The 40 Steps Towards Understanding the Meaning of Fatwa ~ What is a legal ruling in Islam?

by Ustadh Luqman In the Name of Allah, the Most~Gracious, the Most~Merciful, Peace and Blessings of Allah be upon the Prophet Muhammad, his Family and Companions.

All praise is due to Allah.

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Imam Malik 's fear of giving Fatawa {legal rulings}.

1} Do not exalt yourselves; He {Allah} is aware of the righteous.

{Qur'an 53 :32}

2} To Allah is your ultimate return, then He will inform you of every thing you disputed.

{Qur'an 5:48}

3} O you who believe! Ask not about things which, if made plain to you, may cause you trouble"

{Qur'an Surah Maidah 101}

4} {One of the teachers of Imam Bukhari} Muhammad ibn al-Munkadir

said:

"A scholar is the mediu m between Allah and His Servants, so he should be careful about how to con vey the message."

{Reported by Imam al~Bayhaqi, al~Madkhal ilas~Sunan, and Al~Khatib Al ~Baghdadi in Al-Faqih Wal Mutafaqqih & ibn `Asakir in Tarikh Dimashq}

5} `Abdullah ibn Mas`ud

said:

"Anyone who provides answers for all the questions asked to him, he must be crazy."

{Narrated by Al~A'mash from Abu Wa`il, Shaqiq ibn Salamah: Related by Imam al~Bayhaqi in al~Madkhal ilas~Sunan", Hafiz al~ Khatib al~Baghdadi in al~Faqi' wal' Mutafaqqih and Hafiz Yusuf ibn `Abd al~Barr in Jami` Bayan al~`Ilm wa Fadlihi}

6} {Imam} Malik ibn Anas

used to say:

"Anyone who answers a question, he must first check to see whether his position shall lead him to Hell or Paradise, If he then answers such a {person al} question, then he may answer {the one questioning}."

{Related by Imam al-Bayhaqi, al-Madkhal ilas-Sunan}

When Hammad ibn Zayd visited Madinah he learned that the people had a saying amongst themselves concerning Imam Malik. La Yufta wa Malik fil Madinah. None gives a Fatwa while Malik is in Madinah.

7} The Mufti and Imam of Eygpt, Al~Layth ibn Sa`id

said:

" A cl ear proof that the Fatwa of the leader overrules but does not invalidate the opinion of the Companions {Sahaba} even if it directly contradicts it. This is proven by the fact that when Caliph `Umar ibn al-Khattab proposed to have all the Hadith collected and written down he consulted the Companions and they unanimously agreed to his proposal; later he disapproved of it and ordered that everyone who had written a collection to burn it.

However {did not} Caliph,`Umar ibn `Abd al-Aziz written ?

later order that Hadith be collected and

(Hafiz, Khatib al-Baghdadi, Taqyid al-'Ilm & Ibn Sa'd's Tabaqat)

[The rest of the scholars after them, are in all reality just explaining the knowledge of the above 3.

So, yes Imam Malik was not from the Sahaba, nor the Tabi'in, yet he was a follower of the Tabi'in. That would make him from the third generation and thus worthy of being followed as a major Imam of Islam by a Muqallid [yes a blind follower so to speak.]

8} Allah is well-pleased with them and they are well-pleased with Him. He has prepared for them gardens beneath which rivers flow, to dwell therein forever. That is the supreme success.

{Surah Tawbah 9:100}

[The Scholars of Islam see the matter in this fashion. We take from those who received the knowledge from the Prophet, then those who followed that knowledge and then the 3rd generation that followed their knowledge.]

9} Umm al~Mu'minin, Aisha' said:

A man came to the Prophet and said: Who is the most excellent of mankind? So the Prophet said:

' The generation of those that I am in, then the second, then the third.'

{Sahih Muslim}

10} Allah says:

The foremost, from those who quickly migrated {the Muhajirin} and those that helped them {the Ansar} and those who followed them in goodness, Allah is well-pleased with them and they are well-pleased with Him.

He has prepared for them gardens beneath which rivers flow, to dwell therein forever. That is the supreme success.

11} The Prophet Muhammad

said:

"Let none of you abuse my Companions. For by Him in whose Hand is my life, if one of you spent the equivalent of Mount Uhud in gold it would not reach a handful nor half a handful of what they spent."

{Agreed Upon}

12} Imam al~Awza'i

said:

"Patiently restrict yourself to the Sunnah and pause where the people paused, say what they said and avoid what they avoided. Take to the path of your righteous {Muslim} ancestors, for indeed, what was sufficien t for them, is sufficient for you."

{Related by Imam al~Bayhaqi, Madkhal ilas~Sunan}

13} Hafiz, Yusuf ibn Abd al-Barr al~Andalusi

said:

" They should not prevent the youth, if he knows something, from speaking about what he has knowledg e of. Perhaps a person may be young in age, but an elder with regards to his knowledge.And Allah blesses whom He wills through wisdom and mercy."

{At~Tamhid, Volume 23, pg. 150}

14} Imam an~Nawawi

said:

Everyone is keen to give a Fatwa and they rush to give it, they will not be correct in giving Fatwa and will be confused. If they disliked giving Fatwa but there was no other way but to give a Fatwa, they shall be supported by Allah and their Fatwa will be correct...A Mufti must be pious, religious and knowledgeabl e.

{Imam} Malik

used to do what other people cannot stand and used to say:

A Mufti will not be characterized by knowledge until he does things of piety which other people can not do.

The same saying was reported from his Sh aykh, Rabi`a

{Adab Al Mufti wal-Mustafti pgs. 79 80}

15} {Imam} Malik

said:

"All that has corrupted people is finding interpretations for that which they do not know."

16} {Imam} Malik

said:

"A man who narrates everything that he hears is not safe and he will never be an Imam."

