Disagreements of the Jurists. al-Qadi al-Nu'man

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the Prophet stopped at the pond of Ghadīr Khumm and addressed the Muslims who were returning with him to Medina after the Farewell Pilgrimage in the final year of his life. In his speech, he stated man kuntu mawlāhu fa-ʿAliyyun mawlāhu “Whoever I am the master of, ʿAlī is his master.” According to the Shiʿi interpretation, the Prophet intended by this the explicit designation of ʿAlī as his successor. In the second report, the Prophet is supposed to have said to ʿAlī that your position with regard to me is like that of Aaron with respect to Moses. Both reports were extremely influential for Twelver Shiʿah and for the Ismaʿilis in particular. They featured prominently in polemics between Sunnis and Shiʿah. On the basis of that first report, both the Fatimids and the Buwayhids instituted a Shiʿi holiday, ʿĪd al-Ghadīr, to be celebrated on the 18th of Dhu l-Hijjah, to mark the Prophet’s explicit designation (naṣṣ) of ʿAlī ibn Abī Ṭālib as his successor.

      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.

      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

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