The Second Source Of Imam Maliks Fiqh: The Sunna

  • 1. The Shari’a of the Sunna in relation to the Noble Qur’an
  • 2. Riwaya (Transmission) in Malik’s view
  • 3. Opinion (Ra’y) and Hadith from Malik

There is no dispute that Malik was an Imam in hadith and fiqh: a transmitter of the first rank in hadith and a faqih with insight into fatwa and the deduction of judgements. His transmission of hadith is also considered one of the soundest of transmissions, particularly in his choice of transmitters and knowledge of the accuracy of their transmission. He was a faqih with insight into fatwa and derivation of judgements, analogy of similar things, recognition of the welfare of people, and what fatwas are appropriate without being far from the text nor shunning what is transmitted of cases and fatwas ascribed to the righteous Salaf.

Some people criticised the riwaya of ash-Shafi’i and Abu Hanifa. In spite of their prejudice, they were not able say anything about Malik’s transmission. Some scholars, including at-Tabari, deny that Ahmad ibn Hanbal was a faqih and said that he was a only a muhaddith and not a faqih. Malik alone is a muhaddith who is counted in the first rank by consensus and a faqih with insight into the subjects of fatwas and its sources by consensus. This is a confirmed and established matter on which there is agreement among the scholars of hadith and fiqh.

Imam al-Bukhari, whose book come to be considered the soundest of the books in hadith and the strongest of them in attribution considers the isnad of Malik in some hadiths as the soundest isnad. It is: Malik from Abu’z-Zinad from al-A’raj from Abu Hurayra.

Abu Dawud, the author of the Sunan, says, “The strongest isnad is: Malik from Nafi’ from Ibn ‘Umar, then Malik from az-Zuhri from Salim from his father; then Malik from Abu’z-Zinad from al-A’raj from Abu Hurayra, and he did not mention anyone except Malik.

This testimony from the people of this science indicates that two things place him in the first rank of hadith scholars:

  1. He himself is reliable. He is just and accurate and there is no way to attack his transmission in respect of his person or his accuracy. People have spoken against others in that respect.
  2. He was excellent in selecting those from whom he transmitted. He and his men from whom he related are in the first rank since al-Bukhari considers him and some of his men to have the soundest isnad, and Abu Dawud considers him and his men in the first three ranks in the strength of isnad. He is reliable and excellent in the measure of men by the testimony of the people of skill and precision who know this business.

He was strict about the preconditions of good character and accuracy in his transmitters.

1. The Shari’a of the Sunna in relation to the Noble Qur’an

There are three ways in which the Sunna clarifies and complements the Qur’an.

1: It directly confirms the judgements of the Qur’an; in this case it adds nothing new whatsoever, nor does it clarify something unclear or limit something which is unrestricted or specify something referred to in general terms like: “fast when you see it and break the fast when you see it.” This hadith is confirmation of the Qur’an and reinforces the words of the Almighty: “The month of Ramadan is the one in which the Qur’an was revealed.” (2:185)

2: The Sunna also casts light on the intention of the Qur’an and limits some things which are unrestricted in the Book and gives detailed form to some matters which are undefined by the Book.

One example of that is the sound hadith of the Prophet, may Allah bless him and grant him peace, which clarifies the ayat: “Those who believe and do not mix their belief with any wrongdoing.” (6:82) in which he makes it clear that ‘wrongdoing” in this context means shirk. Another example is the way that the Sunna delineates the details of the prayer, zakat and hajj. The Noble Qur’an deals with these acts of worship in general. It prescribes the prayer but does not give details of its pillars and times. The Prophet expounded them by action and said, ‘Pray as you saw me pray.” The Qur’an commands us to pay zakat but the Sunna gives us its details, specifying the zakat to be paid on gold and silver, on crops and fruits, and on livestock. The same applies to the hajj. It is referred to in general terms in the Qur’an but it is the Sunna of the Prophet which clarifies its practices for us.

The Sunna also clarifies the hudud in the same way. Allah says: “As for both male thieves and female thieves, cut off their hands as payment for what they have earned: an object lesson from Allah.” (5:38) The ayat does not define the minimum for which the hand is cut off, or its preconditions. That is left to the Sunna. There are, of course, a great many other situations in which the Sunna amplifies Qur’anic texts in the same way.

Part of what the Malikis consider unspecified is that which has a shared meaning. It indicates one of two or more meanings in its basic form, like the word ‘qar” in the words of the Almighty, “Divorced women wait with themselves for three periods (qar’).” It is used both for menstruation and for purity. The Sunna is what makes it clear according the disagreement between the scholars in this clarification.

Part of clarification is to make the general specific. Malik, as we made clear, stated that the Sunna makes what is general in the Qur’an specific with preconditions which we will mention, even if it is a single report if it has support because in his view, when the general and specific meet, the general is specified by it, if something else supports the Sunna.

