© Journal of Islamic Studies 4:1 (1993) pp 1-31

Jesus College, Oxford
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There are at present two main views on the origins of Muslim jurisprudence: that of the 'classical' (i.e. post-Shafi'T) Muslim scholars, and that of the revisionist school of most modern Western scholarship. The classical picture shows Islamic law as deriving from two main sources, preserved as the texts of the Qur'an and the hadith of the Prophet (referred to as 'the sunna'), in addition to certain other acceptable sources such as ijma* (consensus) and qiyds (analogy), all of which derive their ultimate authority from the texts themselves. Although it acknowledges that in the initial period the hadith circulated in primarily oral transmissions, and the Qur'an in an oral as much as a written form, this view is nevertheless essentially text-based, since the material, whether oral or written, depends for its authority on its fixed form. It culminates in the later view that a knowledge of Islam, and thus Islamic law, is effectively restricted to a knowledge of the texts of the Qur'an and the hadith, in particular the collections of al-Bukharl and Muslim, although with some recognition of the other four of the 'Six Books', i.e. the collections of al-TirmidhT, Abu Dawud, al-Nasa'I, and Ibn Majah, which are what are most commonly seen today as the main sources of Islamic law. The dominant paradigm in modern Western scholarship, however, although basically accepting the early origin of the Qur'an, sees the vast majority of the hadith material as apocryphal, having been backprojected as sayings of the Prophet only at a much later date. This, it is said, was done in order to invest what was originally the local practice of individual centres of learning in the Muslim world with the authority of the Prophet himself in an attempt to accord legitimacy to their views. The evidence adduced for this view is, very briefly, the relatively rapid
The themes of this article are more fully developed in the author's doctoral thesis, 'Malik's Use of the Qur'an in the Muwatta" (Oxford University, 1992), from which most of the material of this article has been taken.



appearance of a large body of hadith material where previously, it is claimed, none, or very little, had existed; and, also, the presence of numerous anomalies and contradictions both in the texts themselves and in their chains of authority (isnad), all of which casts doubt on the authenticity of this material and points to its having been fabricated at a much later date than is claimed. This alleged wholesale fabrication of hadith is seen as the result of the activities of an initially small group of scholars who, in opposition to what they considered to be on the one hand the godless, irreligious nature of the Islamic state at that time, and on the other hand the widely divergent and randomly derived local practice of the various legal schools of the time, aimed to impose some kind of unity and overall authority by developing the idea of a 'sunna of the Prophet' which it was incumbent on all the Muslims to follow. Most Western scholars thus hold .that the idea of the sunna of the Prophet as a normative model did not exist before this time. Instead, they argue, the word sunna referred variously to the consensus of opinion of the different local schools. The collocation 'kitab and sunna', and even the expression 'sunna of the Prophet', is held to have been in use right from the earliest times, but only in the vague, general sense of what was considered right, or just, by the particular group using it, as when used by the different political groups calling each other to 'the Book of Allah and the sunna of His Prophet'.2 It is the contention of the present article that there is a third view which has not yet been sufficiently examined (if even recognized) by modern scholars, whether Muslim or otherwise. This third view is one which, although in many respects highly traditional, nevertheless diverges from the 'classical' view on a number of important points, and which, although essentially opposed to the Western revisionist position, nevertheless agrees with it—against the 'classical' view—on a number of key issues. This third view is that offered by the Muwatta* of the second-century Madinan jurist, Malik ibn Anas (d. 179/795), which,
2 For this last point, see, for example, Crone and Hinds, God's Caliph, 59-68, esp. 66. The revisionist position vis-a-vis the hadith is based primarily on the conclusions of Goldziher (e.g. Muslim Studies, n 19) and Schacht (e.g. Origins, 4-5, 149; Introduction, 34) and has since been broadly accepted by many Western scholars, e.g. Coulson {History, 64), Burton (Sources, 13, Collection, 5-6), Juynboll (Muslim Tradition, 10), Crone (Roman Law, 31, 34), and Powers (Studies, 6). One should note, however, the reservations—of differing degrees—expressed first by such as Guillaume (review of Schacht's Origins, 176), Gibb (Mohammedanism, 82), and Robson ('The Isnad', 20), later by such as Abbott (SALP li), Sezgin (GAS I), Azmi (Studies in Early Hadith; On Schacht's Origins), Ansan ('Early Development'), and Bravmann (Spiritual Background, 151ff.), and, most recently, by Motzlci ('The Musannaf'). For a simplified overview and comparison of the two above-mentioned positions, see Koren and Nevo, 'Approaches'.

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with the possible exception of Zayd lbn 'All's MajmiF al-fiqh, is the earliest surviving compendium of Islamic law that we possess. The Muwatta' is notable among early Islamic legal writings in being a compilation of three sources rather than the more usual two, for in it we find not only the sayings of the Prophet and of later authorities among the Companions and Successors (including governors and caliphs), but also expressions of Madman 'practice', or 'atnal, of which it is the distillation. It also includes a number of opinions of Malik himself, but these are relatively few since it is the author's intention to present the agreed opinions of his predecessors rather than his own opinions.3 What is particularly significant is that all of these various 'sources' are seen as potentially, and in a sense equally, authoritative in that a judgement accepted and propounded by Malik may ostensibly derive from any one of them. In other words, a judgement may be presented as deriving directly from the Prophet, or from one of the Companions, or from one of the learned Successors, or from one of the Umayyad governors of Madina, or as being an anonymous 'practice of the people' (amr al-nds). What is even more significant is that there is no formal hierarchy to these sources: contrary to the demands of later systematizations, an anonymous practice may be given preference to an attributed hadith, even a hadith of the Prophet, and even despite that hadtth's unquestioned authenticity. It is a lack of understanding of this last point that has caused major confusion about the nature of the 'ancient' Madinan school,—and thus about the origins and development of Islamic law in general—among both Muslim and non-Muslim scholars. The standard Muslim response is to question seriously how an authentic hadith known to derive from the Prophet can possibly be rejected in favour of an anonymous practice of uncertain origin, or, to use the argument of Malik's younger contemporaries—and opponents on this point—Abu Yusuf (d. 182/798), alShaybanl (d. 189/805), and al-Shafi'T (d. 204/820), how a practice which may have derived only from some market official or local governor could possibly be considered binding on the Muslims, especially if 'contradicted' by a Prophetic hadith.* The standard non-Muslim response, on the other hand, is to say that the inconsistencies and contradictions in the material indicate its inauthenticity and that these differing views indicate merely the arguments between the different schools and their attempts to give their own views better and better credentials by back-projecting them to earlier and
See below, 5-6. For Abu Yusuf, see Vmm, vn. 303 (1. 33), 311 (1. 27); Schacht, Origins, 74. For alShaybanT, see Vmm, vu. 302 (I. 25); Schacht, Origins, 68. For al-Shafi'T, see XJmm, vii. 297 (1. 11); Schacht, Origins, 63; also below, n. 82.
4 3

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Ibn Kathlr. Ibn Ziyad. that Malik had finished writing the Muwatta' 'before the middle of the second Hijrl century'). citing Ibn 'Ashur.org at Georgetown University Library on April 15. 'The Isnad'. I.7 But it is not the formal report 1 We know this from the existence of the recension of 'All ibn Ziyad al-TunisT (for which. see Muw. Tahdhib. 316-32. also al-Khatlb. 133. 174. what the Muwatta1 shows is that there was another. Schacht's criticism of this isnad (Origins. Siyar. x. basis of much of Madinan and Iraqi law—and in which. 22-3. from Nafi\ from Ibn 'Umar'. Tahdhib. 5-9. without giving any sources. and it is understandable that some might question the provenance of this material (although fabrication is by no means the only explanation). but this is far too simple an answer to the question of how Islamic law. hence the resulting mass of seemingly contradictory material. No one. i. where the author notes. 'Reception and Development'. x. x. 371. which year his recension must therefore predate (see Abdul-Qadir. 244-6. for instance. for example. 171).4 YASIN DUTTON earlier—and thus more prestigious—authorities. This question mark. Azmi. nor does it help to explain what we find in the earliest Islamic legal literature that survives. higher criterion that Malik used for ascertaining the 'correct' judgement on a legal issue. praised as the "golden chain of authority' (al-silstla aldhahabiyya). On Schacht. 7 For praise of Malik by later scholars it is enough to look at any of the entries on him in the main biographical works. and therefore unacceptable. as a result of al-ShafiTs writings). such as the Sahihayn of al-Bukhari and Muslim. 'well before the third-century collections of hadith and well before al-Shafi'I made his attacks on what he saw as the 'unProphetic'. Downloaded from http://jis. namely the lived context of the 'amal of the people of his native city. It is true. vi. 326). Ibn Ziyad. viii. 102.g. which was already in place by the middle of the second century5—i. ' See. 198. al-NawawI. 11. 227-8). denies that hadiths were fabricated for such ends. and the different madhhabs representing it. however. upon which such reliance is now put as sources of law. Bidaya. among others. as we have mentioned. that there was a great increase in the importance attached to specifically Prophetic hadith as opposed to any other type in the third century (primarily. Schacht. It is necessary to point out here that Malik was a past master at the formal report: not only'is the isnad 'Malik. Ibn Khalhkan. Ibn al-'Imad. Tadhkira. and-that this led to the major collections of Prophetic hadith.oxfordjournals. returned to Tunis in 150 AH. Hilya. it seems. for example. 'Manuscripts in Kairouan'. Studies. Rather. developed. i. Sunna. there is no question of a hadith per se. 176—9) has in turn been criticized by. li. who was the first to introduce the Muwatta' into Ifriqiya (see Mad. 25. e. 187-92. most notably the Prophet.e. 6. being necessarily more authoritative than any other type of transmission. A'lam al-fikr al-islami. Muslim or otherwise. such as the Muwatta' of Malik. does not apply to the Muwatta1. idem. however good its credentials. 531. 14. Robson and Azmi (see Robson.6 but Malik himself was recognized as completely trustworthy by all later scholars of hadith. 2010 .

