The Evolution Of Fiqh by Bilal Philips

The founding scholar of this Madh-hab, Maalik ibn Anas ibn ‘Aamir, was born in Madeenah in the year 717 CE. His grandfather, ‘Aamir, was among the major Sahaabah of Madeenah. Maalik studied Hadeeth under az-Zuhree who was the greatest Hadeeth scholar of his time as well as under the great Hadeeth narrator, Naari’, the freed slave of the Sahaabee ‘Abdullah ibn ‘Umar.

Maalik’s only journeys outside of Madeenah were for Hajj, and thus he largely limited himself to the knowledge available in Madeenah. He was severely beaten in the year 764 CE by the order of the Ameer of Madeenah, because he made a legal ruling that forced divorce was invalid. This ruling opposed the ‘Abbaasid rulers’ practice of adding in the oath of allegiance given to them by the masses the clause that whoever broke the oath was automatically divorced. Maalik was tied and beaten until his arms became severely damaged to such a degree that he became unable to clasp them on his chest in Salaah and thus he began the practice of praying with his hands at his sides according to some reports.

Imaam Maalik continued to teach Hadeeth in Madeenah over a period of forty years and he managed to compile a book containing Hadeeths of the Prophet (s.w.) and Athars of the Sahaabah and their successors which he named al-Muwatta’ (the Beaten Path). He began his compilation of Hadeeths at the request of the ‘Abbaasid caliph, Abu Ja’far al-Mansoor, (754-775 CE) who wanted a comprehensive code of law based on the Prophet’s (s.w.) Sunnah which could be applied uniformly throughout his realm. But, on its completion, Maalik refused to have it forced on the people pointing out that the Sahaabah had scattered throughout the Islamic empire and had taken with them other parts of the Sunnah which also had to be considered in any laws imposed throughout the state. Caliph Haaroon arRasheed (768-809 CE) also made the same request of the Imaam, but he was also turned down. Imaam Maalik died in the city of his birth in the year 801 CE at the venerable age of 83.133

Imaam Maalik’s method of teaching was based on the narration of Hadeeths and the discussion of their meanings in the context of problems of that day. He would either narrate to his students Hadeeths and Athars (statements of the Sahaabah) on various topics of Islamic law then discuss their implications, or he would inquire about problems which had arisen in the areas from whence his students came, then narrate appropriate Hadeeths or Athars which could be used to solve them.

After Maalik completed al-Muwatta’, he used to narrate it to his students as the sum total of his Madh-hab, but would add or subtract from it slightly, whenever new information reached him. He used to strictly avoid speculation and hypothetical Fiqh and thus his school and its followers were reffered to as the people of Hadeeth (Ahl al-Hadeeth).

Imaam Maalik deduced Islamic law from the following sources which are listed in the order of their importance.

Like all the other Iaams, Maalik considered the Qur’aan to be the primary source of Islamic law and utlized it without laying any pre-conditions for its applications.

The Sunnah was used by Imaam Maalik as the second most important source of Islamic law, but, like Abu Haneefah, he put some restrictions on its use. If a Hadeeth were contradicted by the customary practice of the Madeenites, he rejected it. He did not, however, insist that a Hadeeth be Mash-hoor (well-known)

before it could be applied as Abu Haneefah did. Instead he used any Hadeeth that was narrated to him as long as none of the narrators were known liars or extremely weak memorizers.

Imaam Maalik reasoned that since many of the Madeenites were direct descendants of the Sahaabah and Madeenah was where the Prophet (s.w.) spent the last ten years of his life, practices common to all Madeenites must have been allowed, if not encouraged by the Prophet (s.w.) himself. Thus, Imaam Maalik regarded common Madeenite practices as a form of highly authentic Sunnah narrated in deeds rather than words.134

Maalik like Abu Haneefah considered the Ijmaa’ of the Sahaabah, as well as that of later scholars, as the third most important source of Islamic law.

Imaam Maalik gave full weight to the opinions of the Sahaabha, whether they were conflicting or in agreement, and included them in his book of Hadeeth, al-Muwatta’. However, the consensus of the Sahaabah was given precedence over individual opinions of the Sahaabah. Where there was no consensus, their individual opinions were given precedence over his own opinion.

Maalik used to apply his own deductive reasoning on matters not covered by the previously mentioned sources. However, he was very cautious about doing so because of the subectivity of such forms of reasoning.

Imaam Maalik also gave some weight to isolated practices found among a few people of Madeenah so long as they were not in contradiction to known Hadeeths. He reasoned that such customs, though occurring only in isolated instances, must also have been handed down from earlier generations and sanctioned by the Sahaabah or even the prophet (s.w.) himself.

The principle of Istihsaan developed by Abu Haneefah was also applied by Maalik and his students except that they called it by the name Istislaah which means seeking that which is more suitable. It deals with things which are for human welfare but have not been specifically considered by the Sharee’ah. An exaple of Istislaah is found in Caliph ‘Alee’s ruling that a whole group of people who took part in a murder were guilty even though only one of the group had actually committed the act of murder. Another example is the right of a Muslim leader to collect taxes from the rich other than Zakaah if the interest of the state demands it, whereas in Sharee’ah only Zakaah has been specified. Imaam Maalik also applied the principle of Istislaah to deduce laws more in keeping with needs which arose from current situations than those deduced by Qiyaas.

Like Abu Haneefah, Maalik considered the various customs and social havits of people throughout the Muslim world as possible sources of secondary laws as long as they did not contradict either the letter or the spirit of the Sharee’ah.135

According to custom in Syria, for example, the word Daabbah means a horse, whereas its general meaning in Arabic is four legged animal. Hence, a contract made in Syria requiring payment in the form of a Daabbah would legally mean a horse whereas elsewhere in the Arab world it would have to be more clearly defined as a horse.

The most notable of Maalik’s students who did not later form their own Madh-habs were al-Qaasim and Ibn Wahb.

Al-Qaasim was born in Egypt but travelled to Madeenah where he studied under his teacher and mentor for a period of more than twenty years. He wrote an extensive book on the Fiqh of the Madh-hab, eclipsing even al-Muwatta’ of Maalik himself and called it al-Mudawwanah.

Ibn Wahb also travelled from Egypt to Madeenah in order to study under Imaam Maalik. He distinguished himself in th deduction of laws to such a degree that Maalik gave him the title of al-Muftee, which means the official expounderof Islamic law.

Ibn Wahb was offered an appointment as judge of Egypt, but turned it down in order to maintain his integrity as an independent scholar.136

Maalik had other famous students from other madh-habs.

Some of them modified their own Madh-habs based on what they learnt from Maalik, for example, Muhammad ash-Shaybaanee who was among the foremost students of Abu Haneefah. There were others who developed their own Madh-habs by combining Maalik’s teachings with that of others, for example Muhammad ibn Idrees ash-Shaafi’ee who studied for many years under Imaam Maalik as well as under Abu Haneefah’s student Muhammad as-Shaybaanee.

Today, the followers of this Madh-hab are found mostly in Upper Egypt, Sudan, North Africa (Tunisia, Algeria and Morocco), West Africa (Mali, Nigeria, Chad, etc) and the Arabian Gulf states (Kuwait, Qatar, and Bahrain).