Imam Malik

said: "They cl oth e the truth with falsity."

{See Surat al~Baqarah, 39}

17} {Imam} Malik

said:

"That which predominates in peopl e's1 affair is the clear road. A thing may be good but something else may be stronger."

18} {Imam} Malik

said:

"When you hit the mark there is little talk. When there is a lot of talk then the one who talks will make mistakes."

{Quotes 15-18, Kitab al-Jami, Madinan View, Translated by Hajj Abd as-Samad Clarke}

19} Imam Malik

said:

The shield of the scholar is, I dont know, so If he leaves it down, his attacker will strike him.

{al-Intiqa fi Fadail at-Thalatha al-Fuqaha}

20} Imam Malik

said,

Knowledge does not consist in narrating much. Knowledge is but a light which Allah places in the heart.

{Related by Hafiz Ibn Rajab, Sifat as-Safwah, Volume 2 pg. 197; Tafsir Ibn Kathir}

21} Al~Haytham Ibn Jamil

narrates:

"I heard Imam Malik being asked 48 questions and he answered only 32 of them with: 'I don't know'.

22} Khalid ibn Khidash

also said:

"I presented forty questions to Imam Malik and he answered none except five."

{Siyar A'lam An~Nubala = The Lives of the Noble Figures}

23} There remains no scholar in Madinah after the Tabi`in comparable to Imam Maliks knowledge, jurisprudence, eminence, and memorization.

24} Imam Malik

said:

I do not accept knowledge from four types of peopl e:

1} a person well-known to be fool ish, even though all the other people narrate from him,

2} a person involved in committing heresy and calling others towards the innovation in Deen,

3} a person who lies in regular con versation with people, even though I do not accuse him as liar in regards to Hadith,

4} and a person who is pious worshipper or scholar, but does not properly and correctly memorize what he narrates.

But why was Imam Malik like this?

25} The Prophet Muhammad

said:

"One who attributes a lie towards me deliberately, should find his abode in Hell."

{Sahih Bukhari} and

26} "It is enough for a person to be considered a liar, if he narrates to others what he listens {that is without verifying}."

{Sahih Muslim}

27} Imam Sufyan ibn Uyaynah

said:

May Allah have mercy upon Imam Malik. He only narrated authentic Hadith, he would never report except from the reliable. In my opinion, Madinah without him, has only had a decrease in knowledge after his demise."

28} When he gave fatwa he would say:

We deem it not but conjecture and we are, by no means, sure.

{Qur'an, 45:32}

He would not tell a Hadith until he was sure of it and if he had doubts, he would leave it. One of his students blamed and reproach ed him for being very careful about Fatwa.

29} Imam Sufyan

also narrated:

The most knowledgeable with regards to Fatwa are the most silent of them; and the most ignorant with respect to Fatwa are the most outspoken of them.

He also said: The most daring of the peopl e to issue verdicts are the least of them in knowledge.

{Jami Bayan al~Ilm wa Fadlihi, Volume 2 pg. 816}

30} Imam Malik

would weep saying:

I fear that some day these fatwa's would give me a very hard day {on Qiyamah}.

31} Once Imam Malik

said to one of his students:

There is nothing easy about knowledge, did not you hear the words of Allah, Almighty,

We will charge you with heavy words."

{Surah al~Muzzammil 73:6}

32} Bishr al~Hafi

said:

Whoever loves to be asked questions, then he is not worthy of being asked.

{Jami Bayan al~Ilm wa Fadlihi, Volume 2, pg. 353}

33} Ibn Muhammad Ibn Abu Bakr al~Qurayshi

narrated from the Prophet Muhammad

that he said:

Once, when Imam 'Ali was asked about something which he did not know, he said, "I do not know." Then he added, "How soothing it is for me to say I do not know when I do not know."

Imam 'Ali ibn Abi Talib meant that he felt comfortabl e not to answer a religious question when he did not know the answer to it.

{Kitab as-Samt}

34} {Imam} Malik

said,

"I do not like a lot of questions and Ahadith. I found the people of this city disapproving of that which is among people today. The first of this Ummah were not the most questioning of people, nor did they have this practice of going deeply {into matters}. The Prophet forbade a great deal of questioning, and in anoth er Hadith he forbade, 'It was said and he said' and much questioning."

35} {Imam} Malik

said:

"I do not know whether {the Hadith} is about the much question ing {con cerning knowledge} which you do, or asking {in the sense} of begging." {su'al means both to ask a question and to beg}.

{Imam} Malik used to disapprove of haste in giving fatwas and he would often hesitate over cases. He would often say, "I do not know."

He said, "The shield of the man of knowledge is, 'I do not know.' When he forgets it, his vulnerable parts are hit."

36} {Imam} Malik

said:

"One of the things which conqu ers a man of knowledge is when he answers everyone who questions him."

37} Ibn 'Abbas

said,

"Whoever answers peopl e on everything about which they ask is mad."

{Imam} Malik was asked about something and he said, "I don 't like to reply to something like this.

'Umar ibn al-Khattab was tested with things like these and he left them and would not give an answer about them."

{Quotes 34-37, Kitab al-Jami, Madinan View, Translated by Hajj Abd as-Samad Clarke}

I think it may be very beneficial for eveyone to read the following in relation to this topic. Insha Allah Ta'ala. Wa Sall'Allahu Ala Sayyidina Muhammad wa Ala Aalihi wa Sahbihi wa Sallama Tasleeman.

38}

http://www.shaykhalilaraki.com/fatwaqada.php

39}

Kitab al-Jami'

http://www.bogvaerk er.dk/Jami.html

40}

http://bewley.virtualave.net/fatwa.html

May Allah bless our Master Muhammad and his family and grant them peace.

