Indexed OCR Text

another religion, thus not including everyone who changes his religion. If it
were general, it would also include people who leave paganism for Islam,
which clearly is not intended. Since generality does not apply here, Malik
explains that what is meant is to protect Islam from the mockery of some
corrupters who enter it and leave it with the intention of harming it, or of
those who enter Islam with a worldly aim, not believing in its reality, and
then leave it.
He makes the command of killing subject to asking for repentance, except in
the case of those suspected of heresy who pretend to practise Islam in order
to corrupt people. When such people reveal their true state by either action or
word, they should be killed without being asked to repent because asking
them to repent will only enable them to make a public display of repentance
while the heretics are still inwardly committed to disbelief.
Malik also takes the f a t w a s and decisions of the Companions and records
them in the Mu watta '. An example of this is the divorce of someone
suffering from a fatal illness and whose wife inherited from him in spite of
the finality of the divorce. He says:
Malik related from Ibn Shihab that Talha ibn 'Abdullah ibn 'Awf reported,
and he knew better than them, from Abu Salama ibn 'Abdu'r-Rahman ibn
'Awf that 'Abdu'rRahman ibn 'Awf divorced his wife irrevocably when he
was terminally ill but 'Uthman ibn 'Affan allowed her to inherit after the end
of her 'idda.
Malik heard from 'Abdullah ibn al-Fadl from al-A'raj that 'Uthman ibn
'Affan made the wives of Ibn Mukmil inherit from him, although he had
divorced them when he was terminally ill ...
Malik heard Ibn Shihab say, "Even if a man who is terminally ill divorces his
wife three times, she inherits from him."
Malik said, "If he divorces her when he is terminally ill but before he has
consummated the marriage, she receives half of the dowry and inherits and
she does not have to wait through an 'idda. If he has consummated the
marriage she receives all the dowry and also inherits. A virgin and a
previously married woman are the same in this situation, in our view. (29:16)

As you see, Malik relates the fatwas of the Companions letting the wife
inherit in this case. Then he derives from the sum of what he has related that
the divorce takes place and the amount of the dowry that is obliged by that
divorce, depending on whether the marriage has been consummated or not,
and then that the wife is absolutely entitled to inherit, whether she has an
'idda or not, and whether her 'idda has ended or not.
He accepts the statement of some of the lesser Companions, which is the
Practice of Madina, about accepting the testimony of children in certain
cases. He states in the Muwatta':
Malik reported from Hisham ibn 'Urwa that 'Abdullah ibn az-Zubayr gave
judgement based on the testimony of children concerning injuries they inflict
on each other. Malik said, "The generally accepted practice in our community
is that the testimony of children is allowed concerning injuries they inflict on
each other but not on any other subject. It is only acceptable if they make
their testimony before they leave the scene of the incident and have not been
in a position to be deceived or instructed. If they leave the scene, they cannot
give testimony unless they call just witnesses to support their testimony about
what happened before they left. (36.7.9)
We can see from this that Malik adopted the consensus of the people of
Madina on this subject. He was familiar with the words of 'Abdullah ibn az-
Zubayr about the testimony of children which was adjudged as correct by
Mu'awiya, and 'Umar ibn 'Abdu'l'Aziz, Sa'id ibn al-Musayyab, 'Urwa and
Muhammad al-Baqir all gave fatwas on that basis.
The Mu watt a ' also contains a report of the consensus of the people of
Madina about the inheritance of full sisters and halfbrothers from one father.
The generally accepted practice among us is that full brothers and sisters do
not inherit anything if there are sons, or grandsons through a son, or if there is
a father. They do inherit if there are daughters or grand-daughters through a
son, when the deceased does not have a paternal grandfather still alive. They
are considered as paternal relations in any property that is left over. One
begins with the people who are allotted fixed shares. They are given their
shares. If there is anything left over after that, it belongs to the full brothers
and sisters. They divide it between themselves according to the Book of

