Shaykh Muhammad al-Yaqoubi is one of the senior scholars of the Muslims from the Sunni tradition. In a lecture given at Zaytuna College in California, he expertly dismantles and destroys the theological basis if the so called Islamic State.
The book that this is based on is available on Amazon
Introduction and Important Note
The following was the response to a series of questions that I had relating to the fiqh of Imam Malik, with Dr Yasin Dutton. The exchange took place circa 1998, and it has been published so that people can benefit from the questions – but more importantly, the answers. It provides insight into matters that may appear apparent and forthright, yet have a great deal of legal thought hidden out of the sight of the layperson.
Jazak Allah Khayran Wassalaam
When you see the people of Madina doing something,
know that it is the sunna.
Zaid ibn Thabit
By Allah Almighty I will make it difficult for a man who
relates a hadith different from it (the ‘amal)
‘Umar ibn al-Khattab
Dr Yasin Dutton received his first degree, in Arabic, from Jesus College, Oxford, after which he spent some time teaching in North Africa. For many years he was the Imam of the Ihsan Mosque, Norwich, after which he returned to Oxford to study for a DPhil in early Islamic law. After receiving his doctorate he spent some time teaching in the Oriental Institute, Oxford, before moving to Edinburgh University, where he is now Senior Lecturer in Arabic and Islamic Studies.
This is a written reply to some questions that I received from Dr Yasin last year. They explicitly focus on the way of the people of Madina, that being what is now loosely described as the “Maliki madhab”. I first became aware of the ‘Amal of Madina after reading the article by ‘Aisha Bewley entitled The ‘Amal of Madina. Indeed, I was astonished that I had never come across a book of fiqh that looked at the amal of Madina as I had just read – none had either gone into detail nor addressed the issues pertaining to the amal as ‘Aisha so eloquently had written it – clear and to the point. It was very refreshing.. The article then prompted me to look further into the matter. The more I read, the more I became amazed that so many people knew so little about it and then when you did find people who knew about this, there was a lot of misunderstandings. As ‘Aisha writes:
This topic is one which is fraught with misunderstanding because most people have no idea what it means, and this difficulty in grasping the concept of ‘amal is a result from what has happened to the Muslims, because of the development and imposition of a statist methodology and mentality onto Muslim learning – a process which really began to solidify from the time of the Abbasid khalifate in Baghdad, about 250 hijra, a process which has been largely covered up or ignored, a process which has left the Muslims paralysed and unable to deal realistically or authentically with the situation in which they find themselves today.
As I continued to try to educate myself, I realised the unique importance attached to Madina – and that Qur’an and Sunna did not mean Qur’an and hadith as many people today mistakenly assume. Rather, the Sunna was something that was living – and is living, and that was being preserved and recorded accurately in Madina. The recording of the sunna here in Madina by its transmitters was as Ibn Taymiyya was to later write:
the soundest … in both transmission and opinion. Their hadith is the soundest of hadiths. The people of knowledge of hadith agree that the soundest of hadiths are the hadiths of the people of Madina and then the hadiths of the people of Basra.”
Indeed, as Imam Shafi’i was to comment that the book that was one of the earliest authority on the sunna was “the soundest book after the Qur’an” requires some investigation. Sunna does not mean hadith, and yet we see so many people think that this is so. To get to the sunna, one needs to investigate the ‘amal – for this cannot go unnoticed as it has done for so long.
These questions were are a result of the little study that I had made regarding the way Imam Malik recorded the ‘Amal in his book the Muwatta’ – a book that predated the hadith collections of Imams al Bukhari, Muslim, Tirmidhi, Abu Dawud, Ibn Majah etcetera. It is interesting to note the high rank that Imam Bukhari gives to the recordings of Imam Malik:
the actual hadith transmissions of Malik were considered to be the most trustworthy of any. Al-Bukhari said that the isnad, “Malik from Nafi’ from Ibn ‘Umar”, is “the golden chain of authority”. Whenever Bukhari has a hadith from Malik in any section of his Sahih, it is Malik’s transmission which he puts first.
These questions were in no way to attack Imam Malik, but rather they were asked in the most direct way so that questions that were the most troublesome to me, could be answered in the like manner.
For those interested, the ‘Aisha Bewley site is:
which contains many interesting and thought provoking articles related to the subject matter at hand.
Henceforth, AM denotes myself [Aftab Malik] and DYD denotes Dr Yasin Dutton.
AM: From the standpoint that there does not exist such a thing as the ‘Madhab’ of Imam Malik, does this derive from the belief that Malik did not ‘invent’ or ‘formulate’ what he believed to be the practice of the Messenger of Allah? In other words, Malik saw that the Prophetic Sunna was actually living in Madina in the form of ‘Amal, and as a result, there was no real need to theoretically piece together something when it had not been lost. Whereas Shafi’ opines that the only authentic, authoritative and genuine basis of the Sunna is hadith going back to the Prophet. Malik considers Sunna not only merely based upon a hadith, but must also be borne out of practice of the Muslims. We are told that Malik relied wholly in the generally agreed practice of Madina and on the consensus of the Scholars of Madina. If this is a correct understanding, please can you help me clarify the following observations, In sha’ Allah.
DYD: I think the point here is that Malik was happy with the din as it was practiced in Madina at his time – or, at least, shortly before his time. It was only later that something called the “Maliki madhhab” came into existence. Malik, however, does refer to “the madhhab of the people of Madina”, and, to that extent, there is something that can be referred to loosely as the “madhhab of Madina” (as, indeed, one could also refer to a “madhhab of Kufa”).
