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Intisar A Rabb: Islamic Legal Minimalism: Legal Maxims and Lawmaking When Jurists Disappear

 

 Chapter 8
Islamic Legal Minimalism:Legal Maxims and LawmakingWhen Jurists Disappear
Intisar A. Rabb
*
 
1. Introduction
The crisis about which Hossein Modarressi wrote so trenchantly in
Crisis and
Consolidation
 never quite disappeared.
1
 Major questions plaguing the third/ninth
century Shīi community were recurring ones for the entire Muslim community. After Prophet Muhammad’s death—and in the absence of anyone who could claim his level of divinely sanctioned lawmaking, infallibility, and charismatic religious
leadership—who had the authority to lead the community of Muslims, the where-withal to guide on matters of belief and law? Such questions of the
imāmate 
 (witha little “i”—because not specific to Imāmī Shīi leadership) were central to ideals of Islamic political authority and religious leadership. They also touched closely on questions of law. An early community answered this question by developing a notion that would become the Shīī doctrine of the Imāmate. The mainstream segment of that com-munity looked to Alī and a series of subsequent Imāms for guidance initially as“ simply virtuous learned men (ulamā abrār  )”; the Imāmī Shīa later came to posit that these leaders necessarily possessed a measure of divinely designated authority and infallibility to provide sure guidance as to law and life.
2
 Another early community that would develop into mainstream Sunnīs settled on the first four caliphs and then scholar-jurists (mujtahid s) as the locus for religious authority.
3
 The Prophet had said that his “community would never agree upon error” and that “scholars are the heirs of the prophets.” For Sunnīs, these pronouncements meant that the scholarly collective—through consensus—had inherited both the authority and the infal-libility that the Prophet himself possessed.

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