I analysed the rationale behind Imam Malik’s reliance on Practice of Madinites as a juridical source in one of my previous entries. Skipping the extension and application of this principle carried out by Malik considering it to be a distraction from my present scope, I intend to furnish the basic argument against the use of this principle in this post.
Just a frugal look at Malik’s times can make a reader wise about the dynamics of jurisprudence being neatly dovetailed with regional tradition of opinions. An insight into the sources of these opinion can be a good exercise for yet another essay but it would suffice to say that my readings do not agree in general with the assertions of Schacht for instance, regarding the roots of these regional practices. The fact however, that juridic opinions in those times tended to distinguish the practice from region to region is fairly conspicuous. Opinions not only belonged to the regions but used to get famous by the cities which were the hub of knowledge in that region. Moreover cities were famous to station scholars who were considered to be specialists in a particular branch of theology.
For instance, Basra was more famous for discussions regarding beliefs and foundational impressions as compared to jurisprudence. Kufa was the center of Iraqian Fiqh (jurisprudence), primary source of which were the teachings of Ibn Masud (r) and opinions of Ibrahim al-Nakhai. Hammad bin abu Suleyman and Abu Hanifa carried this tradition forward. Damascus was famous for less reliance on Qiyas (analogy) or Istihsan (preference). The source of Syrian jurisprudence was primarily the athar (traditions) of Companions and their students. The dominating school in Syria belonged to Awzai and he was not a Muhaddis like Malik. Madina stood out uniquely among all these cities. It contained knowledge of Hadith, athar (traditions) of Companions and opinions of their students. To put it more incisively, Madina was the converging as well as originating point of Hadith, practice and opinions.
Fortunately the correspondence between Malik and al-Laith bin Saad, from which I have drawn previously as well, not only describes Malik’s deductive reasoning but equally illuminates the argument against it. Malik’s position was concise enough, enabling me to render it completely into English from the sources. The counter argument from Laith is a fine piece of literature as well as an excellent presentation of mannerism and respect among classical scholars even when their disagreements are too obvious. Its an extended response and can be found completely in Ailaam al-Muwaqieen of Ibn Qayyim. I would only try to transcribe the salients here in fear of making this entry too prolix.
Laith acknowledges the receipt of Malik’s missive, expresses his gratitude on this effective and sincere advice and explains the reason for opining against Malik’s decisions which are presumptively in complete concordance with practice of Madinites:
You have been informed about my legal opinions contrary to people of Madina. Fact of the matter is that I completely trust the opinions of those who have preceded me. I totally agree with what you have written regarding superiority of knowledge in Madina among cities. All the prior scholars are highly stationed and I have no objection over which their consensus is established.
Among the first of Muhajireen and Ansaar, who are the vanguard of Islam as you wrote, there were many who went away from Madina responding to the call of Jihad. They established their Halaqahs (circles for imparting knowledge) in different cities and people flocked there to learn the Book of Allah and Sunnah of Prophet. They exercised Ijtihad (independant reasoning) and gave decisions where they found no evidence from Quran and Sunnah. Abu Bakr, Umar and Uthman and those who were trusted by people (with rule) carried forward the same practice. These three caliphs were not going to abandon the community of Muslims, neither they were oblivious of their condition (prevailing practices). Rather they used to write regarding minutest of details in relation to religion and were instantly mindful if there were small diversions from the injunctions of Quran and Sunnah. Therefore they have not missed a ruling which was explained by Quran, practiced by the Prophet or discussed later. Whenever a matter came up which has precedence from practice of Companions, they sanctioned it, adopted it and never commanded to act against it. Hence we do not find it permissible for a group of Muslims to adopt a practice which was not practiced by Companions and their students. [I usually translate the word ‘Tabieen‘ as Companions’ students. I dont think second or third ‘generation’ of Muslims is always a right rendition].
However disagreements among the Companions is a certain fact too and they differed with each other in many cases. Let me write to you if you have no knowledge of these matters. After the Companions, their students differed a lot, for instance people like Saeed Ibn Musayyib. These differences continued to next generations and Ibn Shihab and Rabia bin Abdul Rahman are the leaders (leading examples) now a days.
I visited you (in the past), listened and grasped you position. I came to know later (when I met Rabia) that Rabia’s opinion is not in accordance with preceding opinions. His opinions were even against those who were considered people of ra’y (opinion as opposite to tradition in principle) in Madina, for instance Yahya bin Saeed, Ubaidullah bin Umar and Katheer bin Farqad. Finally you abandoned Rabia’s circle due to these differences. I discussed with you my concerns about these opinions (Rabia’s opinions) which I didn’t approve and you agreed. (Despite of that) It is an undeniable fact that Rabia enjoys good language, sound vision, exemplary conduct and love for his Muslim brothers. May Allah reward him abundantly for his efforts. I met Ibn Shihab also and there were many differences with him too. One of us wrote to him (later) and he explained his position from three different angles which is a proof of his well-grounded knowledge.
All these exchanges invited me to abandon which I did not consider to go against before. The underlying fault of my prior refusal was revealed to me as a result.
Laith continues to give examples hereafter regrading his various differences with Malik’s decisions. The first example is of combining two prayers in the night of rain. He reasons that Syria has high rainfall as compared to Madina and scholars of different regions never gave a decision to combine prayers of Maqhrib and Ishaa. He cites precedent from the conduct of Abu Ubaida, Khalid bin Waleed, Yazid bin Abu Sufyan, Abuzar, Saad bin Abi Waqas, Ma’az bin Jabal and many more from different regions. Some of the other examples (that he gives) are regarding decisions in court based on single witness, delaying the dower of women, the issue of Eelaa, Khutaba of Istasqa’a (prayer for rain) and mutual obligation of zakah on busines partners. He ends his letter with prayers for Imam Malik and asks him to continue giving him advices showing him the fallacies in his opinions.
Laith’s argument against practice of Madinites seems sound and unflawed. As shown above in his reasoning, he counters the argument using the practice and opinions of Madinites against themselves. The bottom line of his assertion is that its wrong to bound other regions by practice of Madinities even when there are different practices in Madina itself. The same contention was put differently by Shafii who said that the consensus of Madinite scholars is a prerequisite to any claim of consensus. The pivotal point of Shafii’s disagreement with Malik is again practice as a legal source, however there are few more dimensions to it which I would present in my next entry of this series, insha’Allah.