Fatwa and Qada’ [sentence] in the Maliki School

by Sidi Ali al-‘Iraqi al-Husaini

Preface

I want to preface this study by explaining my reason for choosing this topic. The reason for my choice of this subject lies in the claim made by some ordinary people, and even some eminent thinkers, that holding to a specific school of fiqh leads to the rigidification of fiqh and closing the door of ijtihad. The legal and historical facts are very far from this claim, at least in respect of the application of the Maliki school by its scholars in the Maghrib and Andalusia. That is because the method on which they originated gave Maliki fiqh great flexibility and an extraordinary capacity for adaptation. This productive school has shown itself to be adaptable in different environments and times, right up to present times, by the virtue of the fact that the door of ijtihad in the School remains open right up until today. It is a definitive evidence which refutes the opinion of those who claim that holding to a school of fatwa and qada’ (sentence) rigidifies fiqh and makes it capable of being adapted to different places and times.

Definitions:

Fatwa (Linguistic definition)

According to the Qamus: futya and fatwa designate the opinion which a faqih gives. Aftahu in a matter means “he gave him an explanation on a matter.”

According to the Mu’jam al-Wasit: it is the answer to a problematic legal case in the Shari’a or law.

Qada’ (Linguistic definition)

According to the Qamus: qada’ is judgement. The verb is qada, and qada, qada’ and qadiya are nouns. It means “accomplishment, final decision and elucidation”.

According to the Mu’jam al-Wasit: qada’ means “judgement, decision and the action of the Qadi”.

In technical usage, a fatwa is communicating a legal ruling without making it binding.

In technical usage, qada’ is communicating the legal ruling while making it binding (i.e. sentencing).¹

The one who issues a fatwa is a mufti and the one who gives judgement or issues a ruling is a Qadi.

It is deduced from the two previous definitions that fatwa refers to a legal ruling when someone asks for a legal opinion without that person who asked for the opinion being obliged to implement what he is told. It is left to his conscience whether to accept that ruling or to turn from it and he bears the responsibility for that. As for sentence (qada’), it refers to a legal ruling in answer to a dispute and it is obliged for the authority specifically concerned with that to implement the ruling.

The Seven Fuqaha’ of Madina

(This is taken from the section on Imam Malik in The Four Imams by Muhammad Abu Zahrah, soon to be published by Dar al-Taqwa)

We should briefly mention the seven fuqaha‘ since they were largely responsible for the transmission of knowledge of Madina and were the source of most of Malik’s knowledge. Indeed we are indebted to them for much of the knowledge of Islam and the Sunna which we possess today. Malik mentioned them as being the fuqaha‘ and the bearers of knowledge.

1. Sa’id ibn al-Musayyab

The first of them in position and importance in knowledge was Sa’id ibn al-Musayyab, may Allah be pleased with him. He was from Makhzum, the sub-tribe of Quraysh. He was born during the khalifate of ‘Umar ibn al-Khattab and died in 93 AH, so he lived through the rule of ‘Uthman, ‘Ali, Mu’awiya, Yazid, Marwan, and ‘Abdu’l-Malik.

He completely devoted himself to fiqh. He was not concerned with tafsir of the Qur’an as was ‘Ikrima, the client and student of Ibn ‘Abbas and transmitter of his fiqh and tafsir. According to the tafsir of at-Tabari, “Yazid ibn Abi Yazid said: ‘We used to ask Sa’id ibn al-Musayyab about the lawful and unlawful; he was the most knowledgeable of people. We asked him about the tafsir of an ayat of the Qur’an and he said, ‘Do not ask me about any ayat of the Qur’an. Ask the one who claims that none of it is hidden from him,’ meaning ‘Ikrima.”

Sa’id met a great number of the Companions, and took from them and studied with them. What he especially sought were the judgements of the Messenger of Allah, may Allah bless him and grant him peace, and the judgements of Abu Bakr, ‘Umar and ‘Uthman. He took half of his knowledge from Zayd ibn Thabit, and most of his transmission was from Abu Hurayra, his father-in-law, since Sa’id was married to his daughter.

The ‘Amal of Madina – Used in Fiqh

Aisha Bewley

You probably have heard the term, “the ‘amal of the people of Madina” and wondered what it means and what all the fuss is about. What is ‘amal or action? What does it mean and where does it come from? What does it have to do with us? This topic is one which is fraught with misunderstanding because most people have no idea what it means, and this difficulty in grasping the concept of ‘amal is a result from what has happened to the Muslims, because of the development and imposition of a statist methodology and mentality onto Muslim learning – a process which really began to solidify from the time of the Abbasid khalifate in Baghdad, about 250 hijra, a process which has been largely covered up or ignored, a process which has left the Muslims paralysed and unable to deal realistically or authentically with the situation in which they find themselves today.

To understand why the concept of the ‘amal of Madina has been swept to one side is to understand why the Muslims are now powerless, and to understand exactly what the ‘amal of Madina really is, is to understand the direction that the Muslims must take in order to re-activate Islam as a political force. This, I hope, will become clear in the course of this talk.

We have to ask ourselves: what is the basis of a Muslim’s behaviour? What sources must we turn to in order to know how to conduct our lives? What is the guideline for our behaviour? The answer is simple: the Qur’an and Sunna. We have little trouble with Qur’an.. But then we come to the real crux of the problem I have mentioned: if we are to follow the Sunna, just what is the Sunna and how do we find it? This is the core question which must be answered because, in fact, what the Sunna does is to explain the Qur’an in terms of behaviour. It is the way in which the Prophet, may Allah bless him and grant him peace, behaved, and it shows us how the guidance of the Qur’an is transformed into actual behaviour to which we can aspire.

