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

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 on the classes of jurists (ṭabaqāt al-fuqahāʾ) as a standard feature of the legal guild. In his view, they represented a traditionalist mode of argument for the legitimate authority of the legal madhhab. Drawing on a survey of ṭabaqāt works extant or mentioned in the sources, Makdisi argued that the Ḥanbalī madhhab was established by the turn of the tenth century with the Ṭabaqāt aṣḥāb Ibn Ḥanbal of Abū Bakr Aḥmad ibn Muḥammad al-Khallāl (d. 311/923), the Mālikī madhhab in the tenth century with the Kitāb al-Ṭabaqāt fī man yarwī ʿan Mālik wa-atbāʿihim min ahl al-amṣār of Ibn Abī Dalim (d. 351/962), the Shāfiʿī madhhab with the Kitāb fī ṭabaqāt al-Shāfiʿiyyah of Abū al-Ṭayyib Ṭāhir ibn ʿAbd Allāh al-Ṭabarī (d. 450/1058), and the Ḥanafī madhhab much later, with the Ṭabaqāt al-Ḥanafiyyah of Ṣalāḥ al-Dīn ʿAbd Allāh ibn Muḥammad al-Muhandis (d. 769/1367) and al-Jawāhir al-muḍiyyah by Ibn Abī al-Wafāʾ al-Qurashī (d. 775/1373).³⁵ While such works do embody a claim to authority, the formation of a legal madhhab may not necessarily be accompanied by the compilation of such a work by one of its prominent members. I argued that Makdisi overlooked notable ṭabaqāt works, particularly in the Ḥanafī madhhab, while also suggesting that a lost work by al-Ṭabarī, Kitāb Marātib al-ʿulamāʾ, was actually devoted to the classes of jurists and represented a conscious claim to religious authority on behalf of al-Ṭabarī’s own legal school, the Jarīrī madhhab.³⁶ In addition, I have argued that it had become a necessity for legal schools to have a manual of uṣūl al-fiqh, that is, jurisprudence, legal hermeneutics, or legal theory, in order to be recognized as authoritative. By the end of the ninth century, the Ḥanafī, Mālikī, Shāfiʿī, Ẓāhirī, and Jarīrī madhhabs all had substantial manuals of uṣūl al-fiqh, most of which are not extant. The Ḥanbalī madhhab, as well as the Imami and Zaydi Shiʿi madhhabs, appears to be a latecomer in this regard.³⁷

      The Sunni legal system exerted pressure on outside groups to conform or at least to respond to their increasing control over public and scholarly religious discourse. Makdisi already noted that in reaction to the increasing hegemony of the jurists, theologians “infiltrated” the legal madhhabs.³⁸ Muʿtazilah in general chose affiliation with the Ḥanafī madhhab, and Ashʿarī theologians opted for affiliation with the Shāfiʿī legal madhhab. I have argued that Twelver Shiʿah primarily chose affiliation with the Shāfiʿī legal madhhab.³⁹ In the late ninth and early tenth centuries, the Twelver or Imami Shiʿah affiliated with the