in another version. but not necessarily covered by. that he knew the opinions of his predecessors on points arising from. or 'fiqh' (to use the term in its original sense). That is. vni.'9 Being an imam with regard to both meant. could easily be a source of misguidance and error rather than a source of knowledge and enlightenment. 132. however. " See Origins. cf. secondly. i. and if Allah had not saved us through Malik and alLayth. ii. i.10 and Ibn 'Uyayna said. AND MADINAN 'AMAL 5 that primarily concerns him. Ibn AbT Hatira. is based on a combination of famal and ra'y. 311. 'Concept'.11 and Malik himself said that he would be consciously misleading people (udtlluhum) if he were to transmit everything he knew. however authentic they were. 'I would be a fool if I were to pass on everything I knew. 149.12 and. 12 See Htlya. lnttqa'. " See ]ami\ 118. 31. 84. and thus that of Malik. Adab. it is in the nature of the Muwatta* that it contains little of Malik's own personal ra"y. 149. 132. 199. first. 'Hadiths are a source of misguidance (madilla) except for the fuqahci".1* 'Amal was the established practice of the people of Madina. . II Mad. Thus Ibn Wahb said. vi. i. that he knew the context in which to evaluate the normative value of hadiths. vi. He is described by Ahmad ibn Hanbal as 'an imam in hadith and fiqh'* while the famous hadith scholar Ibn Mahdl put the same idea in the following terms: 'AlThawrl is an imam with regard to hadith but not an imam with regard to the sunna. 'Anyone who knows a hadith but does not have an imam in fiqh. 25.oxfordjournals.org at Georgetown University Library on April 15. Rather. Mad. Without this understanding. Mad. these hadiths. 10 See ]ami\ 119.'13 Downloaded from http://jis. ' Htlya. i. Thus accuracy of transmission was only one requirement: a correct understanding of the material was a necessary corollary. we would have gone astray'. thirdly. As we have commented above. since in it he was concerned not so much with presenting his own opinions as with presenting the agreed I Mad. hadiths. al-Awza'I is an imam with regard to the sunna. Muslim Studies. of the report that is allimportant. that he knew how to derive his own secondary judgements from this primary material. and ra'y ('opinion') was the necessary exercise of independent reasoning (ijtihad) in the absence of any clear precedent in the existing 'amal. cf. is astray (dall). Abd-Allah. it is the correct understanding. Malik himself combined both these qualities. 322. he had an understanding {fiqh) of the din and its normative form [sunna). but not an imam with regard to hadith.SUNNA. 332. HADITH. 302-3. Goldziher. cf. is an imam with regard to both. Malik. 2010 THE 'AMAL OF THE PEOPLE OF MADINA Schacht points out that the madhhab of the Madinans. Styar.

and what the practice here has been (al-amr al-ma'mul btht Undand) from the time of the Messenger of Allah. along with what those I have met in my lifetime [have said]. but ra'yi.17 In other words.16 but. preventing the use of lawful means to achieve unlawful ends). 17 Mad. 194. It is thus an inheritance which has been passed down from one generation to another down to our present time. 15 Downloaded from http://jis. the last two of which are particularly See above. of course. and al-masalih al-mursala (considerations of public good). sadd al-dhara'i' (lit.e. by my life.6 YASIN DUTTON position of those before him. it is his opinion.org at Georgetown University Library on April 15. the view to which he gives his assent. and the Rightly Guided Caliphs. It is thus their opinion. i.e. even though I had not heard that particular [judgement] directly. 15 Indeed. I have used my own judgement (ijtahadtu) and considered the matter according to the way (madhhab) of those I have met. " Bekir's edition (Mad. 2010 . may Allah bless him and grant him peace. 192 (lam akhruj 'anhum). it is not so much my opinion as that which I have heard from more than one of the people of knowledge and excellence and the imams worthy of being followed from whom I took my knowledge—and they were those who were God-fearing (kanii yattaquna)—but in order to simplify matters I have said it is my opinion (fa-kathura 'alayya fa-qultu ra'yi). so that it would not be outside the way {madhhab) of the people of Madina and their opinions. 193 (lam akhru) 'an jumlatihim ila ghayrihim). as Malik is reported to have said when asked about the terms that he uses in the Muwatta': Most of what is in the book is my opinion {ra'yi). or near to it. and which I then found them [i. istihsan (considerations of equity). So when I say '1 am of the opinion (ara)\ it is really the opinion of a large group of the imams who have gone before. the Successors] following. as in the Moroccan (Mohammedia) edition (n.oxfordjournals. but only by virtue of the fact that a large number of scholars before him in Madina had also held it. I have thus said that it is my opinion after having considered the matter deeply in relation to the sunna and what has been endorsed by the people of knowledge who are worthy of being followed [ma mada 'alayhi ahl al-'ilm almuqtada bt-him). ibid. 194. 'the obstruction of means'. This [I have done] when their opinion was the same as that which they found the Companions following. Foremost among these we can identify the concepts of qiyas (analogical reasoning). A little later he says: Where I have heard nothing from them. 194) has ra'yun. and I have not gone outside it for anyone else's. l. i. until I felt that I had arrived at the truth.18 Kd"y is.e. 74) and as later in the same sentence and also later in the same paragraph. i. " Mad. and l. makes better sense. cf. 3. I. a composite term. and includes various methods of legal reasoning. i.

Origins. the way of calling the adhan and the iqama. 'Amal also is a composite term. " Cf. 215ff. Its basic constituents are kitab and sunna. 22 See below.org at Georgetown University Library on April 15. For a detailed discussion of these concepts. things which the Prophet affirmed in others (iqrar).oxfordjournals.20 and it is this concept of camal that provides the key to understanding Malik's legal reasoning. 'Iyad mentions the measures of the sac and the tnudd and the fact that the Prophet collected zakat from people using these measures. and exercising their own ijtihad where there was no established precedent. AND MADINAN 'AMAL J associated with the Malik! madhhab. 23ff. Schacht. . 68ff." The same distinction is well reflected in the writings of later theorists. 'Polemiques'. foremost among whom are 'Iyad (d. and the question of the binding nature of endowments. is referred to only in general terms by lbn Taymiyya but is subdivided by 'Iyad into four types: things which the Prophet said (qawl). 420ff. Both of them divide 'amal (although they speak specifically of Madinan i. dating from the time of the Prophet. 'Polemiques'. 728/1328). Abd-Allah. but there is also the additional element of the ra'y of later authorities.1' The referent of Malik's rd"y is.SUNNA. as is evident from the above. although by no means exclusive to it. i. 10-11." l Downloaded from http://jis. lntisar. see Mad. 420-1. it is his reliance on Madinan lamal that differentiates his madhhab from all the other madhhabs. lbn Taymiyya. 215-18). 10 Cf. however." This basic chronological distinction between <amal deriving from the Prophet and lamal deriving from later authorities is evident from Malik's letter to al-Layth lbn Sa'd (which we shall consider shortly). 125-6). 21 See Mad. l. 2010 Amal naqli The first of these two categories. $ihhat usul. 304. and things which the Prophet consciously avoided doing {tark).ma' rather than of lamal in its broader sense) into two broad categories: what derives from the time of the Prophet (ijma'/'amal naqlt) and what derives from later authorities (ijma'/'amal ijtihadt). as it is also the point on which the proponents of all the other madhhabs disagreed with him. lntisar. HADITH. ( = Brunschvig. 68-9 ( = Brunschvig. 113. things which the Prophet did (/»'/). reciting the Fatiha in the prayer without saying 'bi-smillaht l-rahmant l-rahtm'. 24 For this and the following paragraph.). As an example of the third type he cites the question of liability for defects in slaves " Abd-Allah notes that all these concepts occur in one form or another in the other SunnT madhhabs (see 'Concept'. as this rd'y in turn becomes incorporated into the existing 'arnal.1* As examples of the first two types. 'amal naqli. Indeed. the 'amal of the people of Madina. in all cases. where he speaks about the Companions and the Successors following the Prophet's sunna where the Prophet had established a sunna.. 209-79. 544/1149) and lbn Taymiyya (d. 'Concept'. see ibid.