Allah, whether they are male or female. The male receives twice the portion a
female. If there is nothing left over, they get nothing. (27.5)
We see that this statement takes the consensus of the people of Madina alone
as evidence and then proceeds to the branches on the basis of that agreement.
There are f a t w a s of the Companions which Malik takes and recommends
and then uses as a basis for analogy when others disagree with them. Then he
derives branches based on them, as happened in the case of the wives of
missing men.
Malik related from Yahya ibn Sa'id from Sa'id ibn alMusayyab that 'Umar
ibn al-Khattab said: "A woman who loses her husband and does not know
where he is must wait for four years; wait through an 'idda of four months;
and then she is free to marry." Malik said, "If she marries after her 'idda is
over, regardless of whether the new husband has consummated the marriage
or not, her first husband has no right of access to her. That is what is done
among us. If her husband reaches her before she has remarried, he is more
entitled to her. I have met people who disapprove of one person's statement,
attributed by somebody to 'Umar ibn al-Khattab, that he said, "Her first
husband can choose, if he comes, between her dowry and taking back his
wife."
He said, "In the case of a woman whose husband divorced her while he was
absent from her and then took her back; news of his taking her back had not
reached her while the news of his divorcing her had, and so she had married
again, I have heard that 'Umar ibn al-Khattab said, 'Her first husband who
divorced her has no right of access to her whether or not the new husband has
consummated the marriage."" Malik said, "This is what I like best of what I
have heard about missing husbands." (29.20.52)
Several things can be seen from this. Malik chose the opinion of 'Umar from
among other opinions regarding the wives of missing men and people who
divorce their wives while they are away and then want to take them back.
There are subsidiary judgements which result from that opinion. If the
husband reappears after the period of four years and four months has passed,
she is his if she has not remarried. If she has remarried she belongs to the

second husband whether or not the marriage has been consummated. But
Malik revised his opinion a year before his death, saying that she belonged to
the first husband if the second marriage had not been consummated or if the
second husband consummated it knowing that her husband was alive.
An analogy is made between the case of a man adjudged to be dead after four
years and one who takes his wife back without her knowing it. 'Umar gave a
fatwa that in the second case the wife belongs to the second husband whether
or not the second marriage has been consummated. Malik made an analogy
between this and someone who returns after his wife has observed the 'idda
for his death and has remarried.
From all these various examples it is clear that the Muwatta' is a book of both
figh and hadiths, and that the purpose of the hadiths quoted is to derive
judgements of f i q h from their texts and to derive further rulings which
accord with them. For this reason Malik does not confine himself to h a d i t h
s but also mentions the judgements made by the Companions, choosing what
he believes to be most appropriate and beneficial in the particular case in
hand. He mentions the action agreed upon in Madina and the judgements in
cases there. When there is no previous ruling he makes an analogy from what
he knows of the cases decided by the Companions.
There are two main transmitted recensions of the M u w a t t a '. One is from
Muhammad ibn al-Hasan ash-Shaybani, the companion of Abu Hanifa, and
the other is from Yahya ibn Yahya alLaythi al-Andalusi (d. 234), one of
Malik's students, who emigrated to Andalusia and was called "the intellectual
leader of the Andalusians". He was a leader in figh and it was through him
that the school of Malik spread there and countless individuals learned it. He
was offered the job of qadi there, but refused it. The recension from
Muhammad ibn al-Hasan ash-Shaybani has fewer chapters. Some people
prefer one and some the other. Muhammad sometimes mentions opinions of
his own which contradicts that of Malik in questions of figh, just as he did
with his own shaykh, Abu Hanifa. The differences between the two versions
are very minor which indicates that they came from a common source.
Some of Malik's Students

