In the name of Allah, the Merciful, the Compassionate.
Amongst the most important replies that I have given, is my reply concerning the one who has deviated to the point where he censures the importance of studying the branches [furu’] of jurisprudence, and we seek refuge in Allah from the deviation of such a wandering deviant. Would that he simply had claimed independent reasoning (ijtihad) for himself only, and Allah is his reckoner, but abandoned the call of Muslims to leave that which is incumbent upon them. In our reply to such a one, we make mention what the scholars of the methodological bases of Islamic jurisprudence (usuli’un) and the Imams of jurisprudence themselves have said about such a matter. As for my labeling him a deviant, it is only because he has desired to impose upon common people the precious rank of absolute independent reasoning [ijtihad], about which Muhammad an-Nabigha said,
And ijtihad in the land of the Moroccans,
The western phoenix has taken to flight with it.
I say in reply, that the following of qualified scholarship (taqlid) is an obligation on anyone other than an absolute mujtahid. I shall make mention of all his prerequisites if Allah wills. [Sidi Abdullah Ould Hajj Ibrahim] has said in his Maraqi as-Sa’ud:
“[taqlid] is necessary for other than the one who has achieved the rank of absolute ijtihad. Even if he is a limited [mujtahid] who is unable [to perform absoluteijtihad].”
Commenting on this line, [Sidi Abdullah] said in Nashru al-bunud,
“It means that taqlid is an obligation on anyone who is not an absolute mujtahid, even if he has achieved the limited rank of ijtihad muqayyad . . . [until he says], ‘And ask the people of the reminder, if you yourselves do not know.’”
By using the line of Muhammad an-Nabigha above, I am in no way claiming that all ijtihad has been severed in every land; how [could I say such a thing] when [Sidi Abdullah] says in Maraqi as-sa’ud:
“The earth will never be void of a mujtahid scholar until its very foundations shake.”
He also said,
“[Regarding] the necessity of binding to a specific madhhab, the [scholars] have mentioned its obligation upon anyone falling short [of the conditions of ijtihad].”
He says in Nashru al-bunud,
“It means that it is incumbent for whoever falls short of achieving the rank of absolute ijtihad to follow a particular madhhab.”
Again, in Maraqi as-Sa’ud, Sidi Abdullah says,
“The consensus today is on the four, and all have prohibited following [any] others.”
He says in Nashru al-bunud,
“This means that the consensus of the scholars today is on the four schools of thought, and I mean by the schools of Malik, Abu Hanifa, Shafi’i and Ahmad. Indeed, all of the scholars have prohibited following any other school of an independent and absolute mujtahid since the eighth century when the school of Dawud adh-Dhahiri died out and until the 12th Century and all subsequent ones.”
In the chapter concerning inferential reasoning, from Maraqi as-sa’ud, [Sidi Abdullah] says,
“As for the one who is not a mujtahid, then basing his actions on primary textual evidence [Qur’an and hadith] is not permissible.”
He says in Nashru al-bunud,
“It means that it is prohibited for other than a mujtahid to base his actions upon a direct text from either the Book or the Sunna even if its transmission was sound because of the sheer likelihood of there being other considerations such as abrogation, limitations, specificity to certain situations, and other such matters that none but the mujtahid fully comprehends with precision. Thus, nothing can save him from Allah the Exalted excepted following a mujtahid. Imam al-Qarafi . Ahmad ibn Idris Shihabudin as-Sanhaji al-Qarafi al-Maliki was born in Egypt in the seventh Century, and died there in the year 684. He was one of the greatest Maliki scholars who ever lived and is especially known for his work in methodology and law (usul al-fiqh). He was a master of the Arabic language and has remarkable works in grammar. His book adh-Dhakhira is a magisterial 14 volume work recently published in the Emirates, that looks at Maliki fiqh with proofs from usuli sources. He is buried in Qarafi in Egypt near Imam as-Shafi’i. May Allah have mercy on them both. says,
‘And beware of doing what some students do when they reason directly from the hadith, and yet they don’t know their soundness, let alone what has been mentioned [by the Imams] concerning the subtleties involved in them; by doing this, they went astray and led others astray. And whoever interprets a verse or hadith in a manner that deviates from its intended meaning without proof [dalil] is a kafir.’”
