the highest reference in the legal system. This does not mean that they were considered above the Zaydī legal madhhab, but they did have a certain room to issue sharʿī law, binding for their period of office until their death. Many imāms also issued treatises (risālas) and fatwās, later complied into collections, and over time, some of these were partly incorporated into the fiqh compilations of the madhhab. This way, at least some imāms did significantly impact the madhhab. However, the binding character of the madhhab rules was more or less up to local scholars, judges and elites to validate and implement. Much more research is needed to correlate the content of the canonical fiqh collections and mukhtaṣarāt (abridgements, handbooks) with actual legal practice in court. So far, our sources and evidence for the latter are mainly limited to the early 20th century, as demonstrated in the groundbreaking works of Brinkley Messick.[6]
As mentioned, some of the imāms were active agents in the processes of canonization in the Zaydī madhhab in refining and defining the borders of the madhhab and identifying its core rules. The mukhtaṣar or matn called Kitāb al-azhār by Imām Ibn al-Murtaḍā (d. 840-1436/7) is not only the first major Zaydī matn of fiqh but also by far the most prominent example in the Zaydī tradition, attaining a canonical status almost immediately since its authorship until today. It also has a succinct, code-like textual feature: most disagreement, comparison, and evidence have been left out, leaving the reader and memorizer with a concise string of coherent rules systematically covering all the chapters of the law. I follow the argument of Mahmood Kooria in this essay series and see such texts as legal codes for educational purposes and for madhhab coherence. The use in the spheres of administration and court, however, cannot simply be assumed from the text itself. It is in this triangle of imāms, the madhhab, and actual legal practice that the unique Zaydī genre of ikhtiyārāt (lit. "choices") comes in. The madhhab educators sought to complement the code-like brevity of the mukhtaṣarāt with ever-new commentaries, re-opening for contradiction and diversity, but the court system and state administration were in need of definition, standardization and systematic choice, at least in certain legal issues important for the population.
In the classical Zaydī tradition, this problem of indeterminacy caused by the interpretive freedom and plurality of the madhhab was solved by imāms giving fatwās and recommendations to judges, a practice fitting a small polity with perhaps only a handful of loyal judges. Islamic law also had a limited role to play in a strongly tribal society.[7] However, once we approach the post-Ottoman Qāsimī dynasty of Zaydī imāms, from around the 1640s onwards, the genre of ikhtiyārāt became a more systematic tool for the sovereign imām to use in addressing the judges of their realm. The judges were ordered to follow a certain list of rules in cases where the sharīʿa was either unclear, where two different equally valid rules were possible, and where problems occurred with frequent appeals or disagreement. Our protagonist, Imām al-Mutawakkil Ismāʿīl, ruled during the significant expansion into Lower Yemen and there were more Shāfiʿīs than Zaydīs in his realm. We do not know to what extent al-Mutawakkil's list of rules was actually enforced nor the degree to which it was also imposed on Shāfiʿī communities and judges. However, one hypothesis is that al-Mutawakkil's ikhtiyārāt were meant to firmly demonstrate the ability to rule all Muslims under his authority.
The actual text is found in several manuscripts in Yemen[8] and in European collections,[9] and has been edited and published in Yemen.[10] The title of the text directly addresses the judges: "The letter of the approved [rules] of what the judges have to follow" (al-Risāla al-murtaḍāt fī-mā yaʿtamiduhu l-quḍāt).[11] The text is a list of approximately fifty rules, beginning with a short preamble followed by a longer section on evidence and procedure. After that, the list follows, rule by rule, according to the sequence of the chapters of fiqh.
I have previously published on one of the rules dealing with restricting the possibility of family waqf in favor of using the inheritance rules on the intergenerational transfer of wealth.[12] Here, the imām deviates fully from the traditional madhhab, but not necessarily in a Shāfiʿī direction in terms of position.[13] I have elsewhere argued that we can see an early non-madhhab tendency in the early Qāsimī fiqh[14] and this is one possible program or doctrinal platform behind these specific ikhtiyārāt. Future studies of more of these rules and their alignment with 1) the traditional Zaydī madhhab; 2) the Shāfiʿī madhhab; and 3) a possible, non-madhhab program could give us better answers about the reasons behind this specific set of rules.
Ottoman influence (as well as the anti-Ottoman, non-madhab program) is also worth asking about. The motive and actual role of the Ottoman sultan as a law giver must have been well known, but in the Zaydī imamate setting, the rules and framework in which they were issued had to be of full sharʿī quality.
