OF THE MÄLIKIYYAH – 3
Having previously looked at the two sets of five root-principles each which the MÄlikiyyah garnered from the Book and the Prophetic Sunnah, we turn now to the investigation of the following four root-principles: Scholarly consensus (ijmÄ`), analogical reasoning (qiyÄs), the normative practice of the People of al-MadÄ«nah (‘amal Ahl al-MadÄ«nah) and saying by a Companion (qawl as-SahÄbÄ«).
Principle XI: Scholarly consensus (IjmÄ`)
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 ribÄ (usury) being forbidden in the six genera mentioned in the Prophet’s, SallallÄhu ‘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 (qirÄd) 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’Än in written masÄhif.
Principle XII: Analogical reasoning (QiyÄs)
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).
The analogy drawn by modern MÄlikiyyah 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 MÄlikiyyah 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 MÄlikiyyah (or their Imam for that matter) do not lend precedence to qiyÄs 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 qiyÄs, hence, e.g., MÄlik takes by the hadÄ«th 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, MÄlik 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-MadÄ«nah (QiyÄs)
The MÄlikiyyah 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, SallallÄhu ‘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-WahhÄb al-BaghdÄdÄ«, Judge ‘IyÄd al-YahsubÄ« from Ceuta or his fellow Andalusian or al-BÄjÄ«.
- 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 (iqÄlah) from the prohibited category of selling food before taking possession thereof.
- Repeating the statements in the call to prayer (adhÄn) while limiting that to “qad qÄmatis-salÄt”) in the iqÄmah.
- Establishing the mudd and sÄ` measures as a single and a fourfold double-handed scoop of staple food respectively.
- Abstention from levying the wealth-tax (zakÄt) on vegetables.
- The nisÄb of gold and silver is twenty gold coins [at a time that all the ahÄdÄ«th defining the nisÄb of gold and silver are defective].
It might be that the transmission handing down such a practice is a continuous multiple one (tawÄtur), as in the case of determining the sÄ` and mudd, the phrases in the call to prayer (adhÄn), with their reiteration unlike the iqÄmah except for “qad qÄmatis-salÄt”, 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 iqÄlah from the prohibited category of selling food before taking possession thereof
MÄlik was once asked about the hadÄ«th on reciting the takbÄ«r four times in the adhÄn (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 MÄlik famously replied, ‘I do not know what is the adhÄn of one day. This is the Mosque of Allah’s Messenger, SallallÄhu ‘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 adhÄn.’
As reported from him by IsmÄ`Ä«l b. AbÄ« Uways, MÄlik 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 ‘indanÄ (“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 MÄlikiyyah 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 mutawÄtir 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 ijtihÄd), 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-SahÄbÄ«)
Not every statement by a Companion is of course legal proof for the MÄlikiyyah.
The meaning of this source of law is more specific.
Al-BÄjÄ« 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 fatwÄ.
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 MÄlikiyyah consider it part of ijmÄ`.
That is why the MÄlikiyyah acted by what has been transmitted from Ibn ‘Umar, may Allah be pleased with him, as reported in SahÄ«h al-BukhÄrÄ«, which is to the effect that he said: I have seen people during the lifetime of Allah’s Messenger, SallallÄhu ‘alayhi wa-Sallam, purchase food juzÄfan (= 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 (zihÄr), ‘Only one expiation (kaffÄrah) is binding on him,’ since this statement, like the previous one on sale of food juzÄfan, 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 ijmÄ` 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, SallallÄhu ‘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, SallallÄhu ‘alayhi wa-Sallam, and the unqualified use of “Sunnah” brings at once to the mind his, SallallÄhu ‘alayhi wa-Sallam, normative practice.
Accordingly, the MÄlikiyyah 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-DÄraqutnÄ«).
In the event that a Companion says, ‘The Messenger of Allah, SallallÄhu ‘alayhi wa-Sallam, commanded such-and-such”, it is construed on the basis that such a Companion heard it from him [SallallÄhu ‘alayhi wa-Sallam].
The MÄlikiyyah further use as proof the statement by a Companion, ‘They used to do such-and-such during the lifetime of the Messenger of Allah, SallallÄhu ‘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, SallallÄhu ‘alayhi wa-Sallam, and he did not refute it.
An example thereof is JÄbir’s saying: ‘We used to practice coitus interruptus during the lifetime of the Prophet, SallallÄhu ‘alayhi wa-Sallam, whilst the Qur’Än was being revealed’ (Cf. SahÄ«h al-BukhÄrÄ«). Their practice, in fact, could not have eluded his, SallallÄhu ‘alayhi wa-Sallam, attention, for he, SallallÄhu ‘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-BukhÄrÄ«).
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, SallallÄhu ‘alayhi wa-Sallam, it is not a proof establishing the ruling in a matter.
Example (stressed by al-BÄjÄ«): The saying by one Companion: ‘We used to have intercourse, without passing sperm, without taking the full ritual bath afterwards.’