Maliki figh was transmitted in two ways. One was by the books which Malik
wrote and which are related from him and the soundness and strongest of
those is the Muwatta' as we have made clear. The second was through his
students. They transmitted his fi q h, and many books were transmitted from
them.
No other Imam is known to have had such a large number of students as
Malik. They were very numerous indeed and came from all over the world.
He had students from Khorasan, Iraq, and Syria, although most of them were
from Madina, Egypt, or North Africa.
The reason for that is that he resided in the Hijaz and particularly in Madina
al-Munawwara. He only left it to perform Hajj and he is not known ever to
have left the land of the Hijaz at all. Madina was the home of the Prophet,
may Allah bless him and grant him peace. People from all over the world
went there after making Hajj to the House of Allah. Malik lived to be well
over eighty and taught for about sixty years of his life. This was another
factor in the number of his students.
The importance of the role of Malik's students can be gauged from the fact
that the Muwatta' reports only a small number of the topics which he taught
and on which he gave fatwa. However, his students used to record his fatwas.
Indeed, he sometimes forbade them to go too far in writing them down. It
would be impossible to deal fully and comprehensively with all his students,
so we will just mention a few of the more important ones in brief.
'Abdullah ibn Wahb
This man was a Berber allied to Quraysh. He stayed with Malik for about
twenty years, and disseminated his f i q h in Egypt. He studied not only with
Malik but also with many of the companions of az-Zuhri. He also took from
more than 400 shaykhs of hadith in Egypt, the Hijaz and Iraq, including
Sufyan ath-Thawri, Ibn 'Uyayna, Ibn Jurayj, 'Abdu'r-Rahman ibn Ziyad al-
Ifriqi, Sa'id ibn Abi Ayyub, and others. Many related from him. Asbagh, one
of the students of the companions of Malik, said "Ibn Wahb was the
companion of Malik with the most knowledge of the S u n n a and traditions
although he related from men who were weak."

Ibn Wahb himself recognised that some of his h a d i t h s w e r e weak. He
said, "If it had not been that Allah rescued me through Malik and al-Layth, I
would have been lost." He was asked, "How is that?" He replied, "I knew
many hadiths, and that confused me. I used to present them to Malik and al-
Layth and they would say, 'Take this and leave that.""
Malik esteemed and loved him. He did not spare any of his companions
criticism except for Ibn Wahb. He used to call him "the faqih" when he wrote
to him. Ibn Wahb was one of those who spread Malik's school in Egypt and
the Maghrib. People travelled to him to learn Malik's figh both during
Malik's lifetime and after his death. He left many excellent books, including
what he heard from Malik which took up about 30 volumes. He died in 197
AH at the age of 72.
'Abdu'r-Rahman ibn al-Qasim
This scholar was one of the companions of Malik who had a tremendous
influence in recording his school since he was the source for Sahnun in his
record of the teaching of Malik. In the school of Malik he has the same
position as Muhammad ibn alHasan ash-Shaybani has in the school of Abu
Hanifa. There is a complete correspondence between the two men. Both of
them transmitted the school and made free use of ijtihad. Ibn al-Qasim had
opinions which differed from those of his shaykh, Malik, so that it was said
that he was dominated by opinion. Ibn 'Abdu'lBarr said of him, "He was a
faqih dominated by opinion. He was a righteous, poor, steadfast man."
He met Malik after Ibn Wahb and kept his company for a long time - about
twenty years. He learned his f i q h. He also met alLayth, 'Abdu'l-'Aziz ibn
al-Majishun and Muslim ibn Khalid alZanji. Many people related from him
and consulted him about Malik's fatwas. Ibn Wahb used to say, "If you want
this business - meaning the fi q h of Malik - you must have Ibn al-Qasim.
He is unique in it." His transmission of the Muwatta' is the soundest and
Sahnun learned the contents of the Mudawwana, the most comprehensive
collection of Maliki figh, from him. Thus he can be considered as the main
transmitter of Maliki figh, for the Mudawwana is its chief source.
He was a generous and abstemious man. He did not accept the stipends of

