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Maliki usul - 2

2017-01-08
January 8, 2017

 

FOUNDATIONAL ROOT-PRINCIPLES

 

OF THE MĀLIKIYYAH – 2

 

After looking at the five root-principles the Mālikiyyah derived from the Book, we are going to deal now with the five mirror principles drawn by them from the Prophetic Sunnah.

 

Principles VI-X: The Sunnah

 

6) The explicit implication of the Sunnah (Nass as-Sunnah)

What the Prophetic Sunnah explicitly indicates in such a manner as to leave no room for any alternative implication.

Example:

His statement, Sallallāhu ‘alayhi wa-Sallam, about the sale of a lactiferous animal (such as a milk cow), the milk of which is retained in the udder, thereby enlarging its size and creating the impression that an abundance of milk is its normal state: “Whoever buys it has the benefit of two options after milking it: if he is pleased with it he keeps it, and if he is displeased with it he returns it along with four double-handed scoops of dry dates” (Cf. SahÄ«h al-BukhārÄ«).

This hadīth, in fact, explicitly indicates the option conferred on a purchaser to return the animal plus a sā` (a measure) of dry dates as consideration for what he milked, or to keep it and sanction the sale with approval, in which case he owes nothing to the vendor. No alternative implication is permitted by this explicit text.

 

7) The manifest implication of the Sunnah (Zāhir as-Sunnah)

What the wording of the reported Sunnah indicates through an implication of preponderant likelihood compared to a divergent one.

Example:

The contract of salam or sale by advance is a species of sale where payment of the purchase price is immediate, i.e. advanced, for goods specified in the contract to be delivered at a specified later time.

In a hadÄ«th transmitted on the authority of Ibn ‘Abbās, may Allah be pleased with him, the Prophet, Sallallāhu ‘alayhi wa-Sallam, is reported as saying: “Whoever advances the purchase price for dried dates (to be delivered later), let him advance payment about a known mass and a known weight and for a known date of future delivery” (Cf. SahÄ«h Muslim).

Here, the implication of the use of the imperative (fa’l-yuslif, let him advance payment) is the legal obligation of stipulating the deferred delivery of the salam goods (deferred, that is, compared to the immediate payment of the price).

The manifest implication of the imperative is in fact obligatoriness, so long as no circumstantial pointers prove otherwise, based on His statement, may He be Exalted: «Those who oppose His command should beware of a testing trial coming to them or a painful punishment striking them» (SÅ«rah an-NÅ«r: 63).

Hence, the manifest implication of the hadīth, the obligation of stipulating deferred delivery of the salam goods, prevails over a divergent implication (the neutral permissibility or meritoriousness of such a stipulation).

It is not, however, an implication that leaves no room for a divergent one, as there might theoretically be evidence deflecting the imperative from the outward implication of a command to do the obligatory.

 

Another example:

The Prophet, Sallallāhu ‘alayhi wa-Sallam, after saying: “Pure earth is ritually pure, even if you cannot find water for up to twenty years”, added: “but if you find water, let it touch your skin” (Cf. Sunan AbÄ« Dāwud).

Once again, the imperative verb is used (fa-amissahu jildak, let it touch your skin). The manifest implication thereof, no evidence having deflected it from its scope, is the obligation to revert to water once it is available.

 

8) The divergent meaning from the Sunnah (Mafhūm al-mukhālafah or Dalīl al-khitāb, as it is interchangeably termed)

 

A meaning derived from the words in the text in such a way that it diverges from the explicit meaning thereof; i.e. affirming, for what is passed over in silence, the opposite ruling of what is explicitly verbalized.

It is a proof according to Mālik and his followers (with some notable exceptions such as al-Bājī).

What is the ground for considering it a proof?

We have the statement from the Prophet, Sallallāhu ‘alayhi wa-Sallam, on the authority of AbÅ« Sa`Ä«d al-KhudrÄ«: “Water is only from water” (Cf. SahÄ«h Muslim).

In its pronounced meaning, this earlier Prophetic statement is to the effect that when sperm is discharged after the two circumcised parts meet in the act of sexual intercourse the ritual bath (ghusl) is obligatory.

The implicit divergent meaning of the hadÄ«th, as such understood by the Companions, is that if, despite penetration by the male, he does not emit sperm, the ritual bath is not obligatory, since “[w]ater is only from” or “on account of water”.

This is therefore an instance of deriving a judgment of the Law from mafhūm al-mukhālafah or dalīl al-khitāb.

