The Fifth Source: The Practice of the People of Madina
Malik, may Allah be pleased with him, considered the practice of the people of Madina to be a legal source on which he relied in his fatwas. That is why he often said, after mentioning the traditions and hadith, “the way of doing things generally agreed-on among us.” Sometimes, when no text or other authority existed, Malik used the practice of the people of Madina as an evidence to be relied on absolutely. His previously mentioned letter to al-Layth ibn Sa’d shows the great extent to which he relied on it and his objection to those who followed anything other than the practice of the People of Madina.
“I have been informed that you give people fatwas which are contrary to what is done by our community and in our city. You are Imam and have importance and position with the people of your city and they need you and rely on what they get from you. Therefore you ought to fear for yourself and follow that whose pursuit you hope will bring you salvation. Allah Almighty says in His Mighty Book, ‘The outstrippers, the first of the Muhajirun and the Ansar.’ (9:100) Allah Almighty further says, ‘So give good news to My slaves, those who listen well to what is said and then follow the best of it.’ (39:18) It is essential to follow the People of Madina in which the Qur’an was revealed…”
In this he clearly stated that the Practice of the People of Madina cannot validly be opposed and that people should follow it. Then after that he clarifies the evidence which moved him to follow this course:
“The basis of this proof is that the Qur’an contains laws and the fiqh of Islam was revealed there and its people were the first who were made responsible for it, encharged with the command and prohibition and who answered the caller of Allah in what he commanded and established the buttress of the Deen. Then after the Prophet, may Allah bless him and grant him peace, among them lived the people of his community who most followed him: Abu Bakr, ‘Umar and then ‘Uthman. They implemented his Sunna after investigating it and studying it while it was still fresh. Then the Followers after them followed those paths and they followed those sunan. Madina had inherited the knowledge of the Sunna and the fiqh of Islam in the time of the Followers of the Followers. That is the time in which Malik saw it. The business there was clear and acted on it and no one is permitted to oppose it because of that inheritance in their hands which none is allowed to plagarise or lay claim to.”
This is Malik’s evidence regarding his use of the Practice of the People of Madina as proof and that in some cases he advanced the Practice of the People of Madina over single traditions for the reason which he mentioned. It is that the famous opinion which is acted upon in Madina in the famous transmitted sunna and the famous sunna is advanced over single traditions.
It is clear that Malik was not the first person to use the practice of the people of Madina as an authoritative evidence. Malik’s shaykh, Rabi’a, mentioned the method and said, “A thousand from a thousand is better than one from one.” Malik said, “The learned men among the Followers quoted hadiths which had been conveyed to them from others and they said, ‘We are not ignorant of this, but the common practice is different.'”
He also said, “I saw Muhammad ibn Abi Bakr ibn ‘Amr ibn Hazm who was a qadi. His brother ‘Abdullah knew many hadiths and was a truthful man. When Muhammad gave a judgement and there was a hadith contrary to it, I heard ‘Abdullah criticise him, saying, ‘Isn’t there a hadith which says such and such? ‘Yes,’ he replied. ‘Then what is the matter with you? Why don’t you give judgement by it?’ asked his brother. ‘Where are the people in respect to it?’ replied Muhammad, meaning ‘what is the consensus of action on it in Madina?’ He meant that the practice outweighs the hadith in that instance.” (Madarik, p. 38)
So it can be seen that Malik, may Allah be pleased with him, did not originate that method. Rather he travelled a path which others among the Followers and the people of knowledge before him had followed. He became renowned for it, however, because of the great number of fatwas he was asked for and because some of his fatwas were contrary to hadiths which he also related. He became the most famous of those who accepted the practice of the people of Madina as an authoritative source and so the method was ascribed to him; but the truth is that in that respect he was a follower, not an originator.
