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Maliki usul - 3

2017-02-03
February 3, 2017

 

FOUNDATIONAL ROOT-PRINCIPLES

OF THE MĀLIKIYYAH – 3

 

Having previously looked at the two sets of five root-principles each which the Mālikiyyah garnered from the Book and the Prophetic Sunnah, we turn now to the investigation of the following four root-principles: Scholarly consensus (ijmā`), analogical reasoning (qiyās), the normative practice of the People of al-Madīnah (amal Ahl al-Madīnah) and saying by a Companion (qawl as-Sahābī).

 

Principle XI: Scholarly consensus (Ijmā`)

 

It is too well-known a root-principle to require a definition here. All the schools of Ahl as-Sunnah take by it.

Examples thereof are:

  • The unanimous informed opinion on ribā (usury) being forbidden in the six genera mentioned in the Prophet’s, Sallallāhu ‘alayhi wa-Sallam’s statement: “Gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates and salt for salt, like for like …” [Reported by Muslim in his SahÄ«h, hadÄ«th no. 1587].
  • Scholarly consensus on dormant partnership (qirād) and partnership properly so-called (shirkah) wherever one of the two parties to the arrangement stipulates in his favour a fixed share of the profit below which he is not going to dip.
  • Concurrence of scholarly views on forbidding the sale of food prior to taking possession thereof or selling what is not in the vendor’s ownership.
  • Unanimity of informed views on the fact that the grandfather is entitled to a share of the inheritance.
  • Scholarly consensus on an intoxicated person being lashed 80 times.
  • Agreement by the scholars on the Caliphate of AbÅ« Bakr, may Allah be pleased with him, and on recording the Qur’ān in written masāhif.

 

Principle XII: Analogical reasoning (Qiyās)

 

Each of the four canonical schools (but not the Literalists) include it as one of their root-principles.

It is to extend to a new case or far` (branch) the textual ruling of an original case or asl, due to the effective cause (‘illah) of the latter being entrenched in the former as well (presence of commonality of the cause between the original case and the new one).

Example:

The analogy drawn by modern Mālikiyyah between paper currencies/coins and gold/silver in forbidding the mutual exchange of units of the same genus with a time delay or a quantitative discrepancy, based on them sharing the effective cause of price-ness.

 

The Mālikiyyah have a specific approach to the scenario where analogical reasoning clashes with a transmitted report and contradicts it.

This is not the suitable locus to delve into such a ponderous issue in any detail.

Suffice it to say that the Mālikiyyah (or their Imam for that matter) do not lend precedence to qiyās over khabar (transmitted report) generally and in an unqualified sense, just as they do not do the opposite either.

Rather, they weigh between the two of them in the light of the evidentiary material and arch-rules provided by the Law. As a result, wherever no other evidence lends preponderance to an analogical reasoning (other than itself, that is), the transmitted report outweighs the qiyās, hence, e.g., Mālik takes by the hadīth that instructs washing a container licked by a dog seven times, even though analogical reasoning would point to the opposite (i.e. discarding action by it), given the ritual purity of dogs in his view. Several other examples reinforce that approach.

Similarly, analogical reasoning would suggest that a woman’s testimony has the same weight as a man’s, as they equally share intellect and taklÄ«f, Mālik takes by the textual ruling to the contrary in SÅ«rah al-Baqarah: 282 [Consideration of sameness in terms of intellect and taklÄ«f is thus deemed unsound and corrupt here].

 

Principle XIII: Normative practice of the People of al-Madīnah (Qiyās)

 

The Mālikiyyah take as we know by the normative practice of the People of al-MadÄ«nah (‘amal Ahl al-MadÄ«nah) established through continuous transmission all the way to the Prophet, Sallallāhu ‘alayhi wa-Sallam, whether it takes the form of a deed or a saying, an omission or an endorsement.

That is so since taking by such a practice is tantamount to taking by a Prophetic Sunnah and a transmitted report and using it as proof.

That is the position with the accurate verifiers of the truth in the school, such as Judge ‘Abdu’l-Wahhāb al-BaghdādÄ«, Judge ‘Iyād al-YahsubÄ« from Ceuta or his fellow Andalusian or al-BājÄ«.

Examples:

  • Exempting the stipulation by the vendor that the purchaser cannot resell an article other than at the original purchase price (tawliyah), which is a fiduciary sale, partnership in a sale article (shirkah), and voluntary rescission of an unwanted sale (iqālah) from the prohibited category of selling food before taking possession thereof.
  • Repeating the statements in the call to prayer (adhān) while limiting that to “qad qāmatis-salāt”) in the iqāmah.
  • Establishing the mudd and sā` measures as a single and a fourfold double-handed scoop of staple food respectively.
  • Abstention from levying the wealth-tax (zakāt) on vegetables.
  • The nisāb of gold and silver is twenty gold coins [at a time that all the ahādÄ«th defining the nisāb of gold and silver are defective].

 

It might be that the transmission handing down such a practice is a continuous multiple one (tawātur), as in the case of determining the sā` and mudd, the phrases in the call to prayer (adhān), with their reiteration unlike the iqāmah except for “qad qāmatis-salāt”, and omitting audible recitation of the basmalah in the obligatory prayer, or is founded on one-from-one narrations, as with the said exemption of the tawliyah, shirkah and iqālah from the prohibited category of selling food before taking possession thereof

Mālik was once asked about the hadÄ«th on reciting the takbÄ«r four times in the adhān (after initially reciting them softly), ‘Is it sound?’, so he replied in the affirmative. ‘Why don’t you then take by it?’, the questioner said, whereupon Mālik famously replied, ‘I do not know what is the adhān of one day. This is the Mosque of Allah’s Messenger, Sallallāhu ‘alayhi wa-Sallam, where the call to prayer is given from his time until ours five times a day, none of the Companions or Followers having been mentioned as refuting this way of giving the adhān.’

