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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

314 MĀLIK'S REASONING

consistencies, as in Muw. ii. 299 where he gives partial expression to a religious scruple,¹ and in Muw. iii. 110 where he makes an inconsistent concession to the practice; Mālik states in both cases that this is his personal opinion (raʾy).² In many cases, however, Mālik’s raʾy is nothing but strict analogy and broader systematic reasoning.³ There are a fair number of cases where Mālik’s technical legal thought shows itself sound and consistent, to a higher degree than Shāfiʿī’s sustained polemics in Tr. III would lead one to expect.

Muw. ii. 68: See above, p. 313.

Muw. iii. 9: Mālik, in adopting the analogical reasoning of the Iraqians, starts consistently from his own, materially different, premiss (above, p. 108).
Muw. iii. 183 and Tr. III, 148 (p. 248): Mālik gives a strictly consistent systematic argument, basing himself, with regard to a point of detail, on the minimum of doctrine common to him and to his opponents; Shāfiʿī therefore charges him with ascribing to his opponents an opinion which they do not hold; Rabīʿ suggests that Mālik may have slipped, only to attract Shāfiʿī’s indignant sarcasm; but Ibn ʿAbdallāh (quoted in Zurqānī, iii. 184) explains it correctly as an argument a potiori of Mālik.
Mud. i. 5: Mālik and Rabīʿ (Tr. III, 31) in their arguments both take the necessities of practice into account, but Mālik’s argument is more consistent than that of Rabīʿ and less open to Shāfiʿī’s objections.

On the whole, however, Mālik is distinguished not by the originality of his legal thought, but by his success in steering a middle course through the opinions of the Medinese, an average quality which made him the obvious choice for the head of the Mālikī school into which the ancient school of Medina developed.⁴

¹ See above, p. 67. ² See further above, p. 118 f.
³ See above, pp. 115, 117.
⁴ The average legal thought of Mālik’s Medinese contemporaries should be judged by Ibn Qāsim (in Mud., passim) rather than by Rabīʿ (in Tr. III). Whenever Rabīʿ gives reasoning of his own, he almost invariably shows himself incompetent.

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