Malik and Medina: Islamic Legal Reasoning in the Formative Period
MALIK AND MEDINA – Book Sample
Introduction – MALIK AND MEDINA
Mālik and Medina: Islamic Legal Reasoning in the Formative Period is an updated revision of my doctoral dissertation, “Mālik’s concept of ʿAmal in the Light of Mālikī Legal theory,”1 which I wrote at the university of chi-cago in 1978 under the supervision of Fazlur rahman, Wilferd Madelung, and Jaroslav Stetkevych. neither the dissertation nor any part of it was ever published, although it was available through university Microfilms from the time of its acceptance.
Although it received some attention in academic circles, the dissertation’s principal findings and corollaries for modern research have until now remained largely outside the purview of contemporary academic study.
More than three decades have passed since the dissertation was written. the intervening period has witnessed rich and promising proliferation in Islamic studies, especially law and ḥadīth. Valuable primary sources have been published, and noteworthy research has appeared in secondary lit-erature.
In updating my doctoral research in Mālik and Medina, I have reviewed and utilized the academic contributions of the last decades, which has placed the original work on stronger foundations and made it a new book with important supplementary materials, corrections, and new insights.
I hope it will constitute a positive addition to the study of Islamic legal origins and stimulate original research in this immensely important field, which, as Ignaz Goldziher recognized over a hundred years ago, is an indispensable part of the general study of Islam.2
Mālik and Medina is an analytical study of applied legal reasoning in the Muwaṭṭaʾ of Mālik ibn Anas (d. 179/795) and the Mudawwana of Saḥnūn ʿAbd al-Salām ibn Saʿīd (d. 240/854).3 Both works stand out as pivotal legal compilations of the formative period and came to constitute the core of the Medinese tradition since the late third/ninth century.4
I select representative samples of positive law from them with the aim of bring-ing to light relevant issues of local and regional consensus and dissent, and I attempt to elucidate the reasoning behind these positions as well as Mālik’s use of terminology and personal commentary. Mālik’s termi-nology in the Muwaṭṭaʾ and Mudawwana reflects his nuanced concept of Medinese praxis and other dimensions of his legal reasoning, especially his overriding concern for systematic analogy and non-analogical excep-tions to it based on the sunna.
For purposes of simplicity and practicality, I devised symbols for Mālik’s principal terms such as Sn (for the sunna among us; al-sunna ʿindanā), S-Xn (for the sunna among us about which there is no dissent; sunna al-lattī lā ikhtilāf fīhā ʿindanā), An (for the precept among us; al-amr ʿindanā), and AMn (for the agreed precept among us; al-amr al-mujtamaʿ ʿalayhi ʿindanā).
I left several other expressions, which I did not deem to be technically terminological, in their original Arabic with translation since I regard them as essentially commentary. S stands for “sunna,” A for “amr” (precept), M signifies “concurred upon” (mujtamaʿ); n denotes “among us” (ʿindanā); the hyphen (-) stands for “no” (i.e., negation of dissent), and X stands for dissent (ikhtilāf). A key to all the symbols and a compre-hensive index of Mālik’s terms and expressions in the Muwaṭṭaʾ recen-sion of Yaḥyā ibn Yaḥyā may be found in my dissertation, Appendix 2.5
Although Mālik and Medina focuses on Mālik and the Medinese heri-tage to which he belonged, it also constitutes a comparative study of early Islamic legal reasoning in general. the work provides a broad survey of law in the formative period as reflected in Medina as well as in other cen-ters of early Islamic legal thought such as Kufa, Basra, Mecca, and Syria.
In particular, it brings to light the legal reasoning of Mālik and his Kufan contemporary al-nuʿmān ibn thābit Abū Ḥanīfa (d. 150/767) as well as that of Muḥammad ibn Idrīs al-Shāfiʿī (d. 204/820) and Aḥmad ibn Ḥanbal (d. 241/855), who both belonged to the next generation.
Mālik and Medina is restricted to the Sunnī tradition of Islamic jurispru-dence. I note that there may be a parallel to Shīʿī legal method in Mālik’s invocation of the sunna in the Muwaṭṭaʾ for non-analogical precepts in delimiting the scope of analogical reasoning.