 

As reported from him by Ismā`īl b. Abī Uways, Mālik clarified his terminology pertaining to this root-principle of the Law as follows:

  • Al-amr al-mujma` ‘alayhi (“the agreed upon matter”) is what is collectively adhered to by savants he is pleased with and emulates, even though there might be some dissenting voices;
  • Al-amr ‘indanā (“the matter among us” or “with us”) and sami`tu ba`da ahl al-‘ilm “I heard some people of knowledge” denotes the statement of someone he is pleased with and emulates, and what he chose and preferred of statements by some of them.

Transmitted reports backed up by practice are granted preference by the Mālikiyyah over other reports.

If practice and transmitted report clash, a distinction is drawn between:

- Normative practice established by transmission, which is lent preference over the conflicting report (and over analogy as well) due to its preponderant probative weight, inasmuch as such a practice is a mutawātir report, handed down by a bulk from a bulk, unlike one-from-one narrations. It avails certainty, whereas one-to-one narrations only avail a preponderant thought, i.e. a balance of probabilities, whence RabÄ«`ah ar-Ra’y’s celebrated phrase, ‘a thousand from a thousand is dearer to me than one from one’;

Practice established by other than transmission (i.e. by intellectual effort or ijtihād), which is not lent preference over the conflicting report unless it is rendered weightier by some other corroborating element. The latter type of ‘amal is not a proof according to the accurate verifiers of the truth in the school, and is subject to judicial evaluation of evidence along with the rest.

 

Principle XIV: Saying by a Companion (Qawl as-Sahābī)

 

Not every statement by a Companion is of course legal proof for the Mālikiyyah.

The meaning of this source of law is more specific.

Al-Bājī wrote that the saying of one Companion that did not achieve renown and widespread dissemination was not a proof. It might in fact be a specific fatwā.

Conversely, if his statement took place before a sizeable number of Companions in attendance, it spread around widely to an extent that it could not be occulted from the knowledge of people, and none of the other Companions opposed it, it is a proof; nay, the Mālikiyyah consider it part of ijmā`.

That is why the Mālikiyyah acted by what has been transmitted from Ibn ‘Umar, may Allah be pleased with him, as reported in SahÄ«h al-BukhārÄ«, which is to the effect that he said: I have seen people during the lifetime of Allah’s Messenger, Sallallāhu ‘alayhi wa-Sallam, purchase food juzāfan (= in a lump, where one of the countervalues is roughly determined by mere viewing), who are beaten up if they resell it at once before taking them to their saddles.’

In a similar vein, they acted by Ibn ‘Umar’s statement about the man who simultaneously pronounced an insult upon three of his wives by likening them to a prohibited relation of his (zihār), ‘Only one expiation (kaffārah) is binding on him,’ since this statement, like the previous one on sale of food juzāfan, was widely known to his fellow Companions, who expressed no dissension.

 

When the Companions differed inter se between two contrasting views, it is impermissible to uphold a third view, since their limitation to two views only is equated to an ijmā` on that.

If a Companion says “part of the Sunnah is such-and-such” or “we were commanded such-and-such” or “we were forbidden such-and-such”, the ostensible implication is that the command is one from Allah and His Messenger, and the Sunnah one from the Prophet, Sallallāhu ‘alayhi wa-Sallam, not someone else’s entrenched practice. Commands and prohibitions are in fact affirmations of the Law by legalizing or outlawing matters, which is the exclusive prerogative of the Prophet, Sallallāhu ‘alayhi wa-Sallam, and the unqualified use of “Sunnah” brings at once to the mind his, Sallallāhu ‘alayhi wa-Sallam, normative practice.

Accordingly, the Mālikiyyah used as proof ‘AlÄ«’s, may Allah be pleased with him, saying: ‘Part of the Sunnah is that a free man is not killed as retaliation for the killing of a slave” (Reported in Sunan ad-DāraqutnÄ«).

In the event that a Companion says, ‘The Messenger of Allah, Sallallāhu ‘alayhi wa-Sallam, commanded such-and-such”, it is construed on the basis that such a Companion heard it from him [Sallallāhu ‘alayhi wa-Sallam].

The Mālikiyyah further use as proof the statement by a Companion, ‘They used to do such-and-such during the lifetime of the Messenger of Allah, Sallallāhu ‘alayhi wa-Sallam’, or, ‘We used to do such-and-such,’ so long as it is something that could not have escaped Allah’s Messenger, Sallallāhu ‘alayhi wa-Sallam, and he did not refute it.

An example thereof is Jābir’s saying: ‘We used to practice coitus interruptus during the lifetime of the Prophet, Sallallāhu ‘alayhi wa-Sallam, whilst the Qur’ān was being revealed’ (Cf. SahÄ«h al-BukhārÄ«). Their practice, in fact, could not have eluded his, Sallallāhu ‘alayhi wa-Sallam, attention, for he, Sallallāhu ‘alayhi wa-Sallam, had said, when asked about coitus interruptus: “You are not bound to refrain from it. There is no soul decreed into existence until the Day of Rising but that it will come into being” (Cf. SahÄ«h al-BukhārÄ«).

As for the saying by a Companion, ‘We used to do this,’ referring to what is such that, not being widespread, might be hidden from the knowledge of the Prophet, Sallallāhu ‘alayhi wa-Sallam, it is not a proof establishing the ruling in a matter.

Example (stressed by al-BājÄ«): The saying by one Companion: ‘We used to have intercourse, without passing sperm, without taking the full ritual bath afterwards.’

 



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