the different adhan in Madina had the advantage of being the later of the two and the one that was being done when the Prophet died. when Malik was asked about this point. whereas in all other cities the lines of transmission ended only with individual Companions.org at Georgetown University Library on April 15. that many people should have transmitted the knowledge in question from many Companions. and that it was as legitimate to follow any of these as it was to follow the Madinan 'ulama\ with some of them even claiming the status of tawatur for their own local transmissions.e. he said: 'I do not know about the adhan of a day and a night. from the Prophet. 16-17. This is why. in the case of the adhan in Makka. taking their knowledge with them. As for the fourth type. Such knowledge was definitive (qat'i) and a conclusive proof (hujja) which should be followed. . may Allah bless him and grant him peace. having been transmitted by great numbers of people from great numbers of people (al-jumhiir €an al-jumhiir) since the time of the Prophet.oxfordjournals.8 YASIN DUTTON (cuhdat al-raqtq). 2010 See below. 'Iyad remarks that all these matters were common knowledge to the Madinans. Even. Here is the mosque of the Messenger of Allah. i. for instance. despite the strength of this argument in the eyes of the Madinans.25 Nevertheless. This situation. he says. he says. people from other cities still often preferred to follow their own local traditions. where the adhan has been done Downloaded from http://jis. was what caused Abu Yflsuf. for which one could possibly claim mutawatir transmission from the time of the Prophet. only existed in Madina. where a whole generation were able to transmit from a whole generation who had been alive at the time of the Prophet.e. 'Iyad's answer to this is that one of the conditions for tawatur is that both 'ends' of the line of transmission should be equal. to accept the Madinan specifications for the sal and the mudd when he saw for himself how knowledge of them had been preserved and handed down from generation to generation in Madina. indeed. on the basis that learned Companions had spread out into the various parts of the new Muslim lands. however great their level of learning: such transmissions were therefore in fact akhbar al-dhad rather than mutawatir. via many separate authorities at each level back to the original source) was incontrovertible and. regardless of any mutually contradictory isolated hadiths (akhbar al-dhad) or judgements arrived at by analogy (qiyds). for instance. he gives the example of the Prophet not taking zakat from fresh fruit and vegetables despite the fact that these items were well known to the Prophet and important in the local economy. Such mutawatir transmission (i.

the adhan should be done. supporting his view by quoting the hadith 'You must hold to my sunna and the sunna of the rightly guided caliphs after me' (these 'Rightly Guided Caliphs' then being defined by another hadith as those of the first thirty years. 97-8. Ibn Taymiyya. since he is concerned with the time of the specifically Madinan caliphate. 16-17. For Abu Yusuf accepting the Madinan sa'. vm. AND MADINAN AMAL 9 [continuously] from then until now and no one has ever recorded any objection (inkar) to the way the adhan has been done here. is a conclusive proof (hujja) which ought to be followed (yajib ittibcfuha). 69.2' The second type. see. 697-8. 2-3 (where they are justified by hadiths rather than Madinan practice). 483.oxfordjournals. 35/656-40/660). for example. 15-16. 21 For the differences on these points. where Malik's interlocutor is specified as being Abu Yusuf. up to and including the caliphate of 'Uthman).SUNNA. 128-9. . 16-17. as indeed they did (see Sthhat usul. 'AlT(r. see Mab. also below. Siyar. n. or whether or not the basmala should be recited at the beginning of the prayer. 484. Ibn Taymiyya draws a distinction between lamal that was instituted before the death of the third caliph 'Uthman (35/656). Adab. however. generally held to be Downloaded from http://jis. i. and camal that was instituted after the death of 'Uthman. Ibn AbT Hatim.org at Georgetown University Library on April 15. " See $thhat usul. which he terms 'atnal muta'akhkhir ('later lamaV). For Abu Yusuf accepting the judgement on endowments. should also be included in the first thirty years of the post-Prophetic caliphate since his reign is also included in the thirty years after the death of the Prophet. for example.28 this claim of Ibn Taymiyya's is. in. not wholly correct. i. al-Ba|I. see Mab. Cf. Mab. 2010 " Mad. 30). Ibn al-'Arabl. Ibn Rushd. lhkam. xn 28. 'Arnal ijtihadi The second main category is where the lamal derives from the ijtihad of'later authorities. from which time people could more justifiably claim that Kufa had an equal right as a religious and intellectual centre. 16-17. are irrevocable. whereas during the time of 'All the centre of the caliphate moved to Kufa.'" Ibn Taymiyya also regards this first category of lamal as a conclusive proof and claims that all the Muslims do too. i. and that endowments. or from less thanfivewasqs. 82-3. The first type. 'amal muta'akhkhir. For the two judgements on zakat. al-Ba)T." However. " The fourth caliph. i. according to Ibn Taymiyya. citing the instance of Abu Yusuf accepting the Madinan position on the sal and the mudd. 98. is not. the fact that no zakat is taken from green vegetables and fruit. lhkam.e. once made. 197-9. in view of the fact that differences remained between the madhhabs as to how. as 'Iyad's comments on the non-Madinans preferring to follow their own local traditions plainly indicate. he holds. which he terms 'arnal qadim ('early 'amal'). HADITH. chooses to overlook this. see below.

When matters arose about which they had knowledge. He would tell them to do things and they would obey him. may Allah bless him and grant him peace. he says.10 YASIN DUTTON a conclusive proof. Others. although this is not actually the case. Then there rose up after him those who were given authority after him and who. nor that it can be used to give preference to one person's ijtihad over another's. To it the Hijra was made and in it the Qur'an was revealed. The best expression I have found of his view on this matter is his letter to al-Layth ibn Sa'd (d. where there is consensus among the Madinans on a practice arrived at by ijtihad. it can be used to give preference to one person's ijtihad over another's. was living amongst them and they were present during the very act of revelation. 27 See Mad. and that Malik is writing to him to counsel him never to go against this 'amal. is that of Abu 1-Husayn ibn Abl 'Umar (d. the lawful (halal) made lawful and tl e forbidden (haratn) made forbidden. After a short introduction. were the ones who followed him most closely.30 'Iyad draws no such distinction between lamal qadim and 'atnal muta'akhkhir. . This third view.31 Downloaded from http://jis. this being particularly the view of the Baghdadi followers of Malik. some Malikls in the Maghrib consider it so. 421-2.oxfordjournals. may Allah bless him and grant him peace. although. although it is not a conclusive proof. The Messenger of Allah. he says. are of the view that. 175/791) on precisely this point. but notes three different opinions among the Malikls on whether or not post-Prophetic 'amal is a conclusive proof that others should follow. l. who hold that. he says. 69-70 ( = Brunschvig. 'Polemiques'. what all the opponents of Malik think is Malik's view. he says. he says.org at Georgetown University Library on April 15. they put that knowledge into 30 31 See §ihhat usul. In this letter we learn that al-Layth has been giving fatwas contrary to the 'amal of Madina. and also of a number of Maghribis. Inttsar. 2010 THE AUTHORITY OF MADINAN <AMAL Malik clearly saw Madinan camal as authoritative. he says. do not hold that it is a conclusive proof. and he would institute sunnas for them and they would follow him. Most. 328/939) in particular among the Baghdadis. until Allah took him to Himself and chose for him what is in His presence. of his community. There are also some. he says: All people are subordinate (taba*) to the people of Madina. 218-19). It is also. this is also a conclusive proof. who consider that such <amal ijtihadi should be given preference over akhbar al-ahad.