In addition to this view, Malik distinguishes between the Sunna’s clarification in making the general specific and the clarification of what is undefined. The undefined cannot be acted on without clarification. As for the general, its generality can be acted on, even there is a possibility in its evidence, but the predominance of its evidence for every other possibility is acted upon until the evidence is established that it is specific. Then there is a difference between it and the undefined, even if the sunna of single reports clarifies it according to Malik and his students.

3. The third way in which the Sunna complements the Qur’an is in judgements about which the Book is silent. An example of this is Malik’s position of rendering judgement with only one witness and an oath when a claimant does not have two witnesses. The testimony of one witness is heard and the oath of the claimant takes the place of the second witness. This procedure is based on a tradition which Malik considers sound. This also includes the fact that having the same wet-nurse makes marriage unlawful so that suckling makes unlawful what lineage makes unlawful. Another example is inheritance by a grandmother, which is not mentioned in the Qur’an.

These categories of the Sunna are in respect of the Qur’an, and they clarify it or bring a judgement which it makes clear, even if the basis of its argument is based on the Qur’an.

There is something about which scholars disagree: when the Sunna clashes with the dhahir text of the Qur’an, whether the dhahir is general, as Malik considers the evidence of the general, or not. Some of them think that the Sunna specifies the dhahir text of the Qur’an whenever it encounters it because the Sunna clarifies it and the evidence of the dhahir is probabilistic and so it is close to the undefined, even if it is not undefined. The Sunna is that which clarifies the undefined and makes clear what is meant by the obscure, as it clear when it makes it clear that ‘wrongdoing’ means shirk in the words of the Almighty, “Those who believe and do not mix their belief with any wrongdoing.” (6:82)

A group of the Salaf adopted that view and Ibn al-Qayyim supported it saying, “If it were permissible to reject the sunan of the Messenger of Allah, may Allah bless him and grant him peace, based on what a man understands from the dhahir of the Book, most of the sunan would have been rejected and totally nullified. So if anyone is presented with evidence from a sound sunna which opposes his school and stance, he could cleave to the generality or unrestrictedness of an ayat, and say that this sunna is opposed to that generality or this unrestricted statement and so it is not accepted. The Rafidites [Shi”a] reject the hadith, “We, the company of Prophets, do not leave inheritance” by the generality of the ayat, “Allah instructs you regarding your children: A male receives the same share as two females,” (4:11) No one rejects the sunna by what is understood from the dhahir of the Qur’an but that he accepts it many times over when it is like.”

Others disagree with that.

Of which sort was Malik, the Imam of the Abode of the Hijra, and the shaykh of Hijazi fiqh in his time?

We find that in certain cases he put the dhahir of the Qur’an before the Sunna, and in certain judgements he made the Sunna oversee the dhahir of the Qur’an, and so one must look for the underlying cause in the two matters in order to deduce the rule in it.

We find that he took the Noble Qur’an, even though the evidence of the expression was dhahir and rejected the hadith, “The Messenger of Allah, may Allah bless him and grant him peace, forbade eating all birds with talons” since the famous position of the school of Malik is that it is permitted to eat birds, even if they have talons. For that, he took the dhahir text of the Noble Qur’an: “Say: “I do not find, in what has been revealed to me, any food unlawful to be eaten except for carrion, poured out blood, pig-meat..” (6:145) and abandoned the hadith and considered it weak in this conflict.

As for the hadith of prohibition of wild beasts with fangs, he accepted it and made that disliked, not forbidden. So it is as if the ayat is taken literally. This is what the Malikis mention as ascribed to Malik, but the Muwatta’ contains the prohibition of every wild animal with fangs which is taken from the explicit hadith.

We also find that he forbade eating horses based on the dhahir text of the Qur’an, “Horses, mules and assess for you to ride and adornment” (16:8) which did not mention eating. So the text of the Qur’an forbids it. It is reported that it is lawful in certain hadiths.

The explicit text of the Sunna is advanced about being married to a woman and her aunt over the dhahir words of the Almighty, “Lawful to you is what is beyond that.” (4:24)

The Malikis were guided in the light of investigation to the fact that Malik put the dhahir of the Qur’an before the Sunna. In that he is like Abu Hanifa, except when the Sunna is reinforced by something else. In that case it is considered as specifying the general of the Qur’an or qualifying what is unqualified. The Sunna can be reinforced by the Practice of the People of Madina, as he mentioned in the hadith of the prohibition against eating any wild animal with fangs. The Sunna is considered as specifying what the dhahir of the text contains. That is why it states in the Muwatta’ after the hadith of the prohibition against eating any wild animal with fangs, “This is the custom among us.” (25.4.14) This tells us that the people of Madina accept that.