any ruler and he said, "There is no good in the proximity of rulers." He
frequented them at first, but then he kept away from them. He died in 191 at
the age of 63.
Ashhab ibn 'Abdu'l-'Aziz al-'Amiri
Ashhab studied with al-Layth, Yahya ibn Ayyub, and Ibn Lahi'a. He kept
Malik's company and learned his fi q h, and was one of those who
transmitted his fiqh. He had a collection called the M u d a w wan a of
Ashhab or the Books of Ashhab. He was a contemporary of Ibn al-Qasim, but
was younger than him. Sahnun was the student of both of them and was
asked which of them knew more fiqh. He replied, "They were like two horses
neck and neck. Sometimes this one was successful and that one unsuccessful,
and sometimes it was the reverse."
Ibn al-Qasim and Ashhab once disagreed about what Malik had said about a
particular matter and each of them swore to refute what the other said. They
asked Ibn Wahb, who was an older companion than they were; and he told
them that Malik had made both statements. Ash-Shafi'i met Ashhab and said,
"I have not seen anyone with more fi q h than Ashhab. He achieved
supremacy in fiqh in Egypt."
Ashhab compiled a book called al-Mudawwana, which was not the M u d a w
w a n a of Sahnun. Qadi 'Iyad said of it, "It is a larg e majestic book
containing much knowledge." Ibn Harith said, "When the A s a d i y y a [the
basis for the M u d a w w a n a of Sahnun] was completed, Ashhab took it
and edited it, having objected to some of it. He produced a noble book. When
Ibn al-Qasim heard that, he commented that he had found a complete book
and then built on it. Ashhab said to him, 'You scooped from one spring and I
from many springs.' So Ibn al-Qasim answered him, 'Yo u r springs are
turbid but my spring is clear."
Sahnun was a student of both Ashhab and Ibn al-Qasim and so he took from
both of them. Ashhab left other books as well. He was born in 140 AH and
died in 204, a few days after ash-Shafi'i.
Asad ibn al-Furat

Asad's origins lay in Khorasan although he was born at Harran. Then his
father moved with him to Tunis, although some say that he was born in
Tunis. He memorised the Qur'an and then studied fi q h. He travelled to the
east and heard the Mu w att a ' and other teachings from Malik. He then
went to Iraq and met Abu Yu s u f and Muhammad ibn al-Hasan ash-
Shaybani.
Asad then combined the fiqh of Iraq and the fiqh of Madina. He had studied
with both Muhammad ibn al-Hasan and Malik. The student of Malik who
took the most from him later was Ibn alQasim.
According to the M a dar i k: "When Asad came to Egypt, he went to Ibn
Wahb and said, 'These are the books of Abu Hanifa,' and he asked him to
answer them according to the school of Malik. Ibn Wahb was too scrupulous
and refused. Asad he went to Ibn alQasim, who answered the questions he
asked from what he remembered of Malik's actual words. When he was
unsure, Ibn alQasim said, 'I imagine,' 'I suppose' and 'I think'. On one
occasion he said, 'I heard him speak on such-and-such a question and your
question is similar to it.' On other occasions, he spoke according to his own i
jtih a d based on what Malik had said. He collected those answers into
books which were called al-Asadiyya."
The A sa di y y a was the basis for the M u d a w w a n a of Sahnun. Asad
was appointed qadi of Qayrawan. He died in 212 in the siege of Syracuse
while he was the commander and qadi of the army. He was born in 145.
The Major Works of the Maliki School
Ibn Khaldun reports about the books of the Maliki school: "'Abdu'l-Malik
ibn Habib travelled from Andalusia and took from Ibn al-Qasim. He then
disseminated what he learned and so the school of Malik spread in Andalusia.
He wrote a book on it called a l - Wa d i h a. Next one of his students,
al-'Utbi, wrote a 1 - ' Utbiy y a. Asad ibn Furat travelled from North Africa
and wrote first from the people of Abu Hanifa and before moving to the
school of Malik. Ibn al-Qasim brought his book to Qayrawan and called it a l
- Asadiy y a. Sahnun read it to Asad and then travelled east and met Ibn
al-Qasim. He took from him and reviewed with him the questions of the A s a

