Maliki

For other uses, see Maliki (disambiguation).

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File:Madhhab Map2.png

The Maliki madhhab (in blue) is predominant in Northern or Sub Africa

The Mālikī (Arabic مالكي) madhhab is one of the four schools of Fiqh or religious law within Sunnī Islam. It is the third-largest of the four schools, followed by approximately 15% of Muslims, mostly in North Africa, West Africa, the United Arab Emirates, and some parts of Saudi Arabia. In the past, it was also followed in parts of Europe under Islamic rule, particularly Islamic Spain and the Emirate of Sicily.

Madhhabs are rites, not sects. They constitute schools of jurisprudence. The other three schools of thought are Shāfi‘ī, Ḥanafī, and Ḥanbalī.

The basis for the School of the City of Light, Medina Munawwarah

Template:Refimprove The Mālikī school derives from the work of Mālik ibn Anas, primarily the Muwaṭṭah and the Mudawwanah. The Muwaṭṭah is a collection of hadiths which are regarded as sound and find their place in al-Bukhārī with some commentary from Mālik regarding the ‘amal "practices" of the people of Medina and where the ‘amal is in compliance with or in variance with the hadiths reported. This is because Imam Mālik (and what would later be the school after his name) regarded the ‘amal of Medina (the first three generations) to be a superior proof of the "living" sunnah than isolated, although sound, hadiths.

The second main source, al-Mudawwanah al-Kubrā, is the collaborator work of Mālik's longtime student, Ibn Qāsim and his mujtahid student, Saḥnūn. The Mudawwanah consists of the notes of Ibn Qāsim from his sessions of learning with Mālik and answers to legal questions raised by Saḥnūn in which Ibn Qāsim quotes from Mālik, and where no notes existed, his own legal reasoning based upon the principles he learned from Mālik. These two books, i.e. the Muwaṭṭah and Mudawwanah, along with other primary books taken from other prominent students of Mālik, would find their way into the Mukhtaṣar Khalīl, which would form the basis for the later Mālikī madhhab.

It differs from the three other schools of law most notably in the sources it uses for derivation of rulings. All four schools use the Qur'an as primary source, followed by the sunnah of Muhammad, transmitted as hadiths. In the Mālikī madhhab, sunnah includes not only what was recorded in hadiths, but the legal rulings of the four rightly guided caliphs (Rāshidūn), primarily ‘Umar ibn al-Khaṭṭāb, ijmā‘ (consensus of the scholars), qiyās (analogy) and ‘urf (local custom which is not in direct conflict with established Islamic principles). The Mālikī school, in addition, relies heavily upon the practice of the salaf people of Medina as a source (composed of the Ṣaḥābah, tābi‘īn, and the older successors, i.e. the best of generations as reported in the authentic hadith). This is because their collective practice, along with the derivative rulings from the salaf scholars, are considered mutawātir, or known and practiced by so many people that it can only be of the sunnah. In other words, the practice of the first three generation of Muslims who resided in Medina, i.e. the salaf or righteous predecessors form the normative practice of the "living sunnah" that was preserved from Muḥammad.

When forced to rely upon conflicting authenticated hadiths to derive a ruling, Mālikīs would then choose the hadith that has a Medinan origin, meaning the transmitter(s) resided in Medina. To summarize, in the Mālikī madhhab the "living sunnah" of the salaf of Medina substantiates the single reported hadith, not the other way around. This is probably what distinguishes the Mālikī madhab the most from the Shāfi‘ī, Ḥanbalī, and Ḥanafī madhāhib respectively.

This source, according to Mālik, sometimes supersedes hadith, because the practice of the people of Medina was considered "living sunnah," in as much as Muhammad migrated there, lived there and died there, and most of his companions lived there during his life and after his death. The result is what would appear to be a much more limited reliance upon ṣaḥīḥ hadiths than is found in other schools, but in actuality, serves to strengthen hadiths related to actual practice.

Mālik was particularly scrupulous about authenticating his sources when he did appeal to them, however, and his comparatively small collection of aḥādith, known as al-Muwaṭṭah "The Approved", is highly regarded. Mālik is said to have explained the title as follows: "I showed my book to seventy jurists of Medina, and every single one of them approved me for it, so I named it "The Approved".

Mālik, Imam of the abode of Hijrah

Template:Refimprove Mālik was once sentenced to a lashing by the governor of Medina, the cousin of Caliph Abū Ja‘far al-Manṣūr for narrating a hadith to the effect that a divorce obtained under coercion was invalid. The hadith in question had momentous political implications, because it supported those who argued that the caliph's authority was similarly invalid - because it, too, had been secured by means of coercion.