It is like that when it is reinforced by consensus, as it the case in the prohibition against being married to a woman and her aunt. There is consensus on that. This vindicates the Sunna and it makes the generality of the ayat specific.

According to Malik, however, if the Sunna is not supported by consensus, the Practice of the People of Madina or analogy, the text must be taken literally and any sunna which contradicts that literal text is rejected if it is transmitted via a single tradition. When it comes through multiple transmissions (mutawatir), the Sunna can be raised to the level of abrogating the Qur’an in Malik’s opinion. So it is more appropriate that it be raised to making the general specific and qualifying the unqualified and preferring the probable in its literal sense. That is acting according to both texts and accepting them.

So Malik preferred the dhahir text over a single tradition, even one considered sound, if it was not reinforced by consensus or practice. On this basis he rejected the report “If a dog drinks out of one of your vessels, you should wash it seven times, once with earth” because it clashes with the apparent meaning of the Qur’an in the words of the Almighty, “what is caught for you by hunting animals which you have trained.” (5:4) According to this, anything caught by hunting dogs is permitted, which indicates its purity and refutes the idea suggested by the report that it is impure.

This was the view of Malik about the generality of the Qur’an with the Sunna. You see that his view is close to those of the fuqaha’ of Iraq, even if they deem that the general is absolute in its evidence and has no probability in it which originates from evidence. He stated that it falls into the category of the apparent (dhahir), but he advanced the dhahir over the tradition when it is not reinforced by something else – consensus, the Practice of the People of Madina, or analogy.

2. Riwaya (Transmission) in Malik’s view

The hadiths of the Prophet are supported by an isnad connected by one of three paths: tawatur (multiple), mustafid (exhaustive) and mashhur (famous, from more than two), or single traditions (ahad).

Al-Qarafi defined the mutawatir report as the report of people about a tangible matter in which their multiple transmission normally makes lying impossible. This definition demands that the chain of the entire line of transmission be by multiple transmission so that the hadith was learned by several people from several people until the isnad reaches the Prophet, may Allah bless him and grant him peace.

This is what distinguishes the mutawatir from the mustafid or famous in the Hanafi view, which is the hadith in which the first or second rank has single individuals. Then after that it became famous and people, whose multiple transmission is not suspected of lying, transmitted it. The author of Kashf al-Asrar said, “Fame is taken into account in the second and third generations, but fame is not considered in the generations after the third generation. Most single reports are famous in these generations but are not called ‘famous’.”

The mutawatir conveys knowledge which is essential, i.e. there is no scope for the faqih to deny it.

Some scholars have said that the exhaustive is not like single reports inasmuch as it is open to uncertainty (dhann). Rather it conveys a knowledge in which one is confident since it was famous in the generation of the Followers, which was a time of recent transmission when the waymarks of the sunna were visible and the traditions clear. Its fame in that time refutes the suspicion of any lie or error in transmission. Some scholars reckon it to be in the rank of the mutawatir since it conveys certainty, but not by way of necessity, but by way of investigation and deduction. Some scholars consider it to be like single traditions since uncertainty is affirmed in it.

Similarly there is the disagreement of scholars about the famous (mashhur). It appears that Malik ranked the famous above the single, because it was famous in the rank of the Followers and exhaustive so it is the transmission of several people from the Companions, and he believes that that leaves no scope for doubt.

As for single reports, they are what a group of the first three generations did not relate, and they are considered evidence by the majority of the Muslims. Indeed, they are evidence by their consensus, but knowledge of them conveys uncertainty, even if acting by them is obligatory. Ash-Shatibi said, “Acting by single reports is obligatory because, even though it is acting by uncertain evidence, is is based on the definitive because Allah Almighty commanded us to follow the Messenger in all that he brought. The Almighty says, “Anything the Messenger gives you you should take and anything He forbids you you should leave alone.” (59:7) and the Almighty says, “Anyone who obeys the Messenger has obeyed Allah.” (4:80) When the path of reaching the statement of the Messenger is uncertain, it is like the indication of the Qur’an: even if it is uncertain, that does not preclude acting by it.” Ash-Shatibi said about this:

“One acts on the probable meaning of something uncertain (dhann) which derives from a definitive source when most single reports have it. It clarifies the Book when the Almighty says, “We revealed the Reminder to you to make clear to people what was revealed to them.” (16:44) The like of that has come in hadiths which describe lesser and major purification, the prayer and the hajj which clarify the text of the Book. It is like that with the hadiths which prohibit a group of sales, usury and other things since that derives from the words of Allah Almighty, “But Allah has permitted trade and He has forbidden usury,” (2:285) and the words of the Almighty, “Do not consume one another’s property by false means, only by means of mutually agreed trade,” (4:29) and other types of clear signs transmitted by single reports.” (al-Muwafiqat, pt. 3, p. 17)

Acting by single reports, even if they are uncertain, relies on an definitive fundamental source: the Book of Allah Almighty, and the fact that it is uncertain does not prevent acting on it.