oxfordjournals. stronger opinion. If someone disagreed with them. I. 440. 311-21. 695-7. 'Concept'.org at Georgetown University Library on April 15. Fadl. 2519. al-FasawI. i. 556. 'Polemiques'. 70. 64-5 (= Brunschvig. or said something that was more valid and more worthy of being followed. . 2010 Malik's position on the matter would thus seem to be unequivocal: all people are subordinate to the people of Madina. and the primary source was always preferable to the secondary. if not impossible. al-TabarT. 99-100. This was Malik's argument against Iraq and the other centres of learning of the Muslim world at his time.32 Downloaded from http://jis. 'This is the practice {'amal) in our city'. they would ask [others] and would go by what they considered to be the most valid opinion according to their own personal reasoning (ijtthad) and their recent experience [of when the Prophet was alive] (hadathat 'ahdihim). 29. 'Education'. Hujjat Allah.33 but Madina was the origin of that knowledge. nor would it be permissible for them in the way that it is for [the people of Madina]. HADITH. Tarikh. 'Abu Mus'ab'. 32/652). After them the Successors trod the same path and followed the same sunnas. 380-1. I. 40 (n. 47). vm. or 'This is what those before us used to do (wa-hadha lladhirriada 'alayhi man mada mmna)\ they would not have the same authority for that. if there is something which is clearly acted upon in Madina (idha kana l-amr bi-l-Madina zahiran ma'mulan bi-hi). 381-2 (French translation). or claim for. So. Tadhkira. I am not of the opinion (lam ara) that anyone may go against it. We find Malik illustrating this by reference to an incident where Ibn Mas'ud (d. 31 This is clear. 'Concept'. He acknowledged that they had received learning from individual Companions of great stature who had settled there. 10. Even if the people of other cities were to say. themselves. 192-3. I. the 32 Mad. for example.SUNNA. Siyar. 66-7). and he allowed that people in the outlying provinces were free to follow their own men of knowledge. Schacht. they would leave aside their own opinion and act according to the other. in. Mad. because of this inheritance that [the Madinans] have which it is not permissible for any others to ascribe to. 136/754-158/775) that he make the Muwatta' the standard law code for all the Muslims in his empire: many of the Companions had spread out into various lands and each of them had taught and given judgements according to his own knowledge and i/tihad and every place therefore had its own way of doing things and it would thus be unreasonable. If they did not have [the requisite] knowledge. 189. lnttqa'. 145. by virtue of the Madinans' greater direct experience and collective knowledge which the people of no other city can lay claim to despite the high level of learning of individuals amongst them. Ibn Abl Hatim. 417 (Arabic text). Abd-Allah. AND MADINAN 'AMAL II practice. See also Abd-Allah. from Malik's argument in response to the suggestion of the caliph Abu Ja'far al-Mansur (r. 50-2. Both Brunschvig and Schacht have expressed doubts about the formal authenticity of this letter but both acknowledge that this question is of little practical importance since the attitude expressed in it is so obviously that of the 'ancient' Madinans and thus also that of Malik (see Brunschvig. al-Murabit. al-MalikT. 41. to force everyone to adhere to one view (see Ibn Sa'd (qism mutammim). 385-6). n. 1). 'Polemiques'. i.

alMahkl. 332. 72-7. Schacht. al-Murabit. n. in a shortened form. and exercising their best judgement (yajtahiduna bi-ra'yihim) when they knew of no specific guidance on a matter. 277/890) (from whom Ibn Taymiyya's student. Syria.e. Furthermore. " For the full version see al-Fasawi. 10. " Al-FasawT. 688. are as well known to Malik as to anyone else. or who is more receptive to their opinions when they are agreed on a matter than I am. He says: 'I do not think there is anyone to whom knowledge is ascribed who has more dislike for isolated opinions (shawadhdh al-futya). 438—41 (where a second similar situation is also mentioned). whether in Egypt. See also Abd-Allah. cf. Ibn Taymiyya. i. whose sharp disagreements. 177-84. i 687-95. the first three caliphs had been concerned to avoid dispute among the Muslim troops and had sent directives to them on even relatively unimportant matters (al-amr al-yasir) in order to establish the din and prevent dispute over the Book and the sunna. why should anyone else? This applied even more so in the time of the Successors. Despite the doubts mentioned above about the formal authenticity of Malik's letter to al-Layth (see above n 32). and it was the point most commonly raised against the MalikTs on this issue. 'Education'. gave a judgement to someone in Kufa on a detail of law and then later went to Madina only to find that the position in Madina on that point was different. and. Finally. by 'Iyad. whereupon the first thing he did on returning to Kufa was to go to the man and tell him what the correct. Fadl. 2010 . l. I'lam. Downloaded from http://jis.org at Georgetown University Library on April 15. al-Layth illustrates his argument by citing a number of examples of where he feels justified in accepting an opinion contrary to the lamal 34 See Baydn. 'Polemiques'. if this had been the constant practice of these Companions up until their death. in. judgement was. the Companions had come to different decisions on various matters. I'lam. 28. Fadl. 72 (where akdah should be emended to akrab). says al-Layth. 'Polemiques'. i. 417-18). but they had had a right to do so. 178 (italics added). or Iraq. 'Concept'. al-Fasawi. For 'Iyad's abridgement. 380.3* Al-Layth's reply has been preserved for us both by al-FasawT (d. and if the first three caliphs had not forced people to follow the Companions of a particular place. i. 7. 751/1350). Ibn Qayyim al-Jawziyya (d. In other words. i. 'Abu Mus'ab'.12 YASIN DUTTON most learned of the scholars of Kufa in his time. 134—7. Madman. 62. His point.3J Of particular interest in al-Layth's reply is that he makes a distinction between Madinan lamal on which there was consensus {ijma1) and Madinan lamal on which there was not consensus. al-Layth's reply is considered highly likely to be authentic (see Brunschvig.'3' Thus what he disagrees with is that Madinan lamal should be binding in instances where the Madinan lulam5> themselves were not agreed. Mad. H. is that the Companions had spread out throughout the new lands of Islam. transmits it). 52—3.oxfordjournals. 65 (= Brunschvig. xvn. Sthhat usul. al-MalikT. m. Muw. taking with them their knowledge of the Book and the sunna. see Mad. 321—31. 47). or more respect for the scholars of Madina who have gone before. but they had never told anyone to go against the practice of any of the Companions.

Origins. 'Concept'. 2010 For references.org at Georgetown University Library on April 15. 308-9). 35. Muslim Studies. 419-33 (esp. or nearly so (see Goldziher.38 and this. and al-amr alladhi la khtilafa ft-hi 'indana ('the practice about which there is no dispute here'). 58.*1 These two terms thus indicate a distinction comparable to that between 'amal naqli and 'amal ijtihddt referred to above. 'Concept'. together with the implications of al-Layth's objections to having to follow 'amal on which there was not consensus. which.37 Did Malik. was not one of the considerations of either 'Iyad or Ibn Taymiyya who were both concerned primarily with Madinan ijma'. 31 37 . 309.41 Abd-Allah's analysis. in his letter to al-Layth. 40 See above. that all Madinan 'amal should be followed whatever its origin. Early Development. would suggest that Malik did indeed hold the view. Ahmad Hasan. and that Malik drew clear distinctions between different types of 'amal and the degree to which they were binding.SUNNA. Ansan.*0 Malik frequently uses terms such as al-sunna 'indana ('the sunna here'). hold that all 'amal was equally authoritative? We have seen how. 276-7. while Ahmad Hasan and Ansan assume them to be interchangeable. recent studies by Abd-Allah on Malik's terminology suggest that this is not entirely the case. n. indicating not only its date of origin but also the degree of consensus in Madina that it represents. 'Malik's Concept of 'Amal in the Light of Malik! Legal Theory'. 'Terminology'. 11. for example. HADITH. as his opponents claimed. Malik says. whereas amr refers to 'amal that. although often originating in the practice of the Prophet. then. However. mention Malik's terms but do not discuss them. I am not of the opinion that anyone may go against it'. 7. al-amr al-mujtama' 'alayhi 'indana ('the agreed practice here'). See above. 300-1. Schacht. al-sunna llati la khtilafa fi-hd 'indana ('the sunna about which there is no dispute here'). 42 See Abd-Allah. 11. see above. 25-7. 100-1. nevertheless contains at least some element of later ijtihad. has shown that there is a clear distinction between Malik's sunna and amr terms: sunna refers to 'amal that derives from a normative practice of the Prophet (or sometimes a pre-Islamic Madinan custom endorsed by the Prophet) without any element of later ijtihad. " Reference here is to Abd-Allah's unpublished 1978 doctoral dissertation. 62. 423-4). the only proviso being that it should be 'clearly acted upon in Madina'. 41 Goldziher and Schacht. al-amr 'indana ('the practice here').oxfordjournals. AND MADINAN 'AMAL 13 in Madina precisely because the practice based on the contrary opinion had been instituted by one or more worthy Companions. and until recently these terms have been either undiscussed by most scholars or considered to be interchangeable. Furthermore. 'If there is something which is clearly acted upon in Madina. also Abd-Allah. both these terms are often qualified by expressions indicating Downloaded from http://jis. however.39 Abd-Allah demonstrates how Malik's terminology refers to a number of different categories of 'amal. as we have seen. 199.