Eventually, Mālik was paraded through the streets in disgrace and ordered to insult himself publicly. He is reported to have said:

Whoever knows me, knows me; whoever does not know me, my name is Mālik ibn Anas, and I say: The divorce of the coerced is null and void!

When the incident was reported to al-Manṣūr, Mālik was ordered released, and his cousin was punished.

Notable Differences in prayer from other madhabs

Template:Refimprove There are slight differences in the preferred methods of ṣalāt, or prayer, in the Māliki school.

• Qiyām (the standing position in prayer) - The dominant (mashhūr) position is to leave the hands to dangle at one's sides during prayer. It has erroneously been ascribe that the reason was Imam Mālik prayed this way because his arms were dislocated due to the public lashing he received as mentioned above. The actual reason for this practice, i.e. sadl, being the dominant position in the school was when Saḥnūn asked Ibn Qāsim about the hadith of placing the right hand over the left mentioned in the Muwaṭṭah, Ibn Qāsim quoted Imam Mālik as saying, 'I do not know of this practice (i.e. qabḍ) in the obligatory prayer (i.e., I did not see the people of Medina practicing this), however it is allowed in the supererogatory prayers if the standing has been prolonged'. The common Sunnī practice of joining the hands beneath the chest (or below the naval as is the case with the Hanafi madhhab) right hand over left, does not invalidate the prayer, since leaving the hands down is a recommended act (while placing them together is regarded as offensive in the obligatory prayer, except for those who regard doing so to be sunnah). It should be noted that several famous Māliki scholars, including Qāḍī ‘Iyāḍ and Ibn ‘Abd al-Barr, were of the dominant Sunni opinion that the hands should in fact be placed together, as other Sunnis do).
• Looking straight ahead at eye-level (i.e. literally "facing" the Ka‘bah) during the standing and sitting parts of the prayer, rather than looking down towards the place of prostration (there is disagreement on this point, with many famous Mālikī scholars holding that one should look at the place of prostration, however, these are minor points related to concentration and humility before Allah).
• Not reciting any supplications before the Fātiḥah in obligatory prayers (the Bismillah, reciting "in the name of Allah, the most Gracious, the most Merciful" before the Fātiḥah.).
• Tashahhud - Turning the right-handed fist onto its side (so that the smallest finger is touching the thigh) and the right index finger is moved from side to side.
• Taslīm - Saying the ending taslīm only once ("al-salāmu ‘alaykum" while turning the head to the right); In other madhhabs it is common to say the taslīm twice, once to your right shoulder and once to the left.
• Qunūt is to be recited only in the morning prayer.

Notable Mālikīs

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• Mālik ibn Anas (714-796), Sunnī jurist
• Saḥnūn ibn Sa‘īd (AH 160/776-7 - AH 240/854-5), Sunnī jurist and author of the Mudawwanah, one of the most important works in Mālikī law
• ‘Abd Allāh ibn Abī Zayd al-Qayrawānī (310/922-386/996), Sunnī jurist and author of the Risālah, a standard work in Mālikī law
• Ibn ‘Abd al-Barr (978–1071), Andalusian scholar
• Yūsuf ibn Tāshfīn (1061-1106), one of the prominent leaders of the Almoravid dynasty
• Ibn Rushd (Averroes) (1126-1198), philosopher and scholar
• al-Qurṭubī (1214-1273)
• Muḥammad I ibn Yūsuf ibn Naṣr ibn al-Aḥmar, ruler of Granada (1237–1273)
• Shihāb al-Dīn al-Qarāfī (1228–1285), Moroccan jurist and author who lived in Egypt
• Khalīl ibn Isḥāq al-Jundī (d. ca. 1365), Egyptian jurist, author of al-Mukhtaṣar
• Ibn Baṭṭūtah (February 24, 1304-1377), explorer
• Ibn Khaldūn (1332/AH 732-1406/AH 808), scholar, historian and author of the Muqaddimah
• Usman dan Fodio (1754-1817), founder of the Sokoto Caliphate
• ‘Umar al-Mukhtār (1862–1931), Libyan resistance leader
• Shaykh Aḥmad ibn Muṣṭafá al-‘Alawī (1869–1934), Algerian Sufi leader
• Sīdī ‘Umar Farūq ‘Abd Allāh
• Muḥammad ‘Alawī al-Mālikī (1947–2004), scholar
• Shaykh Abdalqadir as-Sufi
• Timothy Winter
• Hamza Yusuf
• Sherman Jackson