We see that in the statements which were transmitted from him or the letters which Malik wrote, he stated that what the community of the people of knowledge had in Madina amounted to evidence which had to be accepted for the reasons which we mentioned, and that if a single tradition was contrary to the practice of Madina, he rejected the tradition and accepted their knowledge since it was transmitted from the Prophet, may Allah bless him and grant him peace, in a more reliable transmission and truer account. The examples transmitted from Malik in general contain the practices of the people of Madina which cannot be known except by reliance, like the adhan, the mudd of the Prophet and other things. Included within the practice of the people of Madina is that which can derive from ijtihad and deduction whose method is like some decisions and the judgements of behaviour between people.
It is evident that the Malikis after Malik did not agree on that generalisation, but made a distinction between his method of reliance and transmission and his method of ijtihad and deduction. Their books state that the opinion of Malik was that their practice was only in that whose method is reliance. Al-Qarafi said, “Malik considered the consensus of the people of Madina as authoritative in that whose path was reliance as opposed to the rest. This is shown by the words of the Prophet: ‘Madina expels people like the blacksmith’s bellows expels the dross of iron.’ Error is dross and so it must be expelled. That is also because their disagreement was transmitted from their ancestors and by sons from their fathers, and thus the tradition leaves the realm of uncertainty and supposition for certainty. Some of the Companions said that their consensus was absolutely authoritative and that it was evidence in their practice, not in a transmission which they transmitted. The first evidence indicates this generalisation rather than the second. They argued by the words of the Prophet, peace be upon him, ‘My community will not agree on an error.’ It is understood that some of the community are permitted to err and the people of Madina are part of the community. The response is that what is articulated by the positive hadith is stronger than what is understood from the negative hadith.” (Tanqih, p. 146)
We see from this that Malik said that their consensus was authoritative in that on which he relies while some of his people said that their consensus was absolutely a proof, which is the literal meaning of the words of Malik. Then the proof of those who considered that their consensus is absolutely authoritative was the hadith, “Madina expels people like the blacksmith’s bellows expels the dross of iron.” Its wording conveys the expulsion of every dross, and error is dross and thus error is not joined to the people of Madina. The evidence of those who distinguished between that which comes by way of reliance and that which was by ijtihad, is that which comes by way of reliance is a a mutawatir transmission, and that which comes through ijtihad is deduction in which error is possible. Misguidance in ijtihad is only denied in the community as a whole. It is possible that some of them may agree on error. That is understood from his words, “My community will not agree on misguidance.” Al-Qarafi preferred the opinion of those who considered the Practice of the People of Madina to be authoritative based on the wording in the hadith, “Madina expels its dross…” and others argued by the hadith, “My community will not agree…” and when the wording and the meaning conflict, it is agreed that the evidence of the wording is preferred.
It appears that the first part of the consensus of the people of Madina, which is that which has no path except that of reliance, must be taken as authoritative when there is consensus among the scholars because it is mutawatir transmission, or at least famous and exhaustive. Qadi Iyad clarified that and said about it:
The consensus of the people of Madina is of two types: one type by way of transmission, and this type is divided into four categories:
- What is transmitted from the Prophet, may Allah bless him and grant him peace, in the form of words like the adhan, iqama and not saying the basmala aloud in the prayer. They transmitted these things from his words.
- His action, like the description of the prayer, the number of its rak’ats, its sajdas and the like of that.
- The transmission of his affirmation of what he saw from them when his disapproval was not transmitted from him.
- The transmission of his leaving things which he saw them doing and judgements which he did not oblige on them although they were well-known among them, like his not taking zakat on vegetables although he knew that they were numerous among them. This type of their consensus in these aspects is a proof which must result, and whatever is contrary to it in the form of single tradition or analogy is abandoned since this transmission is verified and known and must therefore be definitive knowledge which is not abandoned for what probability demands. This is what Abu Yusuf and other opponents of those who debated with Malik and other people of Madina referred to in the question of waqfs, the mudd and sa’ until he noted the transmission and verified it. It is not permitted for a fair person to debate such evidence, and this which Malik has from most of our shaykhs, and there is no disagreement about the validity of this method and that is proof among the intelligent. He was opposed in those questions by other than the people of Madina to whom that transmission had not reached. There is no disagreement in this. As-Sayrafi and other people of ash-Shafi’i agree with him as al-Ahmadi reported from him. Some of the Shafi’ites disagreed out of sheer obstinacy. (Madarik, p. 41)
The fact is that, even if the Malikis are famous for that opinion, others share with them in it or follow them in it, and we must examine those to discover their opinion. The first of them was ash-Shafi’i himself. He respected their consensus when they agreed because in his view they do not agree on something unless that is the subject of consensus. The place of disagreement between him and his shaykh and the Malikis was in one thing: the validity of those who claimed consensus. His opposition to it was about the validity of the claim.