As for the conditions of the absolute and independent ijtihad, they are mentioned in the Maraqi as-sa’ud in the following line and what follows:
“And that [word ‘faqih’]Sidi Abdullah says in his commentary on this line that the faqih is synonymous with mujtahid in the science of usul. There are different types of faqih. A faqih according to the scholars of usul is anyone who has achieved the rank of ijtihad. According to the scholars of furu’u, a faqih is anyone who has reached the level of knowledge in which he can give valid juristic opinion. This latter definition is important considering endowments that are given to fuqaha. See Nashur al-bunud `ala maraqi as-sa’ud, kitab al-ijtihad fi al-furu’u (1409 Hijrah. Beirut: Maktabat al-Kutub. p.309) is synonymous with the [word] ‘mujtahid’ coupled with those things which bear upon [him] the burden of responsibility,
Such as his being of extreme intelligence by nature, and there is some debate about one who is known to reject juristic analogy [qiyas]
He knows the [juristic] responsibilities through intellectual proofs unless a clear transmitted proof indicates otherwise.
[Sidi Abdullah] says [in his commentary] Nashru al-bunud,
“This means that among the conditions of ijtihad is that [the mujtahid] knows that he must adhere to the intellectual proof which is the foundational condition [al-bara’atu al-asliyya]The foundational condition is that a human being is not asked by Allah to do anything other than those things which have a firm proof through the transmission of the prophets, peace be upon them, and that the human being is only accountable for those things in which there is clear responsibility. All other matters are considered permissible because of the lack of a proof indicating their impermissibility. until a transmitted proof from a sacred law indicates otherwise.”
He then goes on to mention the other conditions of a mujtahid:
[The sciences of] grammar, prosody, philology, combined with those of usul and rhetoric he must master.
According to the people of precision, [he must know] where the judgements can be found without the condition of having memorized the actual texts.
[All of the above must be known] according to a middle ranked mastery at least. He must also know those matters upon which there is consensus.
[Moreover, he must know] things such as the condition of single hadiths and what carries the authority of great numbers of transmissions; also [knowledge of] what is sound and what is weak is necessary.
Furthermore, what has been abrogated and what abrogates, as well as the conditions under which a verse was revealed or a hadith was transmitted is a condition that must be met.
The states of the narrators and the companions [must also be known]. Therefore, you may follow anyone who fulfils these conditions mentioned above according to the soundest opinion.
So, consider all of the above-mentioned, and may Allah have mercy upon you, and [may you] see for yourself whether your companion is characterized by such qualities and fulfils these conditions—and I highly doubt it. More likely, he is just pointing people to himself in his demands that the people of this age take their judgements directly from the Book and Sunna. If, on the other hand, he does not possess the necessary conditions, then further discussion is useless.
In Muhammad ‘Illish’s, Fath al-‘Ali al-Malik, there are many strong rebukes for those who wish to force people to abandon the study of the judicial branches and take directly from the Book and the Sunna. The actual text of the question put to him is as follows:
“What do you say about someone who was following one of the four Imams, may Allah the Exalted be pleased with them, and then left claiming that he could derive his judgements directly form the Qur’an and the soundly transmitted hadiths, thus leaving the books of jurisprudence and inclining towards the view of Ahmad bin Idris? Moreover, he says to the one who clings to the speech of the Imams and their followers, “I say to you ‘Allah and His Messenger say’, and you reply ‘Malik said’ and ‘Ibn al-Qasim said’ or ‘Khalil said.’”
To this, Imam ‘Illish replies:
“My answer to this all this is as follows: Praise be to Allah, and Prayer and Safety be upon our Master Muhammad, the Messenger of Allah. It is not permissible for a common person to abandon following the four Imams and take directly from the textual sources of the Qur’an and the hadiths for the simple reason that this entails a great many conditions that have been clarified in the books of usul. Moreover, these conditions are rarely met by the great scholars, especially in these last days in which Islam has become a stranger just as it began a stranger.”
Ibn ‘Uyyana, may Allah be pleased with him, has said,
“The hadiths are a source of error except for the jurists.”
