Characteristics of the Mālikī School by Shaylh Ali Laraki al-Husaini
Taken from meeminstitute.com
I. The hadith of the Prophet(s) regarding the Scholar of Medina
An amazing factor that characterises the school of Imam Mālik and singles it out regarding other schools of fiqh is the fact that the appearance of its eponym was prophesised by the Messenger of Allahr. We can find evidence in the following hadith narrated by Abū Hurayra and transmitted by al-Tirmidhī in his Sunan[1] and al-Ḥākim in his Mustadrak:[2]
The Messenger of Allahr said, There will come a time when the people will beat the livers of their camels in search of knowledge and they will not find a scholar with more knowledge than the one of Medina.
Al-Tirmidhī said that this hadith is ḥasan, whilst Al-Ḥākim said that it is ṣaḥīḥ, according to Muslim’s rules of authenticity.[3]
The expression “to beat the livers of their camels” is a metaphor indicating the speed of the journey and desire to arrive at a desired destination due to fear of missing one’s aim. The reason is that camels were the only means of travel during that era.
The hadith is a notification from the Prophet(s) that very soon the people will be eagerly searching for knowledge, but will not find a scholar more knowledgeable than the scholar of Medina.
But, who is this scholar whose coming has been heralded? Sufyān b. ʿUyayna and other contemporaries of Mālik and those who came after him have said, “Verily it is Mālik b. Anas.”
The hadith is one of the prophetic miracles, in that the Prophetr informed of a matter that happened in a future time just as he said it would happen. Accordingly, history has registered that the people used to travel to Mālik from the east and the west seeking knowledge and fatwā. The number of those who have narrated on his authority has reached one thousand and three hundred (1300) scholars of hadith. Such has happened neither for anyone before nor anyone after him. The hadith from another regard is a testimony for Mālik—may Allah show him mercy—in that he is the most knowledgeable and the one with the greatest understanding of the people of his time, and sufficient a testimony it is from the Messengerr for Mālik, for his madhhab, and for his fiqh.[4]
II. The Uṣūl (sources) of the Mālikī School
According to Abū Zahra,[5] the uṣūl of the Mālikī School are the following ones:
The Quran
The Sunna
The opinion of a Companion
Consensus
The Practice of the People of Medina
Analogy
Juridical Preference
Presumption of Continuity
Unregulated Benefits
Blocking the Means
Custom
The Quran (also called al-kitāb)
It is universally known that the first source of legislation for all the Muslims, regardless of the school to which they belong, is the Quran.
Allah SWT said: If you have a dispute about something, refer it back to Allah and the Messenger.[6]
The Sunna,
The Sunna is the second source of legislation for Mālik and all Muslim Imams of fiqh on the basis of the above mentioned āya and Allah´s words: Whatever the Messenger gives you, you should accept and whatever He forbids you, you should forgo.[7] And His words: Whoever obeys the Messenger has obeyed Allah.[8]
The Sunna is defined as the transmission of the sayings, actions and confirmations of the Prophetr, other than the Quran.
Nevertheless, Imam Mālik differs with other jurists in the way he relies on and understands the Sunna. He gives precedence to a manifest statement (ẓāhir) from the Quran over the hadith if the hadith is isolated (khabar al-āḥād) and contradicts the Practice of the People of Medina.[9]
As for the hadith transmitted by many lines of transmission (ḥādīth mutawātir), he accepts that can abrogate the Quran, specify its general statements (takhṣīṣ al-ʿāmm), qualify its unqualified statements (taqyīd al-mutlaq) and give preponderance (tarjīḥ) to one of two possible meanings of a manifest Qur’anic statement (ẓāhir).[10]
Another characteristic of Imam Mālik’s use of hadith is that he used to accept what is technically known as mursal, a hadith whose chain of transmission does not mention the ṣaḥābī who narrates the hadith from the Prophetr. Imam Mālik relied on mursal hadiths because he chose very carefully who narrated hadith to him and he only narrated from transmitters he had total confidence in their character, intelligence and knowledge.[11]
The Opinion of a Companion (qawl al-ṣaḥābī)
