sunna hadith and medinan amal - y dutton

© Journal of Islamic Studies 4:1 (1993) pp 1-31

SUNNA, HADITH, AND MADINAN'AMAL1

YASIN DUTTONJesus College, Oxford

There are at present two main views on the origins of Muslim jurispru-dence: that of the 'classical' (i.e. post-Shafi'T) Muslim scholars, and thatof the revisionist school of most modern Western scholarship. Theclassical picture shows Islamic law as deriving from two main sources,preserved as the texts of the Qur'an and the hadith of the Prophet(referred to as 'the sunna'), in addition to certain other acceptablesources such as ijma* (consensus) and qiyds (analogy), all of whichderive their ultimate authority from the texts themselves. Although itacknowledges that in the initial period the hadith circulated in primarilyoral transmissions, and the Qur'an in an oral as much as a writtenform, this view is nevertheless essentially text-based, since the material,whether oral or written, depends for its authority on its fixed form. Itculminates in the later view that a knowledge of Islam, and thus Islamiclaw, is effectively restricted to a knowledge of the texts of the Qur'anand the hadith, in particular the collections of al-Bukharl and Muslim,although with some recognition of the other four of the 'Six Books',i.e. the collections of al-TirmidhT, Abu Dawud, al-Nasa'I, and IbnMajah, which are what are most commonly seen today as the mainsources of Islamic law.

The dominant paradigm in modern Western scholarship, however,although basically accepting the early origin of the Qur'an, sees thevast majority of the hadith material as apocryphal, having been back-projected as sayings of the Prophet only at a much later date. This, itis said, was done in order to invest what was originally the local practiceof individual centres of learning in the Muslim world with the authorityof the Prophet himself in an attempt to accord legitimacy to their views.The evidence adduced for this view is, very briefly, the relatively rapid

1 The themes of this article are more fully developed in the author's doctoral thesis,'Malik's Use of the Qur'an in the Muwatta" (Oxford University, 1992), from whichmost of the material of this article has been taken.

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appearance of a large body of hadith material where previously, it isclaimed, none, or very little, had existed; and, also, the presence ofnumerous anomalies and contradictions both in the texts themselvesand in their chains of authority (isnad), all of which casts doubt on theauthenticity of this material and points to its having been fabricated ata much later date than is claimed. This alleged wholesale fabricationof hadith is seen as the result of the activities of an initially small groupof scholars who, in opposition to what they considered to be on theone hand the godless, irreligious nature of the Islamic state at that time,and on the other hand the widely divergent and randomly derived localpractice of the various legal schools of the time, aimed to impose somekind of unity and overall authority by developing the idea of a 'sunnaof the Prophet' which it was incumbent on all the Muslims to follow.Most Western scholars thus hold .that the idea of the sunna of theProphet as a normative model did not exist before this time. Instead,they argue, the word sunna referred variously to the consensus ofopinion of the different local schools. The collocation 'kitab and sunna',and even the expression 'sunna of the Prophet', is held to have been inuse right from the earliest times, but only in the vague, general senseof what was considered right, or just, by the particular group using it,as when used by the different political groups calling each other to 'theBook of Allah and the sunna of His Prophet'.2

It is the contention of the present article that there is a third viewwhich has not yet been sufficiently examined (if even recognized) bymodern scholars, whether Muslim or otherwise. This third view is onewhich, although in many respects highly traditional, neverthelessdiverges from the 'classical' view on a number of important points, andwhich, although essentially opposed to the Western revisionist position,nevertheless agrees with it—against the 'classical' view—on a numberof key issues. This third view is that offered by the Muwatta* of thesecond-century Madinan jurist, Malik ibn Anas (d. 179/795), which,

2 For this last point, see, for example, Crone and Hinds, God's Caliph, 59-68, esp.66.

The revisionist position vis-a-vis the hadith is based primarily on the conclusions ofGoldziher (e.g. Muslim Studies, n 19) and Schacht (e.g. Origins, 4-5, 149; Introduction,34) and has since been broadly accepted by many Western scholars, e.g. Coulson {History,64), Burton (Sources, 13, Collection, 5-6), Juynboll (Muslim Tradition, 10), Crone(Roman Law, 31, 34), and Powers (Studies, 6). One should note, however, the reserva-tions—of differing degrees—expressed first by such as Guillaume (review of Schacht'sOrigins, 176), Gibb (Mohammedanism, 82), and Robson ('The Isnad', 20), later by suchas Abbott (SALP li), Sezgin (GAS I), Azmi (Studies in Early Hadith; On Schacht'sOrigins), Ansan ('Early Development'), and Bravmann (Spiritual Background, 151ff.),and, most recently, by Motzlci ('The Musannaf'). For a simplified overview and compar-ison of the two above-mentioned positions, see Koren and Nevo, 'Approaches'.

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SUNNA, HADITH, AND MADINAN 'AMAL 3

with the possible exception of Zayd lbn 'All's MajmiF al-fiqh, is theearliest surviving compendium of Islamic law that we possess.

The Muwatta' is notable among early Islamic legal writings in beinga compilation of three sources rather than the more usual two, for init we find not only the sayings of the Prophet and of later authoritiesamong the Companions and Successors (including governors andcaliphs), but also expressions of Madman 'practice', or 'atnal, of whichit is the distillation. It also includes a number of opinions of Malikhimself, but these are relatively few since it is the author's intention topresent the agreed opinions of his predecessors rather than his ownopinions.3 What is particularly significant is that all of these various'sources' are seen as potentially, and in a sense equally, authoritativein that a judgement accepted and propounded by Malik may ostensiblyderive from any one of them. In other words, a judgement may bepresented as deriving directly from the Prophet, or from one of theCompanions, or from one of the learned Successors, or from one of theUmayyad governors of Madina, or as being an anonymous 'practice ofthe people' (amr al-nds). What is even more significant is that there isno formal hierarchy to these sources: contrary to the demands of latersystematizations, an anonymous practice may be given preference to anattributed hadith, even a hadith of the Prophet, and even despite thathadtth's unquestioned authenticity.

It is a lack of understanding of this last point that has caused majorconfusion about the nature of the 'ancient' Madinan school,—and thusabout the origins and development of Islamic law in general—amongboth Muslim and non-Muslim scholars. The standard Muslim responseis to question seriously how an authentic hadith known to derive fromthe Prophet can possibly be rejected in favour of an anonymous practiceof uncertain origin, or, to use the argument of Malik's younger contem-poraries—and opponents on this point—Abu Yusuf (d. 182/798), al-Shaybanl (d. 189/805), and al-Shafi'T (d. 204/820), how a practice whichmay have derived only from some market official or local governorcould possibly be considered binding on the Muslims, especially if'contradicted' by a Prophetic hadith.*

The standard non-Muslim response, on the other hand, is to say thatthe inconsistencies and contradictions in the material indicate its inau-thenticity and that these differing views indicate merely the argumentsbetween the different schools and their attempts to give their own viewsbetter and better credentials by back-projecting them to earlier and

3 See below, 5-6.4 For Abu Yusuf, see Vmm, vn. 303 (1. 33), 311 (1. 27); Schacht, Origins, 74. For al-

ShaybanT, see Vmm, vu. 302 (I. 25); Schacht, Origins, 68. For al-Shafi'T, see XJmm, vii.297 (1. 11); Schacht, Origins, 63; also below, n. 82.

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earlier—and thus more prestigious—authorities, most notably theProphet, hence the resulting mass of seemingly contradictory material.

No one, Muslim or otherwise, denies that hadiths were fabricatedfor such ends; but this is far too simple an answer to the question ofhow Islamic law, and the different madhhabs representing it, developed;nor does it help to explain what we find in the earliest Islamic legalliterature that survives, such as the Muwatta' of Malik. It is true, forexample, that there was a great increase in the importance attached tospecifically Prophetic hadith as opposed to any other type in the thirdcentury (primarily, it seems, as a result of al-ShafiTs writings), and-thatthis led to the major collections of Prophetic hadith, such as the Sahi-hayn of al-Bukhari and Muslim, upon which such reliance is now putas sources of law, and it is understandable that some might questionthe provenance of this material (although fabrication is by no meansthe only explanation). This question mark, however, does not apply tothe Muwatta1, which was already in place by the middle of the secondcentury5—i.e. 'well before the third-century collections of hadith andwell before al-Shafi'I made his attacks on what he saw as the 'un-Prophetic', and therefore unacceptable, basis of much of Madinan andIraqi law—and in which, as we have mentioned, there is no questionof a hadith per se, however good its credentials, being necessarily moreauthoritative than any other type of transmission. Rather, what theMuwatta1 shows is that there was another, higher criterion that Malikused for ascertaining the 'correct' judgement on a legal issue, namelythe lived context of the 'amal of the people of his native city.

