Imam Maliks Source of Fiqh Fatwas of the Followers (Tabi’un)

The scholars accepted the statements of the Companions either by way of imitation or as an authoritative source of the Shari’a since it was sunna derived from the guidance of the Prophet, may Allah bless him and grant him peace. Most scholars do not accord the Followers this rank. Abu Hanifa explicitly stated that he used to strive as al-Hasan, Ibn Sirin, ash-Sha’bi and Ibrahim an-Nakha’i strove. In his Risala, ash-Shafi’i did not mention that he allowed imitating them. Perhaps in these cases he did not reach a confirmed and established ijtihad which was definitive in the question. When he saw a statement by one of the Followers in the question, he accepted it, but not on the basis that it was a juristic choice based on evidence or on the basis that its imitation was permitted, like that of the Companion. It was giving information about the position of those before him in something in which he did not have an opinion.

Some Hanbalis accepted the statements of the Followers when they did not differ from the statements of the Companions or the Followers.

Which of the two parties did Malik fall into? It is clear that Malik did not consider the statements of the Followers to occupy the same position in the Sunna as those of the Companions; but he did take account of the positions of some of the Followers because of their knowledge of fiqh or their truthfulness or their exalted qualities of character. These included such people as ‘Umar ibn ‘Abdu’l-‘Aziz, Sa’id ibn al-Musayyab, Ibn Shihab az-Zuhri, Nafi’ the client of Ibn ‘Umar, and others who were accurate in transmission of knowledge and had high proficiency in fiqh. He accepted a fatwa from them when its basis was a known sunna, or was in accordance with the Practice of the People of Madina, or with the position of the majority of scholars. Sometimes he was satisfied with their ijtihad when he had confidence in it and did not find anything to contradict it.

We will mention some the transmissions which support what we said and attest to it:

1. Part of that is forbidding man to sell what is not in his possession. In that Malik accepted the opinion Sa’id ibn al-Musayyab. We read in the Muwatta’: Malik reported from Musa ibn Maysara that he heard a man say to Sa’id ibn al-Musayyab, “I am a man who sells for a debt.” Sa’id said, “Do not sell except for what you take directly to your camel.” (31.40.85)

2. Malik accepted the position of Zayd ibn Aslam on the reality of the usury of the Jahiliyya:

“Malik related from Zayd ibn Aslam that the usury in the Jahiliyya was that a man would give a loan to a man for a set term. When the term was due, he would say, ‘Will you pay it off or increase me?” Based on this, a reduction of the debt in return for a reduction in the term is part of usury. That is why he said, “The disapproved way of doing things about which there is no dispute among us is that a man gives a loan to a man for a term, and then the demander reduces it and the one from whom it is demanded pays it in advance. To us that is like someone who delays repaying his debt after it is due to his creditor and his creditor increases his debt. This is nothing else but usury.”

3. Another instance is that he accepted the statement of al-Qasim ibn Muhammad ibn Abi Bakr about it being disliked to reduce the price in exchange for early payment and to increase it in exchange for delay. In the Muwatta’: “Malik conveyed to him that al-Qasim ibn Muhammad was asked about a man who bought goods for ten dinars cash or fifteen dinars on credit. He disapproved of that and forbade it.”

From this you see that Malik used to accept the statements of some of the Followers. Furthermore two things must be pointed out:

One: He used to compare their statement with the famous Sunna, the probable and unequivocal texts of the Noble Book, what he knew of the general principles of the Shari’a, what was well-known of sound and established analogies, what the people of Madina had and how people acted. On the whole, he studied their conclusions alongside all the principles he knew. If he did not find anyone who disagreed with what they said and he was familiar with it, he took that view which he ascribed to them. In fact, in his fiqh Malik acted according to that method. He did not accept only a single principle in the question on which he relied, but combined the roots in his study of each question. When there was a noble ayat on the question whose apparent text indicated a judgement which should be studied on the basis of that apparent text, along with the well-known Shari’a, the Practice of the People of Madina and the general principles, and all of that led to accepting the dhahir text or making it specific by the well-known Sunna, the Practice of the People of Madina or the general principles, then he would study the questions using all the sources of deduction at his disposal. If there was a single tradition on it, he studied it in that way combining the general principles of deduction. When he reached a comprehensive judgement, he adopted it. This was the view by which he was distinguished and in which he was opposed by his student ash-Shafi’i. Ash-Shafi’i thought that the tradition, even if a single tradition or a specific tradition, was accepted and specified the dhahir text of the Qur’an and rejected analogy. Malik compared and allocated priority, while ash-Shafi’i accepted the evidence of the Sunna on its own, even though Malik himself was the transmitter of the tradition and recorded it in his Muwatta’.

Two: He did not consider the statement of the Follower, inasmuch as he was a Follower, as being Sunna as was the case with the words of the Companions of those who clung to the Messenger of Allah, may Allah bless him and grant him peace. Their statements were considered to be part of the Sunna as they were Companions who clung to the Messenger, were present when the Revelation was received and perceived its aims. He did not accept the statements of the Followers by imitation and following. It was because through his study he had ended up agreeing with them and did not find anything to diminish them. Those Followers are in the position of the shaykhs on whose fiqh he based his deduction and he accepted their statements because he did not find anything to invalidate them and his ijtihad led to him agreeing with them.

Before we finish this topic, we will compare Malik and Abu Hanifa regarding acceptance of the statement of the Followers. It is reported that Abu Hanifa used to transmit that an-Nakha’i, al-Hasan al-Basri, Ibn Sirin and other Followers strove and that he could strive as they strove, and that they were men and he was a man, and that this is why he did not consider their statement an authoritative source so that it had to be accepted and followed. But in addition to that clear statement of his and his proclamation of his juristic independence and then his imitation of those whose imitation is not considered as adopting the Sunna, we see in the Book of Traditions that he proclaimed his preference for many opinions stated by Ibrahim an-Nakha’i, as Malik took the statements of Sa’id ibn al-Musayyab, Zayd ibn Aslam, al-Qasim ibn Muhammad, ‘Umar ibn ‘Abdu’l-‘Aziz and other great Followers whose fiqh was well-known in Madina.

The truth is that a deep study of the books of traditions of this two respected Imams shows us the compatibility of their methods in this case.

Abu Hanifa accepted so many fatwas from Ibrahim that some people attacked his fiqh and claimed that it was the fiqh of Ibrahim and that he had not exceeded the rank of the one who trained him because of the great amount he took from the statements of Ibrahim and other fuqaha’ among the Followers in Kufa. However, he selected many of Ibrahim’s opinions because their opinions concurred, not by following and imitation.

A sound study of the development of these two Imams ends with a correspondence in their method in respect of the Followers, even if their individual Followers were different. Abu Hanifa trained under Hammad in his juristic development, and Hammad transmitted from Ibrahim. So in fiqh he learned the fiqh of Ibrahim and then he expanded his studies and ijtihad, especially after he sat in of Hammad’s place after his death. He continued to research and strive for about thirty years. Thus it is only logical that he was often satisfied with the Ibrahim’s opinions independently, not by the imitation or following.

Similarly, Malik was trained in his legal development by the fuqaha’ who learned fiqh from the seven fuqaha’ and others. That study was the legal substance in which he made his deductions. Part of connecting affairs to their causes was that the opinions of the seven fuqaha’ had a place in consideration and an assessment with him. He either agreed with it or disagreed. If he agreed, it was from study and the comparison of fundamental principles with one other. If they disagreed, then it was by conflict with what was stronger than it and a more authentic statement.

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s