diyya, much of which he retracted. Then Sahnun wrote out its questions,
put them in order, and produced al-Mudawwana. People then abandoned the
Asadiyya and adopted S a h n u n 's book. The people of Qayrawan relied on
this M u d a w w a n a and the people of Andalusia on a l - Wa d i h a and a l
'Utbiyya. Then Ibn Abi Zayd summarised al-Mudawwana and alMukhtalita
in a book called al-Mukhtasar. A synopsis of it, entitled a t - Ta h d h i b , was
also made by one of the fuqaha' of Qayrawan, Abu Sa'id al-Baradhi'i. The
shaykhs of North Africa came to rely on it and adopted it, abandoning other
books. Similarly, the people of Andalusia relied on al-'Utbiyya and left al-
Wadiha and the other books."
The position of Maliki fiqh in respect of ijtihad
As we know Malik, learned the fi qh of the seven f u q a h a ' o f Madina
and others. He learned h a d i t h s from them and others. Then he passed on
the hadiths he had learned to his students and gave them fatwas on questions
which arose. The method of Malik, in short, is to take first the Book of Allah
and the S u n n a of the Messenger of Allah, may Allah bless him and grant
him peace, and the fatwas of the Companions, and then ijtihad with opinion
using analogy and masalih mursala (considerations of public interest) and
other techniques as we will explain below when outlining the fundamental
principles of his school, Allah willing. They are the results of a sound
investigation directed to seeking out the truth without ignoring the value of
action or belittling the right of the doer or undervaluing transmitted sources.
A group of orientalists, however, who looked at Islamic fi q h from a
different viewpoint from ours, have said that Malik did not originate a new
school of fi q h. According to them he confined himself to only two methods.
He wrote down what was found dispersed in various sources on questions of
fiqh and collected legal customs which were known to the people of Madina,
endowing them with a religious authority whereas in fact those customs were
merely old Arab usages. That is their view of the f i q h of Malik. They
separate it from its source, which is the Book of Allah and the Sunna of His
Messenger, and consider that it consists of Arab customs clothed in a
religious garment and that he merely wrote down dispersed information. But
this is a very short-sighted view indeed.

Malik did not leave the arena open to doubt. He used a clear methodology in
fiqh; related hadiths with isnads which were mut tasil, mursal or munqati';
and derived judgements from their texts and expounded them. In view of
what we have mentioned, it is necessary to examine the principles on which
his fiqh was based.
The Fundamental Principles of Malik's fiqh
Malik did not record the fundamental principles on which he based his school
and on whose basis he derived his judgements and to which he limited
himself in the derivation of his rulings. In that respect he resembled his
contemporary, Abu Hanifa, but not his student, ash-Shafi'i, who did record
the principles he used in derivation and defined them precisely, specifying
the motives which moved him to consider them and their position in
deduction.
Nonetheless, Malik did indicate the principles he used in some of his fatwas,
questions and the hadiths which had muttasil (uninterrupted), munqati'
(broken),or mursal (link missing) isnads and b a l a g h a t (without i s n a d)
ha dith, even if he did not precisely explain his method or defend it or
explain the motives which moved him to adopt it and why he used that
method rather than another.
For instance, the Muwatta' makes it clear to us that Malik uses mursal,
munqati' and balaghat hadiths but does not explain how he chose them
because it does not go into the problems concerning the isnads. The reason
for this is that Malik only transmitted from people in whose mursal and
balaghat hadith he had absolute confidence. That is why his great concern
was with the choice of transmitter. When he had confidence in the character,
intelligence and knowledge of the transmitter he dispensed with the chain of
narration.
Malik clearly stated that he took the practice of the people of Madina as a
source and explained the motives which led him to do so. The Muwatta'
shows that he used it in making analogy, as he when he made an analogy
between the wife of a missing man when he returns to her after she has
married someone else and someone who divorces his wife with a revocable