It is necessary to point out here that Malik was a past master at theformal report: not only'is the isnad 'Malik, from Nafi\ from Ibn 'Umar',for instance, praised as the "golden chain of authority' (al-silstla al-dhahabiyya),6 but Malik himself was recognized as completely trust-worthy by all later scholars of hadith.7 But it is not the formal report

1 We know this from the existence of the recension of 'All ibn Ziyad al-TunisT (forwhich, see Muw. Ibn Ziyad, Schacht, 'Manuscripts in Kairouan', 227-8). Ibn Ziyad,who was the first to introduce the Muwatta' into Ifriqiya (see Mad. I. 326), returned toTunis in 150 AH, which year his recension must therefore predate (see Abdul-Qadir,'Reception and Development', 14, 11, citing Ibn 'Ashur, A'lam al-fikr al-islami, 25; alsoal-Khatlb, Sunna, 371, where the author notes, without giving any sources, that Malikhad finished writing the Muwatta' 'before the middle of the second Hijrl century').

' See, for example, al-NawawI, 531; Ibn Khalhkan, li. 198; Siyar, viii. 102; Ibn Kathlr,Bidaya, x. 174; Tahdhib, x. 6; Ibn al-'Imad, i. 133. Schacht's criticism of this isnad(Origins, 176—9) has in turn been criticized by, among others, Robson and Azmi (seeRobson, 'The Isnad', 22-3; Azmi, Studies, 244-6, idem, On Schacht, 171).

7 For praise of Malik by later scholars it is enough to look at any of the entries onhim in the main biographical works, e.g. Hilya, vi. 316-32; Tadhkira, i. 187-92; Tahdhib,x. 5-9.

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that primarily concerns him. Rather, it is the correct understanding, or'fiqh' (to use the term in its original sense), of the report that is all-important. Thus accuracy of transmission was only one requirement: acorrect understanding of the material was a necessary corollary.

Malik himself combined both these qualities. He is described byAhmad ibn Hanbal as 'an imam in hadith and fiqh'* while the famoushadith scholar Ibn Mahdl put the same idea in the following terms: 'Al-Thawrl is an imam with regard to hadith but not an imam with regardto the sunna; al-Awza'I is an imam with regard to the sunna, but notan imam with regard to hadith. Malik, however, is an imam with regardto both.'9 Being an imam with regard to both meant, first, that he knewthe context in which to evaluate the normative value of hadiths; sec-ondly, that he knew the opinions of his predecessors on points arisingfrom, but not necessarily covered by, these hadiths; thirdly, that heknew how to derive his own secondary judgements from this primarymaterial. That is, he had an understanding {fiqh) of the din and itsnormative form [sunna). Without this understanding, hadiths, howeverauthentic they were, could easily be a source of misguidance and errorrather than a source of knowledge and enlightenment. Thus Ibn Wahbsaid, 'Anyone who knows a hadith but does not have an imam in fiqh,is astray (dall); and if Allah had not saved us through Malik and al-Layth, we would have gone astray';10 and Ibn 'Uyayna said, 'Hadithsare a source of misguidance (madilla) except for the fuqahci";11 andMalik himself said that he would be consciously misleading people(udtlluhum) if he were to transmit everything he knew,12 and, in anotherversion, 'I would be a fool if I were to pass on everything I knew.'13

THE 'AMAL OF THE PEOPLE OF MADINA

Schacht points out that the madhhab of the Madinans, and thus thatof Malik, is based on a combination of famal and ra'y.1* 'Amal wasthe established practice of the people of Madina, and ra'y ('opinion')was the necessary exercise of independent reasoning (ijtihad) in theabsence of any clear precedent in the existing 'amal. As we havecommented above, it is in the nature of the Muwatta* that it containslittle of Malik's own personal ra"y, since in it he was concerned not somuch with presenting his own opinions as with presenting the agreed

I Mad. i. 132; Styar, vni. 84.' Htlya, vi. 332; Mad. i. 132; Goldziher, Muslim Studies, ii. 25.10 See ]ami\ 119; cf. lnttqa', 31. " See ]ami\ 118.12 See Htlya, vi. 322; Mad. i. 149; cf. Ibn AbT Hatira, Adab, 199.II Mad. i. 149. " See Origins, 311; cf. Abd-Allah, 'Concept', 302-3.

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position of those before him.15 Indeed, as Malik is reported to havesaid when asked about the terms that he uses in the Muwatta':

Most of what is in the book is my opinion {ra'yi),16 but, by my life, it is notso much my opinion as that which I have heard from more than one of thepeople of knowledge and excellence and the imams worthy of being followedfrom whom I took my knowledge—and they were those who were God-fearing(kanii yattaquna)—but in order to simplify matters I have said it is my opinion(fa-kathura 'alayya fa-qultu ra'yi). This [I have done] when their opinion wasthe same as that which they found the Companions following, and which Ithen found them [i.e. the Successors] following. It is thus an inheritance whichhas been passed down from one generation to another down to our presenttime. So when I say '1 am of the opinion (ara)\ it is really the opinion of alarge group of the imams who have gone before.17

In other words, it is his opinion, i.e. the view to which he gives hisassent, but only by virtue of the fact that a large number of scholarsbefore him in Madina had also held it. A little later he says:

Where I have heard nothing from them, I have used my own judgement(ijtahadtu) and considered the matter according to the way (madhhab) of thoseI have met, until I felt that I had arrived at the truth, or near to it, so that itwould not be outside the way {madhhab) of the people of Madina and theiropinions, even though I had not heard that particular [judgement] directly.

I have thus said that it is my opinion after having considered the matterdeeply in relation to the sunna and what has been endorsed by the people ofknowledge who are worthy of being followed [ma mada 'alayhi ahl al-'ilm al-muqtada bt-him), and what the practice here has been (al-amr al-ma'mul bt-ht Undand) from the time of the Messenger of Allah, may Allah bless him andgrant him peace, and the Rightly Guided Caliphs, along with what those I havemet in my lifetime [have said]. It is thus their opinion, and I have not goneoutside it for anyone else's.18

Kd"y is, of course, a composite term, and includes various methodsof legal reasoning. Foremost among these we can identify the conceptsof qiyas (analogical reasoning), istihsan (considerations of equity), saddal-dhara'i' (lit. 'the obstruction of means', i.e. preventing the use oflawful means to achieve unlawful ends), and al-masalih al-mursala(considerations of public good), the last two of which are particularly

15 See above, 3." Bekir's edition (Mad. i. 194) has ra'yun, but ra'yi, as in the Moroccan (Mohamme-

dia) edition (n. 74) and as later in the same sentence and also later in the same paragraph,makes better sense.

17 Mad. I. 194." Mad. i. 194; cf. ibid. l. 192 (lam akhruj 'anhum), and l. 193 (lam akhru) 'an

jumlatihim ila ghayrihim).

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SUNNA, HADITH, AND MADINAN 'AMAL J

associated with the Malik! madhhab, although by no means exclusiveto it.1' The referent of Malik's rd"y is, however, in all cases, as is evidentfrom the above, the 'amal of the people of Madina,20 and it is thisconcept of camal that provides the key to understanding Malik's legalreasoning. Indeed, it is his reliance on Madinan lamal that differentiateshis madhhab from all the other madhhabs, as it is also the point onwhich the proponents of all the other madhhabs disagreed with him.

'Amal also is a composite term. Its basic constituents are kitab andsunna, dating from the time of the Prophet; but there is also theadditional element of the ra'y of later authorities, as this rd'y in turnbecomes incorporated into the existing 'arnal." This basic chronologicaldistinction between <amal deriving from the Prophet and lamal derivingfrom later authorities is evident from Malik's letter to al-Layth lbn Sa'd(which we shall consider shortly), where he speaks about the Compan-ions and the Successors following the Prophet's sunna where the Prophethad established a sunna, and exercising their own ijtihad where therewas no established precedent." The same distinction is well reflectedin the writings of later theorists, foremost among whom are 'Iyad (d.544/1149) and lbn Taymiyya (d. 728/1328). Both of them divide 'amal(although they speak specifically of Madinan i;ma' rather than of lamalin its broader sense) into two broad categories: what derives from thetime of the Prophet (ijma'/'amal naqlt) and what derives from laterauthorities (ijma'/'amal ijtihadt)."

lAmal naqli

The first of these two categories, 'amal naqli, is referred to only ingeneral terms by lbn Taymiyya but is subdivided by 'Iyad into fourtypes: things which the Prophet said (qawl); things which the Prophetdid (/»'/); things which the Prophet affirmed in others (iqrar); and thingswhich the Prophet consciously avoided doing {tark).1* As examples ofthe first two types, 'Iyad mentions the measures of the sac and the tnuddand the fact that the Prophet collected zakat from people using thesemeasures; the way of calling the adhan and the iqama; reciting theFatiha in the prayer without saying 'bi-smillaht l-rahmant l-rahtm'; andthe question of the binding nature of endowments. As an example ofthe third type he cites the question of liability for defects in slaves

" Abd-Allah notes that all these concepts occur in one form or another in the otherSunnT madhhabs (see 'Concept', 125-6). For a detailed discussion of these concepts, seeibid. 209-79.