We find that in I’lam al-Muwaqqi’in that Ibn al-Qayyim divides the Practice of the People of Madina whose basis is transmission into three categories: the first of them is transmission of Shari’a directly from the Prophet, the second is transmission connected to action, and the third is transmission of places, individuals and measures of things.
The first category is the transmission of the Shari’a directly. It is what Qadi ‘Iyad mentioned the examples and categories he mentions. The second category is the transmission of continuous action, which is like the transmission of the waqf, sharecropping, the adhan from elevated places, making its phrases double and those of the iqama single.
As for the transmission of places and individuals, it is like their transmission of the sa’ and the mudd, specification of the place of the minbar and its position for the prayer, and the specification of the Rawda, al-Baqi’ and the Musalla. This is transmission, like places of practices, like Safa and Marwa and Mina, and the sites of the Jamrat and Muzdalifa, ‘Arafa and the places for assuming ihram, like Dhu’l-Hulayfa and elsewhere. After mentioning and clarifying these categories, Ibn al-Qayyim mentioned that such transmission is respected and used as evidence. He said, “This transmission and this action are a proof which must be followed and a sunna which is gladly accepted. When the scholar obtains that, he is happy and his soul at peace with it. (I’lam, pt. 2, p. 304)
It is clear from these words that Malik accepted the consensus of the people of Madina when the source of consensus was transmission which cannot be criticised. Indeed, scholars accept it: it is mutawatir transmission. So it is not rejected in favour of a single tradition or analogy, as we will make clear. As for the practice of the people of Madina whose basis is deduction, transmission in it varies from Malik. Some Malikis express three opinions about it:
1. It is not an authoritative proof at all. The proof is the consensus of the people of Madina is by way of transmission and no ijtihad is preferred over the other. This is the position of Abu Bakr al-Abhari. He and those who took that position said that arguing by it is a position of Malik or one of his reliable companions, i.e. that is far from the Maliki school. We indicated that opinion when we quoted from al-Qarafi.
2. It is not an authoritative proof, but their ijtihad is preferred over the ijtihad of others, and some Malikis and some Shafi’is accepted that.
3. Their consensus by way of ijtihad is an authoritative proof. This is the school of some Malikis. They said that it is the opinion of Malik and his expression in his letter to al-Layth which we quoted indicated this is the course followed by those who take this position, and most of the Maghribis among the followers of Malik accept this position and follow this method. The context of al-Qarafi, as we will make clear, indicates its preference or at least the absence of considering it weak.
This is the practice of the people of Madina and the strength of the evidence by it when it is transmission or ijtihad, and there is no disagreement between the Malikis that when the basis of their action is transmission, that it is an authoritative source. Indeed the method of others is the same in that. When its basis is ijtihad, they disagree about it. Most of the Malikis considered it evidence as al-Qarafi mentioned.
We have not discussed the details of the Practice of the People of Madina when it conflicts with a single tradition.
The details of the position in it is that if the basis of the consensus of the people of Madina is transmission, it is preferred over the single tradition because it is mutawatir transmission and the single report does not oppose the mutawatir because it is probable while the mutawatir is definitive. This is not disputed among the Malikis.