Similarly, his use of standard precepts to extend the law into unprecedented areas is possibly akin to the Shīʿī principle of “transference of rulings” (taʿdiyat al-ḥukm).6 unfor-tunately, I found it beyond my capacity to expand the original parameters of my research to include adequate treatment of the non-Sunnī traditions of Islamic jurisprudence. Failure to examine the earliest Shīʿī and Khārijī (Ibāḍī) legal sources should not affect the present argument of Mālik and Medina in any substantial way.
there is no doubt, however, that the his-toriography of Islamic legal origins will eventually require the broadest scope possible, and Sunnī, Shīʿī, and Khārijī materials must ultimately be studied comparatively.
Mālik and Medina is fundamentally concerned with Medinese praxis (ʿamal), a distinctive non-textual source of law which lay at the founda-tion of Medinese and subsequent Mālikī legal reasoning. the phenom-enon of Medinese and non-Medinese praxis in early Islamic jurisprudence has long been a concern of academic study about Islamic legal origins and the growth of ḥadīth literature, especially in the influential work of Joseph Schacht.
Many of the reigning paradigms and cognitive frames of Islamic law and ḥadīth studies in Western historiography are rooted in notions about the nature of praxis in the formative period, most notably as regards the relation between early legal doctrine and relevant bodies of ḥadīth.
Mālik and Medina demonstrates what Mālik conceived Medinese praxis to be, how he gauged its authenticity, and the methods by which he applied it in positive law. He consistently relies on Medinese praxis to accept, reject, generalize, delimit, qualify, and otherwise expand upon received legal texts from the Qurʾān, Prophetic ḥadīth, and post-Prophetic reports (āthār). A fundamental link also existed between Medinese praxis and Mālik’s understanding and elaboration of the basic precepts and principles of Islamic law.7
Even the juristic intuitions that underlie Mālik’s distinctive use of considered opinion (raʾy)8 and its chief Medinese com-posite elements of precept-based analogy (al-qiyās ʿalā al-qiyās; al-qiyās ʿalā al-qawāʿid ), discretion (istiḥsān), preclusion (sadd al-dharā’iʿ ), and the unstated good (al-maṣāliḥ al-mursala) were grounded in standing local praxis.9
As noted, Mālik and Medina includes an analysis of the distinctive ter-minology and occasional commentary that Mālik uses in the Muwaṭṭaʾ as well as their intermittent parallels in the Mudawwana. Mālik’s terminol-ogy is not rigorous. the terms and expressions he uses sometimes overlap. nevertheless, they exhibit various distinct meanings and are not randomly interchangeable. Mālik’s sunna-terms, for example, refer to rulings that originated in the Prophetic sunna, early caliphal praxis, or pre-Islamic cus-tom, which then continued as Medinese praxis.
But the sunna-terms are systematically contrary to analogy with related Medinese precepts of law. When Mālik cites terms that are consistent with standard legal analogues, he uses other terms, his amr-terms (precept-terms) being the most com-mon. With few exceptions, Mālik’s amr-terms counterbalance the logic of his sunna-terms. the amr-terms also tend to be analogical and consti-tute the basis of Mālik’s legal deductions and his standard elaborations of the law.
My analysis of Mālik’s terminology indicates that Medinese consensus (ijmāʿ ahl al-Madīna) and local praxis were not coextensive, contrary to what has been almost universally assumed in modern and pre-modern scholarship. Mālik’s terminology distinguishes between different strata of praxis, some with absolute Medinese juristic consensus, others with preponderant local concurrence, but many of them reflecting notewor-thy internal and external dissent. Every instance of Medinese consensus belonged to Medinese praxis, but not every aspect of Medinese praxis enjoyed the consensus of all prominent Medinese legal scholars.
rulings that did not enjoy consensus sometimes seem to have been instituted into local praxis because they fell under the jurisdiction of the city’s judiciary or other types of executive authority. In some cases, no given practice pre-dominated, with the result that Medinese praxis was “mixed.” one alter-native type of local praxis coexisted side-by-side with another.
In his Origins of Islamic Jurisprudence, Harald Motzki resolves “to leave aside generalizing preconceptions about the reliability of textual ele-ments, such as isnāds and mutūn, or the genres of sources, such as Pro-phetic ḥadīth or biographical reports.” In the process, he “does not take for granted special characteristics of the transmission process such as stabil-ity, creativity, organic growth, and the like.”10
Jonathan Brockopp suggests that scholars of Islamic legal origins “turn away from historical questions of dating [the] components” in available legal texts and concentrate first on fully addressing their contents.11 My approach in Mālik and Medina is based on a similar perspective. I believe that analysis of the content of received texts is fundamental and preliminary. It must logically precede secondary generalizations about where those texts belong in the process of historical development and how they should be dated.