Abū Zahra states: “One may observe, after study of the methodology (uṣūl) of Mālikī fiqh and in the Muwaṭṭaʾ, that Mālik, like Aḥmad b. Ḥanbal, used to base himself on the sayings of the Companions, considering them to be a source of fiqh, a conclusive proof and part of the Sunna of the Prophetr. Thus, whoever knew the sayings of the Companions knew the Sunna. Not to follow them was to innovate. Ibn al-Qayyim, in his Iʿlām al-Muwaqʿīn, proves how the sayings of the Companions are part of the Sunna using the following words: “When the Companion says something, judges or gives an opinion, he has a source that only he knows and another that we know. With regard to that source of his own, he might have received it directly from the Prophetr, or through another Companion who, in turn, had received it from the Prophetr. That which they knew and we ignore is much more than what we are able to fathom. They did not transmit everything they heard. How can we compare what Abū Bakr al-Ṣiddīq or ʿUmar al-Farūq, or other great Companions were able to hear with what they have transmitted to us? Not even one hundred hadith were transmitted by Abū Bakr, even though he never left the Prophet’s side. He accompanied him even before he became the Messengerr, until the day he died. He had the greatest knowledge of the Prophetr regarding his sayings, acts, instructions and biography. Likewise, the great Companions of the Prophetr transmitted very few of his hadith compared with what they were able to hear or see him doing. Had they transmitted everything they might have seen or heard from the Prophetr, it would have amply exceeded what was transmitted by Abū Hurayra, who was only with the Prophetr for four years, in spite of which he is the person who has transmitted the greatest number of hadith. […] They used to take great care when transmitting something from the Prophetr. They considered it a serious matter, so they did not do so frequently, in case they added or left out something. They used to say what they heard from the Prophetr without stating that they heard him say so.”
The fatwas that were issued could only be based on seven factors:
Something taken directly from the Prophetr.
Something taken from somebody who had taken it directly from the Prophetr.
Something that they, in their understanding, had interpreted from the Qur’an without us being able to appreciate it.
Something that all of them had agreed over and that had only reached us through the reference of the person who issued the fatwa.
Something that, due to their perfect knowledge of the Arabic language, is a linguistic subtlety that we are not able to appreciate.
Concomitant circumstances related to a hadith.
Many accumulated reasons that he would know due to his long experience of life with the Prophetr, as a witness to his actions, states, words, intentions, immediate disclosure of the revelation and its subsequent interpretation, that would make him appreciate details we cannot appreciate.
For those seven reasons, it is compulsory for us to follow their fatwas”.[12]
This shows us that Mālik relied on the sayings of the Companions because he considering them to be part of the Sunna, not by mere following (taqlīd). This difference in attitude regarding the sayings by the Companions makes possible that, when a saying by a Companion contradicts a hadith, preference may be given to follow one or another, since they are both considered to be in the same category. However, to consider the sayings of the Companions to be merely their opinion means that they may only be taken into account when there is no hadith that provides an answer; and that in the event of a contradiction between a hadith and the saying by a Companion, to indiscriminately prefer the hadith over the saying by the Companion as it is considered a superior category: just as Imam al-Shāfiʿī does.
The first view is that of Imam Mālik and that is the reason why Imam al-Shāfiʿī disagrees with his teacher Mālik. That can be seen in the book of al-Shāfiʿī al-Umm, where he claims that Mālik leaves the hadith in favour of the saying of a Companion. In the book of al-Shāfiʿī, we see how Imam Mālik takes the saying by ʿUmar b. al-Khattāb in which he states it is not advisable to go on ʿUmrah during the months of the Hajj, contradicting the hadith of Saʿd b. Abī Waqqāṣ in which the Prophetr performed ʿUmrah during the months of Hajj. Mālik states that ʿUmar knows the Prophetr better than Saʿd, so he chooses the opinion of ʿUmar even though it contradicts the hadith.[13]
Contrary to the position of Imam al-Shāfiʿī, what Mālik defends is that the transmission that reaches us from a Companion is often the Sunna itself, without the chain (of transmission) necessarily having to reach the Prophetr.