Ibn Rushd divided the Sunna in the Maliki view into four categories according to the strength of its methods of transmission and its subject matter.

  • A sunna whose rejection is a mark of unbelief. If someone does reject it they are asked to repent. If they do not, they are to be killed as unbelievers. This applies to sunnas which have been transmitted by multiple transmission. Acquiring knowledge of such a sunna is obligatory: like wine being unlawful, the prayers being five, the Messenger of Allah, may Allah bless him and grant him peace, commanding the calling of the adhan, and other similar things.
  • A sunna which only people of deviation, error and denial reject and which all the People of the Sunna agree to be sound: such as the hadiths of intercession, the Vision, the punishment in the grave, and similar things connected with faith, even if they are not mutawatir in their isnad.
  • A sunna which it is obligatory to know and to act on, even if some of the opponents of the People of Sunna oppose it, such as wiping over leather socks, because it is known that it is acted upon by the vast majority of the Muslims and its opponents are very few.
  • A sunna which it is obligatory to act on, being one which is transmitted by a reliable source from a reliable source. They are numerous in all the categories of law and it is obligatory to act by them. An example of this is judging by the testimony of two witnesses of good character, even if they might lie or be suspect in their testimony.

As we said, Malik is strict about criteria for accepting transmission. He used to say, “Knowledge is not taken from four, and it is taken from other than them. It is not taken from a fool. It is not taken from someone following a sect who invites people to his innovation, nor from a liar who lies in his conversation with people, even if he is not suspected of that in the hadith of the Messenger of Allah, may Allah bless him and grant him peace, nor from an old man with excellence, righteousness and worship if he does not know what he relates and what he says.”

He used to say, “I have met shaykhs of excellence and righteousness in this land who relate and I have not listened to anything from them.” He was asked “Why, Abu ‘Abdullah?” He said, “Because they did not know what they were reporting.”

This indicates the preconditions which he required in his men. He made acknowledged good character a precondition and did not accept transmission from anyone lacking good character. He did not accept it from someone unknown because someone who rejects people of good character when they do not know what they convey is more likely to reject someone who is not known. Perhaps he might not be upright, and perhaps if he is not upright, he does not know what he conveys and what he leaves. Indeed it is a precondition that the transmitter be more than upright. He should not be foolish and should be without stupidity, ignorance and lack of balance. Stupidity can be combined with worship and fear of Allah. Malik did not accept from the stupid godfearing nor from the worshipper who did not balance matters soundly.

There are two more preconditions in addition to the two already mentioned:

  1. That he is not someone following an erroneous view who invites people to his innovation. Transmission is not accepted from those who following different sects, out of the fear that partisanship for their position will move them to impute things to the Messenger of Allah which he did not say. In Malik’s view, they and whoever follows that innovation are considered deviant (fasiq). He considers deviation in the soul and intellect worse than the iniquity of the limbs.
  2. Accuracy and understanding and knowledge of the meanings of the hadith, and its goals and aims. This is why he did not accept transmission from the one who did not know what he conveyed. He rejected the hadiths of many of his contemporaries, even when they had good character since they were not the people of this business.

Then it must be noticed that if someone fulfils Malik’s preconditions for transmission and is an acceptable source, nonetheless what is taken from him must be examined regarding the understanding of the hadith which he related as well as the connection between it and what is well-known of the legal rules, what is derived from the Book of Allah and the Sunna of His Messenger, that on which the people of his time agreed and that which the people of Madina have. If it did not deviate from any of that, he gave fatwa on its basis and took the contents of its judgements. If it did not accord with all of that, he rejected it because he did not like anomalous knowledge. This may coincide with the juristic principle affirmed by the scholars of the fundamentals in the Maliki school about what is related by means of single traditions, including what is related by tawatur in which there single transmissions, like the rules of the Shari’a in the obligation of the prayer, zakat, hajj, fasting and the times and judgements of these obligations. That is why when Malik learned that a hadith was gharib [with only a single reporter at one stage of the chain], he rejected it even though its transmitter was reliable. He avoided the gharib and distrusted it, even if the transmitter fulfilled all his preconditions.

It is noteworthy that he used to relate hadiths and record them, but he would give fatwa contrary to them. Perhaps that fatwa was after he learned of a fault in them which demanded their refutation and that came about after he had transmitted it. For instance, he related the hadith about the option of cancelling a sale in the meeting and then did not use it, and he related the hadith of the dog licking a vessel and rejected it because it was contrary to the explicit text of the Qur’an. Then he said, “It is not in the Muwatta’ and is not firm.”

