Fundamental Principles of Imam Maliks Fiq

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Bi ismillahir rahmanir raheem

assalamu alaikum

The following explains the principles upon which the maliki madhhab is based upon. The major diference between imam maliks madhhab and others is the fact he takes the amal [actions] of the people of madinah as a basis for legal rulings above other evidence and in some cases many scholars would agree that his evidence in certain rulings is stronger since the situation in madinah after the prophets lifetime was very unique in that some 10,000 sahaba had seteled there while the remainder spread throughout the muslim world and from whom the shuyukh of the other madhhabs learnt from although not exclusively. So whose actions would you consider more reliable in an islamic communal situation that of 10,000 sahabah who tought an entire community or of smaller pockets of sahabah living in various parts of the world. 

There is no right or wrong answer we cant ignore either but some scholars decided to accept certain evidence over the amal of the people of madinah as they considered it to be more clear in its link back to our prophet, but then who can ignore 10,000 sahaba living all in the same place it is not an easy matter.

One example i am aware of in which scholars concure the evidence of Imam malik is the stronger opinion although not the one implamented and relied upon by the opther madhhabs is the placing of the hands in prayer which is down the side as is the case in the maliki madhhab and for anyone invesigating the evidence it would be hard not to come to the same conclusion.

A person should bare in mind that many diferences are based upon established actions of the prophet or sahabah or tabiin and it is just a matter of deciding which action was the one practiced the most or how the action it self was implamented ie in what situations. so just becouse one madhhab places the hands by the side while another on the torso below the naval and the other above it, it does not mean that one is right and the others are wrong, all are actions based on ahadith or sahabah or tabiin thus all are traced back to the prophet and anything he did has benefit in it and is a right action but deciding which was used the most and in which way...etc is the issue. this goes for many other rulings as well, it should not be looked at in a balck or white manner ie this is right therefor that is wrong, khair insha allah.

The Fundamental Principles of Imam Malik's
Fiqh

(Muhammad Abu Zahrah)

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 balaghat (without isnad) hadith, 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.

Thus in the Muwatta' you will see clear statements or indications
of Malik's principles of derivation even if he did not actually clarify or
identify them specifically. For instance, he did not clarify the rules and
grades of the underlying legal principles ('illa) in analogy and such
things.

The fuqaha' of the Maliki school have done with Malik's fiqh
what the fuqaha' of the Hanafi school have done with their school
� studied the secondary rulings and derived from them what can validly
be employed as fundamental principles on which to base deduction. They called
the principles they derived in this way the 'fundamental principles
(usul) of Malik'. For instance, they say that Malik employed certain
textual principles which they called'mafhum al-mukhalafa' (an
interpretation which diverges from the obvious meaning of a given text),
'fahwa al-khatab' (implied meanings of a given text), and 'dhahir'
(apparent meanings of a given text). They say that he also said certain
things about general unspecific texts. The truth is that although these
principles are transmitted as having been formulated by him, they are in
fact derived from secondary judgements reported from him; and the specific
proofs of these principles are derived from the actual context or were formulated
by the fuqaha' who came after him. Deduction from texts can only validly
be undertaken when the necessary evidence exists.

We do not automatically have to accept these principles as being the
usul of Malik's school since they are the formulations of scholars
who post-dated him but nor must we refute them simply because they were not
transmitted by Malik himself. We are bound, however, to reject those of them
which we think contradict any clear, firm statements he is definitely known
to have made or those which apply to some secondary rulings he made but not
to most of them. Scholars deem that established propositions should be adopted
and respected unless the proof of their opposite is established. In that
case they have to be rejected because they have been proved invalid by clear
evidence not by simple denial.

These principles are mentioned in various places in the books on the science
of usul which Malikis have written or in the glosses which other Malikis
have added to such books. They say about every principle that Malik's opinion
regarding it was such-and-such but that is in fact only deduced from secondary
rulings. In at-Tanqih, you will see that al-Qarafi mentions a principle
and then mentions Malik's opinion about it which may differ or agree with
the majority view. The sum of those opinions which comprise the usul
of the Maliki school, whatever the strength of their ascription to the Imam,
is without a doubt the basis on which the positions of the Malikis are based
and that from which the judgements of those both in early and later times
in that very productive school are derived.