The Companions concurred on the fact that this hadÄ«th was either abrogated (mansÅ«kh) or specified (mukhassas) by the subsequent Prophetic statement, transmitted on the authority of ‘Ā’ishah, may Allah be pleased with her: “When the circumcised part crosses the circumcised part the ritual bath (ghusl) becomes obligatory” (Cf. Sunan at-TirmidhÄ«). Had they not understood the earlier hadÄ«th in the way we mentioned, there would have been in fact no point in unanimously stating that the later hadÄ«th had abrogated or at least specified it.

 

There are different types of divergent meanings recognized and relied upon by the Mālikiyyah, of different degrees of probative force:

 

1.     MafhÅ«m as-sifah (The descriptive meaning, i.e. the meaning implied from the descriptive attribute)

 

Example from the Sunnah:

The Prophet, Sallallāhu ‘alayhi wa-Sallam, said: “Deferring repayment of a debt by an affluent person is unjust” (Cf. SahÄ«h al-BukhārÄ«, on the authority of AbÅ« Hurayrah).

This is the pronounced meaning, and it rests on the description of the debtor as a well-to-do person.

The divergent meaning implied from it is that a delay to repay a debt by a person in straitened circumstances (an opposite description) is acceptable and not an injustice: accordingly, a debtor in a dire financial state cannot be imprisoned because of such delay.  

A further example:

On the authority of Ibn ‘Umar, it is narrated that the Prophet, Sallallāhu ‘alayhi wa-Sallam, said: “Whoever buys a palm-tree and it is pollinated, its fruits belong to the seller, unless the purchaser stipulates otherwise in the contract” (Cf. SahÄ«h al-BukhārÄ«).

This is the pronounced meaning, and it rests on the description of the palm-tree as having been pollinated.

The divergent meaning implied from it is that, prior to pollination, the fruits of any such tree are the property of the purchaser.

 

The descriptive meaning (mafhūm as-sifah), though a proof for the Mālikiyyah, is not strong enough to counter a contrary proof in the pronounced meaning.

Here is an example:

As a category subjected to the wealth-tax in Islam, cattle can be fed with fodder by the owner or left to graze freely.

The Prophet, Sallallāhu ‘alayhi wa-Sallam, has said: “Zakāt is levied on freely-grazing cattle.

This is the pronounced meaning, and it rests on the description of the cattle as freely grazing.

The divergent meaning implied from it is that cattle fed with fodder by the owner is exempted from the wealth-tax.

That is, however, not so. The generality of the pronounced wording in the other hadÄ«th: “For every forty cattle, one cattle is owed as tax” (Cf. Sunan at-TirmidhÄ«) takes precedence, being of greater probative force than the said divergent meaning implied from the other narration.

The Mālikī ruling is thus to levy zakat on both categories of cattle, without any differentiation.

 

In Al-Ishārah ilā Ma`rifah al-UsÅ«l wa al-Wajāzah, Imām al-BājÄ«, having mentioned that the divergent meaning implied from the said hadÄ«th is the non-taxability of cattle that do not graze freely, and having laid out his denial of dalÄ«l al-khitāb being a proof, stated what follows:

·        For those who see it as proof, it is to make a judgment conditional on a meaning applicable to some members of a genus, the implication being to negate that judgment in respect of other members of that genus bereft of that meaning;

·        The truth is that making a judgment conditional on a descriptive attitude in some members of a genus simply entails the applicability of that judgment to the members thereof with such descriptive attitude; as for the judgment specific to all the other members of that genus without such descriptive attitude, it should be investigated independently and not implied by “harmonious divergence” from it.

 

Be it as it may, the established Mālikī position is contrary to his on this aspect.

 

2.     MafhÅ«m al-‘adad (The numerical meaning, i.e. the meaning implied from the number)

 

Here, the ruling based on the implicit meaning rests on the specification of the number in the text.

Example from the Sunnah:

In the hadÄ«th transmitted on the authority of Ibn ‘Umar, may Allah be pleased with him, it is stated that “the Prophet, Sallallāhu ‘alayhi wa-Sallam, cut off a hand for the theft of a shield the price of which was three silver coins” (Cf. SahÄ«h al-BukhārÄ«).

This is the pronounced meaning.

The divergent meaning implied from it is that no hand can be amputated for the theft of a property of a lesser monetary value than that.

A second example:

It is transmitted on the authority of Sahl b. AbÄ« Hathmah that the Prophet, Sallallāhu ‘alayhi wa-Sallam, said about the oath of qasāmah to establish criminal liability for murder: “Are you prepared to take fifty oaths, so that you may be entitled to the blood-wit of your companion or your man who has murdered?” (Cf. SahÄ«h Muslim).

The divergent meaning implied from the explicit pronouncement is that less than fifty oaths cannot establish entitlement to blood-wit.