Fatwa and Qada' [sentence] in the Maliki School

by Sidi Shaykh Ali Laraki 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 ruling of Fatwa and Qada' in the Shari'a

The ruling of fatwa and qada' is that they are fard kifaya. When some of the community of Muslims undertake them, then that is no longer the responsibility of the rest of the community. If no one undertakes them, then the entire community sins. In the Chapter on Jihad of the Mukhtasar, Khalil mentions some of things which are fard kifaya: "like establishing the sciences of the Shari'a, fatwa, averting harm from Muslims, qada', testimony, the imamate, etc." So in every community of Muslims there must exist those who give them fatwa on rulings of their deen concerning worship and transactions so that they will know what they are commanded and forbidden. As for qada', it is also a fard kifaya. It is one of the greatest ranks since it entails settling disputes, averting factionalism, establishing the hudud, helping the wronged and restraining the wrongdoer.2 As for appointing the Qadi, that is done by the Amir of the community. In at-Tuhfa, Ibn 'Asim defined the Qadi:
He carries out judgements by the Shari'a

and represents the ruler. As for the mufti, he is either restricted to appointment by the Amir, as is the practice in the east, or not restricted so that fatwa is undertaken by those who are qualified to do that and whom people view as qualified, as was the custom of the people of the Maghrib and Andalusia.3

The reason for multiple positions in the Maliki School in a single case
The reason for multiple positions on a single case derives from the great number of students who studied with Malik, may Allah be pleased with him. Allah Almighty verified the words of His noble Prophet, may Allah bless him and grant him peace, reported in a sound hadith from Abu Hurayra, may Allah be pleased with him, when he said, "A time is about to come when people will beat the livers of camels seeking knowledge and will not find anyone with more knowledge than the scholar of Madina." At-Tirmidhi and Ahmad related it. So Allah made many people come to Imam Malik from every deep ravine, seeking the knowledge for which he was famous. Those students constitute the primary source for the multiplicity of

views on a single case, but there are various reasons for the development of this phenomenon: One: The great number of those who studied with the Imam lead to different transmissions reaching us from him about what is connected to a single case. The Imam may have retracted one position and changed his opinion in a matter because he came across a proof which he did not previously know, or social circumstances may have changed, or the state of the one asking for the fatwa may have changed. The one who stayed with the Imam for a certain period of time transmitted a view and did not transmit the Imam's retraction of that view since that student was not present when that retraction and change of opinion took place.4 Two: Using the transmissions already mentioned as a basis for deduction by the Imam's students. The students of the Imam used to arrive at answers for cases that the imam did not mention by using analogies based on the original text. This operation is called "takhrij" (extraction). It designates using the texts of the Imam as bases for the derivation of rulings for new secondary cases by means of analogy. It is a type of ijtihad which is called 'ijtihad in the School'5. Due to the many transmissions from the Imam, there are several possibilities of deduction based on his views and texts. Three: At certain times the students of Malik and his companions would undertake unrestricted affiliated6 ijtihad. They were limited by the principles of their Imam, although at times their ijtihad led them to disagree with some of the views of their Imam according to their preference for certain evidence and legal reasons. So to summarise what was mentioned, the basis for the variety of views within the Maliki school are;
- The variety of transmissions from Imam Malik at different times and different situations.

- The variety of the ways of deduction based on his verdicts and texts. - Affiliated unrestricted ijtihad done by the students and companions of Malik. Since Malik had many students, that made the Maliki school one of the most prolific schools since often there is more than one answer in the different secondary rulings and legal cases. This is without a doubt a fact which enriched the school, but at the same time, it is also a reason for the confusion of muftis, qadis and rulers in the generations in which the process of ijtihad came to a stop since they needed to select a specific verdict in order to issue their fatwas and resolve disputes.7

The need to choose a specific verdict or preference (tarjih)

In the early periods of ijtihad, the school of fatwa and qada' were entrusted to the Qadi and mufti and they used to judge every case or occurrence according to their choice and ijtihad. Then it was left up to the ruler and the authorities began to specify the school which the mufti or qadi must follow in giving fatwa or sentence, whether that school was followed by the

overwhelming majority or simply followed by the Khalif and a party of the men of government. Every madhhab had its own mufti and qadi appointed, and they gave judgement among its followers, and this was the case in most of the eastern lands. Since the Madhhab became the basis which was followed in sentence and fatwa, and consequently general behaviour, the same disagreements which occurred about the derivation of rulings from Shari'ic proofs also occurred in its application in cases and rulings, i.e. a sort of ijtihad occurred within the madhhab, even in the times of greatest taqlid (imitation) and stagnation. This was how things were: either the qadi and mufti were allowed to choose and exercise ijtihad in following the verdicts of the school and relying on them, or he was constricted to follow a procedure established by the authorities, in order to maintain uniformity in judgements. So it was not allowed for the qadi or mufti to shift between verdicts for the best interest of one of the litigants. Indeed, the fuqaha' and authorities stipulated judgement and fatwa on the basis by the preferred (rajih) or well known (mashhur) or the opinion in practice ('amal) by the school followed in their land. The edicts began to stipulate that qadis must follow that procedure. So first the Muslims were confined to the school of fiqh which they followed in their land, and then it was stipulated that judgement should be on the basis of the well-known and preferred or that which was the practice.8 In brief, fatwa and qada' went through three stages: 1. The first stage was at the beginning when a mufti or qadi employed ijtihad with independence and unrestriction, i.e. he derived the rulings directly from their legal proofs (Book, Sunna, consensus, etc.), whether by using his particular principles or by following the usul of a particular Imam. 2. The second stage was when a mufti or qadi used ijtihad in the madhhab which had been decided on by those in authority by choosing from the verdicts of the school that which he thought is soundest or most appropriate. 3. The third stage was when authorities obliged muftis and qadis to take the preferred or well known or what was the practice in the school. That is by the desire to unify the legal system, and in order that it will not be any arbitrariness, and to avoid favouritism or bias on the part of the qadis in resolving disputes.