The whole point about hadith v. sunna is the key, in my opinion, to understanding this whole business. The main point to be aware of is that,contrary to al-Shafi’i’s views, Malik sees the sunna not as a textual inheritance as an active inheritance – active in the actions of the Muslims, especially of course in Madina, though not exclusively so. Whereas hadith is a textual record of various things, some of which may, although completely authentic, not actually represent normative sunna. So the question arises of how to arrive at an accurate understanding of the weighting of certain hadith, so that one can know whether or not they actually represent the normative sunna of the Prophet, salla-llahu ‘alayhi wa-sallam. The existence of an authentic hadith is not enough by itself: it needs to be understood in the complete context of how the Prophet, salla-llahu ‘alayhi wa-sallam, and the Companions put the din into practice.
AM: From reading the Muwatta’, can one soundly state that Malik does not consistently adhere to the principle of the priority of hadith from the Prophet of Allah over hadith from the Companions and others.
DYD: This is not strictly speaking true. He will consider that some authentic Prophetic hadith should not actually be acted upon because of some other stronger opinion recorded by a certain Companion or Companions which is understood to be a better record of the sunna of the Prophet, salla-llahu ‘alayhi wa-sallam.
AM: Does Malik disregard the hadith from the Prophet of Allah, salla-llahu ‘alayhi wa-sallam when they are not in conformity with the view that he prefers? An example to cite is where he reports ahadith from the Prophet salla-llahu ‘alayhi wa-sallam approving the practice of Tamttu at the Hajj, and a hadith from a companion stating that the practice was forbidden by ‘Umar radi Allah an hu. It seems that Malik prefers the ahadith from the Companions over and against the ahadith from the Prophet.
DYD: No. This is not the point at all. Malik is not interested in opposing some “view that he prefers” (as if this is his own personal opinion) to hadith. Rather, it is a question of recognizing how the community had lived Islam in Madina up until his time. Basically, the argument is that they had a better understanding of the din than those who came later and they would not have agreed on certain practices unless they had good reason for doing so.
[As for your example] this, again, is a misrepresentation of the matter. If we look in the Muwatta’, we find that Malik does not record “ahadith” from the Prophet approving the practice of tamattu’ during Hajj and then a Companion hadith stating that the practice was forbidden by ‘Umar radi Allah an hu. Rather, he records one hadith which includes reference to both the Prophet, salla-llahu ‘alayhiwa-sallam, doing tamattu’ on one occasion and ‘Umar’s radi Allah an hu judgement that one shouldn’t do that. But it is quite clear from the rest of the section that tamattu’ is acknowledged as a possibility.
What is at issue is whether it is preferable to do this under normal circumstances. Talking in later madhhab-terms, the “Malikis” said it was best to do ifrad, the Shafi’is said it was best to do qiran, and the Hanafis said it was best to do tamattu’. So although it might seem that tamattu’ is the “right” opinion, one has to be aware that at least two out of the three early madhdhabs did not take that view. So really the question one should be seeking to understand is “Why not?” Again, it is only correct adab to assume that they had a good reason for taking the view they did.
AM: I am surprised to read that Malik fixes for marriage a maximum amount, despite the hadith where the Prophet, salla-llahu ‘alayhi wa-sallam said “I marry you to her on the amount of the Qur’an you know”. Can you explain this – since seems like an apparent contradiction?
DYD: I do not have all the facts at my finger-tips, but you must understand that, as the expression goes in English, “The exception proves the rule.” Nobody denies these vignettes from the life of the Prophet, salla-llahu ‘alayhi wa-sallam, but the ‘Ulama’ are aware of other information and hadiths (including Qur’anic verses) which suggest that the norm is some amount of money. Therefore the question becomes, what is the minimum amount of money that be considered a worthwhile sum so that it can be acceptable as an amount for dowry? Malik came to the conclusion (as far as I recall) that this amount was what you could get your hand cut off for, therefore he fixed the minimum for dowry at the nisab for theft. Abu Hanifa also took a relatively similar line of reasoning, as far as I recall. Why, then, should two great ‘alims, representing the two main schools of Islamic law in the early period, i.e. that closest to the Prophet, salla-llahu ‘alayhi wa-sallam, agree that the minimum amount of dowry be specified if there was not some good reason? And they knew better about the hadith than we do. (At the same time, of course, it is well known that there were other scholars who did not fix a minimum limit to dowry.)
AM: ‘Umar, radi Allah an hu, possesses a high position among the legal authorities according to Malik, nevertheless, he does not approve of the practice of ‘Umar radi Allah an hu, when it seems that it does not agree with his own view. To be specific, Malik does not approve the act of ‘Umar’s radi Allah an hu, descending from the pulpit for prostration. He [Imam Malik] declares, “This is not the practice that the Imam should descend and prostrate himself, when he recites the chapters requiring prostration from the pulpit”.
DYD: Again, we are using the wrong “language” here. Of course ‘Umar radi Allah an hu has a high position in Malik’s eyes, but that doesn’t mean that one should automatically accept everything related from ‘Umar radi Allah an hu. Similarly, it is not a question of whether or not ‘Umar’s radi Allah an hu practice agrees with Malik’s own view. The point is, what did the majority at the time of ‘Umar radi Allah an hu and after him down to Malik’s own time take as the norm on this point? Malik is interested in the norm, not in his own personal opinion (although, of course, on some points where there is no norm, then he may well have to come up with some personal opinion as a man of knowledge).
