Disagreements of the Jurists. al-Qadi al-Nu'man
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planning to write it, and these omissions are likely relegating detailed debate over the Imamate per se to Daʿāʾim al-Islām and other works.
Along with a presentation of the Ismaʿilī doctrine of religious authority, al-Qāḍī al-Nuʿmān criticizes Sunni views of religious authority, which he sees as having deviated from the truth in two important ways. First, as he describes it, the caliphs of the Sunnis proved their illegitimacy by turning away from religion and focusing single-mindedly on worldly wealth and power. They did not fulfill their duties as Imams of the Muslim community, which include the provision of comprehensive guidance for the believers. Second, Sunni jurists claimed religious authority for which they had no warrant. They arrogated to themselves the right to interpret Islamic law and doctrine and to impose their views on the common people, claiming a superior status. Furthermore, the two phenomena are related. As al-Qāḍī al-Nuʿmān puts it, the Umayyad caliphs (661–750) but more significantly the Abbasid caliphs (750–1258), the Fatimids’ chief ideological rivals, made a pact with the jurists according to which the caliphs would give the jurists free reign to control the religion as long as they gave the caliphs free reign to rule as they wished, both flouting Islamic legal restrictions for themselves and treating the populace tyrannically. They thus violated the sacred trust that God placed in them by appointing them to their position of leadership of the community.
In his view, then, the history of Sunni Islam witnessed the derailment of the proper relationship between jurists and the caliphs. Jurists, including judges, serve as authorities and sources of guidance and reference for the common people, but their authority must remain closely tied to and dependent on the authority of the Imams. The introductory section on walāyah in Daʿāʾim al-islām serves, among other functions, to anchor the law as a whole to the authority of the Imams. It is not a body of rules produced by the collective work of legal scholars in a separate field of human inquiry. Rather, it is a body of rules that derives from the Imams’ interpretations of God’s revealed law. For this reason al-Qāḍī al-Nuʿmān cites so prominently in Ikhtilāf uṣūl al-madhāhib his letter of appointment to the judgeship issued by the Caliph al-Muʿizz li-Dīn Allāh and continually refers to consultation of the Imam on difficult matters. It must be made clear that his authority is subordinate to and dependent on that of the Imam; jurists have no independent authority. This is the proper state of affairs, and under the Umayyad and Abbasid caliphates it became corrupted.
Al-Qāḍī al-Nuʿmān’s portrayal may be a gross oversimplification of Islamic religious history from the early Abbasid period up until al-Qāḍī al-Nuʿmān’s time, but it contains elements of truth. The Abbasid caliphs never categorically gave up their religious authority, but it is undeniable that they lost much of that authority over time.32 It is also true that the jurists’ authority increased during the same period, and in many arenas became predominant. It is also true that the caliphs and the jurists reached a compromise of sorts over religious authority: the jurists were recognized as having authority over devotional and private law, transactions between individuals, and the caliphs—and then Muslim rulers in general—were recognized as having authority over public law, including taxation, defense, criminal justice, the penal system, and in general relations between individuals and the state. This compromise came to characterize most Sunni societies from the tenth century until the present.33
It is telling that al-Qāḍī al-Nuʿmān does not recognize other groups as claimants to religious authority along with the caliphs or Imams and the jurists. Certainly, theologians, hadith specialists, mystics, and philosophers were other important claimants to religious authority who were active during his day, and so could have figured more prominently in his portrayal of the historical or current ideological state of the Islamic world. He does refer to questions of theology, and he refers to hadith reports certainly, but he does not single out theologians or ḥadīth specialists for particular mention. It is also worth noting that while he mentions Abū Ḥanīfah, Mālik ibn Anas, and al-Shāfiʿī prominently in his work, he does not mention Aḥmad ibn Ḥanbal, which must be construed as an intentional slight, one that may be seen in other Shiʿi works that cast aspersion on Ibn Ḥanbal by omission: He simply is not important enough to merit discussion, and his followers are associated with violent anti-Shiʿism or naṣb “hatred of the Prophet’s descendants.”34