divorce and then takes her back when she knows about the divorce but not
the taking back and consequently remarries.
The author of al-Madarik mentions the general foundations of Islamic fi qh,
which are the Noble Qur'an, its texts, its outward meanings and understood
meanings, the Sunna - muta wa tir, mashhur and single - then
consensus, and then analogy. Next he mentions the principles used by Malik
and his position.
If you look straight away at the methods of these Imams and the
establishment of their principles in fiqh and ijtihad in the Shari'a, you will
find that Malik pursued a clear methodology in respect of these principles
and ordered them according to their respective ranks. He put the Book of
Allah first and put the traditions with it, placing them before analogy and
opinion. He left anything which was not considered probable by reliable men
known for their sound knowledge, or when he found that the great majority
of the people of Madina did something different and contrary to it. He did not
pay any attention to those who interpreted things according to their own
opinions: explicitly declared that such rulings were false and baseless. (Tartib
al-Madarik, p. 16)
Qadi 'Iyad also lists the basic foundations of the school of Malik as being the
Book and Sunna, the practice of the people of Madina and qiyas (analogy),
but he does not mention any others. He does not mention ijma' (consensus)
or the other methodological principles which distinguish the Maliki school,
such as masalih m u r s a l a, sadd adh-dhara'i', custom, and certain other
principles which other people have mentioned.
The most precise enumeration of the principles of the Maliki school is that
given by al-Qarafi in his book Tanqih al-Usul. He stated that the foundational
principles of the school are: the Qur'an, the Sunna, the consensus of the
people of Madina, analogy, the statement of the Companions, together with
masalih mur sala (considerations of public interest), 'urf (custom), 'adat
(common usage), sadd adh-dhara'i' (blocking the means), i s t i s h a b
(presumption of continuity), and istihsan (discretion).
The Qur'an

According to ash-Shatibi al-Maliki in al-Muwafaqat:
The Qur'an is the whole of the Shari'a, the support of religion, the fount of
wisdom, the sign of Prophethood and the light of the eyes and the heart.
There is no way to Allah except through it and there is no salvation by any
other means. You must not hold to anything that contradicts it. None of this
needs affirmation or deduction because it is known to the deen of the
Community. Since that is the case, whoever wants complete knowledge of
the Shari'a and desires to perceive its aims and be joined to its adherents
must necessarily take the Qur'an as his constant companion and make it his
intimate, night and day, in both investigation and action.
Malik viewed the Qur'an in the same way. So he was only seen reciting the
Qur'an or relating h a d i t h s or deriving f a t w a s fr o m them to answer
questions which were directed to him. He did not look at the Qur'an with the
eye of a debater. It is not reported that he ever said that the Qur'an consisted
of both words and meaning or meaning only; or did he engage in any
discussion of the mutakallimun about the Qur'an being created since he did
not consider such subjects to be debatable.
Malik knew that the Qur'an contains all the S h a r i ' a and that the Sunna is
simply its exposition. The Sunna is the straight way to grasp the meanings of
the Book. That is why it is not correct to hold only to the Qur'an without
seeking help in its explanation, meaning the Sunna. He disliked including any
Biblical or Jewish (Talmudic) material in its explanation.
We will now discuss different aspects of Qur'anic evidence.
Explicit texts (nass) and apparent (dhahir) texts
Rulings are taken from the Book of Allah but not all Qur'anic texts are the
same as regards whether one may derive rulings from them. The scholars of
the Maliki principles say that there is a difference between explicit,
unequivocal texts (n a s s) and apparent texts (dha hi r) in that n a s s texts
are not open to interpretation whereas dhahir texts can be interpreted. That is
something which ash-Shafi'i did not discuss in his Risala, as he considered
nass and dhahir to be basically interchangeable. In the Maliki position, the n a
s s is stronger than the d h a h i r. A dha hi r text can mean one of two or
more things and requires further exposition from the Sunna or Qur'an.