A clear example of this principle can be seen in the following example: Anas b. Mālik states that whenever he prayed behind Abū Bakr, ʿUmar and ʿUthmān, they did not recite the basmala[14] before the Fātiḥa.[15] Thus, if a hadith that certifies that the Prophetr recited the basmala in the Fātiḥa is to prevail, one would be forced to consider that neither Abū Bakr, nor ʿUmar nor ʿUthmān knew how to pray, or that they did not wish to imitate the Prophetr and thus innovated. Both affirmations are unthinkable. The correct interpretation is that the Prophetr recited the basmala on occasions, but that he ceased to do so; the final ruling being that which his most prominent Companions followed: not to recite the basmala. The position of those who give pre-eminence to the text of the hadith ignore the Companions, their practice and knowledge, and claim direct and total independent access to the Sunna of the Prophetr. This may lead to such radical postures as that of al-Shawkānī who, in his book Irshād al-Fuḥūl, claims that the Companions have the same status as any of the Muslim mujtahids, and that it is not obligatory to follow their fatwas.[16] Al-Shawkānī[17] posits the argument that we only have one Prophetr, and that he is Muhammadr and that we are thus not obliged to follow anybody else. Shaykh Muḥammad Abū Zahra, in his book Uṣūl al-Fiqh, refutes the argument of al-Shawkānī, saying that the Companions had the best knowledge of the Sunna and that to follow them is to follow the Sunna and that to stray away from them is to stray away from the Prophetr.[18]
Consensus (ijmāʿ)
In order to better appreciate what Mālik understands by consensus – Mālik constantly uses that word in the Muwaṭṭaʾ –, one must know what other jurists understand by consensus.
The classical definition of consensus is the following: “Consensus is the agreement of all of the mujtahids of the Muslims in a particular age coming after the death of the Messengerr upon a scriptural ruling regarding a particular occurrence.”[19]
Imam al-Shāfiʿī considers that consensus can only happen as a mere coinciding opinion. Therefore, if all jurists coincide on the same response to a specific matter, that is consensus. For example, there is widespread consensus that there must be five obligatory prayers daily; nobody disagrees with that. From this way in which al-Shāfiʿī defines what consensus is, it is clear that it only arises regarding the more general rules of Islam; consensus is that on with which nobody disagrees.
However, from the point of view of Ibn Ḥanbal, consensus is not that mere coinciding opinion, but rather, it is the consensus by which the Companions came to provide a juridical response to a matter that did not have an obvious answer in the Qur’an and the Sunna. The consensus would then be a unanimous ijtihād performed collectively by the Companions of the Prophetr, from which one is not allowed to deviate. Aḥmad Ibn Ḥanbal only admits the Companions as agents of consensus. Ibn Ḥanbal states that it is impossible for subsequent generations to reach a consensus.
Mālik also has a similar concept to that of Ibn Ḥanbal regarding consensus, but he allows for that consensus to have continuation in the following generations in Medina. Shaykh ʿUllaysh, in his Fatāwā states: “In Medina, there were jurists of a quality not found anywhere else, such as the seven scholars of the Followers (tābiʿīn),[20] al-Zuhrī, Rabīʿa, Nāfiʿ and others. That is why the Imam referred to them and considered their agreement to be consensus. Basing one’s decisions on their consensus and using it as evidence is not taqlīd, but rather the very essence of ijtihād.”[21] That means that, given the characteristics Medina had in the time of the Followers, and of the Followers of the Followers (atbāʿ at-tābiʿīn) – that is, being the place that inherited the fiqh of the Companions like nowhere else – Mālik saw the prolongation of the consensus of the Companions in the consensus of those jurists.
Shaikh ʿUllaysh continues by saying: “Whoever recognises that the people of Medina are more, better and wiser than the rest, turns to them to seek an answer when discrepancies arise. If the hadith is sound (ṣaḥīḥ) and the practice of the people of Medina contradicts this, only three situations may arise:
One may consider they were all ignorant; something an intelligent person does not think, as they were the wisest of the Umma, and to have a bad opinion of them is immoral.
One may consider their intention was that of disobeying the Sunna and playing with it; which is even more insidious and bitter.
One may consider they were correct in their knowledge and practice. If they left a hadith, they did so because they had strong reasons to do so.
[…] Those on whose practice the Imam based his opinions and whom he used as conclusive proof were the Followers he was able to meet; and they never abandoned the path laid down by the Companions”. [22]
From these words by Shaykh ʿUIlaysh, we see how Mālik cares for and grants the outmost importance to the transmission of the message of Islam as a social model. What Imam Mālik argues is that this model did not die out with the Companions, but rather that it existed, continued and was correctly and fully transmitted to and implemented by the generation that never met the Prophetr, and even by the generation that never met the Companions. Imam Mālik believes in the reality of the transmission of the message at a social level, passing it down to future generations, free of the influence of the imperial tyranny of the Umayyads and the Abbasids.
This makes clear that consensus in the view of Malik is the consensus of the people of Medina, which leads us on to the practice of the people of Medina.