Approved (mu'tamid) verdicts in Fatwa and Sentence in the Maliki school

The existence of multiple verdicts on a single case made it necessary to compare them in respect of their transmission, those who espouse them, and their proof. This comparison was undertaken by scholars of the school called "mujtahids in fatwa". That is the level of mujtahids who confine themselves to comparing transmitted verdicts by means of preference (tarjih), and then state their preference for some verdicts over others based on the strength of the proof, the strength of the transmission, or the suitability of its application according to the circumstances of the time and similar methods9 which is not considered to be new independent or dependent10 inference. So then these scholars confined the verdicts of the school to seven categories, which are:
1. The agreed upon (muttafaq 'alayhi) verdict

2. The preferred (rajih) verdict 3. The well known (mashhur) verdict 4. The verdict which is equal to another one 5. The existing 'amal 6. The weak verdict 7. The irregular (shadhdh) verdict. Five of these verdicts are relied on in fatwa and sentence:
1. The agreed upon verdict

2. The preferred (rajih) verdict 3. The well-known (mashhur) verdict 4. The verdict which is equal to another one 5. The existing 'amal11 The Agreed upon (muttafaq 'alayhi) verdict What is meant by this is the verdict on which the people of the Maliki madhhab agree rather than other schools in respect of a particular case. The Preferred (rajih) verdict In technical usage, the preferred is that whose proof is strong, but that is only in respect of a mujtahid in the school who is able to examine the strength of the evidence in transmission and meaning. As for the imitator, mufti and qadi who are limited in fatwa and judgement, what is preferred is that which was preferred by the scholars of the school who have the full qualifications for exercising preference. The mention of what is preferred is found in the original books, as it appears in the work of Shaykh Khalil in his Mukhtasar when he mentioned the choice of al-Hasan al-Lakhmi, the preference of Ibn Yunus, declaration of Ibn Rushd, and the position of al-Maziri.12 The opposite of the preferred verdict is the weak verdict whose evidence is weak in respect of a mujtahid in the School or that which the scholars of the School qualified to exercise preference consider to be weak. It is self-evident that one must rely on the preferred rather than the weak in fatwa and sentence. The well-known (mashhur) verdict

Scholars of the Maliki school disagree about the technical definition of the mashhur, taking two positions. The first is that it is that which is the verdict of many people, and the second view is that it is the verdict of Ibn al-Qasim in the Mudawwana. In respect to the first position, which is that the well known is that which is the verdict of a lot of people, it is related to a faqih who is able to analyse the chains of transmission (isnads) of the school and is conversant with them. As for the one who is an imitator, he considers as well known among the scholars of the school that what is stated to be well known in the reference works of the School, like the Mukhtasar of Khalil and its reliable commentaries, and ash-Sharh as-saghir 'ala Aqrab al-maslik by ad-Dardir. In respect of the second view that the well known is the position of Ibn al-Qasim in the Mudawwana, in Tabsira al-Hukkam by Ibn Farhun13 reports from Abu'l-Hasan at-Tanji that the verdicts of Malik in the Mudawwana 14 are more appropriate than the verdicts of Ibn alQasim in it because he is the greatest Imam, and the verdicts of Ibn al-Qasim in it are more appropriate than the verdict of others in it because he had the most knowledge of the school of Malik.15 The position of others in it is more appropriate than the position of Ibn al-Qasim in other books. That is because of its soundness.16 By unifying the term of mashhur in both views, we can say that the definition of the mashhur refers to the quantitative support of one of the verdicts of the school by more than three individuals. As for the definition of the mashhur as the verdict of Ibn al-Qasim in the Mudawwana refers to a qualitative or legal support which substitutes the quantitative support. This is because Imam Malik and his student Ibn al-Qasim represent a qualitative superior number because of their high rank in the school. The opposite of the mashhur is the irregular (shadhdh), which is what only a few people say or what Ibn al-Qasim did not say in the Mudawwana. It is not permitted for a mufti or qadi who is an imitator to give fatwa or sentence by an irregular verdict. The verdict which is equal to another This is the rank when verdicts are equal in respect of evidence or those who support them, and it is not immediately clear which of them must be preferred.17 When the mufti and qadi are mujtahids who can examine the proofs and are unable to prefer one of the verdicts, they choose one of them for fatwa or sentence. As for the mufti and qadi who imitate, they choose one of the two without following desire or appetite. Similarly it is permitted for the mufti but not the qadi to inform the one who asks for a fatwa of the two verdicts as long as that does not lead to confusing the common people. One should mention that Shaykh Khalil has a specific technical term for this situation which he mentioned in the Introduction to his Mukhtasr:
"When I mentioned about disagreement, that is disagreement about which opinion is considered to be well-known (mashhur). When I mentioned two or more verdicts, that is because I did not found any textual preference in connection to them."

The existing 'amal (practice) What is meant by the existing 'amal is to take a weak or irregular verdict in the face of a preferred or well known one for the sake of public interest, necessity, custom, or another basis, or it is to prefer a weak verdict and judge by it and give fatwa on that basis, and then the later adoption of it by judges and muftis due to one of the aforementioned reasons.18 The existing 'amal involves turning from the preferred and well known in the school and taking the weak or irregular in order to bring about public welfare, avert evil or to observe custom. All of these reasons lead to turning away from the preferred and well-known verdict of the school, based on the principles of Malik:
- bringing about public welfare, based on maslaha mursala