lkkam. 47 See Mud. Sh. 485. l. 28-9. Madman authorities held differing views. as on the See 'Concept'. 263f. which suggests that no particular practice had gained predominance in Madina by that time. i. al-Ba|T. al-BajT. Muw. Where any difference of opinion in Madina is specifically denied (such as in the formula alladht la khtilafa ft-hi) we are dealing with points upon which there was complete consensus in Madina and which thus come under the categories discussed by 'Iyad and Ibn Taymiyya. although he favoured the preponderant 'amal in Madina.g. where different. that Malik was aware of differing degrees of authoritativeness for different kinds of lamal. Cf. HAD1TH The opposition to Madinan 'amal centred not so much on objections to Madinan ijtihdd as opposed to the ijtihad of others..*8 although Malik was positive about the 'amal of the Madinans.47 Furthermore. however. 652-6. cf.*3 When the terms are not qualified at all. Ihkam. The qualifying phrase al-mujtama' 'alayhi 'indana. Muw. 485. the whole question of when it was permissible to wipe over khuffs at all was something on which Malik appears to have changed his mind during his life. 2010 AMAL V. such as madat al-sunna. but rather a predominant consensus where there were differences of opinion in Madina but not such as constituted any significant breach of the view of the great majority. 28. 133. Origins. 28. and. 41. 'Concept'.*J This is particularly evident in cases of what Abd-Allah calls 'mixed lamal\ such as in the question of how to wipe over leather socks (khuffs). 428-9.. and equally prestigious.'. al-sunna 'indana. 382-91 (esp. however much he may have considered it to be a deviation from the clear path of the Madinans.14 YASIN DUTTON different degrees of consensus. n.*4 Thus there were clearly different levels of consensus for both 'amal naqli and lamal ijtihadt. he would not have held that all types of 'amal were equally authoritative. 41 See above. 44 See 'Concept'. 44-7. 326. 158. It would seem.oxfordjournals. 430-1. It should be noted that the qualification al-mujtama' 'alayht 'tndana does not occur with the sunna terms. 386-7). 43 Cf. 221. l. 425-7. n. 301. cf. Note also Malik's frequent use of the expression 'the best I have heard . does not necessarily indicate complete consensus. 33. he was not negative about the knowledge of other cities.*6 Indeed. therefore. which indicates various possible options (e. 33. or al-amr Hndana. Schacht. cf. l Downloaded from http://jis. Muw. 43 . 44. 193). as is clear from Malik's response to al-Mansur's suggestion that all the umma should be made to follow the knowledge of the people of Madina. 224.org at Georgetown University Library on April 15. there were often (but not necessarily) significant differences of opinion in Madina on the points in question. 46 See 'Concept'.

70-1 ( = Brunschvig. those going back to single authorities among the Companions. . " See above. then. khabar al-wdhid). 422-3. 108. and the vast majority of hadtths are.e. there is of course no conflict and the hadith is followed. namely akhbar al-ahdd. i. AND MADINAN 'AMAL 15 relationship between 'amal and hadith. in which case it will serve as a support for the validity of the hadith. i. though there is dispute on this point. it derives from the time of the Prophet. saying that 'amal must relate to such isolated hadtths in one of three ways: either (i) the 'amal in question will accord with the hadith. Zaydan. it is 'amal based on ijtihdd. providing it is authentic and that there is no contradictory hadith. were not only much fewer in number but were also.e. If in this last instance the 'amal is 'amal naqlt. mashhur hadiths are considered a subcategory of akhbar al-ahdd (see. preference is given to the hadith with the Madinan credentials. according to Abu Ishaq al-Isfaraylnl (d. Downloaded from http://jis. on the other hand. i. Abu Zahra. unlikely to contradict 'amal. 220-1). HADITH. In the other schools.oxfordjournals. 73. however. as mentioned earlier. and one of the hadiths is related through Madinan sources while the other is not. it is to be preferred to the hadith. or (in) the 'amal will contradict all the hadtths. because this type of 'amal is definitively authoritative (qat't al-thubut) whereas the khabar alwdhid is only presumptively authoritative (zanriial-thubut). they should be considered as two contradictory hadtths). 'Polemiques'. i. 170-1). In this case. and mutawdtir hadtths. akhbar al-ahdd. which is if there is a hadith on a point but no 'amal. particularly those hadiths that went back to only one or a very few Companions {akhbar al-ahdd.e.SUNNA. (One should note that hadtths are commonly divided into two types. i. technically speaking. itself mutawdtir. for example.s° 'Iyad discusses this point in some detail. or (ii) the 'amal will accord with one hadith but be contradicted by another. in which case the 'amal is one of the strongest arguments for preferring the first hadith to the second. if this should occur. mashhur hadiths. sing.org at Georgetown University Library on April 15. then the predominant view is that akhbar al-dhdd are given preference over it. 2010 *' A third category. 50 See Mad.51 'Iyad also discusses a fourth possibility. For this and the following paragraph.)*9 Mutawdtir hadtths. those going back to a large number of Companions. since it is practically impossible to conceive of two mutawdtir transmissions being both authentic and contradictory (although al-Qadl 'Abd al-Wahhab (d. 418/1027). he says. in the very nature of things. see Mad. 9-10. If. is distinguished by the Hanafls and considered by them to be tantamount to mutawdtir hadiths. lntisar. where there are only one or a very few Companions who originally transmit a hadith but many transmitters taking it from this one or few. 432/1031) allows that. If there is.

oxfordjournals.' Malik turned to him and said.. may Allah bless him and grant him peace. 'Concept'. however.org at Georgetown University Library on April 15. saying the two shahadas quietly after the initial takbtr of the adhan before repeating them again loudly (cf. i. 'Subhana llah! I have never seen anything more amazing than this! The call to the prayer has been done [here] every day five times a day in front of witnesses. and. for the report itself. and to the Muslims after him. is a point of general consensus (t)ma'). It is a type of misguidance that someone should hear something and then say 'This is something about which we have heard nothing contradictory' . leave it (idha ja'aka amr la ta'nfuhu fa-da'hu). disagrees with 'Iyad on this last point and suggests that the absence of 'amal is itself an indication that the contents of such a hadith are not to be considered normative. 54 i. then. But have you heard that anyone made such a prostration? This. and he said that this should not be done and that it was not part of people's general practice (laysa mimmd madd min amr al-nds). " See 'Concept'. 790/1398). There is a long report in the Maddnk concerning his meeting with Abu Yusuf and their discussions about the adhdn and the measures of the sa' and the mudd. . 509-12. then let that (i. If you hear something [like this] which you do not know about. If such a thing had happened. Many victories came to the Messenger of Allah..e. Malik was asked about whether someone who has heard some good news should prostrate to Allah out of gratitude. and sons have inherited it from their fathers since the time of the Messenger of Allah. 52 He illustrates this by a report from Malik regarding the question of the 'prostration of thankfulness'. it would have been mentioned. Mud. what you already know) be enough for you. because it would have been part of their direct experience (h-annahu min amr al-nas alladhTkdna ft-him). he said: I have not heard about this. 186—7. i. 57). since if they were there would have been some 'amal instituted in its favour (assuming that the matter in question was one that would be expected to have occurred in the lives of the first community). 'Iyad reports: Abu Yusuf said [to Malik].l6 . When the fact that Abu Bakr had made such a prostration after the battle of Yamama was mentioned to him.e. 392. and I consider it a lie against Abu Bakr. 'You do the adhan with tarjT.5* but you have no hadith from the Prophet about this. YASIN DUTTON Ash-ShatibT (d. Bayan. but have you heard that any of them made such a prostration? When you hear this sort of report about something that would have happened in their midst and been part of their general experience and yet nothing else has been heard about it. 2010 Malik's attitude on this point is well documented and many reports show that he held 'amal to be more reliable {athbat) than hadith. " See Abd-Allah." Downloaded from http://jis.

may Allah bless him and grant him peace. HADlTH. may Allah be pleased with him. 418) both have al-akthar ('the majority') rather than al-athar (for which. 200). 1. Intisar. 8-9.'" Malik said: 'There were people among the men of knowledge of the Successors who would narrate certain hadiths. both Muhajirin and Ansar.oxfordjournals.org at Georgetown University Library on April 15. 1. 117. and (111) the second following report concerning Muhammad ibn AbT Bakr ibn Hazm. 2010 " Mad. as Brunschvig and Schacht noted with regard to Malik's letter to al-Layth ibn Sa'd (see above. For their discussion about the adhan. Downloaded from http://jis. Ihkam. since it gives a very clear picture of Malik's view56 on the matter: On What Has Been Related from the First Community and the Men of Knowledge Regarding the Obligation of Going Back to the Practice {'amal) of the People of Madina. Mab. and also endowments." 'Iyad devotes an entire chapter to comments by earlier authorities on the superiority of 'amal over hadith. who inherited it from his father who was one of the Companions of the Messenger of Allah. even if It is Contrary to Hadith (al-athar)" It is related that 'Umar lbn al-Khattab. n. 1.). 58 For comments by Malik to this effect. xu. 32). once said on the minbar: 'By Allah. 'What's your basis for saying that?' Malik said to some of the people with him. and Its Being a Conclusive Proof (hujja) in Their Opinion. came. the Madman way of doing the adhan was never accepted by the Iraqis (see above.' So Abu Yusuf accepted Malik's opinion. For their discussion about the sa'. 111.' Abu Yusuf also asked him about the sa' and Malik said. al-BajT. see also above. see also above. It should be noted that. and since many of the reports he cites are known from earlier sources such as the 'Utbiyya (in lbn Rushd's Bayan) and lbn AbT Zayd's Kttdb al-Jami'. Does this need "So-and-so from soand-so"? This is more accurate (asahh) in our opinion than hadith. I will make things difficult for any man who relates a hadith which is contrary to 'amal. Furthermore. . the argument is so obviously that of the ancient Madman school that concerns of complete authenticity are hardly relevant. 90. 9. 'Five and one-third rails'. and every one of them brought a sa' [with him] and said. 28. 8. (Moh.' lbn al-Qasim and lbn Wahb said: 'I saw that with Malik 'amal was stronger than hadith. However.' Malik said. 483—4. 44. " It could be argued that this is 'lyad's view which he is then attributing to Malik. see Mad. It is worth quoting in full. 'This sort of widespread knowledge {hadha l-khabar al-sha'i') is more reliable (athbat) in our opinion than hadith. since there is no reason to doubt 'Iyad's accuracy and honesty. see (1) ]ami'.SUNNA. there seems little reason to doubt the general authenticity of the reports in this passage. " Bekir (Mad. 'This is the sa' which I inherited from my father. 66) and Brunschvig ('Polemiques'.' So many of the people of Madina. although Abu Yusuf accepted Malik's opinion about the sa' and the mudd. 9). (11) Malik's reply to Abu Yusuf (see above). and hear other hadiths from others. 224-5. Abu Yusuf said. AND MADINAN 'AMAL 17 may Allah bless him and grant him peace. 'Go and fetch the sa's that you have.

