The Mālikis after Mukhtaṣar Khalīl

Author: Shaykh Zuhayr Qazzan

In the field of Islamic jurisprudence, the Māliki school didn’t start as a truffle; rather it was like a tree whose roots kept diving into the deeper world of Islamic knowledge. This has been the case since the establishment of the school’s foundation in the hands of the Prophet ﷺ. Such happened as the Prophet ﷺ migrated to Yathrib, and so the place became the abode of Islam (dār al-islām) and the land of safety and security (mawtin al-amān). The Islamic society was born, and various matters arose continuously. Newer issues kept coming up, and Muslims were much in need of discussion and solution from the Rule of Allāh on those. 

The Prophet ﷺ was the prime responsible for channeling the Muslim matters in the way of the Divine Revelation. He took charge of the Muslim conditions and interactions in life. The actions of the Prophet ﷺ in his life was the source of understanding the Divine methodology. The Muslims traveled to Madīna to drink from the lively spring of the Prophethood. They then returned to their homelands to convey every benefit they obtained from the Messenger of Allāh ﷺ. 

But few others chose to remain with the Beloved Mustafa ﷺ. They lived with him, thus attained different levels in understanding the way of the Prophet ﷺ. They saw the backgrounds for the revelation of different Quranic verses and the narrations of hadith. Their souls filled with the actuality of the Divine Shariah and its desired matter. Because of this Abū Bakr al-Ṣiddīq (raḍī Allāhu ʿanhu), during his Caliphate, gathered those companions for judgements of newer issues. ʿUmar ibn al Khaṭṭāb (raḍī Allāhu ʿanhu) forbade them to leave Madīnah. They held steadfast to the responsibility of propagation and safety of the Sharīʿa in its desired form.

The fruit of these companions’ efforts was experienced in their students. Their students inherited their methodology, and such was exemplified by the Seven Legal Scholars (al-fuqaha al-sabʿa). Afterwards, the knowledge of the Madīnan jurists converged to Mālik ibn Anas (raḥimahu Allāh). Mālik settled on their juristic views, determined their way of ijtihād, categorized their principles, and polished their results of jurisprudence.
Mālik stood out for his sheer brilliance and reputation for knowledge and asceticism. He had an amazing following and subscription around the corners of the world. People all around the Islamic world tightened their camels to travel to meet him even during his lifetime. But, a person would hear an answer to a question from one of his students. Sometimes, another person would hear a different answer to the same question. The latter so happened as the Imam would change his opinion on that or for other reasons. 

After the Imam, his disciples spread out living in different areas — Madīna, Egypt, ʿIrāq, Maghrib. The wheel of Islamic jurisprudence centers around the extraction of Shariah rulings (istinbāṭ al-aḥkām al-sharʿiyya). Mālik’s students differed much in opinions while extracting the rulings. Their sayings are then considered “views” in the School in matters where no view was found from Mālik. Even if their views differed from their teacher (Mālik), their views were still considered a part of the School. It was because those views were founded upon Mālik’s principles and methodologies, even though some reached views that were different from that of their Shaykh, Mālik himself. 

As the age of “Extractors” (al-mukhrijūn) came about, their extractions of rulings in the School inevitably gave birth to different results. Also, their analogical reasoning on stipulated matters (al-masāʾil al-manṣūṣ ʿalayha) were unavoidably different to each other. They differed on finding the basis (al-maṣāliḥ) on which juristic opinions were to be given. Thus, the Māliki School started having different views and opinions based on Mālik’s principles themselves. 

The Sub-Schools of Māliki jurisprudence formed a result; the famous of which were the Madīnans, the Egyptians, the ʿIrāqis, and the Maghribīs. Each Sub-School had their own methodologies in researching the relied upon narrations from the School of Imam Mālik, extracting rulings, and categorizing principles. The books contained rulings based on those several opinions and opposing views. It was a hard task for a jurist (muftī) or a judge (qāḍī) to work based on a specific methodology. So, the necessity of determining the basis of juristic opinion and judgement was felt for a firm knowledge ground for the Māliki School.

Nābigha al-Ghallāwī al-Shanqīṭī tells how the scholars went about the canons for juristic opinions and judgement in this text:

“Fatwā is allowed based upon what there is consensus on within the school (muttafaq ʿalayhi), followed by opinions whose proof is strong (al-rājiḥ).
After that, the widespread opinion (al-mashhūr), followed by an opinion where the strength of it has an equal rank with other opinions (al-mutasāwī).