- averting evil, based on sadd adh-dhara'i' - observing custom, which is one of principles of the School. The meaning of this is that the existing 'amal designates abandoning the literal19 position of the school in order to maintain "its spirit".20 In fact, when the door of ijtihad was closed, as as a means to stop those who laid claim to it and who were not qualified for it (sadd adh-dhari'a) the fuqaha' of the Maliki school opened another door to it via means of the practiced 'amal every time events and cases arose and had to be examined. This lead to taking into consideration abandoned verdicts and dispersed opinions so that they acquire significance when they are reinforced by proofs and principles. One must take note of the fact the existing 'amal grew and developed in the Islamic Maghrib, which includes Andalusia and Morocco, and it knew a number of practical applications. This differed from the situation in the East where the Maliki school was not applied despite the existence of supporters and followers of the School there. That was, however, justified by the predominance of the Maliki School in the Islamic Maghrib and its weakness in the east. The dominance of the School implies the carrying out of sentence as well as fatwa to resolve people's problems, and to keep abreast with events and developments which occur in society as a whole.21 The proof of that is that the east had a means other than that which the Maghribis used to resolve those problems. Shaykh ad-Dasuqi, who wrote a gloss on the Great Commentary on the Mukhtasar of Khalil said:
"As for the irregular and less preferred (i.e. weak) verdicts, one does not give fatwa based on them. Similarly one is not permitted to give fatwa by one of them nor to judge by them, and it is not permitted to act on the basis them in what is personal to oneself. Rather action by the verdict of another school on it is given preference because the verdict of the other school is strong in his school. That is stated by the shaykhs. Al-Hattab reported from Ibn 'Umar that it is permitted to act by the irregular verdict on a personal basis for oneself, and that it is

preferred to acting by another school of because it is a verdict in the School. The first position is taken the Egyptians and the second is taken by the Maghribis, as our Shaykh stated."22

This means that in giving fatwas, Egyptian Malikis used the same method of turning from the preferred and well known when the circumstances demanded that, acting according to the principles of the School, although they did not resort to irregular and weak verdicts. They went outside the School and took a strong verdict from outside of the Maliki school. That was due to the existence of those who had familiarity with the other schools in their land, which was not the case with the Maghribis who were confined solely to the Maliki School. Whatever the method, the end is the same, which is to adapt the School to the circumstances of people and society, take account of public welfare, avert evil, remove distress and constriction, and achieve social justice. Existing 'amal has preconditions which must be met in order for fatwa and sentence by it to be valid. Shaykh ash-Shinqiti said in Maraqi as-Su'ud:
The weak is given preference, if there is 'amal by it

because the reason is there.23 Shaykh Muhammad al-Amin ash-Shinqinti explains this verse: "He means that when the 'amal is based on a weak verdict, then it is given preference over the well known. But there are preconditions required for that:
1. The reason for turning from the well known actually exists.24

2. It is a precondition that the 'amal correspond to a verdict.25 3. The 'amal is established by clear evidence.26 4. That the first to use it was someone qualified to exercise tarjih.27 The author of Nur al-Basar mentioned these preconditions. The later 28 authorities of the School have corrections and preferences for certain transmissions and verdicts 29 in which they turned from the well known for the sake public welfare or averting evil. Such was the practice of judges and muftis. An example of that is that when the scholars of Fes saw that women lied a lot in claiming the end of the 'idda, they started to not accept from a woman the claim that it had ended in less than three months while the verdict that she was not to be believed was very weak indeed."30 If the preconditions are not met for the existing 'amal, then it is definitely mandatory for the imitating mufti and qadi to give fatwa by the preferred or well known. Fatwas and sentence by the existing 'amal are limited to the factors of time and place and the existence of what obliges it. Fatwa and sentence by the existing 'amal are established to remove some social problems particular to the time and place and particular circumstances. When the facts of time or place changes or that which obliges turning from the preferred and well-known is removed, then one must return to the preferred and well known verdict, or re-examine the

social circumstances for the establishment of another 'amal if that is demanded by necessity, public welfare or new custom. This requires that the door of ijtihad remain open in the school until Allah inherits the earth and those in it.

The Order of Reliable Verdicts in fatwa and sentence

One should observe the order of these verdicts, taking the strongest one and then the next in strength, since the mufti and qadi must take first the verdict agreed upon in the school, 31 then the existing 'amal, then the preferred verdict, then the well-known verdict, and then the verdict which is equal to another. As for the weak and irregular views, scholars disagree about the permission to do that. Some of them allowed it in the case of necessity or for public welfare or to remove constriction and distress, and some of them forbid it and prefer to take what is strong outside of the school. It should be noted that the reason for mentioning weak and lesser verdicts in the books of fiqh is the need for giving fatwa by them in case of actual necessity, public welfare, or removing constriction and distress.

Conclusion
All of what we mentioned makes it clear that the Islamic Shari'a in general, and the Maliki School in particular, does not designate a legal mechanism which is applied to the person literally and arbitrarily. On the contrary, it is an expression of Allah's mercy to His slaves which is compatible with their circumstances in order to realise their best interests, remove their constriction and distress, and to achieve social justice. So it is clear that holding to a particular legal school does not lead to rigidification of fiqh and closing the door of ijtihad, at least in relation to the history of the Maliki school in the Maghrib and Andalusia. We saw how the system which the scholars of the Maghrib and Andalusia created makes the door of ijtihad remain open, and that has helped the application of the School in different environments and times right up until today. Furthermore, the Maliki School is tolerant in the matter of talfiq (performance of an act of worship or transaction made by combined views of different schools) which is part of what makes it suitable for applications in cases of difficulty when the Muslims have no power to change social conditions, as is their situation in Europe and America. If someone he wants to verify that, he will find a number of fatwas in the Mi'yar of al-Waranshiri directed to those who asked for fatwa who were living under a non-Muslim authority in Andalusia. Finally, we want to say that the flexibility of the Maliki school derives from the great number of its principles. It has the most usul 32 of all the schools of fiqh. This abundance of usul gives it a necessary awesome ability to adapt in order to realise the aims of the Shari'a. Allah knows best what is correct.