"Why do you transmit a hadith and then not act upon it?"."' Ibn AbT 1-Zinad said: "Umar ibn 'Abd al-'AzTz used to gather the fuqaha' together and ask them about the sunnas and the judgements which were acted upon (yu 'tnalu bi-ha). "But what is the position of the people with regard to it?"—i. "I too have heard that.). see Mad. WakT\ I. "Hasn't such-and-such a hadith come down about this?" Muhammad replied. the agreed 'amal in Madina. One from one would tear the sunna right out of your hands. (Moh. "Then why don't you give your judgement according to it?" Muhammad replied. 604 (also in Schacht. 225. 'Abdallah said. see Bayan. 81. Origins."'5' Malik said: 'I once saw Muhammad ibn Abl Baler ibn 'Amr lbn Hazm. 45.'61 He also said: 'Often I will have numerous hadiths on a subject. and he replied. Some ten thousand of them died in Madina and the rest of them spread out in various places." Rabfa said: 'One thousand from one thousand is preferred by me to one from one. see Mad. Tarikh. 'Manuscripts in Morocco'. 29). see Bayan. for giving a judgement on a case on which there was a hadith giving a different judgement. 118. even though their source was absolutely trustworthy. xvu. 419) and Bekir [Mad. (Moh.oxfordjournals."" 1 Ibn MahdT said: 'The established sunna of the people of Madina is better than hadith.l8 YAS1N DUTTON and they would say. 2010 . So which of them are more worthy of being followed and adhered to. contrary to what he had said. 60 For the same report. and variants. Downloaded from http://jis. 331. but will find the people who teach in the mosque (ahl al-'arsa) following something contrary to them. but the lamal that has come down to us is different. ui.'60 Ibn al-Mu'adhdhal said: 'I once heard someone ask Ibn al-Majishun. with slight variations. ]atnt'. " This report is incompletely cited by Brunschvig ('Polerniques'.org at Georgetown University Library on April 15. those among whom the Prophet. 188-9. 118. For the complete version. came back after such-and-such a ghazwa with so many thousands of the Companions. WakT*. who was an honest man with an extensive knowledge of hadith.' Malik said: 'The Messenger of Allah. 202. 64). see Intisar. l. Intisar. 79. who was a qadi. may Allah bless him and grant him peace." 'Abdallah said. whilst those that were not acted upon he would discard. i. by which he meant that the 'amal of Madina was stronger than hadith.45. Tamhtd. For variants in the Madank report itself.e. 176. "But such-and-such has reached us". "We are not ignorant of this. Jami'. may Allah bless him and grant him peace. " For similar reports from Malik and lbn AbT 1-Zinad. "It has. see )amt\ 118.). but I have found the practice (al-'amal) to be different. al-Tabarl. being reproached by his brother 'Abdallah. "So that it be known that it is with full knowledge of it that we do not act upon it. in. he would reply. These he would then affirm. i. and so those hadiths will become weak in my opinion'—or words to that effect. i. and those Companions whom 1 have just mentioned " For the same report. 66). " For the same report. xvu.' Ibn AbT Hazim said: 'Abu 1-Darda' would be asked questions and would give answers and if someone said. 2505 (mentioned in Schacht.

SUNNA. 15. i. be recorded by hadith. however. which was only possible in Madina. Particularly significant is the comment of Rabfa. or may not. or those among whom one or two of the Companions of the Prophet. or irsal al-yadayn). what had been related by so many Companions that there could be no reasonable doubt about its authenticity—whereas most hadiths.66 It is important to emphasize that 'amal and hadith are not mutually exclusive. taking directly from a large number of Companions. 1. 65 Thus this directly received knowledge of the Madinans of how the sharTa was put into practice automatically had higher authority in their view than most hadiths.e. as 'Iyad's analysis indicates. in the Downloaded from http://jis. for example. and hadith may. 23-4. while the hadiths about irsal al-yadayn (Muw. See also al-Murabit. 1. Where they overlap they are a strong confirmation of each other. as indicated in the comment of lbn Abl 1-Zinad in the above passage. may Allah bless him and grant him peace.67 'Amal may. died. since it had the status of what was mutawdtir—i. however. for example. but where there is contradiction. HADITH. were matters that were not recorded initially in the form of hadith but were nevertheless known generally amongst the people and understood to have originated in the time of the Prophet. In other words.'64 This view is thus seen as going back to at least the time of 'Umar. as we have noted. Thus. or the size of the sa' and the mudd. " It may be noted that the hadith recording the Madinan way of doing the adhan in Mud. 201-6. 'amal is preferred to hadith by Malik and the Madinans. although recorded in authentic hadiths and even transmitted. 74) and beginning the prayer without the basmala (Muw. was the situation in the rest of the Muslim world. 'Education'. 418-19. or may not. may Allah bless him and grant him peace. 78. Mud. 57 has a Makkan isnad. where all but the very last report occur). 2010 " Mad. Mud.org at Georgetown University Library on April 15. where there were some ten thousand Companions ('twenty thousand weeping eyes') at the time of the death of the Prophet. 15. 1. for example. .oxfordjournals. Intisar. see also the quotation from lbn Qutayba below. AND MADINAN 'AMAL 19 died. 'One from one'. were not mutawatir.68 Other practices. died?' 'Ubaydallah lbn 'Abd al-KarTm said: 'When the Messenger of Allah. 58-61. i. 133. record 'amal. the standard adhdn in Madina. 66-7 (= Brunschvig. or reciting the prayer without beginning with lbi-smi lldhi l-rahmani l-rahim'. where individual Successors took their knowledge from individual Companions. 'One thousand from one thousand' means a large number of Successors. 64) both have Basran isnads. one of Malik's main teachers. 'Polemiques'. or the way of standing for the prayer with one's hands by one's side (sadl. even when the sources of these hadith are completely trustworthy. there were twenty thousand weeping eyes. there were no hadiths on these matters in Madina because there was no need for them. i. " For this idea. " See above. " See above.

78 thus bolstering the argument for the 'ancient' (i. 5 8 .77 and the Ibadls. or otherwise minority opinions that held little weight. and Ibn Jurayj. since this was the predominant lamal.71 He makes no comment on this in the Muwatta'.7* the Isma'llls. i. However. serve to illustrate the point: (1) Malik relates two hadtths whose overt import is that the prayer should be done with the right hand holding the left at the wrist (qabd). i 57. also records a hadith to the effect that a number of Companions had reported seeing the Prophet doing the prayer with his right hand placed over his left. xvui. ii ( p a r t 2). i. 70 See a b o v e . TamhTd.75 the Ithna 'Ashari Shfa.O YASIN DUTTON Muwatta".oxfordjournals. 'Urwa ibn al-Zubayr. n. where Malik transmits hadiths which he does not consider should be acted upon. al-'Amill.M u r t a d a . See Ibn AbT Shayba. 69. cl. 241 " See al-TusI. ii. See Khalll.'x 133. but there is no harm in someone doing it in voluntary prayers (nawafil). 710.2. although rejected by all the other surviving SunnT madhhabs. 74.e. were not acted upon by their transmitters precisely because they did not represent the sunna. accepted by al-Awza'T. In other words. It was for this reason that Ibn cUyayna could say that hadiths were a source of misguidance except for the fuqaha'. 276. and which. 5. which became the major source for later Malikls as summarized in Khalll's Mukhtasar. interesting to note that this practice.74 It is.69 and Malik that 'amal was a more reliable source than hadith. in order to make things easier for himself. furthermore. Mud. the madhhab of the Mudawwana.73 was that it was preferable in all circumstances to pray with one's hands by one's sides. 2010 " 72 73 74 75 77 See a b o v e . Prophetic) origin of this 'atnal.R a z z a q . Sahnun.7" There are a number of striking examples in the Muwatta' of lamal being preferred to hadith.6 . 3 9 1 . This way of doing the prayer was also preferred by al-Layth ibn Sa'd. See Da'aim. ' A b d a l . Bayan. Mukhtasar. is nevertheless that of the Zaydls. The following examples.org at Georgetown University Library on April 15. 71. but in the Mudawwana Ibn al-Qasim records him as saying: 'I do not know of this practice as far as obligatory prayers are concerned (la a'rtfu dhalika fi l-farida). if he has been standing for a long time. 'wa-sadlu yadayhi'. 7 4 . " See Muw. even though they derived from the Prophet. There can have been no reason Downloaded from http://jis. x x . and recorded from other important authorities such as Sa'ld ibn alMusayyab. .'72 The transmitter of the Mudawwana. 29. were nevertheless outweighed by other judgements also deriving from the Prophet. 159. even though the hadiths in question are considered completely trustworthy. they were either exceptional instances or earlier judgements that had later been changed. since the differences between these groups and the main body of the Muslims arose at a very early date and on questions of belief and political authority rather than on points of fiqh. i. despite this hadith and the similar reports in the Muwatta'. See Ibn a l . I. 7I See al-Mus'abT.