The Sunna
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. There are three ways in
which the Sunna clarifies and complements the Qur'an.
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.
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 h a d i t h of the Prophet, may Allah bless
him and grant him peace, which clarifies the a y a t: "Those who believe and
do not mix their belief with any wrongdo ing." (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, z a k a t and h a j j.
The Noble Q ur'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 A 11 a h . " (5:38) The a y a t 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.
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. Another example is inheritance by a
grandmother, which is not mentioned in the Qur'an.
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 (m u t a
watir), the S u n n a can be raised to the level of abrogating the Qur'an in
Malik's opinion. 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.
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 sun n a 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 havebeen 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 sun n a 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.
Opinion and Hadith
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 h a d i t h s 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 M u d
a w w a n a you will see that c le a r ly. 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.
That makes Malik one of the most distinguished f u q a h a ' o f opinion. It
does not in any way detract from him being the Imam of the S u n n a. Rather
it makes that Imamate more impressive, because the Imam of the S u n n a is
not someone who simply follows every tradition which comes to him without
investigating its i s n a d and the text. Malik investigated the i s n a d s 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 Qur'an.
As we said, this does not indicate that Malik forsook the Sunna in any way: it
simply indicates that he used individual opinion (ra'y) 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 w u d u ' jug under the general

established principle of removing constriction from the de e n. Neither
'A'isha nor Ibn 'Abbas ever forsook the S u n n a 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.
Fatwas of the Companions
In his early studies Malik concentrated on learning the cases of the
Companions, their fatwas, and their judgements in respect of the questions
which he concerned him. We have already seen how eager he was to learn the
fatwas of 'Abdullah ibn 'Umar from his client Nafi'. He used to lie in wait
for him when he went out so that he might ask him about the statements of
'Abdullah. He also was eager to learn the cases of 'Umar ibn al-Khattab, may
Allah be pleased with him. He learned the fiqh of the seven fuqaha' of
Madina. They transmitted the disagreements, perceptions, f a t w a s and
decisions of the Companions as well as the h a d i t h s of the Messenger of
Allah, may Allah bless him and grant him peace.
After our study and investigation of the life of Malik, we can state that the
knowledge which he was taught and which he mastered and on which he
based himself and on the basis of which he made deduction and according to
which he proceeded with the implementation of the hadiths of the Messenger
of Allah was the decisions and fatwas of the Companions.
That is why the f a t w a s of the Companions occupied a major place in
Malik's deduction. He took them and did not infringe them. He accepted the
position of the People of Madina because the Companions had been there, as
we mentioned earlier in his letter to al-Layth. Malik realised that the Sunna
was to be found in what the Companions had. He saw that when 'Umar ibn
'Abdu'l' Aziz wanted to spread knowledge of the Sunna, he commanded that
the decisions and fatwas of the Companions in Madina be collected. Malik
used to relate what this upright khalif said on this subject.

The Messenger of Allah laid down a sunna and those in command after him
laid down s u n a n. Accepting and acting on that is tantamount to following
the Book of Allah, the completion of obedience to Allah, and firmness in the
de e n of Allah. No one after them can change the Sunna or is permitted to
take on anything which opposes them. Whoever is guided by them is guided.
Whoever seeks help by them is helped. If anyone leaves them to follow a way
other than that of the believers, Allah will assign him what he has turned to
and Hellfire will roast him. What an evil return!
Malik admired those words and clung to them, holding that they embodied
the perfect definition of the S u n n a. He accepted that. The Muwatta'
contains the fatwas of the Companions alongside hadiths of the Messenger of
Allah, may Allah bless him and grant him peace. So he recorded the f a t w a
s and decisions of the Companions as he recorded the statements of the
Prophet, may Allah bless him and grant him peace, and considered them to be
part of the S u n n a. According to ash-Shatibi, the Imam of the S u n n a was
well known in his lifetime as strongly favouring this position. He said in al-
Muwafaqat:
This was the way Malik viewed the fatwas and decisions of the Companions.
He and Imam Ahmad are probably the Imams who held most strongly to the
fatwas of the Companions and were most eager to learn them and take them
as a basis for other decisions and fatwas and it was they who did that most
often. They accepted the statements and fatwas of the Companions without
limitation or precondition regarding their number, their attributes, their
actions, or the type of opinion related from them. When they disagreed, they
chose the majority position and that which was acted upon by the community
as a whole.
It is clear from looking at the principles of the Malikis and the Muwatta' that
Malik, like Ahmad ibn Hanbal, accepted the statements of the Companions as
a source of fiqh and as having authority and constituting one of the branches
of the S u n n a of the Prophet. That is why to know them is to know the
Sunna and to go against them is innovation. Ibn al-Qayyim clearly states in
I'lam al-Muwaqqi'in that it is part of the Sunna.
When a Companion makes a statement or gives a judgement or a f a t w a, it
may stem from discernment which he has and we do not, or from