10 Cf. Abd-Allah, 'Concept', 304. " Cf. Schacht, Origins, 113.22 See below, 10-11.21 See Mad. l. 68ff. (= Brunschvig, 'Polemiques', 420ff.; lntisar, 215ff.); lbn Taymiyya,

$ihhat usul, 23ff.24 For this and the following paragraph, see Mad. i. 68-9 (= Brunschvig, 'Polemiques',

420-1; lntisar, 215-18).

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(cuhdat al-raqtq). As for the fourth type, he gives the example of theProphet not taking zakat from fresh fruit and vegetables despite thefact that these items were well known to the Prophet and important inthe local economy.

'Iyad remarks that all these matters were common knowledge to theMadinans, having been transmitted by great numbers of people fromgreat numbers of people (al-jumhiir €an al-jumhiir) since the time of theProphet. Such knowledge was definitive (qat'i) and a conclusive proof(hujja) which should be followed, regardless of any mutually contradict-ory isolated hadiths (akhbar al-dhad) or judgements arrived at byanalogy (qiyds). Such mutawatir transmission (i.e. via many separateauthorities at each level back to the original source) was incontrovertibleand, indeed, was what caused Abu Yflsuf, for instance, to accept theMadinan specifications for the sal and the mudd when he saw forhimself how knowledge of them had been preserved and handed downfrom generation to generation in Madina.25 Nevertheless, despite thestrength of this argument in the eyes of the Madinans, people fromother cities still often preferred to follow their own local traditions, onthe basis that learned Companions had spread out into the various partsof the new Muslim lands, taking their knowledge with them, and thatit was as legitimate to follow any of these as it was to follow theMadinan 'ulama\ with some of them even claiming the status of tawaturfor their own local transmissions. 'Iyad's answer to this is that one ofthe conditions for tawatur is that both 'ends' of the line of transmissionshould be equal, i.e. that many people should have transmitted theknowledge in question from many Companions, from the Prophet. Thissituation, he says, only existed in Madina, where a whole generationwere able to transmit from a whole generation who had been alive atthe time of the Prophet, whereas in all other cities the lines of transmis-sion ended only with individual Companions, however great their levelof learning: such transmissions were therefore in fact akhbar al-dhadrather than mutawatir. Even, for instance, in the case of the adhan inMakka, for which one could possibly claim mutawatir transmissionfrom the time of the Prophet, the different adhan in Madina had theadvantage of being the later of the two and the one that was beingdone when the Prophet died. This is why, he says, when Malik wasasked about this point, he said: 'I do not know about the adhan of aday and a night. Here is the mosque of the Messenger of Allah, mayAllah bless him and grant him peace, where the adhan has been done

See below, 16-17.

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[continuously] from then until now and no one has ever recorded anyobjection (inkar) to the way the adhan has been done here.'"

Ibn Taymiyya also regards this first category of lamal as a conclusiveproof and claims that all the Muslims do too, citing the instance ofAbu Yusuf accepting the Madinan position on the sal and the mudd,the fact that no zakat is taken from green vegetables and fruit, or fromless than five wasqs, and that endowments, once made, are irrevocable."However, in view of the fact that differences remained between themadhhabs as to how, for example, the adhan should be done, orwhether or not the basmala should be recited at the beginning of theprayer,28 this claim of Ibn Taymiyya's is, as 'Iyad's comments on thenon-Madinans preferring to follow their own local traditions plainlyindicate, not wholly correct.

'Arnal ijtihadi

The second main category is where the lamal derives from the ijtihadof'later authorities. Ibn Taymiyya draws a distinction between lamalthat was instituted before the death of the third caliph 'Uthman (35/656),which he terms 'arnal qadim ('early 'amal'), and camal that was insti-tuted after the death of 'Uthman, which he terms 'atnal muta'akhkhir('later lamaV). The first type, he holds, is a conclusive proof (hujja)which ought to be followed (yajib ittibcfuha), supporting his view byquoting the hadith 'You must hold to my sunna and the sunna of therightly guided caliphs after me' (these 'Rightly Guided Caliphs' thenbeing defined by another hadith as those of the first thirty years, i.e. upto and including the caliphate of 'Uthman).2' The second type, 'amalmuta'akhkhir, is not, according to Ibn Taymiyya, generally held to be

" Mad. i. 69. Cf. al-Ba|I, lhkam, 484, also below, 16-17, where Malik's interlocutoris specified as being Abu Yusuf.

" See $thhat usul, 16-17. For Abu Yusuf accepting the Madinan sa', see below, 16-17.For the two judgements on zakat, see Mab. in. 2-3 (where they are justified by hadithsrather than Madinan practice). For Abu Yusuf accepting the judgement on endowments,see Mab. xn 28; Ibn AbT Hatim, Adab, 197-9, al-Ba)T, lhkam, 483; Ibn al-'Arabl, n.697-8; Siyar, vm. 98.

21 For the differences on these points, see, for example, Mab. i. 128-9, 15-16, IbnRushd, i. 82-3, 97-8.

" The fourth caliph, 'AlT(r. 35/656-40/660), should also be included in the first thirtyyears of the post-Prophetic caliphate since his reign is also included in the thirty yearsafter the death of the Prophet. Ibn Taymiyya, however, chooses to overlook this, sincehe is concerned with the time of the specifically Madinan caliphate, whereas during thetime of 'All the centre of the caliphate moved to Kufa, from which time people couldmore justifiably claim that Kufa had an equal right as a religious and intellectual centre,as indeed they did (see Sthhat usul, 30).

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a conclusive proof, although, he says, some Malikls in the Maghribconsider it so.30

'Iyad draws no such distinction between lamal qadim and 'atnalmuta'akhkhir, but notes three different opinions among the Malikls onwhether or not post-Prophetic 'amal is a conclusive proof that othersshould follow. Most, he says, do not hold that it is a conclusive proof,nor that it can be used to give preference to one person's ijtihad overanother's, this being particularly the view of the Baghdadi followers ofMalik. Others, he says, are of the view that, although it is not aconclusive proof, it can be used to give preference to one person'sijtihad over another's. There are also some, he says, who hold that,where there is consensus among the Madinans on a practice arrived atby ijtihad, this is also a conclusive proof. This third view, he says, isthat of Abu 1-Husayn ibn Abl 'Umar (d. 328/939) in particular amongthe Baghdadis, and also of a number of Maghribis, who consider thatsuch <amal ijtihadi should be given preference over akhbar al-ahad. Itis also, he says, what all the opponents of Malik think is Malik's view,although this is not actually the case.31

THE AUTHORITY OF MADINAN <AMAL

Malik clearly saw Madinan camal as authoritative. The best expressionI have found of his view on this matter is his letter to al-Layth ibn Sa'd(d. 175/791) on precisely this point. In this letter we learn that al-Laythhas been giving fatwas contrary to the 'amal of Madina, and that Malikis writing to him to counsel him never to go against this 'amal. Aftera short introduction, he says:

All people are subordinate (taba*) to the people of Madina. To it the Hijrawas made and in it the Qur'an was revealed, the lawful (halal) made lawfuland tl e forbidden (haratn) made forbidden. The Messenger of Allah, may Allahbless him and grant him peace, was living amongst them and they were presentduring the very act of revelation. He would tell them to do things and theywould obey him, and he would institute sunnas for them and they wouldfollow him, until Allah took him to Himself and chose for him what is in Hispresence, may Allah bless him and grant him peace.

Then there rose up after him those who were given authority after him andwho, of his community, were the ones who followed him most closely. Whenmatters arose about which they had knowledge, they put that knowledge into

30 See §ihhat usul, 2731 See Mad. l. 69-70 (= Brunschvig, 'Polemiques', 421-2; Inttsar, 218-19).

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practice. If they did not have [the requisite] knowledge, they would ask [others]and would go by what they considered to be the most valid opinion accordingto their own personal reasoning (ijtthad) and their recent experience [of whenthe Prophet was alive] (hadathat 'ahdihim). If someone disagreed with them,or said something that was more valid and more worthy of being followed,they would leave aside their own opinion and act according to the other,stronger opinion. After them the Successors trod the same path and followedthe same sunnas.