Notes

1. Jawahir al-Iklil, commentary on the Mukhtasar of Khalil, vol. 1, p. 7. 2. Commentary of al-Kharashi on the Mukhtasar of Khalil, vol. 4, p. 7. 3. Muhadarat fi Tarikh al-Madhhab al-Maliki, by Dr. 'Umar al-Jidi, p. 95. 4. This is the reason that the Malikis consider Ibn al-Qasim to be the most knowledgeable of Malik's students because he stayed with Malik for 20 years until the Imam died. Ibn al-Qasim is therefore the person who had the best knowledge of Malik's changes of view. 5. Usul al-Fiqh, Muhammad Abu Zahra, p. 395. 6. Usul al-Fiqh, Muhammad Abu Zahra, p. 393. 7. Usul al-Fatwa wa'l-Qada' fi'l-Madhhab al-Maliki, Muhammad Riyad, p. 466. 8. Sharh Mudawwana al-Ahwal ash-Shakhsiyya al-Maghribiyya, Shaykh Shahbun, vol. 1, p. 18. 9 This is one of the most important points connected to the process of weighing (tarjih) between secondary cases of fiqh. The requirements for establishing preference between verdicts are:
1. The strength of the transmission of the verdict.

2. The strength of the verdict. 3. The suitability of the application of the verdict. These requirements are confined to a particular madhhab. It is not permitted to employ preference (tarjih) between schools of fiqh because what is considered to be a strong transmission, strong proof or the suitability of the application varies greatly from one school to another. Each school has particular usul which lead to preferring one verdict over another. To consider the disagreement of the schools in a particular case and then prefer one of those verdicts is a gross mistake which is widespread among many contemporaries. The sound approach is that a verdict is preferred according to the principles of a particular school rather than the principles of another. When an author says, "The preferred verdict is such-andsuch," then the author must specify by the principles of which school in which he prefers one verdict to another. If the author does not confine himself to the principles of a particular school and claims unrestricted independent ijtihad, then he is starting a new school of fiqh other than those with which we are familiar. In short, it is not permitted to apply preference to differences to between schools. It only occurs inside a particular school. That is illustrated by the preference of Imam Malik, in which he relied on the principle of the practice of the people of Madina which he considered reliable, and which he preferred to single hadiths. Often the disagreement of the Malikis in other secondary rulings of the School is based on that principle. 10. Usul al-Fiqh, Muhammad Abu Zahra, p. 396.

11. Usul al-Fatwa wa'l-Qada' fi'l-Madhhab al-Maliki, Muhammad Riyad, p. 470. 12. See the preface of the Mukhtasar of Khalil. 13. vol. 1, p. 70. 14. What is meant by the Mudawwana is the Great Mudawanna transmitted by Imam Sahnun ibn Sa'id at-Tanukhi from Imam 'Abdu'r-Rahman ibn al-Qasim al-'Utaqi from Malik ibn Anas, may Allah be pleased with him. 15. He stayed with Malik for more than twenty years and did not leave him until he died. 16. The Great Mudawwana is the most important source of the Maliki school after the Muwatta'. 17. Usul al-Fatwa wa'l-Qada' fi'l-Madhhab al-Maliki, Muhammad Riyad, p. 509. 18. Al-'Urf wa'l-'Amal fi'l-Madhhab al-Maliki by al-Jidi, p. 342. 19. The preferred or well known verdicts. 20. That which its prolific principles demand. 21. Usul al-Fatwa wa'l-Qada' fi'l-Madhhab al-Maliki, Muhammad Riyad, p. 515. 22. Hashiyat ad-Dasuqi, the gloss on the Great Commentary, vol. 1, pp. 36-37. 23. Verse 950. 24. This precondition demands:
1. Local knowledge about whether the 'amal is general or specific to the country.

2. Knowledge of the time in which the 'amal existed. 3. Knowledge of the reason why one turns from the well known. 25. Even if that verdict is irregular or weak according to the method of the Maghribis or a verdict outside of the School by the method of those of the east. 26. By the sound transmission of the 'ulama' making use of the weak verdict. This is confirmed by the testimony of reputable ('udul) witnesses who are well acquainted in verdicts. 27. When the 'amal issues from the Imams who are followed and have a firm grasp the science of the objectives (maqasid) of the Shari'a.

28. In the technical usage of the people of Madina that is the generation of Shaykh Ibn Abi Zayd al-Qayrawani, the author of the famous Risala, and those after him. See Manh al-Jalil, the commentary on the Mukhtasar of Khalil, by Shaykh Muhammad 'Illish, pt. 1,p. 26. 29. These preferences are collected in some of the texts common among fuqaha', including "al-'Amal al-Mutlaq" by as-Sijilmasi and "al-'Amal Fasi" by 'Abdu'r-Rahman al-Fasi and "al-Lamiyya" by az-Zaqqaq." 30. Nathr al-Wurud 'ala Maraqi's-Su'ud, pt. 2, p. 629. 31. As for the method of those who in the east who went outside of the School, that was tantamount to following the existing 'amal over the agreed upon verdict in the School. 32. There are twelve usul on which Imam Malik relies on in his ijtihad and deduction: the Qur'an, the Sunna, the 'amal of the people of Madina, the fatwa of the Companions, consensus, taking note of disagreement, analogy, istihsan istishab, sadd adh-dhara'i', maslaha mursala, and taking note of custom.