AM: Against the practice of Abu Bakr and Abd Allah bin ‘Umar, radi Allah an huma, it appears that Malik favours his own practice and says, “We do not like this practice; rather we say our practice is not based on this [practice].”
DYD: Again, this is mistaking the idea of “practice” in the sense in which Malik is using it.
AM: There are many examples in the Muwatta’ where ahadith are disregarded when there is a clash between them and the practice of Malik.
DYD: It is not about “disregarding” hadiths, or about Malik’s own “practice”, or even ra’y. Rather, it is about a different type of understanding of how to arrive at the real sunna of the Prophet, salla-llahu ‘alayhi wa-sallam, and “sunna” is a word that denotes action rather than texts, whereas “hadith” is a term that denotes texts rather than action.
AM: We see from where Imam Malik’s views are derived from in the Muwatta’ itself:
1. The first area is that of the agreed opinions of Imam Malik’s group, which we are told by Imam Malik is taken from “those whom I like”.
DYD: Again, please don’t mistake what he means by “those I like”. It is not about personal opinion in the sense which some people seem to understand the phrase. He is referring to people he knows personally, whose knowledge and behaviour he trusts, and whose understanding of the uncertain, disputed points in the din he prefers to that of others because of his exactitude in who he would take his learning from. One must understand that these statements [from the Muwatta] are not said lightly.
2. The second area is that of the opinions of the scholars of Madina whom Malik liked and the unanimous opinions of the scholars of the past and the present. In his own words, “That is the opinion on which the leaders of the past and of the present have agreement” and the final area is from what seems to be the actual practice “And that is the agreed practice.”
Thus taking into the above considerations, is it safe to conclude that the term sunna in the Muwatta’ actually comes to mean the actual practice prevalent in Madina?
DYD: No, it isn’t! Sunna – in the sense of what has its origin in the time of the Prophet, salla- llahu ‘alayhi wa-sallam – is only part of ‘amal. There is another part of ‘amal which is post-Prophetic, and necessarily so, since not all details were decided in the time of the Prophet, salla-llahu ‘alayhi wa-sallam. Also, there are different levels of agreement on different points of ‘amal. One cannot assume that everything is “agreed upon”. Nevertheless, where there is agreement on a point in Madina, that is a very strong argument.
AM How about concluding that the decisions, statements and opinions of all the previous authorities do not necessary constitute sunna according to Malik?
DYD: Quite right. Nobody says they do.
AM: According to Malik, consensus is what is agreed upon only by the jurists of Madina and nobody else enters into the circle. Is that fair?
AM: The point to be determined is whether the word ‘indana means all the scholars of Madina, or just a group among whom Malik belonged.
DYD: This depends very much on the phrase being used. There is a difference between, for example, as-sunna ‘indana and al-amr ‘indana, and whether or not there is some added expression referring to consensus or not. What seems to be clear, though, is that when Malik uses the phrase ‘indana it refers to the situation in Madina. But sometimes the dominant opinion in Madina, and that acted upon by the authorities, might only be a 60% view compared to another 40% view also held in Madina. So not everything is based, or indeed claimed to be based, on consensus.
AM: Malik says, “That is the best that I heard.” Does this then not show that the opinion which he preferred on that particular issue was one out of many other opinions held by other scholars of Madina which he did not like?
DYD: Yes, sometimes (although not always “many” others)
AM: Then can I safely say that Malik’s choice of one opinion out of many and on this particular opinion of scholars becomes equivalent to the “agreed practice”. [al amr al mujtamai ealaih] ?
DYD: No, because of the reasons explained above. Not everything is claimed to “agreed upon” amongst the scholars of Madina. On the contrary, Malik is very well aware of what they were not agreed upon (just as he was also aware of what they were agreed upon).
AM: Al Rabi’ claimed that it was consensus of the people [ijtamai al naas] that there are 11 prostrations in the Qur’an, whereas Shafi’i said, “You must not say it is consensus unless all scholars are contacted and when informed that there was consensus of the people on what you claim, they replied in the affirmative”.
DYD: This is al-Shafi’i’s viewpoint, but you can’t expect everyone to agree with it, al-Shafi’is view is that of a “universalist” type of consensus, but you can’t expect everyone to agree with it.
AM: What is interesting is that which al Rabi’ continued to say after Imam Shafi’is comment. To this, al Rabii exclaimed, “The consensus of the people in fact, means only the opinion of those scholars who agreed with Malik though others differed”. Is this really acceptable?
DYD: This is a clear misrepresentation of Malik’s view. If this is the al-Rabi’ of al-Shafi’i’s Umm, then, as far as I recall, this actually refers to al-Shafi’i’s imaginary “Maliki” interlocutor, and this imaginary character does not always put the arguments of the Madinans correctly.
AM: The term ahl al ‘ilm bibaladins does not mean that all the scholars of Madina held that opinion unanimously. It appears in the Muwatta’ that Malik was only speaking of those scholars who shared his opinion [‘ala hadha man arda min ahl al ‘ilm].
DYD: Again, a false assumption.
AM: The term al-sunna ‘indana, or al amr ‘indana may mean the practice or opinion according to the circle of Malik, or according to Malik himself. Regarding an issue, he may say, “The practice according to us on which I find [agreement among] the scholars of our city”. Here, Malik has distinguished between “the practice according to us”, and the “practice according to the scholars of Madina”.