discernment in which we share. As for what is particular to him, it is likely
that he heard it directly from the mouth of Prophet, may Allah bless him and
grant him peace, or from another Companion narrating from the Messenger
of Allah. The knowledge they possessed and to which we do not have access
is more than will ever be known. None of them related all that they heard.
Where is what Abu Bakr as-Siddiq, 'Umar al-Faruq and the other great
Companions, may Allah be pleased with them, heard, compared to what they
relate?
There are not even a hundred hadiths related from the Siddiq of the
Community, despite the fact that he was not absent from the Prophet, may
Allah bless him and grant him peace, in any of his battles and accompanied
him from the time of his prophetic mission, or indeed, even before that time,
until his death. Abu Bakr was the most knowledgeable of the community
about him, may Allah bless him and grant him peace, and about his words,
actions, guidance and conduct. The same applies to the majority of the
Companions: the amount that they transmit from the Prophet is very little
indeed in comparison with what they actually heard and witnessed from him.
If they had related all that they heard and witnessed, it would have been many
times more than what Abu Hurayra transmitted. He was only a Companion
for about four years and related a great deal from him.
The statement 'If the Companions had known anything about this matter ... '
can only be made by someone who does not understand the behaviour and
states of people. They were in awe of transmitting from the Messenger of
Allah, may Allah bless him and grant him peace, and attached great
importance to it. They did not often do so, fearing to add to or subtract from
his words.
Any fatwa which one of the Companions gave will be based on one of six
foundations:
. He heard it himself directly from the Prophet, may Allah bless him and
grant him peace.
. He heard it from someone else who heard it.
. He understood it from an a y a t of the Book of Allah in a manner which is
unknown to us.
. It is something which all the Companions were agreed upon but only the

statement of the one who gave the fatwa has been transmitted to us.
· He understands it through his complete knowledge of the language and
what the phrase indicates in a manner to which he has access and we do not
or by direct knowledge of the actual circumstances which were being
addressed; or by the sum of matters which he understood over the passage of
time through seeing the Prophet, may Allah bless him and grant him peace,
and witnessing his actions, states and behaviour and listening to his words,
knowing his aims and witnessing the arrival of Revelation and witnessing its
interpretation through action. Because of all this, the Companion was able to
understand things which we cannot.
If the basis of the fatwa is any of the above five criteria, it is authoritative for
us and must be followed.
. It was based on an individual understanding of something that the
Messenger, may Allah bless him and grant him peace, about which the
Prophet did not speak and the Companion was wrong in his understanding.
This sixth aspect is a theoretical one and the possibility of its occurring is
remote, especially in the case of the exalted Companions who transmitted the
Islamic deen to the next generation. This excellent directive clarifies Malik's
view in considering the statement of the Companion as an authoritative
source and the fact that he accepted it as being part of the Sunna.
On the basis of this principle, Malik sometimes used to prefer the statement
of the Companions over some hadiths, after comparing them. In some cases
there were certain aspects of opinion, the practice of the people of Madina,
statements of the people or the general bases of the S h a r i ' a , which made
the statement of a Companion preferable to an individual hadith.
In so doing, Malik did not prefer the statement of the Companion over the
Sunna but rather in that instance it was the statement of the Companion in
fact which constituted the S u n n a. Because they differed in their
conclusions he carefully compared them and ended by accepting one and
rejecting the other. He did not reject a statement of the Messenger of Allah,
may Allah bless him and grant him peace, for a statement of a Companion.
He rejected one tradition from the Messenger for another which was more