The Practice of the People of Medina (ʿamal ahl al-madīna)
Abū Zahra states that Mālik preferred the Practice of Medina to the hadith aḥādi (hadith transmitted by a single, or by very few channels of transmission; a characteristic of the majority of the hadith). He did so as he considered that the practice of Medina was sunna mutawātira (a sunna transmitted by multiple channels of transmission). When contradiction arises between a sunna aḥadiyya (transmitted by one or few channels of transmission) and a sunna mutawātira, one must undoubtedly take the one with the largest number of channels of transmission, as that is more reliable.
Qādī ʿIyyād states in his Tartīb that this means of proceeding is not specific to Mālik. That methodology was used by the Followers and by the Followers of the Followers. Rabī‘a (a well-known jurist of the Followers of the Followers and teacher to Mālik) said: “A thousand from a thousand is better than one from one” referring to the chain of transmission. The Followers and their Followers had the habit of transmitting hadiths that they did not practice as proof that they did know them.
The Mālikī scholars and those of other schools also divided the Practice of Medina into two types:
The practice that transmits what the Sunna is (naqliyya).
The practice that transmits what the consensus of the scholars of Medina is (ijmāʿ ahl al-madīna), this thus being the product of ijtihād.
Al-Qādī ʿIyyād, in turn, divides the Practice of Medina which is considered to be a transmission of the Sunna into four categories:
The transmission of the sayings of the Prophetr (sunna qawliyya), such as, for example, the adhān, the iqāma, not saying the basmala at the beginning of the Fātiḥa aloud, etc.
The transmission of the acts of the Prophetr (sunna fiʿliyya), such as, for example, the method of praying, the number of rakʿas of the prayer, etc.
The transmission of the tacit acceptance of some acts by the Prophetr (sunna taqrīriyya).
Exceptions in the acts of the Prophetr, such as not accepting Zakat from them in vegetables, even when these were abundant among the inhabitants of Medina.[23]
All this, states al-Qādī ʿIyyād, must obligatorily be abided by, and one must reject all hadith or analogy that contradicts this, as the Practice of Medina is based on absolute certainty (yaqīn qaṭʿī), while the hadith aḥādī and its analogy are based on a strong supposition alone (ẓann rājiḥ). Abū Yūsuf, a disciple of Abū ḤḤanīfa, had to abide by that proof and recant of the opinions of his teacher with regard to matters of waqf, on comparing this with Mālik and realising the strength of transmission in the practice of Medina. Al-Ṣayrafī, a disciple of al-Shāfiʿī, coincides with us in these matters; although some Shāfiʿīs disagree.
Ibn al-Qayyim, in his book Iʿlām al-Muwaqi‘in, divides the practice of Medina, the basis of which is the Sunna, into three parts:
Transmission of the instructions given by the Prophetr.
Implementation of those instructions.
Places and measures (location of the minbar of the Prophetr, the Rawda, the measure of the mudd and of the ṣāʿ, etc.).
After this, Ibn al-Qayyim declares that to follow and accept all this is obligatory. [24]
However, concerning the aspect of Practice of Medina as transmission of the consensus of its scholars, Mālikī scholars themselves disagree, there being three opinions:
It is not conclusive proof and is not superior to the ijtihād of others. That is the opinion of Abū Bakr al-Abharī and those who share that opinion with him.
It is not conclusive proof, but it is preferred to the ijtihād of others. That is the opinion of various Mālikis and Shāfiʿīs.
It is conclusive proof. That is the opinion of the Maghrebi Mālikis and of al-Qarāfī.[25]
Definitively, we may observe that all the Mālikīs coincide, in that the Practice of Medina is a definitive and conclusive proof when it comes to the transmission of the Sunna of the Prophetr. However, there are discrepancies in regard to the consensus of the scholars of Medina. In that case, in spite of the discrepancy that exists between the Mālikīs, considering it to be a conclusive proof is also the most widespread opinion.
The problem arises when the Practice of Medina, as ijtihād, contradicts a hadith. What comes first: the hadith, or the consensus of Medina arising from the ijtihād? The majority of Mālikīs say that the hadith has priority. However, what one must prove is whether the case has arisen in which the scholars of Medina have not found a hadith and have had to perform ijtihād, reaching a consensus, and subsequently a hadith appeared that contradicted the consensus. Given the scarcity of hadith that reached Kufa (or another place apart from Medina), the scholars used to give an answer to a matter and, after providing it, information will appear (generally from Medina) that will overturn their fatwās (see the case of ‘Abd Allah Ibn Mas‘ūd mentioned in the Muwaṭṭaʾ).[26] That did not happen in Medina, as it was the cradle of the Sunna. The Prophetr said: “Medina is like the blacksmith’s furnace. It eliminates the impure and purifies what is good.”[27] That is the proof that Mālik himself uses as the basis to claim absolute correction of the consensus of the scholars of Medina. Error is impurity and Medina eliminates it.