DYD: Possibly, but you would have to back this up by the proof of several examples. He could just be mentioning the two expressions together to emphasise one particular meaning.
AM: On another occasion, Malik uses al amr ‘indana, and then at the end of he issue he adds ‘ala hadha adraktu man arda min ahl al ‘ilm. Here he has identified his opinion with the opinions of those scholars who are in harmony with him over this issue.
DYD: “in harmony with him”, yes, but for the reasons outlined above.
AM: Malik says that there is only 11 prostrations in the Qur’an. Does this mean that the term al amr ‘indana was his personal opinion; even when he opposed all the authorities of Madina and held a solitary doctrine?
DYD: “opposed all the authorities of Madina and held a solitary doctrine”?! Highly unlikely, I’m afraid! This would be to accuse Malik of gross inconsistency in his use of terminology in the Muwatta’, which I very much doubt is likely.
AM: Ibn Hazm criticised Malik and accused him of failing to follow the practice of Abu Bakr and ‘Umar. He said that Malik reported only 10 decisions of Abu Bakr in the Muwatta and actualy opposed 8 of them.
DYD: This doesn’t surprise me from Ibn Hazm! But what you have to remember is that Ibn Hazm was coming from his own particular angle, and, in his eyes, practically everybody else was wrong! But this doesn’t mean that they were. In fact, there is plenty to criticise Ibn Hazm about if one wants to get into that sort of thing.
AM: It becomes apparent that Malik opposed not only the ahadith, reports and opinions, but also the authorities from among the companions, the successors and his own contemporaries. The authorities from among the companions such as ‘Umar b al Khattab, Said bin Abi Waqqas, Abd Allah b ‘Umar and Anas b Malik were the most reliable. Disregarding all of them, Malik held a contrary opinion on more than one occasion.
DYD: One absolutely cannot use phrases like “disregarding all of them” in this context. He categorically did not “disregard all of them” in this out-of-hand way that is being suggested here. Either one wants to understand what Malik was doing and/or saying, or one doesn’t. If one does, then one must not take this “blanket-judgement” approach or one will never understand anything. What the above means is that Malik had different criteria for accepting or rejecting material than the one that is being assumed.
AM: My sentiment that Malik declared consensus even when in fact, it was his own personal opinion is shared with Shah Wali Allah. It were on such occasions that Shah Wali Allah said that the idea of consensus in the Muwatta’ was not the consensus of all he scholars of Madina; rather it was the opinion of some of the teachers of Malik or the personal opinion of Malik himself. Does this then not show that Malik was not bound to follow the practice of the companions nor the practice of his own authorities, nor even the practice of Madina; but he followed what he considered the practice ought to be?
DYD: Shah Wali Allah could have said what he said without having to mean what you are implying here. It is perhaps pertinent to note here that when Malik uses the term “which we are agreed upon here”, it seems clear that he was often referring to a “95%” agreement, or something along those lines, rather than a “100%” agreement across the board. However, there are many occasions when such statements are emphasised by an expression such as “which there is no disagreement on here”, in which case one can assume a “100%” agreement. (For more on this, see the relevant part of Chapter 3 in my “Origins of Islamic Law”, where I discuss ‘Umar Abd-Allah’s research on the meaning of these terms.)
AM: Turning to the letter written by Layth b. Sa’d to Malik. [The letter was written as a reply to Malik’s letter to Layth, which sought to give him counsel not to judge by other than the ‘amal of Madina. The letter itself, sheds some light on the way Malik viewed “consensus”]. Does this not seek to remind Malik that many differences existed among the Successors? He even goes on to highlight some examples of the controversial issues among the Madinan scholars on the point that if the wife chooses to remain with her husband no divorce will occur. Layth points out that the consensus of the people of Madina was contrary to Malik’s claim. He also pointed out that all the people of Madina had agreement on the prayer for rain before the prayer ‘ld, while Malik held a contrary solitary opinion. In other words, Malik did not accept the agreement of the people or scholars of Madina. It appears that he opposed it and claimed consensus or agreement of the people or the scholars of Madina, when in fact, this consensus was his own opinion, or at most, it was supported by a few scholars of Madina.
DYD: The exact nature of the examples quoted here is not clear to me but it does seem to me that one should check al-Layth’s letter again. As far as I recall, al-Layth in fact makes a distinction between ‘amal on which there was consensus in Madina, and ‘amal on which there was not consensus. He also goes on to say words to the effect that he is the first to follow that on which there was consensus. (And, incidentally, al-Layth was one of the people who used to do the prayer holding his arms by his sides!) [ For more on al-Layth’s letter, please see Chapter 3 of my “Origins” as well.]
AM: But did not Layth point out to Malik in the letter with numerous examples, that what he claimed to have “agreement” or “practice” of “our town” [meaning Madina], was in fact his own opinion? And rather than consensus or agreement or the general practice of people on various issues, in reality there existed difference and disagreement. Layth also discloses many facts which throw light on the point that Malik did not invariably follow the actual practice and the consensus of the people of Madina. Rather, Malik’s claim of following the practice and consensus does not hold water. Layth’s letter implied that he did not represent the actual practices or consensus of Madina and what he presented was his normative practice. Layth, Abu Yusuf, al Shaibani and ash Shafi’i were very much upset to hear the perceived opinions of Malik described as the practice of Madina, when such were not practiced even by a minority of the Madina people.