I review recent research on the textual history of the Muwaṭṭaʾ and Mudawwana without, however, attempting to establish authenticity, authorship, or dates. regarding norman calder’s attempt to revise and invert the dating of both works,12 Mālik and Medina shows that the Muwaṭṭaʾ antedates the Mudawwana and serves as the latter’s basic frame of reference.
throughout the Mudawwana, Saḥnūn gives direct citations from Mālik’s Muwaṭṭaʾ, transmitting consistently from the early recen-sions of ʿAbd-Allāh ibn Wahb ibn Muslim (d. 197/812), ʿAbd al-raḥmān ibn al-Qāsim al-ʿutaqī (d. 191/806), and ʿAlī ibn Ziyād (d. 183/799), which were the principal editions used in north Africa.13 the Mudawwana even refers explicitly to the Muwaṭṭaʾ by name. Ibn al-Qāsim draws Saḥnūn’s attention to “what Mālik said in his book the Muwaṭṭaʾ.”14
Mentioning books by their titles was rare in the literary culture of the time, which generally alluded to works only by citing their authors as transmitters in formal chains of transmission (isnāds). Ibn al-Qāsim’s citation of the book’s title reflects the prominence of the Muwaṭṭaʾs status and its unique distinction among the legal works of the formative period.
Western study of Islamic law has shown much interest in the theo-retical jurisprudence of Islamic legal theory (uṣūl al-fiqh). It has paid less attention to the practical application of positive law to specific cases (furūʿ al-fiqh) and the reasoning implicitly behind it.15
Mālik and Medina is fun-damentally concerned with special cases of substantive law as an empiri-cal criterion for determining the nature of early Islamic legal reasoning. In focusing on formative-period positive law, the study brings to light the complexity and sophistication of early Medinese legal reasoning and its non-Medinese counterparts. It raises important questions about the complex and sometimes problematic relationship between post-formative Islamic legal theory and the earlier collections of positive law. the foun-dations of Islamic positive law were laid down in the formative period and remained essentially unchanged afterwards.16
My findings have bearing on how we understand, define, and date both the formative and post-formative periods, which will be addressed in the conclusion.
reconsidering Paradigms – Considered Opinion (raʾy) versus Ḥadīth
Mālik and Medina offers a new historiographical perspective on Islamic legal origins based on the contention that the Medinese legal tradition, which constituted one of the most important branches of Islamic juris-prudence in the formative and post-formative periods, was rooted in a distinctively consistent and systematic pattern of juristic reasoning in which rationalistic considered opinion (raʾy) played a crucial role.17
this assessment of the Medinese tradition challenges the prevalent paradigm that Islamic law in Medina was ḥadīth-based while its Kufan counterpart as exemplified in Mālik’s contemporary Abū Ḥanīfa was rooted in the exercise of independent personal reasoning and free-ranging considered opinion (raʾy).18
considered opinion is one of the most complex terms of the formative period of Islamic law. It meant one thing in Medina and another in Kufa, although it flourished in both centers. As with all complex terms, “consid-ered opinion” must be handled with care to avoid falling into historical conflations. considered opinion was a generative concept, and the ratio-nalist jurists ( fuqahā’)19 of the formative and post-formative periods who used it operated with “sophisticated tool kits.”20 But their reasoning is rarely transparent.
Although early polemical attacks often portrayed their methods as arbitrary and baseless, the historian can never take for granted the opponents’ point of view. We must be careful not to write off as arbi-trary early legal reasoning based on considered opinion in the absence of careful study of its method and content as embedded and reflected in the legacy of positive law considered opinion stood at the heart of the Medinese tradition and was the crowning achievement of Mālik’s legal reasoning just as it was paramount in the Kufan jurisprudence of Abū Ḥanīfa.
In the period of early Islamic jurisprudence, the term “considered opinion” was often praise-worthy and not derogatory.21 In Mālik’s Medina, both the concept, term, and practice of “considered opinion” were laudable if applied with skill and integrity. rabīʿat al-raʾy (“rabīʿa famed for considered opinion”) ibn Abī ʿAbd al-raḥmān Farrūkh (d. 136/753), one of Mālik’s foremost teach-ers, took his respectful epithet from sophisticated use of the technique…..
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