To summarise, according to Imam Mālik, all Medinan Practice that is based on the Sunna is superior and more reliable than a hadith which contradicts it. With regard to the consensus of the scholars of Medina and its subsequent transformation into Practice, they are the best suited to be followed, as they were the heirs of the juridical practice of the Companions and the most knowledgeable, after them, of the Sunna of the Prophet Muhammadr.
Analogy (qiyās)
Analogy is to infer the ruling of a case which is not textually stated from another case whose ruling is textually stated on the bases of a common cause.
An example of it can be seen in the āya that states that trade is forbidden when the call for the prayer (ādhān) takes place on Friday:
O you who have believed! When the call for the prayer of Friday takes place hasten to the remembrance of Allah and abandon trade. That is better for you if you only knew.[28]
By analogy, any other contract or transaction that may divert a person from attending the Friday prayer is also forbidden. This is on the basis of the common cause, i.e. diversion from attending the Friday prayer.
Analogy is considered a source of law in all the schools of fiqh, except for the Ẓāhirī School and some Shia sects. It is a source of legislation used by the Companions and those who came after them.
Juridical Preference (istiḥsān)
Istiḥsān literally means to consider or deem something preferable. It can also be translated as preferential choice[29] or even equity.[30] Technically, it means to abandon the implication of an analogy in favour of a more appropriate alternative ruling by way of exception.
Aṣbagh – a student of Mālik – said that excess application of analogy can take the jurist out of the Sunna. Malik used to say that istiḥsān constitutes nine-tenths of legal knowledge.[31]
An example of the application of istiḥsān is the permissiveness of doctors looking at the nakedness of people for treatment purposes. The strict use of analogy will forbid it, but the necessity of preserving one’s health overrules the application of the analogy.
Presumption of Continuity (istiṣḥāb)
This principle implies that a judgement or rule continues to be the same as it was in the past unless evidence proves the opposite. In other words, a legal state of affairs is presumed to continue to be valid until there is a reason to change this presumption.[32]
An example is the presumption of the validity of the wuḍūʾ of the one who is sure that he did it but doubts whether he has done something to nullified it or not. Or the presumption of the validity of the marriage until the one who claims a divorce proves that the divorce did take place.[33]
Unregulated Benefits (maṣāliḥ mursala)
This consists of matters of public interest about which there is no regulation in the Quran or in the Sunna. Imam Mālik ruled based on this evidence whenever he considered that a certain matter was of public interest.
Imam Mālik was not the first to rely on this kind of evidence, as the Companions also employed it. Among the matters which are unregulated by the Quran and the Sunna but which the Companions acted upon on the basis of public interest are:
The compilation of the Quran in a written book.
The establishment of a punishment of 80 lashes for the one who drinks intoxicating beverages.
Retaliating against a group of criminals for the murder of one person with the death penalty.
When putting into practice this source of legislation, Imam Mālik used to take into account the following three guidelines regarding what was considered to be a public benefit or interest (maṣlaḥa):
Agreement with the Aims of the Sharia (maqāṣid al-sharīʿa), in such a way that none of the Sharia principles nor its unquestionable proofs (adilla qaṭʿiyya) were contradicted.
Reasonability; if presented to intelligent people, they will deem it reasonable.
Whether its dismissal will cause difficulty in such a way that if not taken into consideration, the people will have to endure difficulties, and Allah SWT has said: He has not place upon you in the religion any difficulty.[34]/[35]
Blocking the Means (sadd al-dharāʾiʿ)
Sadd al-dharāʾiʿ means blocking the means. This principle states that the means to and end (dharīʿa) that is unlawful (ḥarām) should be blocked even if the means are lawful in and itself.
By the same token, the means to an end which is obligatory is also obligatory. Therefore, if the prayer of Jumu’a is obligatory, to hasten to it is also obligatory and to stop trading is also obligatory.
The Lawgiver has established that adultery and fornication is forbidden, as is any means that may lead to it, such as looking at the nakedness of a woman other than one’s wife, or staying alone in a concealed room or a dwelling with a member of the opposite gender who is not a legally unmarriageable person (maḥram).