We will mention the usul in general and then we will go into some
details to demonstrate the bases for deduction in the Maliki school, the
reason for its growth and spread, the great number of the questions with
which it deals and its suitability for various environments. We will attempt
to clarify the principles which are particular to it and which are considered
to be one of the things which distinguish it from other schools and give
it a flexibility which is not found in other schools even though it is a
school founded on tradition more than the others.

In Tartib al-Madarik Qadi �Iyad mentions the general foundations
of Islamic fiqh which are: the Noble Qur'an, its explicit texts
(nusus), its apparent meanings (dhawahir) and implied meanings
(mafhumat); the Sunna � mutawatir (with multiple
transmission), famous (mashhur) and single hadiths; then consensus,
and then analogy. Then 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 mursala, sadd adh-dhara'i',
  custom ('urf), and certain other principles which other people have
  mentioned.

In the commentary on al-Bahja sixteen basic principles are listed:

    An explicit text (nass) of the Qur'an.

    A apparent (dhahir) text which is (an apparent meaning derived from
    a text which is general and non-specific).

    An indicative (dalil) text, which may have an interpretation which
    diverges from its obvious meaning.

    An implicit (mafhum) text, which has an added meaning coinciding with
    its obvious meaning.

    An expositive (tanbih) text, which reports the underlying reason for
    a judgement (like the statement 'it is filth').

    The same five categories in respect of the Sunna;

    Consensus (ijma').

    Analogy (qiyas).

    The practice of the people of Madina ('amal ahli'l-madina).

    A statement of a Companion (qawl as-sahabi)

    Judicial preference (istihsan)

    Blocking of the means (sadd adh-dhara'i').

There is disagreement about a seventeenth principle which is whether or not
to take note of a dispute (mura'a al-khilaf). Abu'l-Hasan said that
istishab (presumption of continuance) is one of them. (al-Bahja,
p. 126, vol. 2)

This list is logical. An unequivocal text of the Qur'an, an apparent text,
what is implied, its proof, and its clarification are all connected to the
same fundamental source, the Qur'an, and the same is true of the same five
elements when applied to the Sunna. They are mentioned individually
because they do not have the same weight where deduction is concerned. An
apparent text of the Qur'an is not as strong as an unequivocal text and a
text which can have a divergent meaning is not as strong as an apparent text
and so forth.

In at-Tabaqat, as-Subki stated that there were more than five hundred
fundamental principles in the Maliki school. He may have been referring to
the legal precepts derived from secondary rulings. There is a distinction
between them and the usul of the school. The usul are the sources
for deduction, the methods of deduction which also involves the strength
and ranks of legal evidence and which of them to prefer when they are in
contradiction. Legal precepts (qawa'id) are general precepts which
clarify the method of exercising ijtihad in the school and the links
which connect minor cases. The precepts are later in their conceptual and
actual existence than the secondary rulings because the precepts are the
derived unifying principle of the rulings.

In the case of the usul, it is clear that they must exist before the
secondary branches because they are the prerequisites which the faqih
himself uses in his deduction. So the Qur'an is advanced before the
Sunna, the unequivocal text of the Qur'an is stronger than its
dhahir text and all other procedures used in making ijtihad.
The fact that these principles are revealed by the secondary ruling does
not indicate that the secondary rulings precede them. Rather they were in
existence previous to them and the secondary rulings indicate and reveal
them as the child indicates his parent, the fruit indicates the plant, and
the crop indicates the the type of seed.

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 mursala (considerations of public interest),
'urf (custom), 'adat (common usage), sadd adh-dhara'i'
(blocking the means), istishab (presumption of continuity), and
istihsan (discretion).

These are the fundamental principles of the Maliki school and we will discuss
each of them and its rank in deduction. Next we will discuss the Qur'an and
the Sunna and nass texts, dhahir texts, dalil
texts and mafhum texts since Maliki fuqaha' ascribe these
distinctions to Malik. Each of them has a specific rank in deduction in the
Book and Sunna as defined by the Maliki view.