What he means is that people, other than the scholars, might interpret a tradition based on an apparent meaning, and yet [the hadith may] have another interpretation based on some other hadith that clarifies the meaning or some proof that remains hidden [to the common people]. After a long discussion, he remarks,
“That as for their saying, ‘How can you leave clear Qur’anic verses and sound hadiths and follow the Imams in their ijtihads, which have a clear probability of error,’”
His answer to them is as follows:
“Surely the following of our [rightly guided] Imams is not abandoning the Qur’anic verses or the sound hadiths; it is the very essence of adhering to them and taking our judgements from them. This is because the Qur’an has not come down to us except by means of these very Imams [who are more worthy of following] by virtue of being more knowledgeable than us in [the sciences of] the abrogating and abrogated, the absolute and the conditional, the equivocal and the clarifying, the probabilistic and the plain, the circumstances surrounding revelation and their various meanings, as well as their possible interpretations and various linguistic and philological considerations, [not to mention] the various other ancillary sciences [involved in understanding the Qur’an] needed.
“Also, they took all of that from the students of the companions (tabi’in) who received their instruction from the companions themselves, who received their instructions from the Lawgiver himself, may Allah bless him and grant him peace, divinely protected from every mistake, who bore witness that the first three generations of Muslims would be ones of virtue and righteousness. Furthermore, the prophetic traditions have also reached us through their means given that they were also more knowledgeable than us through their means given that they were also more knowledgeable than those who came after them concerning the rigorously authenticated (sahih), the well authenticated (hasan), and the weak (da’if) channels of transmission, as well as the marfu’uThe transmission (sanad) goes to the Prophet (Allah bless him and give him peace) the hadith came from the Prophet (Allah bless him and give him peace)., mursalA tabi’i related it from the Prophet (Allah bless him and give him peace); a companion (sahabah) is missing from the line of the transmission., mutawatirThe hadith comes from so many sources that it is an absolute proof., ahadA hadith, that at some point in the line of transmission, has only one narrator., mu’dalTwo people in a row are missing in the chain of narrators. and gharibThe narrator of the hadith is trustworthy, but no one else related the hadith. transmissions.
“Thus, as far as this little band of men is concerned, there is only one of two possibilities: either they are attributing ignorance to Imams whose knowledge is considered by consensus to have reached human perfection as witnessed in several traditions of the truthful Lawgiver, upon him be prayers and peace, or they are actually attributing misguidance and lack of din to Imams who are all from the best of generations by the testimony of the magnificent Messenger himself, may Allah bless him and grant him peace. Surely, it is not the eyes that are blind, but blind are the hearts in our breasts.
As for their saying to the one who imitates Malik, for example, “We say to you ‘Allah says’ or ‘the Messenger of Allah, may Allah bless him and grant him peace, says’ and you reply, ‘Malik says’, or ‘Ibn al-Qasim says’, or ‘Khalil says’, for example,” our response is that the follower who says, “Malik says . . . etc.,” means that, “Malik says based on his deep understanding of the Word of Allah, or of the words of the Messenger, or of those firmly adhering to the actions of the companions, or of the tabi’in who understood clearly the Word of Allah and the word of the Messenger of Allah or took their example from the actions of His Messenger.” And the meaning of [a follower] saying “Ibn al-Qasim said . . .” is that he has [faithfully] transmitted what Malik said based on his understanding of the Word of Allah or of what Ibn al-Qasim himself understood from the word of Allah the Most Exalted. And the meaning of him saying, “Khalil said . . . .”, for example, is that he is transmitting only from those [Imams] aforementioned. As for Malik and Ibn al-Qasim, they are both Imams whose spiritual and judicial authority is agreed upon by unanimous consensus of this Umma; and they are both from the best of generations.
As for the one who leaves their leadership and says, “Allah said and His Messenger said . . . ,” he has relied solely on his own understanding despite the fact that he is incapable of having any precision in the verses and hadiths that he quotes since he is unable even to provide chains of transmission [with any authority], let alone that he lacks knowledge concerning the abrogated, the absolute and the conditional, the ambiguous and the clarifying, the apparent and the textual, the general and the specific, the dimensions of the Arabic and the cause for revelation, the various linguistic considerations, and other various ancillary sciences needed. So, consider for yourself which is preferable: the word of a follower who simply quotes the understanding of Malik, an Imam by consensus—or the word of this ignoramus who said “Allah said and His Messenger said . . . .” But it is not the sight that goes blind, but rather the hearts in our breasts.
