The essential foundations of Islamic Law are shared by all four schools of thought: the Qur’an, the Sunnah, and the unanimous consensus of the Muslims. All Muslim jurists aside form the Zāhirī scholars also recognise juristic analogy (qiyās) as a method for extending a ruling established by one of the three agreed-upon sources to new and unprecedented cases.
At the same time, scholars disagreed regarding the details of how to derive rulings from the three sources and how to engage in analogy. They also differed regarding the validity of other sources of law.
Each of the four imams, in his approach to Islamic Law, had at least one unique methodological principle. Sometimes, this principle is something the imam articulated in words. In other cases, it can be discerned from the imam’s practice.
Mālik considered the practice of the people of Madinah as proof for establishing matters of Islamic law. He regarded it as being part of what constitutes the Sunnah, since he assumed that it must derive from the Prophet’s practice. He considered it to be stronger evidence than analogical reasoning and gave precedence to it over a hadīth narrated by one or more isolated narrators.
In a letter to Layth b. Sa`d, Egypt’s chief jurist, he wrote:
It has come to my attention that you are giving verdicts contrary to the practice of the community and country where we live… The generality of people are but followers of the people of Madinah. The emigration was to this city, and in it the Qur’an was revealed… So, if something is openly and generally practiced here, I do not see it as an option for anyone to do otherwise.Layth wrote a reply, wherein he detailed his own methodological approach which differed somewhat from Mālik’s. he concurred that the generality of people are followers of the people of Madinah, but this applies only to the generation that passed away, those among whom the Qur’an was revealed. Afterwards, many of the city’s inhabitants left for other places and became scattered throughout the lands. Moreover, they disagreed about many things. As a consequence, sound analogies and single-narrator hadith are not to be discarded on account what the people of Madinah happen to be putting into practice.
A large number of legal rulings are derived from Mālik’s principle. One of these is that if a wet nurse suckles a child on only one or two occasions, she becomes a foster mother to the child and consequently her children fall within the prohibited degrees of marriage. Māliki did not adopt the authentic hadith narrated by `Ā’ishah that fosterage only results if the child nurses from the woman on ten separate occasions. Mālik said: “This does not conform with the practice of the people of Madinah.”
Likewise, he did not regard the option to withdraw from a commercial contract to remain in effect as long as the two contracting parties are still seated. He said: “We do not see this as a determinative factor. It is a practice unknown to us.”
The majority of jurists objected strongly to Mālik’s principle of giving precedence to Madinite practice. They argied that it is no different than the practice of the Muslims in other cities in places like Western Arabia, Iraq, Egypt, and Syria. When Muslim scholars disagree, the practice of some of them cannot be made proof against the others. The proof must be established by following the Prophet’s Sunnah.
The matter has remained a topic of considerable scholarly attention throughout the ages. Many centuries later, the Hanbalī Ibn Taymiyah wrote a book entitled The Practice of the People of Madinah, wherein he discusses the significance of the principle and the disagreements surrounding it. His student Ibn al-Qayyim addressed the subject as well.
This question goes back well before the time of Mālik, back to the days of the earliest legal disputes. Madinite practice was sometimes used to resolve legal questions where more than one possibility was otherwise deemed to be equally viable. One of these questions – wherein the Hanafī jurist Abū Yūsuf ultimately adopted Mālik’s opinion – was how to determine the true value of the capacity measure known as the sā`, which was used to measure dry food products like wheat and barley.
The sā` at the time of the Prophet was four double-handfuls based on an average sized hand. A double-handful was determined to equivalent to 1 1/3 ritl, a measure used in Iraq, which would make a sā` equivalent to 5 1/3 ritl. Abū Yūsuf departed from Abū Hanīfah’s opinion and adopted Mālik’s. This is also the position adopted by the Hanbalī and Shāfi`ī jurists.
Abū Hanīfah had determined the sā` to be equivalent to eight ritl. At first, Abū Yūsuf held the same view. Then, on the way from the Hajj, he visited Madinah. His account of that visit is as follows:
I would like to tell you about a matter of religious knowledge which had been preoccupying me, and which I decided to investigate. I travelled to Madinah and asked about the sā`. They told me: “Our sā` is the sā` that Allah’s Messenger used.”The Hanafī scholars and Ahmad b. Hanbal had a legal principle not shared by the others. They differentiated between two types of legal obligations: fard and wājib. Both of these terms mean “obligatory” and they are regarded as synonyms by most scholars. As for the Hanafī scholars, they use the term fard for obligations established by definitive and unambiguous evidence. This means two things. First, the source of evidence for the legal obligation must be decisive, like the Qur’an, a hadith narrated by the general masses, or a matter of binding juristic consensus. Second, the wording of the source must be totally unambiguous so that no alternative interpretations are possible. If either of these conditions are not fulfilled, then the evidence is not decisive, and they use the term wājib to describe the legal obligation.
I asked: “Where is your proof?”
They said: “We will bring you our proof tomorrow.”
The next morning, they came with 50 elderly men who were children of the Prophet’s Companions. Each man was carrying a sā` with him, and each of them testified on the strength of his father or kinsfolk that this was the sā` of Allah’s Messenger.
I examined the containers they brought, and found that every sā` was exactly the same size. Then, I measured it against the ritl and found each sā` to be equivalent to slightly less than 5 1/3 ritl. I realized that this was compelling evidence, so I abandoned Abū Hanīfah’s view and adopted that of the people of Madinah.
This distinction in terminology has its uses. In religious rituals like prayer and the Hajj, it makes it easy to make distinguish between those practices that are established with certainly and those that are open to question, though still regarded as obligations.
Since each of the four imams had unique methodological legal principles, it follows that they also had unique legal verdicts not shared by any of the others. Many books have been written that investigate and discuss these “solitary rulings”, constituting a sub-genre of Islamic legal literature.
For instance, Abū Hanīfah ruled that punishment by retribution cannot be imposed in murder cases where the victim is killed by suffocation. Mālik disliked it for a pilgrim to performing Hajj and `Umrah together by entering into the ritual state twice. This method of performing pilgrimage is called tamattu`, and is approved by the other three schools of law. Al-Shāfi`ī allowed people to perform dry ablutions for prayer even when water is present if using the water for ablutions would cause severe hardships. Ahmad b. Hanbal required a person who ate camel meat to make fresh ablutions before offering prayer.
ليست هناك تعليقات:
إرسال تعليق