1.The Book of Allah

2. The Sunna

3. Fatwas of the Companions

4. Fatwas of the Followers (Tabi'un)

5. Consensus (Ijma')

6. The Practice of the People of Madina

7. Analogy (Qiyas)

8.
Istihsan
(Discretion)

9.
Istishab
(Presumption of Continuity)

10. al-Masalih al-Mursala (Public
Interest)

11.
adh-Dhara'i'
(Means)

12. 'Adat (Customs) and
'Urf (Customary Usage)

Conclusion

Glossary

People and Texts Mentioned 

Edited by rami

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rami Members Profile Send Private Message Find Members Posts Add to Buddy List Moderator Group Male Joined: 01 March 2000 Status: Offline Points: 2549	Post Options Post Reply Quote rami Report Post Thanks(0) Quote Reply Topic: Fundamental Principles of Imam Maliks Fiq Posted: 02 April 2006 at 1:33am
	Bi ismillahir rahmanir raheem assalamu alaikum The following explains the principles upon which the maliki madhhab is based upon. The major diference between imam maliks madhhab and others is the fact he takes the amal [actions] of the people of madinah as a basis for legal rulings above other evidence and in some cases many scholars would agree that his evidence in certain rulings is stronger since the situation in madinah after the prophets lifetime was very unique in that some 10,000 sahaba had seteled there while the remainder spread throughout the muslim world and from whom the shuyukh of the other madhhabs learnt from although not exclusively. So whose actions would you consider more reliable in an islamic communal situation that of 10,000 sahabah who tought an entire community or of smaller pockets of sahabah living in various parts of the world. There is no right or wrong answer we cant ignore either but some scholars decided to accept certain evidence over the amal of the people of madinah as they considered it to be more clear in its link back to our prophet, but then who can ignore 10,000 sahaba living all in the same place it is not an easy matter. One example i am aware of in which scholars concure the evidence of Imam malik is the stronger opinion although not the one implamented and relied upon by the opther madhhabs is the placing of the hands in prayer which is down the side as is the case in the maliki madhhab and for anyone invesigating the evidence it would be hard not to come to the same conclusion. A person should bare in mind that many diferences are based upon established actions of the prophet or sahabah or tabiin and it is just a matter of deciding which action was the one practiced the most or how the action it self was implamented ie in what situations. so just becouse one madhhab places the hands by the side while another on the torso below the naval and the other above it, it does not mean that one is right and the others are wrong, all are actions based on ahadith or sahabah or tabiin thus all are traced back to the prophet and anything he did has benefit in it and is a right action but deciding which was used the most and in which way...etc is the issue. this goes for many other rulings as well, it should not be looked at in a balck or white manner ie this is right therefor that is wrong, khair insha allah. The Fundamental Principles of Imam Malik's Fiqh (Muhammad Abu Zahrah) 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 balaghat (without isnad) hadith, 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. Thus in the Muwatta' you will see clear statements or indications of Malik's principles of derivation even if he did not actually clarify or identify them specifically. For instance, he did not clarify the rules and grades of the underlying legal principles ('illa) in analogy and such things. The fuqaha' of the Maliki school have done with Malik's fiqh what the fuqaha' of the Hanafi school have done with their school � studied the secondary rulings and derived from them what can validly be employed as fundamental principles on which to base deduction. They called the principles they derived in this way the 'fundamental principles (usul) of Malik'. For instance, they say that Malik employed certain textual principles which they called'mafhum al-mukhalafa' (an interpretation which diverges from the obvious meaning of a given text), 'fahwa al-khatab' (implied meanings of a given text), and 'dhahir' (apparent meanings of a given text). They say that he also said certain things about general unspecific texts. The truth is that although these principles are transmitted as having been formulated by him, they are in fact derived from secondary judgements reported from him; and the specific proofs of these principles are derived from the actual context or were formulated by the fuqaha' who came after him. Deduction from texts can only validly be undertaken when the necessary evidence exists. We do not automatically have to accept these principles as being the usul of Malik's school since they are the formulations of scholars who post-dated him but nor must we refute them simply because they were not transmitted by Malik himself. We are bound, however, to reject those of them which we think contradict any clear, firm statements he is definitely known to have made or those which apply to some secondary rulings he made but not to most of them. Scholars deem that established propositions should be adopted and respected unless the proof of their opposite is established. In that case they have to be rejected because they have been proved invalid by clear evidence not by simple denial. These principles are mentioned in various places in the books on the science of usul which Malikis have written or in the glosses which other Malikis have added to such books. They say about every principle that Malik's opinion regarding it was such-and-such but