A third example:

AbÅ« Hurayrah, may Allah be pleased with him, has narrated from the Prophet, Sallallāhu ‘alayhi wa-Sallam, that he said: “The container of any one of you which a dog has licked is ritually pure if he washes it seven times, the first time with sand” (Cf. SahÄ«h Muslim).

This is the pronounced meaning.

The divergent meaning implied from it is that washing the container less than seven times is incapable of rendering it ritually pure.

 

3.     MafhÅ«m ash-shart (The conditional meaning, i.e. the implied from the condition)

 

Example from the Sunnah:

The Prophet, Sallallāhu ‘alayhi wa-Sallam, said on the authority of Ibn ‘Umar, may Allah be pleased with him: “If one buys food, he cannot resell it until he has received it into his possession” (Cf. SahÄ«h al-BukhārÄ«).

·        Condition: If … then …;

·        Implied divergent meaning: If a person receives food as a gift, not as a result of a sale, he can sell it before taking possession of it (by mass or weight).

 

4.     MafhÅ«m al-ghāyah (The meaning implied from the end-point, time- or place-wise, of a thing)

 

Example from the Sunnah:

As we saw just now, the Prophet, Sallallāhu ‘alayhi wa-Sallam, said: “If one buys food, he cannot resell it until he has received it into his possession.

The pronounced meaning: Once he has taken possession of it (by mass or weight), he can resell food he has purchased. Receiving the purchased food into one’s possession is the end-point beyond which permissibility sets in. 

The divergent meaning implied from it: Before taking possession of it (before reaching that end-point), he is forbidden to resell food he has purchased.

Another example:

The Prophet, Sallallāhu ‘alayhi wa-Sallam, said on the authority of ‘AlÄ«, may Allah be pleased with him: “The pen has been lifted from three: from the sleeping person until he wakes up, from a child until he becomes of age, and from an idiot until he comes to his senses” (Cf. Sunan at-TirmidhÄ«).

The pronounced meaning: There is no legal accountability (taklīf) until one of the three end-points (waking up, puberty, or mental sanity) is reached.

The divergent meaning implied from it:

Legal accountability (taklīf) only exists upon cessation of sleep, after puberty or in a state of mental sanity (after crossing the said end-points).

 

5.     MafhÅ«m al-hasr (The restrictive meaning, i.e., the meaning implied from the restrictive specification)

 

It applies to statements prevalently using the tool of restrictive exclusivity “innamā”.

Example from the Sunnah:

In SahÄ«h al-BukhārÄ« it is reported, on the authority of Jābir b. ‘Abdillāh, may Allah be pleased with him, that the Prophet, Sallallāhu ‘alayhi wa-Sallam, “established the right of pre-emption (shuf`ah) only (innamā) in respect of any jointly owned property as yet undivided; once boundaries are traced and roads diverted, there is no longer any right of pre-emption.”

This is the pronounced meaning: The restriction of the right of pre-emption exclusively to undivided co-owned property.

The divergent meaning implied from it is that a neighbour, who, not being a co-owner in a person’s property but only an adjoining owner, falls outside the restricted scope, has no right of pre-emption.

A second example:

‘Ā’ishah, may Allah be pleased with her, narrated that the Prophet, Sallallāhu ‘alayhi wa-Sallam, said: “Buy her. Clientage is only (innamā) for the one who sets a slave free” (Cf. SahÄ«h al-BukhārÄ«).

This is the pronounced meaning: The restriction of the ties of clientage to the person setting a slave free.

The divergent meaning implied from it is that no clientage can accrue in favour of the buyer of a slave, not even if he stipulates it in his favour, as he falls outside the restricted scope.

A third example:

‘Umar, may Allah be pleased with him, has narrated from the Prophet, Sallallāhu ‘alayhi wa-Sallam, that he said: “Actions are only by their intentions (innamā’l-a`mālu bin-niyyāt)” (Cf. SahÄ«h al-BukhārÄ«).

Innamā restricts the compass of sound actions to those underpinned by intention.

The divergent meaning implied from it is that no action is sound if unaccompanied by intention, falling, that is, outside the restricted scope.

A fourth example:

The Prophet, Sallallāhu ‘alayhi wa-Sallam, said: “No hand of a thief is cut off unless the value of the stolen property is one-quarter of a gold coin or more” (Cf. SahÄ«h Muslim).

This is the pronounced meaning: The restriction of the imposition of the prescribed penalty for theft to the theft of a property valued at one-quarter of a gold coin or more.

The divergent meaning implied from it is that no hadd can be inflicted for the theft of an asset below that value.