To unravel the answer to what the Sunna is, we need to understand two additional terms: hadith and ‘amal.

How to Find the Hanafi School’s Relied-Upon Position

For this, one has to refer to the reliable books of the school. In the Hanafi school, this would include Imam Sarakhsi’s Mabsut, Imam Kasani’s Bada`i al-Sana`i, Imam Zayla`i’s Tabyin al-Haqa’iq, Imam Marghinani’s Hidaya along with its commentaries, especially the Inaya of Imam Babarti and Fath al-Qadirof Imam Kamal ibn Humam.

Allama Ibn Abidin did a phenomenal job of going through the key works of the school and deciphering the relied-upon position [for most legal issues] in his renowned Hashiya, Radd al-Muhtar. He relies heavily on the above books, as well as the main primary texts (mutun) of the school, including Mukhtasar Quduri,Kanz al-Daqa’iq, the Mukhtar, the Wiqaya, and Multaqa ‘l-Abhur.

The Fatawa Hindiyya is also indispensable.

Then there are also key books for specialized areas, such as:

-For worship: Imam Shurunbulali’s Nur al-Idah and commentaries, Imam Tahtawi’s Hashiya on Maraqi ‘l-Falah, and the Hadiyya ‘l-Ala’iyya.

-For commercial transactions: the Majalla and its commentaries, particularly those by Imams Ali Haydar and Attasi.

-For personal law: Allama Qadri Basha’s Ahkam Shar’iyya fi Ahwal Shakhsiyya, along with Imam Abyani’s commentary.

-For the lawful and prohibited (halal/haram): Imam Nahlawi’s Durar Mubaha fil Hadhr wal-Ibaha.

How to Study the Shafi’i Madhab

Madkhal Literature

These works allow one to have a general overview of the historical development of the madhab, its nomenclature, its scholars, and its major written works. Read these often and review in order to have a strong overview of the structure of the madhab.

• Al-Nawawi – The Muqadimah of al-Majmu’
• Alawi al-Saqqaf – Al-Fawa’id al-Makkiyah
• Alawi al-Saqqaf – Mukhtasar al-Fawa’id al-Makkiyah
• Shams al-Ramli – Sharh Muqadimah Minhaj al-Talibin from Nihayat al-Muhtaj
• Ali Jumu’ah – Imam al-Shafi’i wa Madrasatuh al-Fiqhiyah
• Akram al-Qawasimi – Al-Madkhal ila Madhab al-Shafi’i
• Muhammad Hasan Hitu – Al-Ijtihad wa Tabaqat Mujtahidi al-Shafi’iyah
• Taj al-Din al-Subki – Tabaqat al-Shafi’iyah
• Ahmad al-Ahdal – Sullam al-Muta’allim ila Ma’rifat al-Rumuz al-Minhaj
• Ahmad al-Alawi – Al-Idah fi Bayan Istilah al-Minhaj

Curriculum Texts

These works are studied and read from cover to cover, typically with a qualified teacher. They form the basis of one’s training in the furu’ after having studied the basics (Safinat al-Naja, Matn Abi Shuja, etc.) The core texts are studied in class whereas the commentaries are usually referred to on occasion and studied at home.

Al-Masa’il al-Ta’lim Al-Muqadimat al-Hadramiyah) with its commentaries Bushra al-Karim and/or Minhaj al-Qawim – This text is the main work in ibadah and is especially popular in Yemen, Syria, and South East Asia. One should be deeply intimate with this text and perhaps even memorise its abridgment, Mukhtasar al-Latif. The work is based chiefly upon Imam al-Nawawi’s works and has a number of important commentaries and marginal glosses. The most extensive gloss is the seven volume Hashiyat al-Tarmasi upon Ibn Hajar’s commentary, Minhaj al-Qawim.

Umdat al-Salik –  its commentaries – This is usually the first intermediate level text one studies that addresses the whole spectrum of fiqh. It contains a lot of issues and much is implied, thus expecting a degree of fiqh in the student. Scholars have said that a sign of tawfiq from Allah is one’s studying this text and that the doors of fiqh are opened upon its completion and mastery. It is based mainly upon the works of al-Nawawi, al-Rafi’i, al-Shirazi, and al-Subki. An indication of the views of al-Rafi’i is given with the expression ‘wa qeela’ (and it is said…) One should continue to read and review this text throughout one’s life as it really does abridge much from the larger reference works. The best sharh is that of Alawi b. Saqaf al-Jifri, which is full of hadith evidence and explains where Ibn Naqib went against the mu’tamad positions (eighty or so instances).

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Fath al-Mu’in – work is extremely popular in South East Asia and is also studied in Syria and Yemen. Its continued popularity is down to its being an abridgment of the works of Ibn Hajar al-Haytami as well as its chief commentary, I’anat al-Talibin, which draws much from the later hawashi literature.

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Minhaj al-Talibin with Mughni al-Muhtaj or Fath al-Wahab – The final work studied is either of these two commentaries based upon al-Nawawi’s Minhaj al-Talibin. In South East Asia they prefer Fath al-Wahab and in the Middle East preference is given to Mughni al-Muhtaj.