When the basis of the Practice of the People of Madina or their consensus is ijtihad, then the tradition is more appropriate according to most of the Malikis although some of them state that consensus can be by way of ijtihad and that the consensus of Madina, whatever its origin, is an authoritative proof which weakens the single tradition. However that statement must be examined if we admit that it is possible that consensus be transmitted when the basis of consensus is analogy or opinion because it is distinguished by contradiction and disparate different views. So all the views are one view without a text: something which is the place of investigation, indeed a place of doubt.
If we admit the existence of the consensus of the fuqaha’ of Madina is based on deduction by opinion, and it is favoured over the text, how can deduction whose source is unknown be favoured over the text? This opinion, even if it is the consensus of a group of the community, does not stand before the tradition.
There is a distinction between this consensus whose existence is uncertain and their consensus on something transmitted. The first consensus is logically similar. If it occurs, tawatur transmission is advanced in deduction over the single report which is probable.
“It is known that the practice after the end of the time of the Rightly-guided khalifs and Companions in Madina was according to the muftis, amirs and market inspectors among them. The rabble did not differ from those people. When the muftis gave fatwas on a matter, the governor and inspector carried it out and it became practice. This is that which is not considered when it opposes the sunan. It is not the action of the Messenger of Allah, may Allah bless him and grant him peace, and his khalifs and Companions: that is the Sunna. So one is not confused with the other. We are strongest in making this the arbiter, but when the other practice opposes the Sunna, we are stronger in leaving it, and success is by Allah. Rabi’a ibn Abi ‘Abdu’r-Rahman used to give fatwa and Sulayman ibn Bilal the market-inspector carried out his fatwa and the rabble acted by the fatwa and the implementation, as practice appears in a town or region in which there is only the statement of Malik according to his position and fatwa and they do not permit action there by the position of other Imams of Islam. If anyone acts otherwise, they are severe in objecting to him.” (I’lam, pt. 2, p. 307.)
He ends his statement about this with a clarification that every practice agreed-on whose basis was transmission is not opposed to sound sunna and every action whose basis is ijtihad is not preferred over a sunna at all. He says:
“It is affirmed that every action contrary to the sound sunna does not occur from the path of transmission at all. It occurs by way of ijtihad, and every action whose path is transmission is not opposed to a sound sunna at all.” (I’lam, pt. 2, p. 308.)
We clarified the the practice of the people of Madina according to Malik, and we distinguished that practice and mentioned the position of that scholarly method in the principles of deduction of the Malikis and others. We clarified how the opponents were forced to agree with the Malikis in some of the consensus which the people of Madina especially possessed whose basis was transmission and we mentioned that when the practice of the People of Madina is based on ijtihad, it is a place of dispute even among the Malikis themselves and it is open to investigation.
We must state that when Malik used ‘the matter agreed on’ in his land as evidence, he did not confine himself to matters which were only known by reliance. He mentioned that regarding matters in which opinion has scope. He accepted their position in them because he avoided deviation as much as possible and his statement in his letter to al-Layth attests to that general application as we mentioned about that. Al-Layth’s reply shows that they were questions in which opinion had scope. But did Malik give priority to the consensus of the people of Madina over the tradition when it was a single tradition?
You know that he analysed the hadiths with great penetration to seek out their sunan and that he compared them with the general principles and confirmed firm principles whose sources interconnect to establish them. Perhaps after this study of the hadiths and in the light of what he saw done and transmitted from the Followers and the Companions before them, he found some traditions weak and that the basis from the beginning was opinion and he accepted it because he disliked the gharib since he saw deviation in it.
Selection of books to understand the Maliki school:
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The Four Imams Their Lives, Works and Their Schools of Thought:
The Four Imams and Their Schools: Abu Hanifa, Malik, Al-Shafi’i, Ahmad:
Malik and Medina: Islamic Legal Reasoning in the Formative Period:
The Madinan Way: The Soundness of the Basic Premises of the People of Madina:
The Origins of Islamic Law: The Qur’an, the Muwatta’ and Madinan Amal:
The Origins of Islamic Law ; The Qur’an, the Muwatta and Madinan ‘Amal :