Can we see the ikhtiyārāt as a pre-modern Islamic legal code? If we first make the assumption that it is of hermeneutical and pedagogical value to reflect upon and talk about pre-modern legal codes, and furthermore, that legal codes and their verbal noun—codification—could potentially exist before or outside of the well-known modernity-centric and ideal notion of a code, we can start with some basic observations. The ikhtiyārāt of al-Mutawakkil was ordered to the judges of his polity. The text has code-like features: it is arranged systematically; it is coherent; it is brief and contains little reasoning, evidence, and reference to authority in the rules themselves. It was meant to be enforced in court. It includes a preamble referring to the sovereign imām. It ticks most of the boxes. However, the ikhtiyārāt of al-Mutawakkil does not, like the Ottoman Mejelle, cover every case/rule in a certain topic (such as personal status); rather, it fills in the blank spots or addresses certain problem-cases/rules across the whole range of fiqh topics in the full width of the law. The ikhtiyārāt is therefore more of a supplement to more or less agreed-upon and existing fiqh rules. The supplement operates not only on the substantive level, adding missing or problematic rules and filling in gaps, but it also supplements a fragmented, multi-vocal canonical form of madhhab authority with a sovereign type of legal authority. The interplay between madhhab's canon and the ruler's code is stronger than in most modern legal systems.
Messick,[15] Haykel[16] and I[17] have briefly described this unique Zaydī genre and perhaps gone too far in alluding to it actually being a genre. The ikhtiyārāt of al-Mutawakkil is, however, one example among rather few, and it is also arguably the earliest example—a claim that should be elaborated elsewhere. With so few and so late examples, perhaps claiming the existence of a genre is problematic. More research is needed to fully understand this Zaydī legal textual phenomenon.
The distinction found in the Sunnī context between sultanic siyāsa and qānūn on the one hand and the scholars' sharīʿa on the other, has in recent years been elaborated and nuanced through works of scholars like Yossef Rapoport, Guy Burak and Samy Ayoub.[18] The question of whether state law or codification can be Islamic have normative undertones as is apparent in the recent works of Wael Hallaq.[19] The question of who has the legitimacy to specify, change or issue binding law is necessarily normative. At the time of Imām al-Mutawakkil Ismāʿīl, the very notion of the imamate had started to become debated and had been so for at least a century. It is a historical fact that the imām and his court scholars invoked and claimed full sharʿī authority behind this ikhtiyārāt, but historiographical materials from the time, also speak about resistance and doubt about the legitimacy of the imām's governance.[20] Codes are usually presented as ideal and absolute, but describing their actual implementation, including resistance or alternatives, is something in need of models and narratives built on historical indication, something we still largely lack from al-Mutawakkil Ismāʿīl's time.
[1] Here, the term imām does not refer to its most common usage: a leader of the communal prayer or a mosque. Rather, what is here meant is the usage following Zaydī doctrine where the term imām refers to a religious and political leader of the whole Muslim community, partly corresponding to the Sunnī concept of caliph. Contrary to standard Sunnī doctrine, Zaydīs upheld that the imām needed to be a religious scholar of the highest rank. He should claim his position with an open call and not be elected by elites or inherit the position. For a general overview over the different position in these matters, see Patricia Crone, God's Rule: Government and Islam: Six Centuries of Medieval Islamic Political Thought (Columbia University Press, 2005).
[2] This span was not entirely continuous.
[3] Dr. Ekaterina Pukhovaia (Leiden/Utrecht) is currently preparing publications demonstrating that this process was initiated a century earlier, before the onset of the first Ottoman occupation. For the Qāsimi dynasty and the context at this time, see Bernard Haykel, Revival and Reform in Islam: The Legacy of Muhammad al-Shawkānī, Cambridge Studies in Islamic civilization (Cambridge: Cambridge University Press, 2003); and Eirik Hovden, "Qāsimī dynasty," in Encyclopaedia of Islam, THREE, ed. Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas, and Devin J. Stewart (Leiden: Brill, 2022); Tomislav Klarić, Untersuchungen zur politischen Geschichte der Qāsimidischen Dynastie (11./17. JH.)" (PhD diss., Georg-August-Universität Göttingen, 2007).
[4] Haykel, Revival.
[5] Amat al-Ghafūr ʿAbd al-Raḥmān ʿAlī al-Amīr, al-Awḍāʿ al-siyāsiyya fī l-Yaman fī l-niṣf al-thānī min al-qarn al-ḥādī ʿashar al-hijrī, al-sābiʿ ʿashar al-mīlādī, 1054–1099 H / 1644–1688 M, maʿa taḥqīq Bahjat al-zaman fī tārīkh al-Yaman li-l-muʾarrikh Yaḥyā b. al-Ḥusayn b. al-Qāsim b. Muḥammad (Sanaa: Muʾassasat al-Imām Zayd b. ʿAlī al-Thaqāfiyya, 2008).
[6] Brinkley Messick, Sharīʿa Scrips: A Historical Anthropology (New York: Columbia University Press, 2018). Messick has also several other impornat publications in this field, some of which are: "Textual Properties: Writing and Wealth in a Shari'a Case," Anthropological Quarterly 68, no. 3 (1995); "Just Writing: Paradox and Political Economy in Yemeni Legal Documents," Cultural Anthropology 4, no. 1 (1989); "Transactions in Ibb: Economy and Society in a Yemeni Highland Town" (PhD diss., Princeton University, 1978).