 

9) The harmonious meaning ((Mafhūm al-muwāfaqah)

 

Affirming, for what is passed over in silence but implied, the same ruling as the one applying to what is explicitly pronounced, on an equal footing (parallel meaning) or with even greater force (superior meaning).

Example:

The statement by the Prophet, Sallallāhu ‘alayhi wa-Sallam, on what establishes proof in civil suits between litigants: “Your two witnesses or his oath” (Cf. SahÄ«h al-BukhārÄ«).

This is the pronounced meaning.

The implicit meaning harmonious with it is that proof by more than two witnesses establishes your right on even stronger grounds.

It is thus an example of fahwā al-khitāb, the superior meaning, one of the two categories of harmonious meaning: what is implied and not pronounced is more entitled to the judgment (hukm), here sufficiency of proof in a civil case, than what is explicitly pronounced.

A second example:

The hadÄ«th transmitted on the authority of Ibn ‘Umar, may Allah be pleased with him, in which he said: “The Prophet, Sallallāhu ‘alayhi wa-Sallam, cut off a hand for the theft of a shield the price of which was three silver coins” (Cf. SahÄ«h al-BukhārÄ«).

This is the pronounced meaning.

The implicit meaning harmonious with it (again a superior meaning) is that, a fortiori, the prescribed penalty should be levied on someone who steals property exceeding that value.

A third example:

The Prophet, Sallallāhu ‘alayhi wa-Sallam, said: “Whoever forgets a salāt ought to perform it upon remembering it. There is no expiation (kaffārah) for it other than making it up; and establish salāt to remember Me[1] (Cf. SahÄ«h al-BukhārÄ«).

This is the pronounced meaning.

The implicit meaning harmonious with it (once more a superior and not just a parallel meaning) is that, a fortiori, a person who intentionally discarded a salāt is obliged to make it up.

 

10) The notification of the efficient cause, or the alerting to the efficient cause of a ruling, by the Sunnah (Tanbīh as-Sunnah)

Here, the text informs us of the efficient cause behind a ruling.

Example 1:

In a hadÄ«th transmitted on the authority of AbÅ« Bakrah, may Allah be pleased with him, the Prophet, Sallallāhu ‘alayhi wa-Sallam, is reported as saying: “A judge must not preside over a case between two litigants whilst he is angry” (Cf. Sunan Ibn Mājah).

The implication of this statement is to alert us to the fact that anger, and whatever is akin to it that distracts and clutters one’s mind, is the efficient cause (‘illah) of the prohibition, and so long as that cause subsists, it is impermissible for a judge to preside over a case.

Example 2:

In a hadÄ«th transmitted on the authority of Sa`d b. AbÄ« Waqqās, may Allah be pleased with him, the Prophet, Sallallāhu ‘alayhi wa-Sallam, is reported as saying about the barter of fresh dates for dry dates: “Do they shrink when they become dry?”. As they replied in the affirmative, he, Sallallāhu ‘alayhi wa-Sallam, said: “Then no permission is given?” (Cf. Musnad Ahmad and Sunan at-TirmidhÄ«, who commented: “hasan sahÄ«h”).

The implication of this statement from the Sunnah is to inform us of the cause behind the prohibition of bartering fresh dates for dry dates, namely, the lack of equivalence in the exchange of a usurious foodstuff for its genus.

Example 3:

The Prophet, Sallallāhu ‘alayhi wa-Sallam, said: “I only forbade you for the sake of the downtrodden Bedouins who came from the desert” (Cf. SahÄ«h Muslim).

The implication of this Prophetic statement is to notify us of the fact that the efficient cause for the prohibition of hoarding the meat of the animals slaughtered for ‘Īd was the arrival that year in al-MadÄ«nah of weak and impoverished desert Arabs.

Example 4:

In a hadÄ«th transmitted on the authority of AbÅ« Qatādah, may Allah be pleased with him, the Prophet, Sallallāhu ‘alayhi wa-Sallam, said about the female cat: “It is not impurity. It is in fact part of the male and female creatures moving around in your environs” (Cf. Sunan at-TirmidhÄ«).

The implication of this hadīth is to awake us to the fact that the efficient cause of the ritual purity of female cats and their leftover water is their abundant mixing with humans in their houses, so guarding against them, purity-wise, would be a burdensome inconvenience.

 

Next, Allah willing, are root-principles 11 to 16: Scholarly consensus (ijmā`), analogical reasoning (qiyās), the practice of the People of Madīnah, statement of a Companion, juristic preference (istihsān) and custom and usage.

 

 



[1] A direct quotation of SÅ«rah Taha: 14.

 



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