They gave preference to what the Maghribis declared as the most widespread opinion (al-mashhūr), while the sun doesn’t set in the East.”

The Māliki School then entered a new phase, which is known as the age of giving preference (al-tarjīḥ). Scholars expert in “preference” (al-tarjīḥ) came to the stage. Their literary works on the school focused on the preferred view (al-qawl al-rājiḥ) over other views. 

Still, a need for a work that briefly gathers both the “preferred” (al-rājiḥ) and the “widespread” (al-mashhūr) was left. Mukhtaṣar Khalīl came to the scene to fill this gap up for the Mālikis. This book presents that by which the juristic opinion (al-fatwā) is given. This is because Mukhtaṣar Khalīl bases the most preferred view (al-arjaḥ) and then to the next most preferred view among different views. The preferred view (al-rājiḥ) is the one whose evidence (dalīl) is stronger (mā qawiya dalīluhu). If the evidence equals each other, and there is no room for preference (al-tarjīh), Khalīl says: “there are two opinions here” (fī al-masʾala qawlān). In the same way, Khalīl presents the most “widespread” view (al-ashhar) and then the next most “widespread” one. If both views are equal in being widespread, Khalīl says: “there is a disagreement in this issue” (fī al-masʾala khilāf). 

This narrative entered the School to take the School’s internal deductive jurisprudence (al-fiqh al-nadharī) to the peak of development. It emphasized partnership between the scholars of the East and the West. Like, the Eastern scholars took the chosen views, preferred views, comprehension, and opinions of the Western scholars, which is profoundly expressed in Mukhtaṣar Khalīl. Even though Khalīl himself was an Egyptian, the Western Māliki scholars officially held to his Mukhtaṣar and utilized the Egyptian commentaries of the book. This interaction strongly caused the fusion of the Eastern and Western Māliki Sub–Schools in a single cupel, thus the School rose amazingly to the axis in deductive jurisprudence (al-fiqh al-naẓarī).

However, at this stage, the development of Māliki School and its strong consideration for the matters of the Muslims faced the challenge of “inactivity” (jumūd). Therefore, a complete development was not at the scene yet. Ijtihād in the School did not reach applied jurisprudence (al-fiqh al-taṭbīqī), since “development” is considered when it is experienced in both deductive (al-fiqh al-naẓarī) and applied jurisprudence (al-fiqh al-taṭbīqī). 

For this abrupt problem, it is possible that I may propose the arrival of another Sub-School after the older Sub-Schools. This very Sub-School will not discuss the maxims of methodology for preference (at-tarjīḥ) between opinions, nor will it discuss academic rulings only. Rather, it will discuss the effect of place, time, or occasion for going out of what the juristic opinion is on (al-khurūj ʿan mā bihī al-fatwā), also the conditions that will allow the jurist to consider actions based on weak or rare opinion. This may be called “pragmatism”. It will also discuss the methodology of providing juristic opinion, the way of how to deal with new matters (takyīf al-mustajiddāt), and the extraction of rulings for that. 

The map of spreading of the Māliki school after 8th century, when Mukhtaṣar Khalīl was composed, Mukhtaṣar Khalīl’s preferences were made official, and it spread everywhere in juristic opinions and judgement, both of which are the main machine for applied jurisprudence (al-fiqh al-taṭbīqī), we may distinctively present three sub-schools of the Māliki school: 

First: The Eastern School, which includes Egypt and the Khalīj. This Sub-School is distinctive in its interactions with other schools of jurisprudence. 

Second: The West African School, which includes Qayrawān, Tūnis, Tilmisān, Fez, Algeria, Banī Mazghanah. This sub–school is distinctive in the sense that the Māliki School was the only School in those areas. The legal scholars (fuqahāʾ) became judges (quḍāt), and they became the main jurists under the authority. There is no hiding that the legal scholar (faqīh) is restrained by rulers, and it puts an effect on his ijtihād. The study of principles (al-dirāsāt al-uṣūliyya) is popular in this Sub-School, which has had its effects.

Third: The Greater Sahara School, which includes Tawāt, Timbuktu, Shanqīt, and Far Sous. The distinctive nature of this school is that these places only follow the Māliki School. They gather the juristic opinions (al-fatwā) and carry out judgement with execution of rules by legal scholars (fuqahā). There is no hiding that these have an effect on the ijtihād of the legal scholar, causing his thought dashing between all knowledge he has, and then finding out rulings with its own distinctive nature. This Sub-School also strongly holds the rules of the School, but its weak uṣūlī research has its effects as well.