[7] For general description of premodern Yemeni social history, see Paul Dresch, Tribes, Government, and History in Yemen (Oxford: Clarendon Press, 1989).
[8] Ms 3013 fol. 104–106, Dar al-Makhṭūṭāt, Sanaa. This manuscript mentions the date nahār 13 Ṣafar 1061/February 2, 1651, possibly sabʿīn instead of sittīn thus 1071/October 18, 1660. Muḥammad Qāsim Muḥammad al-Mutawakkil refers to two manuscripts in Yemen: a photocopy of a manuscript available to ʿAbd al- Mālik al-Marwanī used by the editor as the main source, and the other from the library of his father, Sharaf al-Dīn b. Qāsim al-Wajīh. Al-Mutawakkil, Ismāʿīl b. al-Qāsim b. Muḥammad, al-Imām, Al-Risāla al-murtaḍāt fīmā yaʿtamiduhu al-quḍāt, ed. Muḥammad Qāsim Muḥammad al-Mutawakkil (Sanaa: Muʾassasat al-Imām Zayd b. ʿAlī al-Thaqāfiyya, 2003). Al-Wajīḥ refers to two other manuscripts in Yemen in al-Jāmiʿ al-Kabīr, Gharbiyya, collective volume 19, (possibly the same ms as above, due to older numbering system) and ms no.134 under ʿIlm kalām. ʿAbd al-Salām ʿAbbās al-Wajīh, Aʿlām al-muʾallifīn al-Zaydiyya (Sanaa: Muʾassasat al-Imām Zayd b. ʿAlī al-Thaqāfiyya, 1999), 252.
[9] See, for example, Ms Glaser 181 in Staatsbibliothek zu Berlin. Foto pages 277–90. Online available: https://digital.staatsbibliothekberlin.de/werkansicht?PPN=PPN646421174&PHYSID=PHYS_0285&DMDID=DMDLOG_0006&view=overview-toc.
[10] Al-Mutawakkil, Al-Risāla al-murtaḍāt, ed. Muḥammad Qāsim Muḥammad al-Mutawakkil (Sanaa: Muʾassasat al-Imām Zayd b. ʿAlī al-Thaqāfiyya, 2003).
[11] Ibid.
[12] Eirik Hovden, Waqf in Zaydī Yemen: Legal theory, Codification and Local Practice (Leiden: Brill, 2019), 204–07.
[13] Al-Mutawakkil, Al-Risāla al-murtaḍāt, 29.
[14] Eirik Hovden, "Backdating the Critique and Abolition of Family Waqf: Examples Zaydī Yemen," Journal of the Economic and Social History of the Orient (2025 [forthcoming]).
[15] Messick, Sharīʿa Scripts, 176–94.
[16] Haykel, Revival and Reform, 202.
[17] Hovden, Waqf in Zaydī Yemen, 119–20, 205–29.
[18] Yossef Rapoport, "Royal Justice and Religious Law: Siyāsah and Shariʿah under the Mamluks," Mamluk Studies Review 16 (2012); Samy Ayoub, Law, Empire, and the Sultan: Ottoman Imperial Authority and Late Hanafi Jurisprudence, Oxford Islamic Legal Studies (Oxford: Oxford, 2020); Guy Burak, The Second Formation of Islamic Law: The Ḥanafī School in the Early Modern Ottoman Empire (New York: Cambridge University Press, 2015).
[19] See especially Wael Hallaq, The Impossible State: Islam, Politics, and Modernity's Moral Predicament (New York: Columbia University Press, 2013).
[20] al-Muṭahhar b. Muḥammad b. Aḥmad al-Jarmūzī, Tuḥfat al-asmāʿ wa-l-abṣār bi-mā fī l-sīra al-mutawakkiliyya min gharāʾib al-akhbār (Sanaa: Muʿassasat al-Imām Zayd b. ʿAlī al-Taqāfiyya, 2002). Several critical letters to the imām are quoted in full, often focusing on issues of unjust taxation and use of public funds. Se especially the critique in versified form, 516 and its following response 537–98.
Suggested Bluebook citation: Eirik Hovden, Sharʿī Legislation in 17th Century Yemen: The Chosen Rules of Imām al-Mutawakkil Ismāʿīl (r. 1054/1644, d. 1087/1676), Islamic Law Blog (Aug. 21, 2025), https://islamiclaw.blog/2025/08/21/shar%ca%bfi-legislation-in-17th-century-yemen-the-chosen-rules-of-imam-al-mutawakkil-isma%ca%bfil-r-1054-1644-d-1087-1676.
Suggested Chicago citation: Eirik Hovden, "Sharʿī Legislation in 17th Century Yemen: The Chosen Rules of Imām al-Mutawakkil Ismāʿīl (r. 1054/1644, d. 1087/1676)," Islamic Law Blog, August 21, 2025, https://islamiclaw.blog/2025/08/21/shar%ca%bfi-legislation-in-17th-century-yemen-the-chosen-rules-of-imam-al-mutawakkil-isma%ca%bfil-r-1054-1644-d-1087-1676.