In general, Malik sometimes rejected the hadiths of reliable people when he found them contrary to the well-known and famous judgements of Islam. That is why sometimes there is a clash between analogy and single reports. Malik studied them and favoured one of them over the other. Sometimes he rejected analogy and sometimes he rejected the single reports.

Accepting the mursal hadith [where the link between the Follower and the Prophet is missing]: Malik used to accept mursal hadith and balaghat (where the Prophet is quoted directly). It is clear that in that he acted as most of the fuqaha’ of his time acted. Al-Hasan al-Basri, Sufyan ibn ‘Uyayna, and Abu Hanifa used to accept mursal hadith.

If you open the Muwatta’, you will find many mursalat in it. Part of that is the hadith of flogging, which says:

“Malik related from Zayd ibn Aslam that a man confessed to fornication and the Messenger of Allah, may Allah bless him and grant him peace, called for a whip and he was flogged. Then he said, “People! The time has come for you to observe the limits of Allah. Whoever has had any of these ugly things befall him should cover them up with the veil of Allah. Whoever reveals his wrong action to us, we will perform what is in the Book of Allah against him.” (41.2.12)

Part of that is the hadith of the witness and the oath which is mursal. Its text in the Muwatta’ is: “Malik said from Ja’far ibn Muhammad from his father that the Messenger of Allah, may Allah bless him and grant him peace, pronounced judgement on the basis of an oath along with a single witness.” (36.4.5)

We see that the isnad in it only has Ja’far as-Sadiq ibn Muhammad ibn ‘Ali Zayd al-‘Abidin and the Companion is uncertain in it. It is mursal because the Companion is not mentioned in the strongest suppositions. In spite of that, Malik took it and gave it weight.

Part of the mursal is also the transmission of what the Prophet, may Allah bless him and grant him peace, did with the people of Khaybar. Malik said, “From Ibn Shihab from Sa’id ibn al-Musayyab that the Messenger of Allah, may Allah bless him and grant him peace, said to the Jews of Khaybar on the day that Khaybar was conquered, ‘I confirm you in it as long as Allah establishes you in it provided that the fruits are divided between you and us.” (33.1.1)

One of the balaghat on which he relied has come in the Muwatta’ about the compensatory gift in divorce: “Malik said that it had reached me that ‘Abdu’r-Rahman ibn ‘Awf divorced his wife and gave her compensation in the form of a slave-girl.” (29.17,45)

You see from this that he relied in his reporting from ‘Abdu’r-Rahman ibn ‘Awf the Companion on something that was conveyed to him. He did not mention the one who conveyed it and did not mention the isnad from ‘Abdu’r-Rahman ibn ‘Awf.

Why did Malik accept the mursalat and the balaghat and give fatwa on their basis although he is the one who was strict about them? The answer is that accepting the mursal is when it is from men who are trusted and selected and so he was strict in investigating the man who was reliable. If he fulfilled all the preconditions, he was content with him and accepted his isnad from him and accepted his mursal and balaghat. The strictness in his selection is the reason of tranquillity and accepting the mursal.

His acceptance of the mursal in this manner is not evidence that he allowed the mursal absolutely and permitted its acceptance absolutely. He allowed the mursal from those from whom he accepted the mursal. So the concern is with the person who conveyed it as a mursal report, not with the fact of its being mursal in itself.

It appears that the acceptance of the mursal reports was something widespread in Malik’s time because reliable Followers used to declare that they omitted the name of the Companion when they related the hadith from a number of Companions. Al-Hasan al-Basri used to say, “When four Companions agree on a hadith, then I transmit it mursal.” He also said, “When I say to you, ‘So-and-so related to me,’ it is his hadith and no one else’s. When I say, ‘The Messenger of Allah, may Allah bless him and grant him peace, said,’ then I heard it from seventy or more.”

It is related that al-A’mash said, “I said to Ibrahim when a hadith was related to me from ‘Abdullah and he gave me the isnad and said, ‘When I say “So-and-so related to me from ‘Abdullah,” he is the one who related that to me. When I said, “‘Abdullah said,” more than one related it to me.'”

It is clear that the mursal transmissions were frequent before there were a lot of false statements attributed to the Messenger of Allah, may Allah bless him and grant him peace. When there was a lot of that, scholars were compelled to adopt the isnad to define the transmitter and his position. Ibn Sirin said that: “We did not give the isnads for the hadiths until the Sedition occurred.”

This is why Malik accepted them as Abu Hanifa accepted the mursal within the limits which we noted, which is that those who report the mursalat are reliable.

3. Opinion (Ra’y) and Hadith from Malik

It might be imagined that Malik was lacking in opinion, to judge from the statements of those who have written about the history of Islamic fiqh and divided fiqh into fiqh of tradition and fiqh of opinion, considering Madina to be the place of the first and Iraq the place of the second and stating that Malik was a faqih of tradition and Abu Hanifa a faqih of opinion.