The basis of this principle is taken from the words of Allah SWT:
Do not insult those they call upon besides Allah, lest they insult Allah in enmity without knowledge.[36]
Allah has forbidden insulting the idols because it is a means for others to insult Allah – exalted is He.
This principle is mainly concerned with lawful acts that may be used as a means leading to unlawful results. Therefore Al-Qarāfī classifies the means (dharīʿa) into three kinds:
A kind that usually lead to unlawful results and that should be blocked by consensus, like insulting the idols or digging wells in public routes.
A kind that rarely lead to unlawful results and should not be blocked by consensus, like growing grapes, which should not be forbidden out of fear of being used for making wine.
A kind that there is a probability that may lead to unlawful results like multiple transactions that may lead to lending money for interest when combined.[37]/[38]
Custom (ʿurf)
The custom and habits (ʿādāt) of people in what they normally do and say is considered an evidence in the Mālikī School providing it does not conflict with other rulings and principles of the Sharia.
According to this evidence, when litigation happens regarding a specific kind of contract, the terms not specified in it should be understood according to the customary practice of the place regarding that specific kind of contract.
So, for example, if a tenant of a house enters into litigation with his landlord because he considers the garage as part of the house he has rented and the landlord does not, if nothing is specified in the contract about the garage, the customary practice of the place (ʿurf) will be applied in order to decide whether the garage is included in the contract or not.
III. Fatwā and Sentence in the Mālikī School:
Definitions:
A fatwa is handing down a legal opinion for informative purposes.
Judgement (qaḍāʾ) is issuing a legal judgement for enforcement.
The person who issues a fatwa is called a Mufti. The one who hands down a judgement is called a Judge (qāḍī). When “legal judgement” is said, one must understand this to be within the legal framework of the Sharia or Islamic Law.
Just as shown by the preceding definitions, the fatwa consists of providing an opinion based on the Sharia, arising from a question or consultation, the application or implementation of which being subject to the criteria of the person asking or consulting; while a judgement consists of handing down a sentence based on the Sharia arising from litigation, followed by the enforcement or practical implementation of that judgement by the competent authorities in charge thereof.
With regard to the legal classification of both institutions, both are community obligations (farḍ kifāya). Indeed, each community of Muslims must have a Mufti to inform the believers of what the legal precepts of the Sharia are in all their acts of worship of Allah (ʿibādāt) and their transactions between each other (muʿāmalāt). Likewise, there must be a Judge to resolve matters of litigation that may arise between the different members of that community.
Appointment of the Judge is the remit of the Amir of the community. However, there are two traditions regarding the Mufti:
The eastern one, in which the Amir appointed the Mufti.
The western one,[39], in which the Amir did not appoint the Mufti, but rather, that office is held by the person the people accepted and considered sufficiently qualified to perform those duties.
Causes of multiple juridical solutions existing for a same case:
The causes of multiple juridical solutions to a same case that arise in the Maliki School are mainly due to the large number of students that Imam Malik had. This large number of students gave rise to three circumstances that generated different legal opinions for a same case:
One: The large number of students of the Imam gave rise to these passing down diverse transmissions to us in which the opinion the Imam issued regarding a specific case was different according to one transmission or another. This is due to the fact that Imam Malik sometimes issued a fatwa and later corrected it following further in-depth juridical research. That meant that students who had been with him during a specific period of his life and who later returned to their places of origin had no record of the change of opinion by the Imam.
Two: The aforementioned fatwas or legal opinions by the Imam known by the students were used by them as the basis and grounds for analogical extrapolation in order to obtain juridical solutions to new cases presented to them and about which they had no knowledge of the Imam’s opinion. That operation is technically called takhrīj.
Three: On certain occasions, the students of the Imam performed absolute ijtihād, applying the uṣūl or methodological principles of the Imam (ijtihad muṭlaq muntasib), which gave rise to different opinions regarding the same case.
Thus, and to recapitulate, the three circumstances generating discrepancies in opinions by the school of Malik are:
The different transmissions (ikhtilāf al-riwāya).
The practice of takhrīj based on these different transmissions.
The practice of dependent absolute ijtihād (ijtihād muṭlaq muntasib).[40]
Need to choose the correct solution or tarjīḥ:
That diversity of opinions or solutions triggered a mechanism to select which of those solutions or opinions was the most correct and, thus, on which to base the fatwa and judgement. That selection mechanism or operation is what is technically known as tarjīḥ, that being the operation performed by mujtahids issuing a fatwa. Thus, to the extent that the capacity of the Muftis and Judges to perform ijtihād gradually decreased or ceased to be recognised,[41] the competent authorities began to insist that they kept to a sole doctrine in order to unify the fatwa and judgement in their territories, thus preventing injustice in juridical practice from arising.