The Dominance of Sunni Legal Institutions
George Makdisi, Christopher Melchert, and others have traced the jurists’ increasing dominance over Islamic religious discourse in the ninth, tenth, and eleventh centuries. Makdisi pointed out certain milestones in this development, in which the jurists were able to assert their authority over and against those of the theologians and the caliphs. In his view, the jurists’ success in asserting their authority was a triumph of traditionalism over rationalism. One milestone was the publication of the Risālah by Muḥammad ibn Idrīs al-Shāfiʿī (d. 204/820), which Makdisi describes as presenting a juridical, traditionalist theology designed to compete with that of the rationalist theology of the Muʿtazilah. The next was the failure of the Miḥnah, or Inquisition of 218–33/833–48, during which the Abbasid caliphs, supported by the Muʿtazilī theologians, endeavored to impose the Muʿtazilī doctrine that the Qurʾan was created. The next was the defection of the theologian al-Ashʿārī (d. ca. 324/935) to the traditionalist camp toward the end of his life. The next was the promulgation of the Qādirī Creed in 409/1018 and repeatedly in later years by the Caliph al-Qādir (r. 381–422/991–1031) and his son and successor al-Qāʾim (r. 422–67/1031–75). The jurists’ teaching occurred first in masjid-khān complexes, in the tenth century, and then in madrasahs or colleges of law, beginning in the late eleventh century.
Makdisi argued that the jurists were able to exert their authority by founding and promoting the institution of the madhhab, which he termed the “guild” of law. Over the course of the ninth, tenth, and eleventh centuries, this institution gained prominence in society and began to exert hegemonic effects. In order to become a recognized legal authority, one had to receive one’s legal training from a recognized master in the previous generation. A standard legal curriculum was devised, which included training in madhhab, that is, the collected legal rulings accepted within a particular tradition of legal study, khilāf, that is, disputed legal rulings, and dialectic. There were recognized levels of legal study, which Makdisi likened to undergraduate and graduate education. Upon finishing the major stages of his legal education, the student would complete a taʿlīqah or report based on the lectures of his master. The master would recognize his student’s completion of legal education and his attainment of the status of a fully qualified jurist by granting him ijāzat al-iftāʾ wa-l-tadrīs “the license to grant legal opinions and to teach law.”
In a seminal and informative work, Christopher Melchert charted the historical rise of the legal madhhab, the classical school of law. He established several criteria for identifying the existence of this institution: recognition of a raʾīs or chief scholar in a given location, the production of commentaries (taʿlīqahs) on standard legal epitomes (mukhtaṣars), and recognition that students of Islamic law had completed their legal education under a specific prominent jurist. According to these criteria, he dated the consolidation of the three main legal schools in Baghdad and the Islamic East—the Shāfiʿī, Ḥanbalī, and Ḥanafī madhhabs to the late ninth and early tenth centuries. Melchert identifies the Shāfiʿī jurist Ibn Surayj (d. 306/918), the Ḥanbalī jurist al-Khallāl (d. 311/923), and the Ḥanafī jurist Abū al-Ḥasan al-Karkhī (d. 340/952) as the virtual founders of their respective schools. In his view, the Mālikī, Ẓāhirī, and Jarīrī schools never functioned as coherent organizations in Baghdad and the East, dying out there by the early eleventh century. The Mālikīs in the West subsequently incorporated the innovations that had taken place in the East. In his view, the adherents of the Ẓāhirī school—followers of Dāwūd ibn ʿAlī (d. 270/884)—and the Jarīrī school—followers of Muḥammad ibn Jarīr al-Ṭabarī (d. 310/923)—did not produce the regular commentaries that signal the existence of an institutional madhhab.
In addition to the criteria established by Melchert, George Makdisi discussed biographical works