74. Malik relates a report via Salim and Ibn 'Umar to the effect that the Prophet used to raise his hands when saying 'Alldhu akbar' both at the beginning of the prayer and when coming up from rukif. Cf.82 This would therefore seem to be a clear case. that is. adding the exceptive clause '. ibid. 'Hadith'. (margin). esp. Ibn al-Qasim's interlocutor. mentions a hadith from 'A'isha according to which she had acted as the guardian " See Muw. fiqh—which is a very different proposition.. basing their argument on reports to that effect from 'All and Ibn Mas'ud via Ibrahim al-Nakha'T. 69. 58-9. basing his argument on the above-mentioned hadtths and at the same time accusing the Madinans of inconsistency in relating these hadtths and yet not acting upon them. as in the above instance. according to Ibn al-Qasim in the Mudawwana. 83—4.or hadith-based. 90. where the Salim hadith includes mention of raising the hands before ruku' as well as after.. vn. 'Derecho Maliki'. "Who are these people because of whose 'amal these hadtths are not acted upon?' " See Ibn Rushd. 104-5. 68. when doing the initial takblr {takbirat al-ihrdm). Cf. Malik uses the phrase 'I do not know of this [practice] {Id a'rtfu dhdlika) . and another via Naf? to the effect that Ibn 'Umar used to do the same. as discussed in recent articles by Fierro (e.*0 Downloaded from http://jis. 130-1).SUNNA. Sh.. i. Muw.7' Despite recording no hadtths in the Muwatta' overtly to the contrary. (ii) Another example of where Malik seemingly goes against a hadith is the question of raf al-yadayn ('raising the hands') during the prayer. saying. of where Malik relates a hadith but rejects its import because it is not in accord with 'amal. Ibn al-Qasim. mistakenly assumes the opponents of the ahl al-hadith position to be ahl al-ra'y ('Polemique'. except in the takbirat al-thrdm'. " See Muw. esp. 75. . rather than a ra'y. I. 'Polemique'. 90. vn. 233. where al-Shafi'T recognues—but rejects—the Madinans' 'amal argument on this point. Mud. 127ff. 10 See Mud. 57. 215 (margin). 90. 21 Iff. Umm. as Ibn Rushd indicates.org at Georgetown University Library on April 15. Cf. 'Hadith'. 2010 Although Abu HanTfa and the Kufans held the same view as the Madinans on this point.) whereas they are in fact ahl al-'amal—having an 'amal-based. 12 See Umm. in the chapter in the Mudawwana on marriage without a legal guardian. however. where the same Kufan authorities are also cited in support of Malik's position. HADITH. i. vn.81 al-Shafi'T held the contrary view that one should raise one's hands both before and after each ruku1 as well as at the beginning of the prayer. 1.. In the chapter 'What Has Come Down About Beginning the Prayer'. was that one only raised one's hands at the beginning of the prayer. This particular instance was later to become a major point of dispute in al-Andalus between the traditional MalikTs and the increasingly influential ahl al-hadith. Sh. Again.'. Sahnun. Malik's view. Fierro.*3 (iii) One of the clearest statements of this attitude is that by Malik's student. especially 217.g. and the obvious inference is that they were merely continuing an established practice. AND MADINAN 'AMAL 21 for them inventing such a detail of fiqh. 'Derecho Mahki'.oxfordjournals.

except that we assume that she appointed someone else actually to contract the marriage. What the passage in fact shows is not a contrast between hadiths on the one hand and practice. Rather. whereas Allah has revealed the punishment [for fornication] and [the punishment of] cutting off the hand [for stealing] only for believers. and have then been transmitted from these Successors in the same way.2. n. 'A woman should not be married without a legal guardian'. may Allah bless him and grant him peace. but says. Schacht takes this passage as clear evidence that the 'practice' existed first and traditions from the Prophet and from Companions later (see Origins.). but rather a contrast between two types of hadith.' Sahnun then raises the point that. 179-81. 3. for the judgement in the last paragraph. without them either rejecting them as inauthentic or denying what has been transmitted. This hadtth thus remains neither rejected as inauthentic nor acted upon (ghayr mukadhdhab bi-hi wa-la ma'mul bt-hi). and the fact that 'Umar separated a man and a woman who had married without a legal guardian. 28f. regarding using perfume while in thram. and they likewise from those they had met. and even if the girl's father had agreed.org at Georgetown University Library on April 15. On Schacht. IV. What was not acted upon is left aside without rejecting it as inauthentic. and the words of 'Umar. and the report that has come down from him where he said. while other things have been put into practice and been followed by most people and most of the Companions. see Muw. ii. 'Concept'. But in fact it is like other hadiths which are not accompanied by 'amal. 571. and. 63). even if she had appointed someone else. 'We do not know what the explanation (tafstr) of this is.. 'A fornicator is no longer a believer when he fornicates. nor [is a thief] a believer when he steals'. may Allah bless him and grant him peace. 'A woman should not be married without a legal guardian'. For the hadith in question. Muw. unconnected to hadiths. [In this case] the 'amal which is well attested to and accompanied by practice is [the judgement indicated by] the words of the Prophet.84 Mud. from the Companions. YASIN D U T T O N for Hafsa bint cAbd al-Rahman (a niece of hers) in her marriage to alMundhir ibn al-Zubayr (a nephew of hers) while the girl's father was away travelling. Azmi. such as what has been related from the Prophet. 14 Downloaded from http://jis. Ibn al-Qasim replies: This hadtth has come down to us. 2010 . and what was acted upon is acted upon and accepted as authentic (yusaddaqu bt-ht). other hadiths that were accompanied by practice have been acted upon and transmitted by the Successors of the Companions of the Prophet. may Allah bless him and grant him peace. according to Malik. namely. Various things have been related from the Companions which have not been bolstered [by anything else] or been considered strong enough [to put into practice] (lam tashtadda wa-lam taqwa).oxfordjournals. 18. Ibn al-Qasim does not deny the authenticity of the hadtth. also Abd-Allah.2. it would be correct to follow it. those that were accompanied by 'amal and those that were not (cf. such a marriage would be invalid. If it had been accompanied by continuous 'amal up until the time of those we met and from whom we took [knowledge]. on the other.

ii. see also Schacht. Mukhtalif al-hadith. someone trustworthy may transmit from someone who is not.oxfordjournals. a man may have been present when the Prophet. as Abd-Allah has observed. //'ma1. and abrogation. 'Abu Mus'ab'. Similarly. as is clear from the above. This is why Malik. 399. Goldziher. may Allah bless him and grant him peace. 'dependent or ancillary sources in that they are evaluated against the semantic context of 'amal'. they are. Malik studies hadtth against the background of Madinan 'amal. 380. For this ancient Madinan attitude to lamal v. may Allah bless him and grant him peace." Downloaded from http://jis. 'Manuscrits a Fes'. HADITH. 604 (also 331-2). 2010 17 " See 'Concept'. 'The 'amal in our city is such-and-such'. Schacht. people have related many hadtths with complete chains of authority (muttafila) and then not acted according to them. " See ibid. see Bayan. but then says. i. and the generation after them. " Ibn Qutayba. . Hadlth may be subject to forgetfulness. often contradict each other. that would have become the 'amal of the following generation. The following passage by Ibn Qutayba in his Kitab Ta'wil mukhtalif al-hadtth gives a comprehensive summary of why: In our opinion the truth is more likely to be established by tjma' than by the transmission of hadtth (al-riwaya). 'Amal. 'Manuscripts in Morocco'. however.8* Again. sometimes transmits a hadtth from the Messenger of Allah. different possible interpretations. 331-2. xvn. AND MADINAN 'AMAL 23 The important conclusion to be drawn from these examples (and there are many others) is that. 300. gave a certain command and then been absent when he told [people] to do something different: he will then transmit the first command and not the second. is free from such vicissitudes.org at Georgetown University Library on April 15. 9-10. For a similar assessment by Ibn Rushd (al-Jadd) in his commentary on the 'Utbtyya. 274. and if the 'amal in his time included such-andsuch a practice. indeed. Muslim Studies.SUNNA. and the generation after them—and it is not possible that all the people would have stopped doing something that they were all doing in his city at his time and then done something else instead— and one generation from one generation is a much greater number than one from one. while those who disagreed with him (particularly the Iraqis—represented by Abu Yusuf and al-Shaybanl—and al-Shafi'I) study Madinan 'amal against the background of hadtth" and the two. and. Indeed. mentioning something that is different to the hadith. idem. as Abd-Allah has pointed out. 30 (where the same passage is incompletely cited). 88 (where the same passage is incompletely cited). although for Malik the textual sources of the Qur'an and the hadith are treated with the utmost respect. may Allah bless him and grant him peace. was preferred to hadtth by the Madinans. may Allah have mercy on him. See ibid. there may be two different commands. because he does not know it. then. error." Thus it is the non-textual source of €amal that constitutes the basic source. uncertainties. [This is] because his city was the city of the Prophet. such as making either one or two taslims [at the end of the prayer]. hadith. both of which are possible. carries the greater authority.