Furthermore, know that the origin of this deviation is from the DhahiriyyaThe Dhahiriyya followed Daw’ud ad-Dhahiri’s madhhab. who appeared in Andalucia [Muslim Spain] and whose power waxed from a period until Allah obliterated all traces of them until this little band of men set about to revive their beliefs. Imam al-Barzuli said, “The first one ever to attack the MudawwanaMudawwana: Imam Malik’s work of fiqh. was Sa’id bin al-Haddad.”
If you consider carefully the above-mentioned texts, you will realize that the one who censures you from following [the Imams] is truly a deviant. And I am using the word “deviant” to describe them only because the scholars [before me] have labelled this little band and their view (madhhab) as deviant. Moreover, you should know that those who condemn your adherence to the Imams have been fully refuted by Muhammad al-Khadir bin Mayyaba with the most piercing of refutations, and he himself called them, in his book, “the people of deviation and heterodoxy.” He called his book, Refuting the people of deviation of heterodoxy who attack the following [taqlid] of the Imams of independent reasoning, and I used to have a copy but no longer do. So, my brother, I seriously warn you from following the madhhab of these people and even from sitting in their company, unless there is an absolute necessity, and certainly from listening to anything they have to say, because the scholars have declared their ideas deviant. Ibn al-Hajj says in his book, al-Madkhal,
“Umar ibn al-‘Aziz said, ‘Never give one whose heart is deviant access to your two ears, for surely you never know what may find fixity in you.’”
I ask Allah to make you and me from those who listen to matters and follow the best of them.
Murabtal Haaj, Mauritania
|↑1||. Ahmad ibn Idris Shihabudin as-Sanhaji al-Qarafi al-Maliki was born in Egypt in the seventh Century, and died there in the year 684. He was one of the greatest Maliki scholars who ever lived and is especially known for his work in methodology and law (usul al-fiqh). He was a master of the Arabic language and has remarkable works in grammar. His book adh-Dhakhira is a magisterial 14 volume work recently published in the Emirates, that looks at Maliki fiqh with proofs from usuli sources. He is buried in Qarafi in Egypt near Imam as-Shafi’i. May Allah have mercy on them both.|
|↑2||Sidi Abdullah says in his commentary on this line that the faqih is synonymous with mujtahid in the science of usul. There are different types of faqih. A faqih according to the scholars of usul is anyone who has achieved the rank of ijtihad. According to the scholars of furu’u, a faqih is anyone who has reached the level of knowledge in which he can give valid juristic opinion. This latter definition is important considering endowments that are given to fuqaha. See Nashur al-bunud `ala maraqi as-sa’ud, kitab al-ijtihad fi al-furu’u (1409 Hijrah. Beirut: Maktabat al-Kutub. p.309)|
|↑3||The foundational condition is that a human being is not asked by Allah to do anything other than those things which have a firm proof through the transmission of the prophets, peace be upon them, and that the human being is only accountable for those things in which there is clear responsibility. All other matters are considered permissible because of the lack of a proof indicating their impermissibility.|
|↑4||The transmission (sanad) goes to the Prophet (Allah bless him and give him peace) the hadith came from the Prophet (Allah bless him and give him peace).|
|↑5||A tabi’i related it from the Prophet (Allah bless him and give him peace); a companion (sahabah) is missing from the line of the transmission.|
|↑6||The hadith comes from so many sources that it is an absolute proof.|
|↑7||A hadith, that at some point in the line of transmission, has only one narrator.|
|↑8||Two people in a row are missing in the chain of narrators.|
|↑9||The narrator of the hadith is trustworthy, but no one else related the hadith.|
|↑10||The Dhahiriyya followed Daw’ud ad-Dhahiri’s madhhab.|
|↑11||Mudawwana: Imam Malik’s work of fiqh.|
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.
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