II) MARRIAGE

The point of difference here is about the case of the two parties guilty of unlawful intercourse. Ibadhis held that such a relation constitutes a permanent impediment to marriage between the two guilty parties. According to Ibn Khalfun, this doctrine is one of those which is agreed upon by al Ibadhi authorities. Their predecessors (salaf) in this attitude are the Companions; Abdullah b. Mas'ud, A'ishah, al-Bara b. Azib, Ali b. Talib, Abu Hurairah, and Jabir b. Abdullah. The two scholars of Basrah, al-Hassan b. Abi al-Hassan and Muhammad b. Sirin held the same view.152 This attitude was also maintained by the "Twelve" Shiites.153 Other Sunni schools held it lawful for the two parties guilty of unlawful sexual intercourse to marry each other, some with the condition that they repent and lead an upright life others unconditionally.

In his treatise, Ibn Khalfun presented a detailed account of the question and the arguments of all parties.154

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 patron.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 to 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 found 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