CHAPTER 5

MALIK'S REASONING

The date of Mālik's death lies almost exactly half-way between the dates of the deaths of Abū Yūsuf and of Shaibānī, but Mālik's technical legal thought is considerably less developed than that of his Iraqian contemporaries.¹ Mālik's reasoning, on the whole, is comparable to that of Auzāʿī,² particularly in the dependence of both on the practice, the "living tradition", the consensus of the scholars, rather than on systematic thought. The accepted doctrine of the Medinese school itself, of course, is to a great extent founded on individual reasoning (raʾy), as we have seen in the first part of this book.³ In combining extensive use of raʾy with dependence on the "living tradition", Mālik seems typical of the Medinese. We shall confine ourselves in this chapter to instances of technical legal thought which can with some certainty be considered as the personal effort of Mālik himself.

Mālik's systematic reasoning appears often as the secondary, retrospective justification of the "living tradition" which he accepts. A typical example is Muw. iii. 182 ff. where Mālik upholds the Medinese doctrine that evidence given by one witness and confirmed by the oath of the plaintiff constitutes legal proof.⁴ Mālik establishes the sunna or "living tradition" in favour of this doctrine, adds systematic reasoning because "one wishes to understand", and concludes: "the sunna is proof enough, but one also wants to know the reason, and this is it." Mālik's reasoning in detail is as follows: he first establishes that this provision applies only to lawsuits concerning property, thereby obviating possible objections; he points out other instances of apparent lack of consistency in the law of evidence; he shows that the Koranic passage (Sura ii. 282) which prescribes two male witnesses is not comprehensive; the oath of the