So, if there is something which is clearly acted upon in Madina (idha kanal-amr bi-l-Madina zahiran ma'mulan bi-hi), I am not of the opinion (lam ara)that anyone may go against it, because of this inheritance that [the Madinans]have which it is not permissible for any others to ascribe to, or claim for,themselves. Even if the people of other cities were to say, 'This is the practice{'amal) in our city', or 'This is what those before us used to do (wa-hadhalladhirriada 'alayhi man mada mmna)\ they would not have the same authorityfor that, nor would it be permissible for them in the way that it is for [thepeople of Madina].32

Malik's position on the matter would thus seem to be unequivocal:all people are subordinate to the people of Madina, by virtue of theMadinans' greater direct experience and collective knowledge which thepeople of no other city can lay claim to despite the high level of learningof individuals amongst them. This was Malik's argument against Iraqand the other centres of learning of the Muslim world at his time. Heacknowledged that they had received learning from individual Compan-ions of great stature who had settled there, and he allowed that peoplein the outlying provinces were free to follow their own men of know-ledge,33 but Madina was the origin of that knowledge, and the primarysource was always preferable to the secondary. We find Malik illustrat-ing this by reference to an incident where Ibn Mas'ud (d. 32/652), the

32 Mad. i. 64-5 (= Brunschvig, 'Polemiques', 417 (Arabic text), 381-2 (French transla-tion); al-FasawI, I. 695-7; al-MalikT, Fadl, 66-7). See also Abd-Allah, 'Concept', 311-21;al-Murabit, 'Education', 50-2.

Both Brunschvig and Schacht have expressed doubts about the formal authenticity ofthis letter but both acknowledge that this question is of little practical importance sincethe attitude expressed in it is so obviously that of the 'ancient' Madinans and thus alsothat of Malik (see Brunschvig, 'Polemiques', 380-1; Schacht, 'Abu Mus'ab', 10, n. 47).

31 This is clear, for example, from Malik's argument in response to the suggestion ofthe caliph Abu Ja'far al-Mansur (r. 136/754-158/775) that he make the Muwatta' thestandard law code for all the Muslims in his empire: many of the Companions hadspread out into various lands and each of them had taught and given judgementsaccording to his own knowledge and i/tihad and every place therefore had its own wayof doing things and it would thus be unreasonable, if not impossible, to force everyoneto adhere to one view (see Ibn Sa'd (qism mutammim), 440; al-TabarT, Tarikh, in. 2519;Ibn Abl Hatim, 29, lnttqa', 41, 40 (n. 1); Mad. I. 192-3; Tadhkira, I. 189; Siyar, vm. 55-6, 70; Hujjat Allah, i. 145; Abd-Allah, 'Concept', 99-100, 385-6).

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most learned of the scholars of Kufa in his time, gave a judgement tosomeone in Kufa on a detail of law and then later went to Madina onlyto find that the position in Madina on that point was different, where-upon the first thing he did on returning to Kufa was to go to the manand tell him what the correct, i.e. Madman, judgement was.3*

Al-Layth's reply has been preserved for us both by al-FasawT (d.277/890) (from whom Ibn Taymiyya's student, Ibn Qayyim al-Jawziyya(d. 751/1350), transmits it), and, in a shortened form, by 'Iyad.3J Ofparticular interest in al-Layth's reply is that he makes a distinctionbetween Madinan lamal on which there was consensus {ijma1) andMadinan lamal on which there was not consensus. He says: 'I do notthink there is anyone to whom knowledge is ascribed who has moredislike for isolated opinions (shawadhdh al-futya), or more respect forthe scholars of Madina who have gone before, or who is more receptiveto their opinions when they are agreed on a matter than I am.'3' Thuswhat he disagrees with is that Madinan lamal should be binding ininstances where the Madinan lulam5> themselves were not agreed. Hispoint, and it was the point most commonly raised against the MalikTson this issue, is that the Companions had spread out throughout thenew lands of Islam, taking with them their knowledge of the Book andthe sunna, and exercising their best judgement (yajtahiduna bi-ra'yihim)when they knew of no specific guidance on a matter. Furthermore, thefirst three caliphs had been concerned to avoid dispute among theMuslim troops and had sent directives to them on even relativelyunimportant matters (al-amr al-yasir) in order to establish the din andprevent dispute over the Book and the sunna; but they had never toldanyone to go against the practice of any of the Companions, whetherin Egypt, Syria, or Iraq, if this had been the constant practice of theseCompanions up until their death. In other words, the Companions hadcome to different decisions on various matters, but they had had a rightto do so, and if the first three caliphs had not forced people to followthe Companions of a particular place, why should anyone else? Thisapplied even more so in the time of the Successors, whose sharp disagree-ments, says al-Layth, are as well known to Malik as to anyone else.Finally, al-Layth illustrates his argument by citing a number of examplesof where he feels justified in accepting an opinion contrary to the lamal

34 See Baydn, xvn. 134—7, 332; al-Fasawi, l. 438—41 (where a second similar situationis also mentioned); Mad. i. 62; Ibn Taymiyya, Sthhat usul, 28, cf. Muw. H. 7.

" For the full version see al-Fasawi, i 687-95; I'lam, m. 72-7; al-MalikT, Fadl, 177-84.For 'Iyad's abridgement, see Mad. i. 65 (= Brunschvig, 'Polemiques', 417-18). See alsoAbd-Allah, 'Concept', 321—31; al-Murabit, 'Education', 52—3.

Despite the doubts mentioned above about the formal authenticity of Malik's letterto al-Layth (see above n 32), al-Layth's reply is considered highly likely to be authentic(see Brunschvig, 'Polemiques', 380; Schacht, 'Abu Mus'ab', 10, n. 47).

" Al-FasawT, i. 688; I'lam, in. 72 (where akdah should be emended to akrab); al-Mahkl, Fadl, 178 (italics added).

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in Madina precisely because the practice based on the contrary opinionhad been instituted by one or more worthy Companions.37

Did Malik, then, hold that all 'amal was equally authoritative? Wehave seen how, in his letter to al-Layth, Malik says, 'If there is somethingwhich is clearly acted upon in Madina, I am not of the opinion thatanyone may go against it';38 and this, together with the implications ofal-Layth's objections to having to follow 'amal on which there was notconsensus, would suggest that Malik did indeed hold the view, as hisopponents claimed, that all Madinan 'amal should be followed whateverits origin, the only proviso being that it should be 'clearly acted uponin Madina'. However, recent studies by Abd-Allah on Malik's termino-logy suggest that this is not entirely the case, and that Malik drew cleardistinctions between different types of 'amal and the degree to whichthey were binding.39

Abd-Allah demonstrates how Malik's terminology refers to a numberof different categories of 'amal, indicating not only its date of originbut also the degree of consensus in Madina that it represents, which,as we have seen, was not one of the considerations of either 'Iyad orIbn Taymiyya who were both concerned primarily with Madinanijma'.*0 Malik frequently uses terms such as al-sunna 'indana ('the sunnahere'), al-sunna llati la khtilafa fi-hd 'indana ('the sunna about whichthere is no dispute here'), al-amr 'indana ('the practice here'), al-amral-mujtama' 'alayhi 'indana ('the agreed practice here'), and al-amralladhi la khtilafa ft-hi 'indana ('the practice about which there is nodispute here'); and until recently these terms have been either undiscus-sed by most scholars or considered to be interchangeable.41 Abd-Allah'sanalysis, however, has shown that there is a clear distinction betweenMalik's sunna and amr terms: sunna refers to 'amal that derives froma normative practice of the Prophet (or sometimes a pre-Islamic Madi-nan custom endorsed by the Prophet) without any element of laterijtihad, whereas amr refers to 'amal that, although often originating inthe practice of the Prophet, nevertheless contains at least some elementof later ijtihad.*1 These two terms thus indicate a distinction comparableto that between 'amal naqli and 'amal ijtihddt referred to above. Fur-thermore, both these terms are often qualified by expressions indicating

37 For references, see above, n. 35.31 See above, 11." Reference here is to Abd-Allah's unpublished 1978 doctoral dissertation, 'Malik's

Concept of 'Amal in the Light of Malik! Legal Theory'.40 See above, 7.41 Goldziher and Schacht, for example, mention Malik's terms but do not discuss

them, while Ahmad Hasan and Ansan assume them to be interchangeable, or nearly so(see Goldziher, Muslim Studies, 11. 199; Schacht, Origins, 58, 62; Ahmad Hasan, EarlyDevelopment, 100-1; Ansan, 'Terminology', 276-7; also Abd-Allah, 'Concept', 308-9).