DYD: This is a distortion of the Madinan position: have you got evidence that Abu Yusuf, etc, claimed that the ‘amal of Madina was ever only the practice of the minority of the Madinans? I would like to see it if you have. This is a distortion of the Madinan position: where is the evidence that Abu Yusuf, etc, claimed that the ‘amal of Madina was ever only the practice of the minority of the Madinans? I would like to see it if there is any.
AM: Citing many examples and quoting many leading authorities of Madina, Layth showed to Malik that he differed widely with all of them and not infrequently held solitary opinions without any support from the Madinan scholars, and authorities.
DYD: “Solitary opinions”?! Evidence? “Solitary opinions”?! I am rather surprised at this and would want to see the evidence for it.
AM: From the names cited by Layth in his letter, it appears that Malik had differences on almost all issues either with one authority or the other.
DYD: That is quite possible. Differences of opinion from someone somewhere, is very common in the fiqh-literature. But how are these differences to be weighted? That is quite possible. Differences of opinion from someone somewhere, is very common in the fiqh-literature. But how are these differences to be weighted?
AM: In this letter, Layth pointed out to Malik that what he claimed to as agreement or practice of the people of Madina, in fact, was his own opinion; and instead of agreement or consensus or the agreed practice, in reality, there existed differences an disagreement.
DYD: I have explained this already.
AM: On the issue of fasting for six days after the Fitr, Malik does not like the current practice of the people of Madina. It seems that the ‘Amal of Madina was that people would fast for those days. Malik did not approve of it, and called the practice bida’. Qadi Iyad, describing many reasons why Malik opposed this says that Malik did not like it n hence it was his personal opinion as many later Maliki scholars said likewise [i.e. Mutraf b. ‘Iyad]
DYD: What is actually recorded in the Muwatta’ is (following the Bewley translation):
Yahya said that he heard Malik say, about fasting for six days after breaking the fast at the end of Ramadan, that he had never seen any of the people of knowledge and fiqh fasting them. He said, “I have not heard that any of our predecessors used to do that, and the people of knowledge disapprove of it and they are afraid that it might become a bid’a and that common and ignorant people might joint to Ramadan what does not belong to it, if they were to think that the people of knowledge had given permission for that to be done and were seen doing it.
[END OF QUOTE]
That seems to me to carry a rather different “weighting” than that which you have given it. It is not described as “the current practice of the people of Madina” – although one can assume that some people, if not actually doing it, were at least talking about it – nor does he call the practice “bid’a”. Rather, he says that he is afraid it will become a bid’a, i.e. if everybody starts doing it and suggesting that that is when you should do it, rather than leaving the matter open to individual circumstance and choosing any days of Shawwal as a voluntary choice rather than having to concentrate on just the first six days after the ‘Id.
AM: Shafi’i in fact accused Malik of not following what he himself had recorded, he says on a certain point: “You claim to follow the people of Madina but at the same time you oppose whatever has been reported from them”. On a certain point, Shafi’i portrays the actual practice of the Madenan people and also quotes many great authorities of the past and of the present and says “You have opposed the leaders .. and the actual practice,” and then concludes
“There is no creature who so strongly opposes the people of Madina as you do”.
DYD: In brief, in order to understand these matters, one has to understand all sides of the argument, and see where each party is “coming from”. Where different assumptions are employed, different conclusions will be reached.
AM: What do you say to the opinion of Malik, in which held that two partners in business had not to pay Zakat unless the share in the commodity of each partner reaches the limit on which Zakat is essential. Against this, the authorities of Madina like, ‘Umar, ‘Umar bin Abd al Azziz held that they had to pay Zakat. Yahya b. Saeed also held the same opinion. Here Malik has opposed the most reliable authorities among the successors. He also opposed Yahya b Saeed, one of the most respected authorities among his teachers.
DYD: I think you must be very careful about “personalising” this whole matter. Malik may seem to be “opposing” certain individuals on certain points, but one can assume that there were many other ‘ulama’ that he was not opposing on exactly these same points. Indeed, it is part of his honesty and general respect for knowledge that he is mentioning the existence of these other views so that people will understand the nature of the debate and the issues involved.
The Origins of Islamic law
– The Qur’an the “Muwatta’ and Madinan ‘Amal
Author: Yasin Dutton (University of Edinburgh)
Publisher: Curzon Press Hardcover – 288 pages (January 1999);
This work considers the methods used by Malik in the “Muwatta'” to derive judgements of the law from the Qur’an and is thus concerned on one level with the finer details of Qur’anic interpretation. However, since any discussion of the Qur’an in this context must also include considerations of the other main sources of Islamic law, namely the “sunna”, or normative practice, of the Prophet; this latter concept, especially its relationship to the terms of “hadith” and “‘amal” (“traditions” and “living tradition”), also receives considerable attention. In many respects, this book is more about the history and development of Islamic law than it is about the science of Qur’anic interpretation.
The book questions the hitherto accepted frameworks of both the classical Muslim view and the current revisionist western view on the development of Islamic law. It also deals specifically with the early development of the Maliki school of jurisprudence, as it demonstrates in detail the various methods used, both linguistic and otherwise, in interpreting the legal verses of the Qur’an.
This work should be of value to anyone interested in the underlying bases of Islamic law and culture: those involved in the studying and teaching of Islamic studies, both at undergraduate and research level; and to those studying the relationship between orality and literacy in ancient societies and the writing down of “ancient” law.