or 'practice' (Schacht also uses the expression 'living tradition' to cover this concept). »° See ibid. as we have noted. though not in the same way. hadith argument.oxfordjournals. For whereas sunna in its Muwattan sense refers to a practice originating in the practice. Malik typically differentiates those parts of 'amal that contain elements of later ijtihad Downloaded from http://jis.org at Georgetown University Library on April 15. 'classical' sense refers almost invariably to hadith (as Schacht points out). 2010 " See Schacht. However. 'pre-classical' sense it is by no means coterminous with hadith (as Schacht again points out). Indeed. 77. but—and this is where the Muwattan view diverges from the Schachtian—sunna must also be distinguished from 'amal. hadith argument is thus really an extension of the argument about the meaning of the word sunna. but not all 'amal is sunna. 59. n. For whereas sunna in the traditional. or sunna. Indeed. but it disagrees with the traditional position with regard to how this sunna is defined. " See ibid. which is to say that he judges hadith by reference to the sunna rather than judging sunna by reference to the hadith. hadith refers to texts whereas sunna refers to action.90 but is. This third view thus agrees with the traditional view—against the revisionists—in seeing Islamic law as based on Qur'an and sunna from the beginning. as we have noted. of the Prophet—and thus is indeed his sunna—'amal is a broader concept which includes not only the sunna established by the Prophet but also the ijtihad of later authorities. 77 (also 4. For Malik. can be seen to be essentially similar in that they are both text-based—the one from a positive. that has led to the confusion among scholars. and it is a lack of understanding of this argument. Origins. and thus of the word sunna. he judges hadith against the criterion of 'amal.Z4 YAS1N DUTTON Malik and the Madinans thus held that 'amal was the better indication of the sunna. and 44. . The 'amal v. or 'amal. whereas the Iraqis and later al-Shafi'I held that the authentic sunna was that which was supported by authentic reports and that 'amal was not acceptable unless it was supported by such reports. not only must sunna be distinguished from hadith. Thus all sunna is 'amal. in the light of the 'amal v. In other words. both the 'classical' and 'revisionist' views about sunna referred to above. although opposed to each other. standpoint—whereas the third view—that of the 'ancient' Madinans as exemplified in Malik's Muwatta'—represents a fundamentally different perspective on Islamic legal history where the true expression of the law is seen as preserved not in a corpus of texts but in the actions. of men. rather. the other from a negative. they considered that a textual source whose origin was known for certain should be given preference over a nontextual source whose origin could not be known for certain.91 That is. intimately linked with the idea of 'amal. referred to above. it is not hadith but 'amal that is the primary source of normative sunna. 2). however. 58.8' in its Muwattan. both past and present. indeed.

Thus what begins in Madina as an lamalbased din (represented by Malik) becomes partially systematized in Iraq (represented by Abu HanTfa) and then even more so by al-Shafi'T.oxfordjournals. so that he could describe it by saying. or. governors. 13-14. and scholars (including Malik himself) right through from the time of the Rightly Guided Caliphs to when Malik was compiling his material in the first half of the second century. '[This is] the sunna here.91 What the Muwatta' shows most clearly is that these elements— Qur'an. but so too are the judgements and ijtihad of the caliphs. it presents a composite picture of what Malik considered to be the essential aspects of the din in action. and representing for the second a relatively similar picture of a midway stage where there is still considerable reliance on the opinions of early authorities rather than on the hadith of the Prophet alone. religion. thus by the time we come to Ahmad ibn Hanbal. but it is seen as part of a whole—the existential. action. which is then called sunna but often does not represent the sunna at all. AND MADINAN 'AMAL Z$ in addition to a base in Qur'an and/or sunna by using the word amr rather than sunna. sunna. and none of these elements can ultimately be separated from the others. i. or from later authorities. A particular practice may ostensibly derive from the Qur'an. 2010 See above.SUNNA. i. lived reality that Malik found himself in. who preferred weak hadiths to no hadiths at all. rather than texts. with the idea of sunna but by no means synonymous with it—gradually becomes replaced outside Madina. What we further see suggested by the Muwatta' is a process whereby the original picture of lamal—intimately linked. i. 'This is what has always been the position of the people of knowledge here.org at Georgetown University Library on April 15. The Qur'an is there—in very large measure—and so too is the sunna of the Prophet. the 'amal of the people of Madina. text-based.e. was paramount. representing for the first group a kind of prototype sahih hadith collection with its tsnads not yet sufficiently elaborated and its ra'y not yet excised.e. This was clearly not Malik's view of Qur'an and sunna.' What Malik effectively presents us with is a package. although reaching us in the textual form of the book entitled 'the Muwatta". Thus although the Muwatta' is seen by both traditional and revisionist scholars as an early book of hadith. and this package. . or from the sunna of the Prophet. was essentially one of 'amal. by hadith. Downloaded from http://jis. first in Iraq and then later practically everywhere else.e. we have reached an almost totally hadith-based. that is. for example. Rather. hence the constant reference throughout to what people were actually doing. and [this is] what I have found the people of knowledge in our city doing'. for whom 'amal. as we have said. for whom even qiyas was out of the question. and Dawud al-ZahirT. 'action'. and ijtihad—are seen as inextricably bound together into one whole. HADITH. it is in fact neither of these.

was to transform it radically and lead to the great upsurge in the importance given to hadith in the third and fourth centuries AH. and other senior Companions. Muhammad lbn al-Hasan al-Hurr (d.. 1351-7/1932-8 Abu Zahra. in 20. with his insistence on the overriding authority of Prophetic sunna as preserved by hadith rather than the old idea of Prophetic sunna as preserved by lamal. Cairo.org at Georgetown University Library on April 15. 4 vols. 1104/1692). Jam' al-jawami\ l. Hablb al-Rahman al-A'zaml. then. 1315 (1897) " Muw. al-'Amill.'93 What the Muwatta' shows us is that Islamic law as it was practised in Madina in the second century AH was indeed based on 'the Book of Allah and the sunna of His Prophet'—may Allah bless him and grant him peace—but as transmitted by 'amal rather than hadith. Furthermore. . see al-Suyutl. Beirut. For other versions. 470. n. Muhammad. Hilyat al-awliya\ 10 vols.d. governors. 1405/1985 — Siyar aHam an-nubala\ 25 vols. 1390-2 (1970-2) Abu Nu'aym (d. 1391/1971 al-BajT (d. see lbn Rushd (al-Jadd). 208. but also our earliest record of that law as a lived reality rather than a later theoretical construct. Hyderabad. and scholars in a continuous extension of the initial Qur'anic impulse as and when circumstances demanded. 4 vols. Cairo. Beirut. 9 vols. it represents Islamic law and legal literature before the major change of methodology propounded by al-Shafi'T.. ed. 430/1038).. Usiil al-fiqh. In the Muwatta' Malik records the hadith that the Prophet said: 'I have left among you two things and as long as you hold fast to them you will not go astray: the Book of Allah and the sunna of His Prophet.. 2010 BIBLIOGRAPHY AND ABBREVIATIONS Arabic <Abd al-Razzaq al-San'anl (d.. Ihkam al-fusul ftahkam al-usul. 211/827). Wasa'il alShTa. 4th edn.6 YASIN DUTTON The particular importance of the Muwatta'.oxfordjournals. 748/1348). 1401-9/1981-8 — Tadhkirat al-huffa$. 1409/1986 Bayan. lies in its being not only our earliest formulation of Islamic law. Beirut. but also by later caliphs. al-Musannaf.2. Downloaded from http://jis. 474/1081). ed. al-Bayan wa-l-tahsil Da'aim. the Rightly Guided Caliphs. al-'Ibar ft khabar man ghabar. 'Abd al-Majld TurkT. see al-Nu'man ibn Muhammad al-Dhahabl (d. in two. In it we see judgements being handed down and precedents being created not only by the Prophet. Beirut. ii. 11 vols. Beirut.

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