42 See Abd-Allah, 'Concept', 25-7, 300-1, 309, 419-33 (esp. 423-4).

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different degrees of consensus. Where any difference of opinion inMadina is specifically denied (such as in the formula alladht la khtilafaft-hi) we are dealing with points upon which there was completeconsensus in Madina and which thus come under the categories discus-sed by 'Iyad and Ibn Taymiyya. The qualifying phrase al-mujtama''alayhi 'indana, however, does not necessarily indicate complete con-sensus, but rather a predominant consensus where there were differencesof opinion in Madina but not such as constituted any significant breachof the view of the great majority.*3 When the terms are not qualified atall, such as madat al-sunna, al-sunna 'indana, or al-amr Hndana, therewere often (but not necessarily) significant differences of opinion inMadina on the points in question.*4 Thus there were clearly differentlevels of consensus for both 'amal naqli and lamal ijtihadt.

It would seem, therefore, that Malik was aware of differing degreesof authoritativeness for different kinds of lamal, and, although hefavoured the preponderant 'amal in Madina, he would not have heldthat all types of 'amal were equally authoritative.*J This is particularlyevident in cases of what Abd-Allah calls 'mixed lamal\ such as in thequestion of how to wipe over leather socks (khuffs), where different,and equally prestigious, Madman authorities held differing views.*6

Indeed, the whole question of when it was permissible to wipe overkhuffs at all was something on which Malik appears to have changedhis mind during his life, which suggests that no particular practice hadgained predominance in Madina by that time.47

Furthermore, as is clear from Malik's response to al-Mansur's sugges-tion that all the umma should be made to follow the knowledge of thepeople of Madina,*8 although Malik was positive about the 'amal ofthe Madinans, he was not negative about the knowledge of other cities,however much he may have considered it to be a deviation from theclear path of the Madinans.

lAMAL V. HAD1TH

The opposition to Madinan 'amal centred not so much on objectionsto Madinan ijtihdd as opposed to the ijtihad of others, as on the

43 See 'Concept', 28-9, 425-7; cf. al-BajT, Ihkam, 485. It should be noted that thequalification al-mujtama' 'alayht 'tndana does not occur with the sunna terms.

44 See 'Concept', 28, 301, 428-9; cf. al-Ba|T, lkkam, 485.43 Cf. 'Concept', 382-91 (esp. 386-7). Note also Malik's frequent use of the expression

'the best I have heard ...', which indicates various possible options (e.g. Muw. l. 158,221, 224, 326, n. 33, 133, 193).

46 See 'Concept', 28, 430-1, 652-6. Cf. Muw. i. 44-7.47 See Mud. l. 41; Muw. Sh. 44; cf. Schacht, Origins, 263f.41 See above, n. 33.

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relationship between 'amal and hadith, particularly those hadiths thatwent back to only one or a very few Companions {akhbar al-ahdd,sing, khabar al-wdhid). (One should note that hadtths are commonlydivided into two types, namely akhbar al-ahdd, i.e. those going backto single authorities among the Companions, and mutawdtir hadtths,i.e. those going back to a large number of Companions, and the vastmajority of hadtths are, technically speaking, akhbar al-ahdd.)*9 Muta-wdtir hadtths, on the other hand, were not only much fewer in numberbut were also, in the very nature of things, unlikely to contradict 'amal,itself mutawdtir, since it is practically impossible to conceive of twomutawdtir transmissions being both authentic and contradictory(although al-Qadl 'Abd al-Wahhab (d. 432/1031) allows that, if thisshould occur, they should be considered as two contradictory hadtths).s°

'Iyad discusses this point in some detail, saying that 'amal must relateto such isolated hadtths in one of three ways: either (i) the 'amal inquestion will accord with the hadith, in which case it will serve as asupport for the validity of the hadith; or (ii) the 'amal will accord withone hadith but be contradicted by another, in which case the 'amal isone of the strongest arguments for preferring the first hadith to thesecond; or (in) the 'amal will contradict all the hadtths. If in this lastinstance the 'amal is 'amal naqlt, i.e. it derives from the time of theProphet, it is to be preferred to the hadith, because this type of 'amalis definitively authoritative (qat't al-thubut) whereas the khabar al-wdhid is only presumptively authoritative (zanriial-thubut). If, however,it is 'amal based on ijtihdd, then the predominant view is that akhbaral-dhdd are given preference over it, though there is dispute on thispoint, as mentioned earlier.51

'Iyad also discusses a fourth possibility, which is if there is a hadithon a point but no 'amal. In this case, he says, there is of course noconflict and the hadith is followed, providing it is authentic and thatthere is no contradictory hadith. If there is, and one of the hadiths isrelated through Madinan sources while the other is not, then, accordingto Abu Ishaq al-Isfaraylnl (d. 418/1027), preference is given to the hadithwith the Madinan credentials.

*' A third category, mashhur hadiths, where there are only one or a very fewCompanions who originally transmit a hadith but many transmitters taking it from thisone or few, is distinguished by the Hanafls and considered by them to be tantamountto mutawdtir hadiths. In the other schools, mashhur hadiths are considered a subcategoryof akhbar al-ahdd (see, for example, Abu Zahra, 108, Zaydan, 170-1).

50 See Mad. i. 73." See above, 9-10. For this and the following paragraph, see Mad. i. 70-1 ( =

Brunschvig, 'Polemiques', 422-3; lntisar, 220-1).

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Ash-ShatibT (d. 790/1398), however, disagrees with 'Iyad on this lastpoint and suggests that the absence of 'amal is itself an indication thatthe contents of such a hadith are not to be considered normative, sinceif they were there would have been some 'amal instituted in its favour(assuming that the matter in question was one that would be expectedto have occurred in the lives of the first community).52 He illustratesthis by a report from Malik regarding the question of the 'prostrationof thankfulness'. Malik was asked about whether someone who hasheard some good news should prostrate to Allah out of gratitude, andhe said that this should not be done and that it was not part of people'sgeneral practice (laysa mimmd madd min amr al-nds). When the factthat Abu Bakr had made such a prostration after the battle of Yamamawas mentioned to him, he said:

I have not heard about this, and I consider it a lie against Abu Bakr. It is atype of misguidance that someone should hear something and then say 'Thisis something about which we have heard nothing contradictory' ... Manyvictories came to the Messenger of Allah, may Allah bless him and grant himpeace, and to the Muslims after him, but have you heard that any of themmade such a prostration? When you hear this sort of report about somethingthat would have happened in their midst and been part of their generalexperience and yet nothing else has been heard about it, then let that (i.e. whatyou already know) be enough for you. If such a thing had happened, it wouldhave been mentioned, because it would have been part of their direct experience(h-annahu min amr al-nas alladhTkdna ft-him). But have you heard that anyonemade such a prostration? This, then, is a point of general consensus (t)ma'). Ifyou hear something [like this] which you do not know about, leave it (idhaja'aka amr la ta'nfuhu fa-da'hu)."

Malik's attitude on this point is well documented and many reportsshow that he held 'amal to be more reliable {athbat) than hadith. Thereis a long report in the Maddnk concerning his meeting with Abu Yusufand their discussions about the adhdn and the measures of the sa' andthe mudd. 'Iyad reports:

Abu Yusuf said [to Malik], 'You do the adhan with tarjT,5* but you have nohadith from the Prophet about this.' Malik turned to him and said, 'Subhanallah! I have never seen anything more amazing than this! The call to the prayerhas been done [here] every day five times a day in front of witnesses, and sonshave inherited it from their fathers since the time of the Messenger of Allah,

" See Abd-Allah, 'Concept', 509-12." See 'Concept', 186—7; and, for the report itself, Bayan, i. 392.54 i.e. saying the two shahadas quietly after the initial takbtr of the adhan before

repeating them again loudly (cf. Mud. i. 57).

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SUNNA, HADlTH, AND MADINAN 'AMAL 17

may Allah bless him and grant him peace. Does this need "So-and-so from so-and-so"? This is more accurate (asahh) in our opinion than hadith.'

Abu Yusuf also asked him about the sa' and Malik said, 'Five and one-thirdrails'. Abu Yusuf said, 'What's your basis for saying that?' Malik said to someof the people with him, 'Go and fetch the sa's that you have.' So many of thepeople of Madina, both Muhajirin and Ansar, came, and every one of thembrought a sa' [with him] and said, 'This is the sa' which I inherited from myfather, who inherited it from his father who was one of the Companions ofthe Messenger of Allah, may Allah bless him and grant him peace.' Malik said,'This sort of widespread knowledge {hadha l-khabar al-sha'i') is more reliable(athbat) in our opinion than hadith.' So Abu Yusuf accepted Malik's opinion."