TABLE OF CONTENTS:
A translation of the classical manual of Islamic Sacred Law (Shari’ah) `Umdat as-Salik by Ahmad ibn Naqib al-Misri (d. 769/1386), in Arabic with facing English text, commentary and appendices edited and translated by Nuh Ha Mim Keller.
First published 1991, second printing 1993 (ISBN 0-9638342-0-7)
Revised Edition 1994
ISBN 0-9638342-2-3, CIP 94-19018, hardcover, 9.5″x6.5″, 1254 pages.
Information about the Text
‘Umdat al-Salik wa ‘Uddat al-Nasik (Reliance of the Traveller and Tools of the Worshipper) is a Sunni manual of Fiqh (Islamic jurisprudence). It is based mainly on the fiqh conclusions of Imam al-Nawawi, the great Hadith master (hafiz) and Shafi’i scholar of jurisprudence (mujtahid). The appendices form an integral part of the book and present original texts and translations from classic works by al-Ghazali, al-Nawawi, al-Qurtubi, al-Dhahabi, Ibn Hajar and others, on topics of Islamic Law, faith, spirituality, Qur’an exegesis and Hadith sciences, making the work a living reflection of Islam as understood by some of its greatest scholars. It has also biographical notes about every person mentioned (391 biographies), bibliography of each work cited (136 works), and a detailed subject Index (95 pages). Of the 136 works drawn upon in its commentary and appendices, 134 are in the original Arabic. The sections and paragraphs have been numbered to facilitate cross-reference.
© Nuh Ha Mim Keller 1995
I began translating Reliance of the Traveller in Jordan, out of personal need for a shari’a manual, to know and practice Islam in my own life. Making it available to others was an afterthought that came to me after I had set out to produce a work in which I could look up the questions that I needed to know without having to memorize it all.
I had moved to Jordan in 1980, and lived near Amman in Suwaylih, with many students and teachers of the University of Jordan’s shari’a college. That first year, I heard a lot of well-meaning religious advice that one might have preferred to know rather than be told, a perhaps not unfamiliar feeling to many new Muslims. During this period I began to translate the meanings of the Qur’an using other English translations, and then read through the Muhammad Muhsin Khan’s interpretation of Sahih al-Bukhari, trying to record every Islamic ruling I could find in the hadith. In the end, I realized that there was a tremendous number of questions in my life that I did not have Islamic answers for.
At the end of summer 1981 I moved to Huwwara, a village in the north of Jordan, both to improve my spoken Arabic and to work on a master’s degree in educational psychology while teaching English at the University of Yarmouk, in nearby Irbid. The move to the north led to my meeting people who knew traditional Islamic ulama in Damascus, among them, Sheikh ‘Abd al-Wakil al-Durubi, who I made the acquaintance of in his bookshop off the courtyard of the Darwishiyya mosque, where he was imam.
In Sheikh ‘Abd al-Wakil, I felt I had found someone who really knew Islam, and he was the one who eventually inspired me to try to translate a fiqh manual. I had been a commercial fisherman in the North Pacific for seven seasons, and I remembered a book the captain used to keep in the wheelhouse near the charts, a book of bearings, with the precise compass directions between one point of land and another in Alaskan waters. This was the sort of work I hoped to produce in shari’a, a book that I could open up and find accurate, substantive ethical knowledge to apply in my life.
Sheikh ‘Abd al-Wakil had such knowledge, and I came to produce a book that would try to represent his kind of traditional learning. In the following eleven years of my association with him, I never asked him a question that he didn’t know the answer to, and I never asked him why he said so except that he would produce a text for it from a recognized shari’a work. It was something I had not been aware of before. When one meets a universsity professor of shari’a, one gets the impression of a senior student who is but more widely read than the students he teaches; but when one meets a traditional alim, one gets the impression of someone who knows the actual content of the shari’a by having learned and memorized, in a word, someone with ‘ilm or “knowledge.”
A second difference was one of attitude. Traditional sheikhs like Sheikh ‘Abd al-Wakil impressed me deeply as Muslims, men whose concept of spirituality was to learn the divine command, hold it absolutely sacred, and to do their utmost to live it, outwardly and inwardly. They had apparently taken this attitude from the living example of their own teachers, and so on, back to earliest times. For example, Sheikh ‘Abd al-Wakil was a genuinely humble man, not out of ignorance of his level of learning (which was arguably above that of a mufti), but rather because Allah had ordered him to be humble.
I once made a remark to him about someone who gave one of the notoriously lax fatwas of the present century, saying that one had to respect his opinion, since he was an alim. “An alim?” he said, looking incredulous. “The first thing an alim knows is that the next world is more important than this one.” He was totally what he taught in this respect, and his approach of ‘amal bi ‘ilm, “living what one knows” was also something I later sought to preserve in my translation.
In autumn of 1982, I took the Shafi’i fiqh manual Kifayat al-akhyar (The sufficiency of the good) to Sheikh ‘Abd al-Wakil and asked him what he thought of translating it. He said that it often mentioned several positions on an issue without telling which was the most reliable for fatwa. He suggested instead a copy of `Umdat al-salik (Reliance of the Traveller), and I bought it from him. Working through the translation, the knowledge-based shari’a approach captured my imagination, and I was to add several appendices on questions not treated in the text, including biographies of all the scholars mentioned, not only to help Muslims know their scholars, but also to clarify, by actual examples, the difference between the present level of Islamic scholarship and the past.