We see that this is not true of Malik but is true of Abu Hanifa. We find, for instance, that Ibn Qutayba considered Malik to be a faqih of opinion. We mentioned in our account of the life of Malik that his contemporaries considered him to be a faqih of opinion so that one of them asked in his time, “Who is capable of formulating an opinion in Madina now that Rabi’a and Yahya ibn Sa’id have gone?” The reply was “Malik”.

Malik used to study questions of fiqh with the eyes of an expert who could compare them against the measure of people’s best interests and compare them by means of analogy, and study the hadiths of the Prophet in the light of these things, and compare them against the general meaning of the Noble Qur’an. He explored all these matters with a profound and precise examination. In this study we see that Malik was the faqih whose opinion did not swerve from the deen just as we have seen that he was a hadith scholar with reliable transmissions.

The extent of Malik’s use of opinion is shown clearly by two things: firstly the considerable number of questions in dealing with which he relied on opinion, whether it was reached by analogy or istihsan, masalih mursala, istihsan or by sadd adh-dhara’i’. There were many and if you open the Mudawwana you will see that clearly. The methods by which Malik reaches opinions are more numerous than those used by others and that shows the great importance of opinion in his work. Its frequency is a clear indication of his reliance on it and that he clearly made use of it.

Secondly we find that when there is a conflict between single traditions and analogy, which is one kind of opinion, we find that many of the Malikis confirm that he preferred analogy, and they all mention that sometimes he used analogy and rejected traditions if they came from a single source.

Al-Qarafi said in the Tanqih al-Fusul in the discussion regarding the conflict between single reports and analogy:

“Qadi ‘Iyad in at-Tanbihat and Ibn Rushd in al-Muqaddamat report two positions in the Maliki school about giving priority to analogy over the single tradition. The Hanafis also have two positions. The argument behind giving priority to analogy is that it is in harmony with the rules when it entails obtaining benefits or repelling evils while the report which differs from it would prevent that, and so that which is in harmony with the rules is preferred over what opposes them.

“The reason for the prohibition (of giving analogy priority over the tradition) is that analogy is derived from the texts and that which is derived is not preferred to its source. As for analogy being derived from the texts, analogy can only be evidence when it is based on texts and thus it is subsidiary to them. Furthermore, that to which the analogy is connected must also be a text, and analogy is dependent on texts from both aspects. The branch cannot be giving precedence over its root. If it were given precedence before its root, that would invalidate it. If it invalidates its root, then it itself would be invalid.

“The answer to this point (i.e. that the branch is not advanced over its root) is that the texts, which are the basis of analogy, are not the text over which analogy is preferred. So there is no contradiction and the branch is not preferred over its root. It is based on other than its root.” (Tanqih, p. 761)

This tells us three things:

1. The school of Malik, according to many of his followers, prefers analogy to the single report. The scholars of his school have two positions in that just as the scholars of the Hanafi school have two positions in it. As there are those in the Hanafi school who state that analogy is preferred over single traditions, so there are Malikis who say that Malik preferred analogy over single traditions. The Hanafi who made this statement was ‘Isa ibn Aban. Al-Bazdawi says that analogy is preferred over the single tradition when the Companion who related it is not a faqih. That cannot conceivably be his opinion. When he sometimes rejected the single traditions and accepted analogy that was not because he unrestrictedly preferred analogy: it was because some analogies are definitive or because he did not accept the isnad of the single tradition. So is that view of Malik? We will clarify that soon, Allah willing.

2. It shows that he thought that Malik’s position was to give analogy priority over single traditions. Indeed, he clearly stated that in the beginning of his words: “Malik preferred analogy over single traditions.” Then the disagreement is reported. He explicitly states that that is the position of Malik. That is why the argument of the one who says that analogy is not given priority is criticised, and the argument of the one who relates that analogy is preferred without criticism is abandoned.

3. He indicates that the basis of analogies is to bring about benefits and avert harm. That is the objective of Maliki fiqh since that is the basis of opinion in his view, however numerous its categories and different its names. Whether opinion is done by analogy or by something else – istihsan, masalih mursala, or sadd adh-dhara’i– its bedrock is to bring benefits and avert harm.

This is one of the texts which the Maliki fuqaha’ wrote in which they mentioned the opinions of the Imam of Madina when there is a conflict between a tradition and analogy. Al-Qarafi is the one from whom we transmitted that it has a position in Maliki fiqh. He collected its rules, formulated its principles, expounded it, and directed attention to its judgements in a manner which made it flexible and appropriate for application, in accordance with the welfare and benefit of people.

In al-Muwafaqat, ash-Shatibi lists a group of questions in which Malik used analogy, benefit, or the general principle and abandoned the single tradition because he thought that the principles which he adopted were definitive or referred to a definitive basis, and the report which he rejected was probabilistic.