It was thus established that both the fatwa as well as the judgement should be issued on the basis of:
The preferred opinion (al-rājiḥ).
The prevalent opinion (al-mashhūr).
The opinion established by juridical practice (mā jarā bihī al-ʿamal).[42]
The preferred opinion is that whose proof (dalīl) is strongest. In other words, the opinion that, according to the juridical principles of the school (uṣūl), is most correct. The opposite of the preferred opinion is the weak opinion (ḍaʿīf).
The prevalent opinion is that which is supported by most people, meaning Imam Mālik and his disciples. According to another definition, the prevalent opinion of Imam Mālik is the one transmitted by Ibn al-Qāsim and recorded in the Mudawwana of Saḥnūn.[43] The opposite of the prevalent opinion is the individual opinion (shādh).
The opinion established by juridical practice refers to the fatwas or judgements issued by competent Muftis and Judges renowned for their knowledge and authority, that deviate from the official doctrine[44] of the school, adopting weak or individual opinions within the Maliki school, or even going right outside the school itself,[45] for legal reasons that compelled them to do so, such as:
Achieve a general interest (jalb maṣlaḥa)
Avoiding harm (darʾ mafsada)
Adapting to the prevailing practice and customs (ʿurf).
This juridical practice was instituted in cases when a literal application of the Law creates difficulty or injustice and what is prioritised is the spirit of the Law, even if it is at the expense of the official doctrine.[46] We must add, moreover, that the opinion established under juridical practice is subject, at all times, to the existence of the legal reasons that caused it and limited to the moment and place where those reasons have been given.[47]
When issuing the fatwa or judgement, the order of priority that must be followed is that of placing juridical practice first; then the preferred opinion and, finally, the prevalent opinion.[48]
Thus, we may see how the Sharia in general and the Mālikī school in particular, is not a legal apparatus that is applied blindly on the inhabitants of a specific place, but rather it adapts to the human situation at each moment and place, according to the ample margins that Allah, in his infinite mercy, has granted us.
And Allah is the Most Wise.
[1] Al-Tirmidhī categorised this hadith as ḥasan-ṣaḥīḥ.
[2] Al-Ḍahabī commented upon this hadith saying that it fulfils the conditions of authenticity (shurūṭ ṣiḥḥa) of Muslim.
[3] Al-Ḍahabī confirmed Al-Ḥākim’s judgement of the authenticity of this hadith.
[4] The Special Characteristics of the Mālikī Madhhab, Shaykh Muḥammad al-Taʾwīl, Fes 2004, p. 3.
[5] Mālik, by Abū Zahra, p. 276.
[6] Quran 4:59.
[7] Quran 59:7.
[8] Quran 4:80.
[9] As an Example, Mālik does not follow the hadith transmitted by al-Tirmidhī where the Prophetr forbids the eating of birds of prey (birds with talons) because it contradicts the literal meaning of the āya: Say: “I do not find, in what has been revealed to me, any food haram to be eaten except for carrion, flowing blood, and pork (Quran 6:145).
[10] Al-Madkha al-Wajīz fī Taʿrīf bi-Madhhab Imām al-Fiqh wa al-Ḥadīth Mālik b. Anas by Aḥmad ʿAlī Taha Rayyān. Dar al-Salām, Cairo, 2009.
[11] This does not mean that Imam Mālik relied indiscriminately on hadiths which were mursal, rather he only relied on them when he trusted the person who transmitted it. This was an usual practice in the time of Imam Mālik and Imam Abū Ḥanīfa, since both of them relied on mursal hadiths when they trusted the transmitter.
[12] Mālik, by Abū Zahra, pp. 335-6.
[13] Mālik, by Abū Zahra, p. 337.
[14] To say bismi l-lāhi r-raḥmāni r-raḥīm (in the name of Allah, the Merciful and Compassionate). This formula appears before all the suras of the Qur’an except sura al-Tawba.
[15] The first sura of the Quran.
[16] Legal opinions.
[17] Irshād al-Fuḥūl, by al-Shawkānī, p. 214.
[18] Uṣūl al-Fiqh by Abū Zahra, pp. 217-8.
[19] Khallaf, ‘Abd Al-Wahhab. ‘Ilm Usul al-Fiqh. Kuwait: Dar al-Qalam, 1406/1986, p. 45
[20] Those who learn from the Companions.