'Iyad devotes an entire chapter to comments by earlier authorities onthe superiority of 'amal over hadith. It is worth quoting in full, sinceit gives a very clear picture of Malik's view56 on the matter:

On What Has Been Related from the First Community and the Men ofKnowledge Regarding the Obligation of Going Back to the Practice {'amal) ofthe People of Madina, and Its Being a Conclusive Proof (hujja) in TheirOpinion, even if It is Contrary to Hadith (al-athar)"

It is related that 'Umar lbn al-Khattab, may Allah be pleased with him, oncesaid on the minbar: 'By Allah, I will make things difficult for any man whorelates a hadith which is contrary to 'amal.'

lbn al-Qasim and lbn Wahb said: 'I saw that with Malik 'amal was strongerthan hadith.'"

Malik said: 'There were people among the men of knowledge of the Suc-cessors who would narrate certain hadiths, and hear other hadiths from others,

" Mad. 1. 224-5. For their discussion about the adhan, see also above, 8-9. For theirdiscussion about the sa', see also above, 8, 9; al-BajT, Ihkam, 483—4; Mab. 111. 90, xu. 28.

It should be noted that, although Abu Yusuf accepted Malik's opinion about the sa'and the mudd, and also endowments, the Madman way of doing the adhan was neveraccepted by the Iraqis (see above, 9).

" It could be argued that this is 'lyad's view which he is then attributing to Malik.However, since there is no reason to doubt 'Iyad's accuracy and honesty, and sincemany of the reports he cites are known from earlier sources such as the 'Utbiyya (in lbnRushd's Bayan) and lbn AbT Zayd's Kttdb al-Jami', there seems little reason to doubtthe general authenticity of the reports in this passage. Furthermore, as Brunschvig andSchacht noted with regard to Malik's letter to al-Layth ibn Sa'd (see above, n. 32), theargument is so obviously that of the ancient Madman school that concerns of completeauthenticity are hardly relevant.

" Bekir (Mad. 1. 66) and Brunschvig ('Polemiques', 418) both have al-akthar ('themajority') rather than al-athar (for which, see Mad. (Moh.), 1. 44; Intisar, 200).

58 For comments by Malik to this effect, see (1) ]ami', 117; (11) Malik's reply to AbuYusuf (see above); and (111) the second following report concerning Muhammad ibn AbTBakr ibn Hazm.

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and they would say, "We are not ignorant of this, but the lamal that has comedown to us is different."'5'

Malik said: 'I once saw Muhammad ibn Abl Baler ibn 'Amr lbn Hazm, whowas a qadi, being reproached by his brother 'Abdallah, who was an honestman with an extensive knowledge of hadith, for giving a judgement on a caseon which there was a hadith giving a different judgement. 'Abdallah said,"Hasn't such-and-such a hadith come down about this?" Muhammad replied,"It has." 'Abdallah said, "Then why don't you give your judgement accordingto it?" Muhammad replied, "But what is the position of the people with regardto it?"—i.e. the agreed 'amal in Madina, by which he meant that the 'amal ofMadina was stronger than hadith.'60

Ibn al-Mu'adhdhal said: 'I once heard someone ask Ibn al-Majishun, "Whydo you transmit a hadith and then not act upon it?", and he replied, "So thatit be known that it is with full knowledge of it that we do not act upon it.""1

Ibn MahdT said: 'The established sunna of the people of Madina is betterthan hadith.'61 He also said: 'Often I will have numerous hadiths on a subject,but will find the people who teach in the mosque (ahl al-'arsa) followingsomething contrary to them, and so those hadiths will become weak in myopinion'—or words to that effect."

Rabfa said: 'One thousand from one thousand is preferred by me to onefrom one. One from one would tear the sunna right out of your hands.'

Ibn AbT Hazim said: 'Abu 1-Darda' would be asked questions and wouldgive answers and if someone said, "But such-and-such has reached us", contraryto what he had said, he would reply, "I too have heard that, but I have foundthe practice (al-'amal) to be different."'

Ibn AbT 1-Zinad said: "Umar ibn 'Abd al-'AzTz used to gather the fuqaha'together and ask them about the sunnas and the judgements which were actedupon (yu 'tnalu bi-ha). These he would then affirm, whilst those that were notacted upon he would discard, even though their source was absolutely trust-worthy.'

Malik said: 'The Messenger of Allah, may Allah bless him and grant himpeace, came back after such-and-such a ghazwa with so many thousands ofthe Companions. Some ten thousand of them died in Madina and the rest ofthem spread out in various places. So which of them are more worthy of beingfollowed and adhered to, those among whom the Prophet, may Allah blesshim and grant him peace, and those Companions whom 1 have just mentioned

" For the same report, see Bayan, xvu. 604 (also in Schacht, 'Manuscripts in Morocco',29), Jami', 118.

60 For the same report, with slight variations, see Bayan, xvu. 331; al-Tabarl, Tarikh,in. 2505 (mentioned in Schacht, Origins, 64); WakT\ I. 176; ]atnt', 118. For variants inthe Madank report itself, see Mad. (Moh.), i. 45.

" For similar reports from Malik and lbn AbT 1-Zinad, see Intisar, 225; WakT*, ui.188-9.

" For the same report, see )amt\ 118; Tamhtd, i. 79, 81." This report is incompletely cited by Brunschvig ('Polerniques', 419) and Bekir [Mad.

l. 66). For the complete version, and variants, see Mad. (Moh.), i- 45; Intisar, 202.

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died, or those among whom one or two of the Companions of the Prophet,may Allah bless him and grant him peace, died?'

'Ubaydallah lbn 'Abd al-KarTm said: 'When the Messenger of Allah, mayAllah bless him and grant him peace, died, there were twenty thousand weepingeyes.'64

This view is thus seen as going back to at least the time of 'Umar.Particularly significant is the comment of Rabfa, one of Malik's mainteachers. 'One thousand from one thousand' means a large number ofSuccessors, for example, taking directly from a large number of Com-panions, which was only possible in Madina, where there were someten thousand Companions ('twenty thousand weeping eyes') at the timeof the death of the Prophet. 'One from one', however, was the situationin the rest of the Muslim world, where individual Successors took theirknowledge from individual Companions.65 Thus this directly receivedknowledge of the Madinans of how the sharTa was put into practiceautomatically had higher authority in their view than most hadiths,since it had the status of what was mutawdtir—i.e. what had beenrelated by so many Companions that there could be no reasonabledoubt about its authenticity—whereas most hadiths, as we have noted,were not mutawatir.66

It is important to emphasize that 'amal and hadith are not mutuallyexclusive, as 'Iyad's analysis indicates.67 'Amal may, or may not, berecorded by hadith; and hadith may, or may not, record 'amal. Wherethey overlap they are a strong confirmation of each other; but wherethere is contradiction, 'amal is preferred to hadith by Malik and theMadinans, even when the sources of these hadith are completely trust-worthy, as indicated in the comment of lbn Abl 1-Zinad in the abovepassage. Thus, for example, the standard adhdn in Madina, or the wayof standing for the prayer with one's hands by one's side (sadl, or irsalal-yadayn), or reciting the prayer without beginning with lbi-smi lldhil-rahmani l-rahim', or the size of the sa' and the mudd, were mattersthat were not recorded initially in the form of hadith but were neverthe-less known generally amongst the people and understood to have origin-ated in the time of the Prophet.68 Other practices, however, althoughrecorded in authentic hadiths and even transmitted, for example, in the

" Mad. 1. 66-7 (= Brunschvig, 'Polemiques', 418-19, Intisar, 201-6, where all butthe very last report occur). See also al-Murabit, 'Education', 58-61.

" For this idea, see also the quotation from lbn Qutayba below, 23-4." See above, 15. " See above, 15." It may be noted that the hadith recording the Madinan way of doing the adhan in

Mud. 1. 57 has a Makkan isnad, while the hadiths about irsal al-yadayn (Muw. i. 133;Mud. i. 74) and beginning the prayer without the basmala (Muw. i. 78; Mud. 1. 64) bothhave Basran isnads. In other words, there were no hadiths on these matters in Madinabecause there was no need for them.