Sources
1. Usul al-Fatwa wa'l-Qada' fi'l-Madhhab al-Maliki, Muhammad Riyad, ad-Dar al-Bayda', 1996. 2. Usul al-Fiqh, Muhammad Abu Zahra, al-Fikr al-'Arabi, Cairo. 3. Usul al-Fiqh al-Islami, Wahba az-Zuhaili, Dar al-Fikr, Damascus, 1986. 4. Tabsira al-Hukkam, Ibn Farhun, Dar al-Fikr, Beirut. 5. Tuhfatu'l-Hukkam, Ibn 'Asim, in Al-Majmu' al-Kabir min al-Mutun, Dar al-Fikr, Beirut. 6. Jawahir al-Iklil, commentary on the Mukhtasar Khalil, Al-Abi al-Azhari, Dar al-Kitab al-'Ilmiyya, Beirut, 1997. 7. Hashiyat ad-Dasuqi, the gloss on the Great Commentary, Ahmad ibn 'Arafa ad-Dasuqi, Dar al-Kitab al-'Ilmiyya, Beirut, 1996. 8. Hashiyat al-Kharashi on the Mukhtasar of Khalil, 'Abdullah ibn 'Ali al-Kharashi, Dar alKitab al-'Ilmiyya, Beirut, 1997. 9. Sharh Mudawwana al-Ahwal ash-Shakhsiyya al-Maghribiyya, 'Abdu'l-Karim Shahbun, Dar Nashr al-Ma'rifa, Rabat, 1987. 10. Al-'Urf wa'l-'Amal fi'l-Madhhab al-Maliki, al-Jidi, Al-Lajna al-Mustaraka li-nashr, Ihya' at-Turath al-Islami, Rabat, 1982.

11. Al-'Amal Fasi, 'Abdu'r-Rahman al-Fasi, in Al-Majmu' al-Kabir min al-Mutun, Dar alFikr, Beirut. 12. Al-'Amal al-Mutlaq, Muhammad ibn Abi'l-Qasim as-Sijismasi, in Al-Majmu' al-Kabir min al-Mutun, Dar al-Fikr, Beirut. 13. Al-Fikr as-Sami fi Tarikh al-Fikr al-Islami, Muhammad al-Hajwi, Dar al-Kutb al-'Ilmiyya, Beirut, 1995. 14. Muhadarat fi Tarikh al-Madhdhab al-Maliki, 'Umar al-Jidi, Manshurat 'Ukkaz, Casablanca, 1987. 15. Al-Mukhtasar, Shaykh Khalil ibn Ishaq al-Jundi, al-Maktaba al-Malikiyya, 1981. 16. Al-Mudawwana al-Kubra, transmission of Imam Sahnun ibn Sa'id at-Tanukhi from Imam 'Abdu'r-Rahman ibn al-Qasim al-'Utaqi, Dar Sadir, Beirut. 17. Minah al-Jalil, Sharh Mukhtasar as-Sayyid Khalil, Shaykh Muhammad 'Illyish, Dar alFikr, Beirut, 1989 18. Mawahib al-Khallaq 'ala sharh Lamiyya az-Zaqqaq, Ibn ash-Shita' ibn al-Hasan alGhazi, known as as-Sanhaji, Rabat, 1955. 19. Nathr al-Wurud 'ala Maraqi's-Su'ud, Muhammad al-Amin ash-Shinqiti, Dar al-Manara, Jeddah, 1995.

The Madinan View:

on the Sunnah, courtesy, battles and history A translation of Kitab al-Jami' by Ibn Abi Zayd al-Qayrawani Chapter 4

On knowledge, the guidance of people of knowledge and their courtesies, and some mention of fatwas The People of Knowledge

The Messenger of Allah, may Allah bless him and grant him peace, said, "Allah will not wrest knowledge from people but Allah will remove knowledge with the death of people of knowledge. When people of knowledge have gone people will take ignorant leaders who will be asked and so give fatwa without knowledge, who will go astray and lead others astray."

Malik said, "Abdullah ibn Salam asked Ka'b al-Ahbar, 'Who are the masters ( arbab ) of knowledge who are worthy of it?' He said, 'Those who act according to their knowledge.' He said, 'You have told

the truth.' He said, 'What obliterates it from their breasts after they have known it?' He said, 'Eager desire.' He said, 'You have told the truth'." Narration of Hadith

Malik said, "There never was an Imam in Madinah who narrated two contradictory hadith." Ashhab said, "He meant that no one narrated anything upon which the practice is not based." Ibn al-Musayyab said, "I used to travel for nights and days in search of one hadith."

Malik was asked, "Can a part of [the text of] a hadith be brought forward and another part be put back [in the syntax of the hadith] as long as the meaning is the same?" He said, "As for in the words of the Messenger of Allah, may Allah bless him and grant him peace, I dislike it and that anything should be added in or taken away from them. Whatever is not his words I see no harm in it if the meaning is the same."

Someone asked Malik also, "What do you think about a hadith of the Prophet, may Allah bless him and grant him peace, to which the [letters] waw and alif are added and the meaning is the same?" Malik said, "I hope that it will be a small matter."

Someone asked Malik, "Can one take from someone who does not memorise ahadith but who is trustworthy?" He said, "No." It was said, "[What if] he brings his books [containing the ahadith] he has heard?" He said, "They are not to be taken from him. I fear that something could have been added to his books at night."

Ma'n ibn 'Isa said, "I heard Malik saying, 'Knowledge must not be taken from four, and may be taken from anybody else: it must not be taken from an innovator who calls others to his innovation, nor from a fool who is open in his folly, nor from one who lies in talking about people even if he tells the truth in the ahadith of the Prophet, may Allah bless him and grant him peace, nor from one who does not recognise this affair." (Malik elsewhere expressed this as, "Nor is it to be taken from an eminent shaykh of good character and worship if he does not recognise what he is narrating." He also said, "I encountered eminent shaykhs of good character in this city who would narrate ahadith, and I never heard anything from them!" Someone said to him, "Why, Abu 'Abdullah?" He said, "Because they did not recognise what they narrated.")

Malik said, "The people of Madinah do not have books. Ibn al-Musayyab died without leaving a book. It has reached me that Abu so-and-so left a mule-load of books, yet Ibn Shihab had only one book in which was the genealogy of his people."