[21] Al-Fatḥ al-ʿālī al-Mālik, v. 1 p. 43.
[22] Al-Fatḥ al-ʿālī al-Mālik, ʿUllaysh, v. 1 p. 43.
[23] Tartīb al-Madārik, p. 41.
[24] Mālik, by Abū Zahra, p. 359.
[25] Mālik, by Abū Zahra, pp. 359-360.
[26] Ali-Muwaṭṭaʾ 28/23. P. 533.
[27] Al-Muwaṭṭaʾ 45/4. p. 886.
[28] Qur’an 62:9.
[29] Les Fondements du Droit Musulman (ʿIlm ūṣūl al-Fiqh), ‘Abd al-Wahhāb Khallāf, Editions Al-Qalam, Paris 2008, p. 113.
[30] Principles of Islamic Jurisprudence, Mohammad Hashim Kamali, Islamic Texts Society, Cambridge 1991, p. 245.
[31] Al-Madkhal al-Wajīz, p. 145.
[32] A History of Islamic Legal Theories, Wael B. Hallaq, Cambridge University Press, 1977.
[33] Mālik, by Abū Zahra, p. 334.
[34] Quran 22:78.
[35] Al-Madkhal al-Wajīz, p. 147.
[36] Quran 6:108.
[37] An example of this is what is called bayʿ al-ājāl or bayʿ al-ʿīna consisting on A selling an item to B for 100 in cash paid on the spot and then, immediately after, B sells the item back to A for credit of one year for a sum of 120. The two transactions end up being a loan with interest, which is strictly forbidden in Islam.
[38] Al-Dhakhīra, v. 1 p. 144.
[39] This is the tradition that prevailed in al-Andalus and the Maghrib.
[40] Uṣūl al-Fatwā wa al-Qaḍāʾ fī al-Madhhab al-Mālikī, Muḥammad Riyāḍ, Casablanca 1996, page 466.
[41] Initially, fatwas and judgements were based on the capacity of the Mufti or Judge to perform absolute ijtihād. Then, when the gateway to absolute ijtihād was closed, the authority restricted fatwas and judgements to a sole school of law, leaving it to the discretion of the Mufti or Judge to choose the opinion on which to base his fatwa or judgement. Subsequently, and in order to unify the legal system and avoid injustice being committed by Judges when exercising their freedom of choice, they restricted fatwas and judgements to the preferred opinion, to the prevailing one or that established by juridical practice.
[42] Uṣūl al-Fatwā wa al-Qaḍāʾ fī al-Madhhab al-Mālikī, p. 461.
[43] Abū al-Ḥasan at-Ṭanjī states: “The opinion of Mālik recorded in the Mudawwana is preferable to the opinion of Ibn al-Qāsim given therein, as Mālik is the Grand Imam. The opinion of Ibn a-Qāsim recorded in the Mudawwana is preferable to the opinion of another recorded therein, as he is the most knowledgeable of the fiqh laid down by Mālik. The opinion of another recorded in the Mudawwana is preferable to the opinion of Ibn al-Qāsim recorded in another source that is not the Mudawwana, and that is due to the authentic nature of the latter.”
[44] By “official doctrine”, we refer to the preferred and prevailing opinions.
[45] The juridical practice of the western Mālikī ͑ulamā’ (Andalusi and Maghrebi) is that of not going outside the Maliki school, while that of the Eastern (Egyptian) ͑ulamā’ is to go outside the school and to adopt preferred and prevailing opinions from the other three Sunni schools of Islamic law. See al-Dasūqī in Ḥāshiya al-Dasūqī ʿalā al-Sharḥ al-Kabīr ʿalā Mukhtaṣar Khalīl, page 37.
[46] This is because keeping to the preferred or prevalent opinion would go against the legal methodology laid down by Mālik, which is based on promoting what is of public or general interest (maslaḥa mursala), avoiding what may cause harm (darʾ al-mafāsid) and adapting to the custom which does not contradict the precepts of the Sharia (ʿurf).
[47] Thus, there was a juridical practice in Cordoba (ʿamal Qurtuba), in Fez (ʿamal Fās), etc. This legal practice should not be followed elsewhere, unless the same legal reasons arise and a Judge or Mufti of authority establishes it.
[48] We must state that it is mandatory for all Muftis or Judges who are not qualified to perform ijtihād at any of its levels to abide by these regulations.
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