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Muwatta", were not acted upon by their transmitters precisely becausethey did not represent the sunna. In other words, they were eitherexceptional instances or earlier judgements that had later been changed,or otherwise minority opinions that held little weight, and which, eventhough they derived from the Prophet, were nevertheless outweighedby other judgements also deriving from the Prophet. It was for thisreason that Ibn cUyayna could say that hadiths were a source of misguid-ance except for the fuqaha',69 and Malik that 'amal was a more reliablesource than hadith.7"

There are a number of striking examples in the Muwatta' of lamalbeing preferred to hadith, even though the hadiths in question areconsidered completely trustworthy. The following examples, whereMalik transmits hadiths which he does not consider should be actedupon, serve to illustrate the point:

(1) Malik relates two hadtths whose overt import is that the prayershould be done with the right hand holding the left at the wrist (qabd).71

He makes no comment on this in the Muwatta', but in the MudawwanaIbn al-Qasim records him as saying: 'I do not know of this practice asfar as obligatory prayers are concerned (la a'rtfu dhalika fi l-farida),but there is no harm in someone doing it in voluntary prayers (nawafil),if he has been standing for a long time, in order to make things easierfor himself.'72 The transmitter of the Mudawwana, Sahnun, also recordsa hadith to the effect that a number of Companions had reported seeingthe Prophet doing the prayer with his right hand placed over his left.However, despite this hadith and the similar reports in the Muwatta',the madhhab of the Mudawwana, which became the major source forlater Malikls as summarized in Khalll's Mukhtasar,73 was that it waspreferable in all circumstances to pray with one's hands by one's sides,since this was the predominant lamal. This way of doing the prayerwas also preferred by al-Layth ibn Sa'd, accepted by al-Awza'T, andrecorded from other important authorities such as Sa'ld ibn al-Musayyab, 'Urwa ibn al-Zubayr, and Ibn Jurayj.74 It is, furthermore,interesting to note that this practice, although rejected by all the othersurviving SunnT madhhabs, is nevertheless that of the Zaydls,75 the Ithna'Ashari Shfa,7* the Isma'llls,77 and the Ibadls,78 thus bolstering theargument for the 'ancient' (i.e. Prophetic) origin of this 'atnal, since thedifferences between these groups and the main body of the Muslimsarose at a very early date and on questions of belief and politicalauthority rather than on points of fiqh. There can have been no reason

" See above , 5. 70 See above, n. 58. " See Muw.'x 133.7 2 Mud. I. 74; cl. Bayan, xvui . 7 1 .73 See Khall l , Mukhtasar, 29. 'wa-sadlu yadayhi'.74 See Ibn AbT Shayba, i. 391 , 'Abd al-Razzaq, ii. 276; TamhTd, xx . 7 4 - 6 .75 See Ibn a l -Mur t ada , i. 241 " See al-TusI, 69; a l - 'Amil l , ii (par t 2). 710.77 See Da'aim, i. 159. 7 I See al-Mus'abT, i 57.

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for them inventing such a detail of fiqh, and the obvious inference isthat they were merely continuing an established practice.

(ii) Another example of where Malik seemingly goes against a hadithis the question of raf al-yadayn ('raising the hands') during the prayer.In the chapter 'What Has Come Down About Beginning the Prayer',Malik relates a report via Salim and Ibn 'Umar to the effect that theProphet used to raise his hands when saying 'Alldhu akbar' both at thebeginning of the prayer and when coming up from rukif, and anothervia Naf? to the effect that Ibn 'Umar used to do the same.7'

Despite recording no hadtths in the Muwatta' overtly to the contrary,Malik's view, according to Ibn al-Qasim in the Mudawwana, was thatone only raised one's hands at the beginning of the prayer, that is, whendoing the initial takblr {takbirat al-ihrdm). Again, as in the aboveinstance, Malik uses the phrase 'I do not know of this [practice] {Ida'rtfu dhdlika) ...', adding the exceptive clause '... except in the takbiratal-thrdm'.*0

Although Abu HanTfa and the Kufans held the same view as theMadinans on this point, basing their argument on reports to that effectfrom 'All and Ibn Mas'ud via Ibrahim al-Nakha'T,81 al-Shafi'T held thecontrary view that one should raise one's hands both before and aftereach ruku1 as well as at the beginning of the prayer, basing his argumenton the above-mentioned hadtths and at the same time accusing theMadinans of inconsistency in relating these hadtths and yet not actingupon them.82

This would therefore seem to be a clear case, as Ibn Rushd indicates,of where Malik relates a hadith but rejects its import because it is notin accord with 'amal.*3

(iii) One of the clearest statements of this attitude is that by Malik'sstudent, Ibn al-Qasim, in the chapter in the Mudawwana on marriagewithout a legal guardian. Ibn al-Qasim's interlocutor, Sahnun, mentionsa hadith from 'A'isha according to which she had acted as the guardian

" See Muw. 1. 74, 75. Cf. Muw. Sh. 57, where the Salim hadith includes mention ofraising the hands before ruku' as well as after.

10 See Mud. i. 68." See Muw. Sh. 58-9; Umm, vn. 215 (margin). Cf. Mud. i. 69, where the same Kufan

authorities are also cited in support of Malik's position.12 See Umm, vn. 233. Cf. ibid. vn. 21 Iff. (margin), especially 217, where al-Shafi'T

recognues—but rejects—the Madinans' 'amal argument on this point, saying, "Whoare these people because of whose 'amal these hadtths are not acted upon?'

" See Ibn Rushd, I. 104-5. This particular instance was later to become a major pointof dispute in al-Andalus between the traditional MalikTs and the increasingly influentialahl al-hadith, as discussed in recent articles by Fierro (e.g. 'Polemique'; 'Hadith', esp.83—4, 90; 'Derecho Mahki', esp. 130-1). Fierro, however, mistakenly assumes the oppon-ents of the ahl al-hadith position to be ahl al-ra'y ('Polemique', 90; 'Hadith', 90; 'DerechoMaliki', 127ff.) whereas they are in fact ahl al-'amal—having an 'amal-based, ratherthan a ra'y- or hadith-based, fiqh—which is a very different proposition.

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for Hafsa bint cAbd al-Rahman (a niece of hers) in her marriage to al-Mundhir ibn al-Zubayr (a nephew of hers) while the girl's father wasaway travelling. Ibn al-Qasim does not deny the authenticity of thehadtth, but says, 'We do not know what the explanation (tafstr) of thisis, except that we assume that she appointed someone else actually tocontract the marriage.' Sahnun then raises the point that, according toMalik, such a marriage would be invalid, even if she had appointedsomeone else, and even if the girl's father had agreed. Ibn al-Qasimreplies:

This hadtth has come down to us. If it had been accompanied by continuous'amal up until the time of those we met and from whom we took [knowledge],and they likewise from those they had met, it would be correct to follow it.But in fact it is like other hadiths which are not accompanied by 'amal, suchas what has been related from the Prophet, may Allah bless him and grant himpeace, regarding using perfume while in thram, and the report that has comedown from him where he said, 'A fornicator is no longer a believer when hefornicates, nor [is a thief] a believer when he steals', whereas Allah has revealedthe punishment [for fornication] and [the punishment of] cutting off the hand[for stealing] only for believers. Various things have been related from theCompanions which have not been bolstered [by anything else] or been consid-ered strong enough [to put into practice] (lam tashtadda wa-lam taqwa), whileother things have been put into practice and been followed by most people andmost of the Companions.

This hadtth thus remains neither rejected as inauthentic nor acted upon(ghayr mukadhdhab bi-hi wa-la ma'mul bt-hi). Rather, other hadiths that wereaccompanied by practice have been acted upon and transmitted by the Suc-cessors of the Companions of the Prophet, may Allah bless him and grant himpeace, from the Companions, and have then been transmitted from theseSuccessors in the same way, without them either rejecting them as inauthenticor denying what has been transmitted. What was not acted upon is left asidewithout rejecting it as inauthentic, and what was acted upon is acted upon andaccepted as authentic (yusaddaqu bt-ht).

[In this case] the 'amal which is well attested to and accompanied by practiceis [the judgement indicated by] the words of the Prophet, may Allah bless himand grant him peace, 'A woman should not be married without a legal guard-ian', and the words of 'Umar, 'A woman should not be married without a legalguardian', and the fact that 'Umar separated a man and a woman who hadmarried without a legal guardian.84

14 Mud. IV. 28f.; also Abd-Allah, 'Concept', 179-81. For the hadith in question, seeMuw. n. 18; and, for the judgement in the last paragraph, Muw. ii. 3. Schacht takesthis passage as clear evidence that the 'practice' existed first and traditions from theProphet and from Companions later (see Origins, 63). What the passage in fact showsis not a contrast between hadiths on the one hand and practice, unconnected to hadiths,on the other, but rather a contrast between two types of hadith, namely, those that wereaccompanied by 'amal and those that were not (cf. Azmi, On Schacht, 571.).

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The important conclusion to be drawn from these examples (andthere are many others) is that, although for Malik the textual sourcesof the Qur'an and the hadith are treated with the utmost respect, theyare, as Abd-Allah has observed, 'dependent or ancillary sources in thatthey are evaluated against the semantic context of 'amal'." Thus it isthe non-textual source of €amal that constitutes the basic source, and,indeed, carries the greater authority.8* Again, as Abd-Allah has pointedout, Malik studies hadtth against the background of Madinan 'amal,while those who disagreed with him (particularly the Iraqis—repres-ented by Abu Yusuf and al-Shaybanl—and al-Shafi'I) study Madinan'amal against the background of hadtth" and the two, as is clear fromthe above, often contradict each other.

