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Origins of Muḥammadan jurisprudence

Origins of Muhammadan Jurisprudence

جوزيف شاخت - 1389 AH

Publisher

Oxford At The Clarendon Press

Publication Year

1950 AH

Genres
Principles of Islamic Jurisprudence
history of legislation
•
Regions
Germany

312 MĀLIK'S REASONING

defendant, for instance, and the refusal of the plaintiff to take the oath in support of his claim, are generally recognized as evidence although they are not mentioned in the Koran. All this anticipates the essential part of Shāfiʿī’s systematic argument in Ikh. 345 ff.

Another significant example occurs in Muw. iii. 102 where Mālik does his best to justify by systematic parallels a highly irregular kind of barter, the so-called ‘sale of ʿarāyā’. This transaction was obviously customary in ancient Arabia, but seems

to have been already obsolete in the time of Mālik, because there existed at least two divergent opinions on its nature.¹ Not content with relying on the ‘living tradition’ or on formal traditions from the Prophet which he quoted, Mālik adduced
some weak systematic parallels.² It is not surprising that Mālik did not succeed in systematizing it; Shāfiʿī, who blamed him for his inconsistency, was no more successful and was forced to fall back on a tradition.

The same feature appears in a long quotation from Mālik in Mud. iv. 54, on the question whether a man married to a free woman may conclude an additional marriage to a slave woman. Mālik defers to the opinion of earlier scholars, such as Ibn Musayyib and others, and to traditions from Companions of the

Prophet, against his own judgment which he had based on Koran iv. 25. Mālik had changed his opinion, and systematic reasoning is noticeable both in the earlier and in the later stage. He finds arguments in favour both of his earlier and of his later doctrine in the Koran, and even justifies his later decision against the upholders of his former one by a very weak and far-fetched interpretation of the same Koranic passage. The whole shows Mālik’s tendency to consistent systematic reasoning secondary to and checked by his dependence on the ‘living
tradition’.

In the majority of cases, we find Mālik’s reasoning inspired by material considerations, by practical expediency, and by the tendency to Islamicize.

Muw. i. 108: there exist two seemingly contradictory traditions; the logical distinction between the cases envisaged by both, as

¹ Mālik’s own interpretation is given in Muw. Shaib. 327, another interpretation in Ikh. 327; see further Zurqānī and Comm. Muw. Shaib.

² In Mud. x. 91, Mālik added a material, moral consideration.

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