1: One example is that Malik rejected the hadith about washing the vessel seven times after it has been licked by a dog, once with earth. Malik said in it, “The hadith has come but I do not know what the truth of it is.” He considers it weak and says, “One eats what it catches so how can its spittle be disliked?” So he derived a definitive principle from the confirmation about eating its game. This is the words of the Almighty, “what is caught for you by hunting animals which you have trained,” (5:4), indicating the purity of its spittle while the hadith indicates its impurity and thus the hadith clashes with the definitive deduction from the Noble Qur’an.

2: He rejected the hadith about limiting the option of cancelling a sale to the meeting which demands that each those who make the contract have the right to cancel the contract as long they have not parted. He said, “There is no specified limit according to us.” (38.38) The reason for rejecting it is that the meeting does not have a known end so that cancellation would have a known period. By consensus the precondition of the option to cancel is invalidated if it does not have a known term, so how can a judgement by the Shari’a affirm a precondition not permitted by the Shari’a. If the option had been permitted for an unknown term, then the precondition of the option would be permitted without limit. Furthermore the hadith with an unknown period would contrast with the rule regarding uncertainty and ignorance which is not affirmed in contracts.

3: He did not accept the tradition “If anyone dies owing fasting, his guardian can fast for him,” nor the report which has come from Ibn ‘Abbas, “A woman came to the Messenger of Allah, may Allah bless him and grant him peace, and said, ‘Messenger of Allah, my mother has died owing a month’s fast.” He asked, ‘Do you think that if you father left a debt, you would pay it?’ She replied, ‘Yes.’ He said, ‘The debt of Allah is more entitled to be paid.’ He related this hadith under hajj and not fasting, and related about vows and fasting. Malik rejected it all and took the rule derived from the Noble Qur’an: “No bearer of a burden can bear the burden of another, and man has nothing but that for which he strives.” (53:37-38)

4: Malik denied the report about overturning the pots in which camels and sheep had been cooked before the division. It is related that camels and sheep from the booty were slaughtered before the division and that the Prophet, may Allah bless him and grant him peace, ordered that the pots be overturned and he began to rub the meat in the dirt. Malik rejected the hadith because overturning the pots and rubbing meat in the earth is waste which negates benefit and the ban is enough in to clarify the error of what they did and that they did wrong in what they did. Then they ought to eat what they slaughtered or divide it without overturning the pots nor rubbing it in the earth.

5: Malik did not adopt the hadith, “If anyone fasts Ramadan and follows it with six of Shawwal…” he has He took that position on the basis of the principle of sadd adh-dhara’i’ out of fear that doing it constantly would lead to adding to Ramadan and making that obligatory.

6: Part of that is that suckling does not have a specific minimum of times, like ten or five based on the rule derived from the noble ayat: “Your mothers who suckled you and your sisters by suckling.” Derived from its general nature is that a little and a lot of suckling both make unlawful. The definition of ten or five opposes the general meaning of the ayat, and so suckling applies to both a few and many and does not have a minimum.

7: He rejected the report about the animal whose milk is allowed to collect by not being milked. It is what is related from Abu Hurayra that the Messenger of Allah, may Allah bless him and grant him peace, said, “Do not allow the milk of camels and sheep to collect in the udders. If anyone buys it, he has a choice between views after he has milked it. If he wishes, he keeps it, and if he wishes, he returns the animal and a sa’ of dates.”

In one of the two positions of Malik he rejected it and said about it, “It is not in the Muwatta’ and it is not firm.” It contradicts the basis principle of “Revenue is by virtue of responsibility” [ascribed to the Prophet] and because someone who destroys a thing is responsible for its like or its price, and not a fine in the form of another type of food or goods. (al-Muwafaqat, pt. 3, pp. 24-25)

We have quoted several secondary rulings, and without a doubt they indicate that Malik sometimes rejected single traditions when they opposed legal decisions. Is it deduced from this that Malik gave preference to analogy over the single traditions unrestrictedly, as the statement of al-Qarafi would indicate?

Before we state what we think is probable in the subject, we note that some of these secondary rulings are disputed among the Malikis – some of them abandon the single tradition for the apparent text of the Qur’an. We mentioned at the beginning of what we said about the Sunna that if it is opposed by the dhahir text of the Qur’an, then the dhahir text of the Qur’an is taken unless the Sunna is reinforced by more evidence like the Practice of the People of Madina. Thus not adopting the tradition of suckling, the tradition of fasting for a dead person, and the tradition of washing the vessel seven times after it is licked by a dog is because of opposition to the dhahir text of the Qur’an. It is not because of preferring analogy or opinion over single traditions.