'Amal, then, was preferred to hadtth by the Madinans. The followingpassage by Ibn Qutayba in his Kitab Ta'wil mukhtalif al-hadtth givesa comprehensive summary of why:

In our opinion the truth is more likely to be established by tjma' than by thetransmission of hadtth (al-riwaya). Hadlth may be subject to forgetfulness,error, uncertainties, different possible interpretations, and abrogation; someonetrustworthy may transmit from someone who is not; there may be two differentcommands, both of which are possible, such as making either one or twotaslims [at the end of the prayer]. Similarly, a man may have been presentwhen the Prophet, may Allah bless him and grant him peace, gave a certaincommand and then been absent when he told [people] to do something different:he will then transmit the first command and not the second, because he doesnot know it. //'ma1, however, is free from such vicissitudes. This is why Malik,may Allah have mercy on him, sometimes transmits a hadtth from the Messen-ger of Allah, may Allah bless him and grant him peace, but then says, 'The'amal in our city is such-and-such', mentioning something that is different tothe hadith. [This is] because his city was the city of the Prophet, may Allahbless him and grant him peace, and if the 'amal in his time included such-and-such a practice, that would have become the 'amal of the following generation,and the generation after them, and the generation after them—and it is notpossible that all the people would have stopped doing something that theywere all doing in his city at his time and then done something else instead—and one generation from one generation is a much greater number than onefrom one. Indeed, people have related many hadtths with complete chains ofauthority (muttafila) and then not acted according to them."

" See 'Concept', 380. " See ibid. 399. 17 See ibid. 300." Ibn Qutayba, Mukhtalif al-hadith, 331-2; Goldziher, Muslim Studies, ii. 88 (where

the same passage is incompletely cited). For a similar assessment by Ibn Rushd (al-Jadd)in his commentary on the 'Utbtyya, see Bayan, xvn. 604 (also 331-2); Schacht, 'Manu-scripts in Morocco', 30 (where the same passage is incompletely cited).

For this ancient Madinan attitude to lamal v. hadith, see also Schacht, 'Manuscrits aFes', i. 274; idem, 'Abu Mus'ab', 9-10.

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Malik and the Madinans thus held that 'amal was the better indica-tion of the sunna, whereas the Iraqis and later al-Shafi'I held that theauthentic sunna was that which was supported by authentic reportsand that 'amal was not acceptable unless it was supported by suchreports. In other words, they considered that a textual source whoseorigin was known for certain should be given preference over a non-textual source whose origin could not be known for certain. For Malik,however, it is not hadith but 'amal that is the primary source ofnormative sunna. Indeed, as we have noted, he judges hadith againstthe criterion of 'amal, which is to say that he judges hadith by referenceto the sunna rather than judging sunna by reference to the hadith.

The 'amal v. hadith argument is thus really an extension of theargument about the meaning of the word sunna, and it is a lack ofunderstanding of this argument, and thus of the word sunna, that hasled to the confusion among scholars, both past and present, referred toabove. Indeed, in the light of the 'amal v. hadith argument, both the'classical' and 'revisionist' views about sunna referred to above,although opposed to each other, can be seen to be essentially similarin that they are both text-based—the one from a positive, the otherfrom a negative, standpoint—whereas the third view—that of the'ancient' Madinans as exemplified in Malik's Muwatta'—represents afundamentally different perspective on Islamic legal history where thetrue expression of the law is seen as preserved not in a corpus of textsbut in the actions, or 'amal, of men.

This third view thus agrees with the traditional view—against therevisionists—in seeing Islamic law as based on Qur'an and sunna fromthe beginning, but it disagrees with the traditional position with regardto how this sunna is defined. For whereas sunna in the traditional,'classical' sense refers almost invariably to hadith (as Schacht pointsout),8' in its Muwattan, 'pre-classical' sense it is by no means cotermin-ous with hadith (as Schacht again points out),90 but is, rather, intimatelylinked with the idea of 'amal, or 'practice' (Schacht also uses theexpression 'living tradition' to cover this concept).91 That is, hadithrefers to texts whereas sunna refers to action. However, not only mustsunna be distinguished from hadith, but—and this is where the Muwat-tan view diverges from the Schachtian—sunna must also be distin-guished from 'amal, though not in the same way. For whereas sunnain its Muwattan sense refers to a practice originating in the practice,or sunna, of the Prophet—and thus is indeed his sunna—'amal is abroader concept which includes not only the sunna established by theProphet but also the ijtihad of later authorities. Thus all sunna is 'amal,but not all 'amal is sunna; indeed, as we have noted, Malik typicallydifferentiates those parts of 'amal that contain elements of later ijtihad

" See Schacht, Origins, 77 (also 4, 59, and 44, n. 2).»° See ibid. 77. " See ibid. 58.

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SUNNA, HADITH, AND MADINAN 'AMAL Z$

in addition to a base in Qur'an and/or sunna by using the word amrrather than sunna.91

What the Muwatta' shows most clearly is that these elements—Qur'an, sunna, and ijtihad—are seen as inextricably bound togetherinto one whole, that is, the 'amal of the people of Madina. Thusalthough the Muwatta' is seen by both traditional and revisionistscholars as an early book of hadith, representing for the first group akind of prototype sahih hadith collection with its tsnads not yet suffi-ciently elaborated and its ra'y not yet excised, and representing for thesecond a relatively similar picture of a midway stage where there is stillconsiderable reliance on the opinions of early authorities rather thanon the hadith of the Prophet alone, it is in fact neither of these. Rather,it presents a composite picture of what Malik considered to be theessential aspects of the din in action. The Qur'an is there—in very largemeasure—and so too is the sunna of the Prophet; but so too are thejudgements and ijtihad of the caliphs, governors, and scholars (includingMalik himself) right through from the time of the Rightly GuidedCaliphs to when Malik was compiling his material in the first half ofthe second century, and none of these elements can ultimately beseparated from the others. A particular practice may ostensibly derivefrom the Qur'an, or from the sunna of the Prophet, or from laterauthorities, but it is seen as part of a whole—the existential, livedreality that Malik found himself in, so that he could describe it bysaying, for example, '[This is] the sunna here, and [this is] what I havefound the people of knowledge in our city doing', or, 'This is what hasalways been the position of the people of knowledge here.' What Malikeffectively presents us with is a package, and this package, althoughreaching us in the textual form of the book entitled 'the Muwatta",was essentially one of 'amal, i.e. action, rather than texts, hence theconstant reference throughout to what people were actually doing.

What we further see suggested by the Muwatta' is a process wherebythe original picture of lamal—intimately linked, as we have said, withthe idea of sunna but by no means synonymous with it—graduallybecomes replaced outside Madina, first in Iraq and then later practicallyeverywhere else, by hadith, which is then called sunna but often doesnot represent the sunna at all. Thus what begins in Madina as an lamal-based din (represented by Malik) becomes partially systematized in Iraq(represented by Abu HanTfa) and then even more so by al-Shafi'T; thusby the time we come to Ahmad ibn Hanbal, who preferred weak hadithsto no hadiths at all, and Dawud al-ZahirT, for whom even qiyas wasout of the question, we have reached an almost totally hadith-based,i.e. text-based, religion. This was clearly not Malik's view of Qur'anand sunna, for whom 'amal, i.e. 'action', was paramount.

See above, 13-14.

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The particular importance of the Muwatta', then, lies in its beingnot only our earliest formulation of Islamic law, but also our earliestrecord of that law as a lived reality rather than a later theoreticalconstruct. In it we see judgements being handed down and precedentsbeing created not only by the Prophet, the Rightly Guided Caliphs, andother senior Companions, but also by later caliphs, governors, andscholars in a continuous extension of the initial Qur'anic impulse asand when circumstances demanded. Furthermore, it represents Islamiclaw and legal literature before the major change of methodology pro-pounded by al-Shafi'T, with his insistence on the overriding authority ofProphetic sunna as preserved by hadith rather than the old idea ofProphetic sunna as preserved by lamal, was to transform it radicallyand lead to the great upsurge in the importance given to hadith in thethird and fourth centuries AH.

In the Muwatta' Malik records the hadith that the Prophet said: 'Ihave left among you two things and as long as you hold fast to themyou will not go astray: the Book of Allah and the sunna of HisProphet.'93 What the Muwatta' shows us is that Islamic law as it waspractised in Madina in the second century AH was indeed based on'the Book of Allah and the sunna of His Prophet'—may Allah blesshim and grant him peace—but as transmitted by 'amal rather thanhadith.

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