Someone asked Malik, "What do you think about someone who bases himself upon a hadith which a trustworthy person narrated to him from one of the Companions, do you think it is acceptable?" He said, "No, by Allah! not until he hits upon the truth, and there is only one truth. Two contradictory statements cannot both be correct." The like of this has been narrated from al-Layth [ibn Sa'd]. Fatwas

Malik said, "It was not a part of people's fatwas to say 'This is halal and this is haram', but they used to say, 'I disapprove of this and would not do it myself,' and people used to be content with that." In another place, "They didn't use to say 'halal' nor 'haram' except about that which was [stated to be so] in the Book of Allah ta'ala."

Malik said, "All that has corrupted people is finding interpretations for that which they do not know."

Malik said, "A man who narrates everything that he hears is not safe and he will never be an Imam." Malik said, "They clothe the truth with falsity." (see Surat al-Baqarah, 39)

Malik said, "That which predominates in people's1 affair is the clear road. A thing may be good but something else may be stronger."

Malik said, "When you hit the mark there is little talk. When there is a lot of talk then the one who talks will make mistakes."

He said, "It is forbidden to raise one's voice in knowledge and to have a great deal of confused and clamorous talk." He said, "Ibn Hurmuz spoke very little and gave few fatwas, and he was one of those upon whom I love to model myself. He was very insightful in speech and he would refute people of erroneous opinions. He was one of the most knowledgeable people about that on which people disagree." Muhammad ibn 'Ijlan said, "I was never in awe of anyone as I was of Zayd ibn Aslam. Zayd used to say, 'Go and learn how to ask and then come back'."

It is said, "If you sit with a person of knowledge be more eager to listen than talk." Malik said, "How often Ziyad the freed slave of Ibn 'Ayyash used to pass by me and say, 'You must be serious. If those dispensations which your companions allow are true they will not harm you, and if the matter is something else, you will have based yourself on seriousness,' meaning on that which Rabi'ah and Zayd ibn Aslam said."

Malik said, "When you see these affairs about which there are doubts then take hold of the one which is more sure."

Malik said, "Sulayman ibn Yasar was the most knowledgeable person in this city after Sa'id ibn alMusayyab. When there was a lot of talk, confused discussion and showing off in the mosque he took his sandals and stood up to go." Much Questioning

Malik said, "I do not like a lot of questions and ahadith. I found the people of this city disapproving of that which is among people today. The first of this Ummah were not the most questioning of people, nor did they have this practice of going deeply [into matters]. The Prophet, peace be upon him, forbade a great deal of questioning, and in another hadith he forbade, 'It was said and he said' and much questioning." Malik said, "I do not know whether [the hadith] is about the much questioning [concerning knowledge] which you do, or asking [in the sense] of begging." (su'al means both to ask a question and to beg).

Malik used to disapprove of haste in giving fatwas and he would often hesitate over cases. He would often say, "I do not know." He said, "The shield of the man of knowledge is, 'I do not know.' When he forgets it, his vulnerable parts are hit."

Malik said, "One of the things which conquers a man of knowledge is when he answers everyone who questions him." Ibn 'Abbas said, "Whoever answers people on everything about which they ask is mad." Malik was asked about something and he said, "I don't like to reply to something like this. 'Umar ibn al-Khattab was tested with things like these and he left them and would not give an answer about them."

'Abdullah ibn Yazid ibn Hurmuz said, "When a man is appointed as Qadi, Amir or Mufti he ought to ask one whom he trusts about himself and if he thinks that he is worthy of it he should do it, and if not he should not do it." Malik said, "One of the defects of a Qadi is that if he is removed from his post he does not return to the gathering in which he was studying." Reading and Writing Ahadith

Malik said, "There is no harm in a man saying about that which he read out to a person of knowledge, 'He narrated to me', just as you say, 'He taught me to recite' whereas it is you who recite to him." Someone asked, "If a man reads out to you and I am present, is it permissible for me to narrate it?" He said, "Yes."

Someone said, "What about someone to whom a man of knowledge says, 'This is my book; take it from me and narrate what is in it'." He said, "I don't think that is permissible and it doesn't please me. They only want to carry away [ahadith]." Ashhab said, "Meaning 'Learning much [ahadith] in a short time (lit. a period of residence)'." [A man came to Malik and memorised the Muwatta in forty days. Malik said, "A book which a shaykh took forty years to compile, you have learnt in forty days! How little you have understood it."] Other views have been narrated from Malik. It is also narrated that he said, "I wrote down one hundred of Ibn Shihab's ahadith for Yahya ibn Sa'd and he took them from me without reading them out to me." In another story it is said, "Did you read them out to him or did he read them out to you?" He said, "He had more fiqh than that." Ibn Wahb and other men of knowledge permitted writing. Munawalah (transmission of ahadith from the writing of a man of knowledge which he has written with his own hand and which he has said is what he heard directly from so and so and which he commands the student to narrate) is stronger than ijazah (transmitting his ahadith learnt orally from him with his permission) if the writing is authentic.

Malik said, "I never wrote on these tablets." He said, "I said to Ibn Shihab, 'Did you use to write knowledge down?' He said 'No.' I said, 'Were the ahadith repeated to you?' He said, 'No'."

Notes for Chapter 4

The material in this chapter is both a footnote to and an affirmation of Shaykh Dr. Abdalqadir as-Sufi's work Root Islamic Education which treats the whole subject much more exhaustively, drawing very largely on the writings of Qadi 'Iyad, particularly his Tartib al-Madarik.

1 This statement is not an affirmation of the sovereignty of the people. The 'people' here are the people of Madinah of the generations of the Companions, the Followers and the Followers of the Followers who transmitted the Sunnah of the Prophet, peace be upon him, in practice as well as with ahadith.