My first acquaintance with fiqh al-aqalliyyat or the jurisprudence of [Muslim] minorities was in a discussion last year with Dr. Taha Jabir al-Alwani at the International Institute of Islamic Thought in Herndon, Virginia. I understand from him that it is a new area of Islamic jurisprudence, or rather a new name for an old area of jurisprudence, that used to be called fiqh al-nawazil, or “jurisprudence of momentous events”. The Maliki madhhab (school of jurisprudence) has among the most well-known literature for this, perhaps because of the experience of the predominantly Maliki populace of the Muslim West in losing Andalus (Islamic Spain) to the Christians. There were works, for example, on nawazil ahl al-Qurtuba, or the “momentous events of the people of Cordova”, the nawazil of Such-and-such a city, and so forth. Their scholars gave fatwa, the formal Islamic legal opinion of a mufti, about what Muslims could legally do in such circumstances, fatwas found in such works as the Maliki scholar Ahmad al-Wanshirisis twelve-volume al-Miyar al-mughrib an fatawa ulama Ifriqiya wa al-Andalus wa al-Maghrib [The standard, expressing the fatwas of the scholars of Tunisia, Andalus, and Morocco], and other works.
We find similar types of fatwas, in the Hanafi school, in works such as Ibn Abidin’s famous Hashiya [Commentary] on Haskafi’s al-Durr al-mukhtar[The choice pearls], or the al-Fatawa al-Hindiyya [Fatwas of India], under the juristic rubric of ma taummu bihi al-balwa, or that which is of widespread affliction, meaning circumstances that do not accord with the shari’a but necessarily affect so many people that allowance has to be made for them, for reasons to be mentioned below. The Hanafi school is particularly rich in such legal applications out of necessity, for it governed the majority of Muslims for the greater part of Islamic history, including the Abbasid and Ottoman periods, and its muftis dealt with many many situations in many different lands.
How is it possible that the ruling of Allah could vary from place to place?
One scholarly answer is found in the Islamic legal concept of darura or “vital interest” that sometimes affects the shari’a rulings otherwise normally in force. Although the fundamental basis of Islamic law is that it is valid for all times and places, Allah Most High, in His divine wisdom, stipulates in Surat al-Hajj that “He has not placed any hardship upon you in religion” (Qur’an 22:78).
Now, the beginning of this verse is an exhortation to fight as hard as one should in jihad, which will normally result in the death of some of the combatants, a considerable hardship, but necessary to protect the religion and interests of the community as a whole. So the verse does not mean there will be no hardship in the religion at all, but rather lifts the hardship of things which are beyond the Muslims strength, which, if they were continually to bear them, would result in harm to vital interests such as their religion, persons, or property.
This means that for Muslims living as minorities, as well as for others, exceptional shari’a rulings may sometimes be effected when not to effect such exceptions from the normal rulings would vitiate a darura or “vital interest”. Among the interests usually enumerated as vital in the science of usul al-fiqh or “bases of jurisprudence” are five: one’s religion (din), person (nafs), having offspring (nasl), property (mal), or reason (aql). The effect ofshari’a rulings upon these vital interests in particular circumstances could conceivably differ in lands of Muslim minorities from those of Muslim majorities.
What has been attempted in the modern jurisprudence of minorities, is to examine past fatwas given in such exceptional circumstances, identify the interests in which they were given, the methodological principles of Islamic jurisprudence (al-qawaid al-fiqhiyya) used, the Qur’an and hadith primary texts cited as evidence–and draw conclusions relevant today. In this particular, it is worth noting again that fatwas may vary with time, place, and those to whom they are given, in view of the human advantages and disadvantages that the shari’a must take into consideration because of being universally applicable to every place and time.
For example, in reference to whether Muslims can live in Western countries, I pointed out to Dr. Taha that al-Wanshirisi mentions in his Miyar al-mughrib a fatwa given by a Moroccan scholar after the fall of Andalus that it is not permissible for a Muslim to remain in a non-Muslim land where shari’a does not rule “for even a single hour of a single day”. Dr. Taha replied that such fatwas were given in view of the need of the Muslim polity to sever all ties and ways of compromise with the non-Muslim occupiers. This was also the main interest, he said, in fatwas given by Maliki scholars at the beginning of this century of the unlawfulness of North-African Muslims taking French citizenship, at a time when France wanted to buttress its hegemony over the area by offering citizenship and passports to Muslims; whereas today, North Africans living in France and elsewhere may very well have a valid need for taking such a foreign nationality.
We should remember, among the other points mentioned above, that issuing a fatwa on the exceptional rulings we have mentioned (or interpreting the present relevance of past fatwas given under such exceptional circumstances) requires a mufti qualified to do ijtihad–I have mentioned elsewhere the qualifications needed by such scholars, and in consequence, how rare they are–and is a path to hell for anyone else. Secondly, an exception made to protect a “vital interest” (darura) cannot exceed the minimum necessary to obviate harm to that interest.