that is in fact only deduced from secondary rulings. In at-Tanqih, you will see that al-Qarafi mentions a principle and then mentions Malik's opinion about it which may differ or agree with the majority view. The sum of those opinions which comprise the usul of the Maliki school, whatever the strength of their ascription to the Imam, is without a doubt the basis on which the positions of the Malikis are based and that from which the judgements of those both in early and later times in that very productive school are derived. We will mention the usul in general and then we will go into some details to demonstrate the bases for deduction in the Maliki school, the reason for its growth and spread, the great number of the questions with which it deals and its suitability for various environments. We will attempt to clarify the principles which are particular to it and which are considered to be one of the things which distinguish it from other schools and give it a flexibility which is not found in other schools even though it is a school founded on tradition more than the others. In Tartib al-Madarik Qadi �Iyad mentions the general foundations of Islamic fiqh which are: the Noble Qur'an, its explicit texts (nusus), its apparent meanings (dhawahir) and implied meanings (mafhumat); the Sunna � mutawatir (with multiple transmission), famous (mashhur) and single hadiths; then consensus, and then analogy. Then 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 mursala, sadd adh-dhara'i', custom ('urf), and certain other principles which other people have mentioned. In the commentary on al-Bahja sixteen basic principles are listed: An explicit text (nass) of the Qur'an. A apparent (dhahir) text which is (an apparent meaning derived from a text which is general and non-specific). An indicative (dalil) text, which may have an interpretation which diverges from its obvious meaning. An implicit (mafhum) text, which has an added meaning coinciding with its obvious meaning. An expositive (tanbih) text, which reports the underlying reason for a judgement (like the statement 'it is filth'). The same five categories in respect of the Sunna; Consensus (ijma'). Analogy (qiyas). The practice of the people of Madina ('amal ahli'l-madina). A statement of a Companion (qawl as-sahabi) Judicial preference (istihsan) Blocking of the means (sadd adh-dhara'i'). There is disagreement about a seventeenth principle which is whether or not to take note of a dispute (mura'a al-khilaf). Abu'l-Hasan said that istishab (presumption of continuance) is one of them. (al-Bahja, p. 126, vol. 2) This list is logical. An unequivocal text of the Qur'an, an apparent text, what is implied, its proof, and its clarification are all connected to the same fundamental source, the Qur'an, and the same is true of the same five elements when applied to the Sunna. They are mentioned individually because they do not have the same weight where deduction is concerned. An apparent text of the Qur'an is not as strong as an unequivocal text and a text which can have a divergent meaning is not as strong as an apparent text and so forth. In at-Tabaqat, as-Subki stated that there were more than five hundred fundamental principles in the Maliki school. He may have been referring to the legal precepts derived from secondary rulings. There is a distinction between them and the usul of the school. The usul are the sources for deduction, the methods of deduction which also involves the strength and ranks of legal evidence and which of them to prefer when they are in contradiction. Legal precepts (qawa'id) are general precepts which clarify the method of exercising ijtihad in the school and the links which connect minor cases. The precepts are later in their conceptual and actual existence than the secondary rulings because the precepts are the derived unifying principle of the rulings. In the case of the usul, it is clear that they must exist before the secondary branches because they are the prerequisites which the faqih himself uses in his deduction. So the Qur'an is advanced before the Sunna, the unequivocal text of the Qur'an is stronger than its dhahir text and all other procedures used in making ijtihad. The fact that these principles are revealed by the secondary ruling does not indicate that the secondary rulings precede them. Rather they were in existence previous to them and the secondary rulings indicate and reveal them as the child indicates his parent, the fruit indicates the plant, and the crop indicates the the type of seed. 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 mursala (considerations of public interest), 'urf (custom), 'adat (common usage), sadd adh-dhara'i' (blocking the means), istishab (presumption of continuity), and istihsan (discretion). These are the fundamental principles of the Maliki school and we will discuss each of them and its rank in deduction. Next we will discuss the Qur'an and the Sunna and nass texts, dhahir texts, dalil texts and mafhum texts since Maliki fuqaha' ascribe these distinctions to Malik. Each of them has a specific rank in deduction in the Book and Sunna as defined by the Maliki view. 1.The Book of Allah 2. The Sunna 3. Fatwas of the Companions 4. Fatwas of the Followers (Tabi'un) 5. Consensus (Ijma') 6. The Practice of the People of Madina 7. Analogy (Qiyas) 8. Istihsan (Discretion) 9. Istishab (Presumption of Continuity) 10. al-Masalih al-Mursala (Public Interest) 11. adh-Dhara'i' (Means) 12. 'Adat (Customs) and 'Urf (Customary Usage) Conclusion Glossary People and Texts Mentioned Edited by rami
	Rasul Allah (sallah llahu alaihi wa sallam) said: "Whoever knows himself, knows his Lord" and whoever knows his Lord has been given His gnosis and nearness.