As for the four other matters and other instances in which the single tradition is abandoned since it opposes a confirmed legal rule from the totality of Islamic fiqh or some of its texts, what is understood from what ash-Shatibi said is that a single tradition is rejected in favour of opinion without a text itself when it opposes a general rule which is definitely one of the rules of the Islamic Shari’a.

Thus not every analogy or opinion refutes the single tradition. Rather it is the analogy or opinion which relies on a definitive basis and confirmed rule in which there is no scope for doubt. That principle is straightforward because analogy based on a definitive rule is definitive and the single tradition is probable, and when a probable is opposed by something definitive, then the definitive is taken.

Malik did not only stipulate that the principle by which the single tradition is refuted be definitive. Rather he stipulated that the tradition not be reinforced by another principle. If it is, the single tradition is not rejected.

Ibn al-‘Arabi said: “When a single tradition is in conflict with one of the principles of the Shari’a, is it permitted to act by it? Abu Hanifa said, ‘It is not permitted to act by it.’ Ash-Shafi’i said. ‘It is permitted.’ Malik hesitated in the question.” He said, “His best-known statement, and that on which one relies, is that if the hadith is reinforced by another principle, it is acted on. If it is alone, it is abandoned. Then he mentioned the question of Malik about the dog licking. He said, ‘Because this hadith is in conflict with two great fundamental principles: 1. The words of the Almighty: ‘Eat what they catch for you.’ (5:4) 2. The cause of purity is life and it exists in the dog. He also mentioned the hadith about the ‘ariyya (which is selling the dates on the trees for their like in dry dates). Although that conflicts with the principle regarding usury, it is supported by the principle of what is conventional and accepted (ma’ruf).” (al-Muwaqafat, p. 18)

This is what Ibn al-‘Arabi concludes. He thinks that the single report is refuted by general principles when they are definitive and when it is not reinforced by another principle. That is why he accepted the hadith of the ‘ariyya although accepting it is contrary to the rule about usury which forbids selling likes of the same type in different amounts or with a delay. Although that hadith clashes with the rule about usury, it is reinforced by the principle of what is conventional and giving comfort to the poor, or so that those who do not own trees which bear fresh dates can offer what they have of dry dates in return for taking from what is on the trees and this satisfies the need of those who have stored dates which they offer to eat from the new dates. The notion of usury is remote in that.

After thus examining the statements of those scholars who have distinction in deduction in Maliki fiqh, we cannot confirm the preference indicated in what al-Qarafi said: favouring analogy over the single tradition absolutely. We see that analogy is favoured over the single tradition when it is based on a definitive principle and the single tradition is not reinforced by another definitive principle.

Analogy is favoured in this case because the single tradition clashes with unequivocal texts from which this principle is derived and the interconnected judgements which come from the Wise Lawgiver and from which this principle is formed which are one of the fundamental principles of Islamic fiqh.

***

This is what we think is the opinion of the Imam of the Sunna and the Abode of the Hijra when a single tradition clashes with analogy. Analogy is given priority in that case with these restrictions. That makes Malik one of the most distinguished fuqaha’ of opinion. It does not in any way detract from him being the Imam of the Sunna. Rather it makes that Imamate more impressive, because the Imam of the Sunna is not someone who simply follows every tradition which comes to him without investigating its isnad and the text. Malik investigated the isnads and was most particular about the people from whom he related and rigorous in examining their states.

In the same way he examined the texts of the traditions and weighed them very finely. He would weigh them against other general Islamic principles which are derived from its texts and goals and attested to by various judgements from the secondary rulings. If everything about them was in order with them, he would accept them. If anything was not right, he would reject them.

We should state at this point that if a single tradition was reinforced by the Practice of the People of Madina, that would raise it from being merely an isolated report to the rank of consensus. In this case it cannot be rejected, for if the practice of the people of Madina reinforces a single tradition it is preferred even to an apparent text of the QurÕan. Similarly the single tradition is given priority when it clashes with some analogies and is reinforced by the Practice of the People of Madina. In such a case it is not considered single.

As we said, this does not indicate that Malik forsook the Sunna in any way: it simply indicates that he used individual opinion (raÕy) and that this was the method of some of the righteous Salaf. For instance, ‘A’isha and Ibn ‘Abbas, may Allah be pleased with them, rejected the tradition of Abu Hurayra about washing the hands before putting them into a wudu’ jug under the general established principle of removing constriction from the deen. Neither ‘A’isha nor Ibn ‘Abbas ever forsook the Sunna or abandoned any sound and established statement of the Prophet, may Allah bless him and grant him peace. But when they saw a tradition which clashed with a general confirmed principle on which there is no doubt, they left it and judged that its ascription to the Prophet, may Allah bless him and grant him peace, was not sound. They did not abandon the statement of the Prophet, but rather they rejected its ascription to him.

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