© Nuh Ha Mim Keller 1995
The word madhhab is derived from an Arabic word meaning “to go” or “to take as a way”, and refers to a mujtahid‘s choice in regard to a number of interpretive possibilities in deriving the rule of Allah from the primary texts of the Qur’an and hadith on a particular question. In a larger sense, a madhhab represents the entire school of thought of a particular mujtahid Imam, such as Abu Hanifa, Malik, Shafi’i, or Ahmad–together with many first-rank scholars that came after each of these in their respective schools, who checked their evidences and refined and upgraded their work. The mujtahid Imams were thus explainers, who operationalized the Qur’an and sunna in the specific shari’a rulings in our lives that are collectively known as fiqh or “jurisprudence”. In relation to our din or “religion”, this fiqh is only part of it, for the religious knowledge each of us possesses is of three types. The first type is the general knowledge of tenets of Islamic belief in the oneness of Allah, in His angels, Books, messengers, the prophethood of Muhammad (Allah bless him and give him peace), and so on. All of us may derive this knowledge directly from the Qur’an and hadith, as is also the case with a second type of knowledge, that of general Islamic ethical principles to do good, avoid evil, cooperate with others in good works, and so forth. Every Muslim can take these general principles, which form the largest and most important part of his religion, from the Qur’an and hadith.
The third type of knowledge is that of the specific understanding of particular divine commands and prohibitions that make up the shari’a. Here, because of both the nature and the sheer number of the Qur’an and hadith texts involved, people differ in the scholarly capacity to understand and deduce rulings from them. But all of us have been commanded to live them in our lives, in obedience to Allah, and so Muslims are of two types, those who can do this by themselves, and they are the mujtahid Imams; and those who must do so by means of another, that is, by following a mujtahidImam, in accordance with Allah’s word in Surat al-Nahl,
“ Ask those who recall, if you know not ” (Qur’an 16:43),
and in Surat al-Nisa,
“ If they had referred it to the Messenger and to those of authority among them, then those of them whose task it is to find it out would have known the matter ” (Qur’an 4:83),
in which the phrase those of them whose task it is to find it out, expresses the words “alladhina yastanbitunahu minhum“, referring to those possessing the capacity to draw inferences directly from the evidence, which is called in Arabic istinbat.
These and other verses and hadiths oblige the believer who is not at the level of istinbat or directly deriving rulings from the Qur’an and hadith to ask and follow someone in such rulings who is at this level. It is not difficult to see why Allah has obliged us to ask experts, for if each of us were personally responsible for evaluating all the primary texts relating to each question, a lifetime of study would hardly be enough for it, and one would either have to give up earning a living or give up ones din, which is why Allah says in surat al-Tawba, in the context of jihad:
“ Not all of the believers should go to fight. Of every section of them, why does not one part alone go forth, that the rest may gain knowledge of the religion and admonish their people when they return, that perhaps they may take warning ” (Qur’an 9:122).
The slogans we hear today about “following the Qur’an and sunna instead of following the madhhabs” are wide of the mark, for everyone agrees that we must follow the Qur’an and the sunna of the Prophet (Allah bless him and give him peace). The point is that the Prophet (Allah bless him and give him peace) is no longer alive to personally teach us, and everything we have from him, whether the hadith or the Qur’an, has been conveyed to us through Islamic scholars. So it is not a question of whether or not to take our din from scholars, but rather, from which scholars. And this is the reason we have madhhabs in Islam: because the excellence and superiority of the scholarship of the mujtahid Imams–together with the traditional scholars who followed in each of their schools and evaluated and upgraded their work after them–have met the test of scholarly investigation and won the confidence of thinking and practicing Muslims for all the centuries of Islamic greatness. The reason why madhhabs exist, the benefit of them, past, present, and future, is that they furnish thousands of sound, knowledge-based answers to Muslims questions on how to obey Allah. Muslims have realized that to follow a madhhab means to follow a super scholar who not only had a comprehensive knowledge of the Qur’an and hadith texts relating to each issue he gave judgements on, but also lived in an age a millennium closer to the Prophet (Allah bless him and give him peace) and his Companions, when taqwa or “godfearingness” was the norm–both of which conditions are in striking contrast to the scholarship available today.
While the call for a return to the Qur’an and sunna is an attractive slogan, in reality it is a great leap backward, a call to abandon centuries of detailed, case-by-case Islamic scholarship in finding and spelling out the commands of the Qur’an and sunna, a highly sophisticated, interdisciplinary effort by mujtahids, hadith specialists, Qur’anic exegetes, lexicographers, and other masters of the Islamic legal sciences. To abandon the fruits of this research, the Islamic shari’a, for the following of contemporary sheikhs who, despite the claims, are not at the level of their predecessors, is a replacement of something tried and proven for something at best tentative.
The rhetoric of following the shari’a without following a particular madhhab is like a person going down to a car dealer to buy a car, but insisting it not be any known make–neither a Volkswagen nor Rolls-Royce nor Chevrolet–but rather “a car, pure and simple”. Such a person does not really know what he wants; the cars on the lot do not come like that, but only in kinds. The salesman may be forgiven a slight smile, and can only point out that sophisticated products come from sophisticated means of production, from factories with a division of labor among those who test, produce, and assemble the many parts of the finished product. It is the nature of such collective human efforts to produce something far better than any of us alone could produce from scratch, even if given a forge and tools, and fifty years, or even a thousand. And so it is with the shari’a, which is more complex than any car because it deals with the universe of human actions and a wide interpretative range of sacred texts. This is why discarding the monumental scholarship of the madhhabs in operationalizing the Qur’an and sunna in order to adopt the understanding of a contemporary sheikh is not just a mistaken opinion. It is scrapping a Mercedes for a go-cart.
© Nuh Ha Mim Keller 2000