Influence on English common law

See also: Sharia and Fiqh

Since the publication of legal scholar John Makdisi's "The Islamic Origins of the Common Law" in the North Carolina Law Review in 1999, there has been controversy over whether English common law was inspired by medieval Islamic law. It has been suggested by several scholars such as Professor John Makdisi, Jamila Hussain, and Lawrence Rosen that several fundamental English common law institutions may have been derived or adapted from similar legal institutions in Islamic law and jurisprudence, and introduced to England after the Norman conquest of England by the Normans, who conquered and inherited the Islamic legal administration of the Emirate of Sicily (see Arab-Norman culture), and "through the close connection between the Norman kingdoms of Roger II in Sicily — ruling over a conquered Islamic administration — and Henry II in England." and also by Crusaders during the Crusades. The connection with Norman law in Normandy may be real, but it should be remembered that common law owes a great deal to Anglo-Saxon traditions and forms, and in its current form represents an interplay between the two systems.

According to Makdisi, the "royal English contract protected by the action of debt is identified with the Islamic Aqd, the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic Lafif" in classical Maliki jurisprudence. The Islamic Hawala institution also influenced the development of the agency institution in English common law. Other English legal institutions such as "the scholastic method, the license to teach," the "law schools known as Inns of Court in England and Madrasas in Islam" may have also originated from Islamic law. These influences have led Makdisi to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".

The Waqf in Islamic law, which developed during the 7th-9th centuries, bears a notable resemblance to the trusts in the English trust law. For example, every Waqf was required to have a waqif (founder), mutawillis (trustee), qadi (judge) and beneficiaries. Under both a Waqf and a trust, "property is reserved, and its usufruct appropriated, for the benefit of specific individuals, or for a general charitable purpose; the corpus becomes inalienable; estates for life in favor of successive beneficiaries can be created" and "without regard to the law of inheritance or the rights of the heirs; and continuity is secured by the successive appointment of trustees or mutawillis." The trust law developed in England at the time of the Crusades, during the 12th and 13th centuries, was introduced by Crusaders who may have been influenced by the Waqf institutions they came across in the Middle East. Dr. Paul Brand also notes parallels between the Waqf and the trusts used to establish Merton College by Walter de Merton, who had connections with the Knights Templar. Brand also points out, however, that the Knights Templar were primarily concerned with fighting the Muslims rather than learning from them, making it less likely that they had knowledge of Muslim legal institutions. The introduction of the trust, or "use" was primarily motivated by the need to avoid medieval inheritance taxes. By transferring legal title to a third party, there was no need to pay feudal dues on the death of the father. In those times, it was common for an underage child to lose many of his rights to his feudal overlord if he succeeded before he came of age.

The precursor to the English jury trial was the Lafif trial in classical Maliki jurisprudence, which was developed between the 8th and 11th centuries in North Africa and Islamic Sicily, and shares a number of similarities with the later jury trials in English common law. Like the English jury, the Islamic Lafif was a body of twelve members drawn from the neighbourhood and sworn to tell the truth, who were bound to give a unanimous verdict, about matters "which they had personally seen or heard, binding on the judge, to settle the truth concerning facts in a case, between ordinary people, and obtained as of right by the plaintiff." The only characteristic of the English jury which the Islamic Lafif lacked was the "judicial writ directing the jury to be summoned and directing the bailiff to hear its recognition." According to Professor John Makdisi, "no other institution in any legal institution studied to date shares all of these characteristics with the English jury." It is thus likely that the concept of the Lafif may have been introduced to England by the Normans and then evolved into the modern English jury. However, the hearing of trials before a body of citizens may have existed in courts before the Norman conquest.

The precursor to the English assize of novel disseisin was the Islamic istiḥqāq, an action "for the recovery of usurped land", in contrast to the previous Roman law which "emphasized possession in resolving such disputes." The "assize of novel disseisin broke with this tradition and emphasized ownership, as is found in the Islamic law of Istihqaq." Islamic law also introduced the notion of allowing an accused suspect or defendant to have an agent or lawyer, known as a wakil, handle his/her defense. This was in contrast to early English common law, which "used lawyers to prosecute but the accused were left to handle their defense themselves." The English Parliament did not allow those accused of treason the right to retain lawyers until 1695, and for those accused of other felonies until 1836.

See also

• List of Islamic scholars
• Sunni view of the Sahaba
• Islamic schools and branches

References

• Makdisi, John A. (June 1999). "The Islamic Origins of the Common Law". North Carolina Law Review 77 (5): 1635–1739. 

External links

• Biography of Imam Malik
• Translation of Mālik's Muwaṭṭah
• Aisha Bewley's homepage - includes translations of a variety of important Mālikī source texts
• Biographical summary of Imam Mālik
• The Issue of Qabd, Sadl and Irsal According to the Maliki Scholars